Sentencing Law and Policy

Is legislation to lower federal sentences a real possibility in 2008?

In this recent post, I hinted at my own pessimism about the prospects of legislation to lower federal sentences during an election year.  But this new article from the Houston Chronicle strike a distinctly more optimistic tone.  Here a excerpts:

The tough-on-crime crackdown of the 1980s and 1990s is getting a second look in Congress. Some lawmakers, including Houston Rep. Sheila Jackson Lee, are questioning whether the soaring incarceration rates brought about by changes in federal sentencing laws have actually deterred crimes....

Jackson Lee, who serves on the House Judiciary Committee's crime subcommittee, is part of the vanguard re-examining a criminal justice system that has seen the federal prison population double from 1.1 million inmates in 1990 to 2.3 million today [sic: these numbers are national incarceration, not the federal prison population]....

The momentum for change reaches beyond liberal lawmakers and left-leaning interest groups. The Supreme Court and the Sentencing Commission recently moved to give judges more discretion in sentencing crack cocaine offenders....

Rep. Lamar Smith of San Antonio, the top Republican on the Judiciary Committee, will be among those standing in Jackson Lee's way.  After the Sentencing Commission's decision to allow judges to retroactively reduce crack offenders' sentences slightly — though not less than the mandatory minimums — Smith introduced his own legislation seeking to block any early releases. "In addition to endangering our communities, allowing the early release of criminals back into society would cripple our re-entry programs by overburdening probation officers and flood the courts with additional litigation," Smith said....

Jackson Lee, who also is pushing to cut prison rates by half for nonviolent federal offenders who are over the age of 45 and have served at least 50 percent of their sentence, said she is hopeful that the new Democratic majority in Congress will be able to prevail on criminal justice changes.  "The question of liberty is so important to me, and the question of having faith in the integrity of the criminal justice system," she said. "There is a sense of urgency to make right which has been wrong, to improve what has not worked, and to find ways to rehabilitate, to protect the American public from crime but at the same time give people a second chance."  Her views are far from universally shared. Jackson Lee acknowledged the legislation faces a strong challenge, though the congresswoman said she has high hopes of getting it into law this year.

For lots and lots and lots of political and practical reasons, I doubt significant sentencing reforms will emerge from Congress in 2008.  But perhaps I am being too pessimistic at a time when everyone seems to be getting on the change bandwagon. 

Where "acceptance of responsibility" outer limits meets the sentencing twilight zone

A new Tenth Circuit opinion in US vs Lozano, No. 06-1424 (10th Cir. Jan. 30, 2008) (available here) makes it hard not to recall classic sci-fi television shows like "The Outer Limits" and "The Twilight Zone."  (Perhaps I should do a podcast about Lozano to honor this famous opening: "There is nothing wrong with your sentencing instincts. Do not attempt to adjust the guidelines. We are controlling calculations.") 

Here is the opening paragraph of an interesting opinion in Lozano, which is principally about the application of the guidelines' provisions on acceptance of responsibility:

Cecilia Lozano, convicted of two drug counts, but acquitted of a drug conspiracy charge, essentially argues that, due to the district court’s technical sentencing error, she was entitled to more consideration for acceptance of responsibility than she received.  Because the court’s technical error “places us in the zone of speculation and conjecture,” we remand for resentencing so that the district court may determine the sentence it thinks proper under the guidelines and the 18 U.S.C. § 3553 factors. United States v. Labastida-Segura, 396 F.3d 1140, 1143 (10th Cir. 2005).

Interesting new FSG resource

A helpful reader sent me this e-mail alerting me to this notable and interesting web resource:

For a few months, I've been running a web site that performs basic calculations under the federal sentencing guidelines. It should run in any browser with JavaScript enabled; no need for users to install any special software. The site is free, and has no advertisements.

It can handle most of the Chapter Two guidelines, and things like grouping and criminal history, but does not yet support Chapter Five departures. It also pays no attention to statutory maximums. Obviously, no lawyer should ever rely on this (or any other) tool without going through a guideline calculation by hand, but it is still useful for some things.

Please check it out at http://www.sentencing.us/ and feel free to let others know about it.

Because I do not regularly run guideline calculations, I cannot effectively test the efficacy of this resource.  But the idea is great, and I hope others who do often calculate guideline ranges with check out this site and report on its virtues (or possible vices).

In addition to thanking the creator of this site, I cannot help but wonder why this kind of resource is not provided directly by the US Sentencing Commission on its website.

Two troubling rulings from the circuits

Wednesday brought a number of notable circuit sentencing ruling in addition to the previously noted decisions from the Third Circuit and from the Sixth Circuit.  The two that really grabbed my attention (and concern) are decisions from the Fifth and Eleventh Circuits:

• In US v. Newson, No. 06-41115 (5th Cir. Jan. 22, 2008) (available here), the Fifth Circuit approves prosecutors' decision to refuse to move for an additional point of acceptance-of-responsibility credit under the guidelines simply because the defendant refused to agree to waive his right to appeal as part of a plea agreement.  Though I have long been troubled by appeal waivers in general, the Fifth Circuit's formal approval of this particular technique for securing such waivers is especially disconcerting.

• In US v. Ramirez, No. 07-13060 (11th Cir. Jan. 23, 2008) (available here), the Eleventh Circuit approves of a 60-month statutory maximum sentence in a case where the guidelines recommended a sentence of only 8-12 months.  Citing Gall and Rita extensively, the panel affirms with a cursory analysis suggesting that sound procedures employed by the district court made reasonable this high sentence.  In so doing, however, the panel seems to essentially abdicate its responsibility to assess the substantive reasonableness of a stat-max sentence when the defendant had viable arguments that his sentence was far greater than necessary in light of all the 3553(a) consideration.  Though Justice Scalia argued against any substantive reasonableness review in Rita, the majority of the Justice have clearly held that some sentence can and should be deemed substantive unreasonable even if and when the procedures used by the district court were sound.

UPDATE:  In response to some of the commentors, I have done this extended new post explaining more fully my conerns with the Ramirez ruling.

Drugged commentary on the sentencing week that was

Over at FindLaw, Mark Allenbaugh has this new piece titled "A Positive Development in All the Sentencing Insanity: How The Supreme Court and the U.S. Sentencing Commission Have Begun to Correct the Damage Done by the War on Drugs." Here is how it starts:

Since the Nixon Administration, our nation has been engaging in a relentless, yet futile War on Drugs — not on crime, but specifically on drugs.  This war has not only been costly, but also done virtually nothing to stem the influx of drugs into our nation or Americans' drug use.  In fact, some have argued that the War on Drugs has actually created incentives for illicit drug manufacturers to develop new products such as methamphetamine and Ecstasy, as well as to develop better and more efficient distribution channels through Mexico, and perhaps even China.

And yet, despite clear indications that we long ago lost this war (at least as defined by the ways we are fighting it and the rhetoric we use), we mindlessly continue along the same path.

But despite all this despairing history, there now is a glimmer of hope for more sane drug sentencing — in the form of two December 10 decisions from the Supreme Court.

I do not view last week's amazing federal sentencing events as anything close to a referendum or even a significant turning point on the "war on drugs."  That said, I do not think it is coincidental or inconsequential that Gall and Kimbrough involved drug offenses.  And, as Mark's commentary notes at the end on this commentary, the critical question going forward is "What Will Congress Do?".

AFDA webcast on lastest federal sentencing developments

As detailed on this page, Gregory Nicolaysen, the founder of the Association of Federal Defense Attorneys (AFDA), has organized another of his great audio webcast for this Wednesday (December 19) at 12noon ET to allow me to discuss Kimbrough, Gall, the new crack guidelines and related federal sentencing happenings  and its possible aftermath. 

Unlike other groups seeking big bucks for webcasts, the AFDA usually only charges a nominal fee and the Greg has made this webcast free for everyone.  The webcast will be an informal interview conducted over live streaming audio, with accompanying text posted to a viewing screen and links to PDF files containing materials relevant to the topics discussed. To attend this webcast, simply:

• Go to the AFDA home page and put your cursor on the Audio Webcast bar, then...
• In the drop-down menu that appears, select "Attend A Webcast," then...
• Enter the following: Username: AFDA (all caps; case-sensitive); Password: 121907

Though I plan primarily to recap and expand upon some commentary already appearing here, I'd be grateful if readers might use the comments to note any issues that seem particular important for me to cover during this webcast.

Quite a Monday on tap for federal sentencing fans

Monday is the scheduled sentencing date for two high-profile and very distinct federal defendants: Conrad Black and Michael Vick.  (This new AP story provides some Black background, and this new local piece provides some Vick basics)

In part because Black lost at trial and Vick pleaded guilty, it is virtually assured that Black will be getting a much longer sentence than Vick.  But there is a lot of legal and factually uncertainty surrounding both cases as sentencing approaches.  Moreover, Black is still free on bail and could remain free for a long time if he is granted bail pending appeal.  Meanwhile, Vick is already serving his (not yet imposed) federal sentence, and he could very well complete his sentence before Black starts his (again, if Black gets bail pending appeal).

In addition, there is a chance (though I think a slim one) that the Supreme Court will hand down opinion in Gall and Kimbrough on Monday.  And, if that's not exciting enough, on Tuesday we may get a decision from the US Sentencing Commission concerning the retroactivity of its new crack guidelines (basics here).  I may need to keep celebrating Repeal Day to stay calm during all the sentencing excitement.

Fifth Circuit approves upward departure based on "remote" uncharged conduct

Providing yet another example of Blakely principles being dishonored, the Fifth Circuit yesterday in US vs. Newsom, No. 06-10822 (5th Cir. Nov. 16, 2007) (available here), approves an upward departure based on uncharged conduct with only a remote connection to the offense of conviction.  Here are key snippets from the Newsom ruling:

Newsom argues that the district court erred when it upwardly departed at sentencing pursuant to § 5K2.21 based on his uncharged conduct involving drug distribution and unlawful firearms possession. He contends that § 5K2.21 permits an upward departure for uncharged conduct only if the conduct is related to the offense of conviction [which in this case involve theft of explosives].  We have only addressed § 5K2.21 generally in a limited number of cases, and so Newsom’s appeal presents an issue of first impression for our court....

[W]e join those other circuits, such as the Eighth Circuit, in interpreting § 5K2.21 as requiring some degree of connection between uncharged and charged offenses, although even a remote connection will suffice.  Turning to the facts of this case, we conclude that Newsom’s argument is without merit. Newsom’s uncharged conduct involves drug distribution and illegal firearm possession. Given that Newsom and his co-defendants, Hardin and Garrett, had a history of trading guns for drugs, and were all high on drugs the night they stole the explosives, we find that there is a sufficient connection between the uncharged and charged offenses.

Seventh Circuit finds "fairly pernicious scrivener’s error" in presumptively reasonable guidelines

Even a circuit generally eager to praise the reasonableness of the sentencing guidelines cannot always avoid acknowledging their flaws.  Today, for example, the Seventh Circuit vacates a within-guideline sentence in US v. England, No. 06-2381 (7th Cir. Nov. 7, 2007) (available here), although the panel does not declare the imposed sentence unreasonable.  Rather, the sentence is vacated because the district court did not assess possible sentencing disparities resulting from following the guidelines in an quirky case in which "it appears that the Sentencing Guidelines might have a fairly pernicious scrivener’s error."

Crunching the numbers on a presumption of reasonablenss

I was very pleased to learn of this new article on SSRN, which examines empirically the impact of the presumption of reasonableness for within-guideline sentences.  The article by Alex Robbins and Lynda Lao is entitled "The Effect of Presumptions: An Empirical Examination of Inter-Circuit Sentencing Disparities After United States v. Booker," and here is the full abstract:

In the two years since United States v. Booker, the circuits have divided over how to use the Federal Criminal Sentencing Guidelines when reviewing sentences imposed by district courts. Seven circuits have held that a sentence within the Guidelines range is entitled to a presumption of reasonableness on appeal; five have held that it is not.  Although the Supreme Court's recent holding in Rita v. United States allows the courts of appeals to adopt a presumption of reasonableness for within-Guidelines sentences, it does not require them to, and so the circuit split remains.

Using this circuit split as a natural experiment, we undertake what we believe to be the first statistically robust analysis of the effect of a presumption of reasonableness on sentences imposed at the federal district court level.  Specifically, using 145,047 individual-level observations recorded by the United States Sentencing Commission (comprising all recorded federal sentences in all twelve circuits for a one-year period beginning in November 2004 and ending in October 2006), we perform a multivariate regression analysis to determine how a circuit's adoption or rejection of a presumption of reasonableness for within-Guidelines sentences affects the frequency with which district courts impose below-Guidelines sentences.  We find that a circuit's adoption of a presumption of reasonableness decreases the frequency of below-Guidelines sentences by less than one percent, although this result is statistically significant.

Our results do not, however, robustly support the inverse hypothesis that a circuit's rejection of a presumption of reasonableness increases the frequency of below-Guidelines sentences. The effect of such a rejection is insignificant when we control for circuit-specific fixed effects, and appears to be driven almost entirely by the particular behavior of the Second Circuit.  Finally, we are similarly unable to find robust empirical support for the hypothesis that intercircuit differences in sentencing after Booker can be explained simply by a circuit's underlying characteristics.

Second Circuit discusses loss calculations in white-collar fraud sentencings

Toward the end of a relatively long opinion, the Second Circuit discusses at some length (though with some opaqueness) the calculation of loss under the guidelines in US v. Rutkoske, No. 06-4067 (2d Cir. Oct. 25, 2007) (available here).  Here is one of many key passages from the discussion:

The Government contends that the principles set forth in Dura Pharmaceuticals, a civil case, should not apply to loss calculation in a criminal case.  The dicta in Ebbers strongly undermines that position.  Moreover, we see no reason why considerations relevant to loss causation in a civil fraud case should not apply, at least as strongly, to a sentencing regime in which the amount of loss caused by a fraud is a critical determinant of the length of a defendant’s sentence.

Because loss calculations are extraordinarily important in most major fraud cases, and because the Second Circuit is a venue for many such prosecutions, Rutkoske is necessarily an important ruling for all white-collar criminal cases involving loss issues.

A reasonable analysis of the challenges of reasonableness review

Over at FindLaw is this new essay by Mark Allenbaugh and Donald Purdy discussing the Gall and Kimbrough cases. The piece is entitled "Drugs, Disparity, and Judicial Sentencing Discretion: Two Cases Invite the Roberts Court To Finally Clarify What Constitutes A Reasonable Sentence Under the Now-Advisory U.S. Sentencing Guidelines."  Here are snippets:

During oral argument, the Court clearly was concerned about the lack of a clear substantive definition on appeal for "reasonableness" in this context.  The Court seems caught between a rock and a hard place.  A forgiving "reasonableness" standard would essentially take federal sentencing back to the pre-Guidelines era, where similarly-situated defendants could and did receive grossly disparate sentences. Yet a strict and closely-Guidelines-based reasonableness standard, conversely, would seem to simply effectively make the Guidelines mandatory once again....

Without clarification from the Court regarding both appellate "reasonableness" review and the specific meaning of the Court's declaration that the Guidelines are now advisory, federal sentencing will become increasingly chaotic, and we will indeed see the strange "Wonderland" of sentencing Justice Scalia predicted in his dissent in Booker two years ago.

Debating discretion: time for oral argument in Gall and Kimbrough

It is sentencing two-for-Tuesday in the Supreme Court later this morning: the Gall and Kimbrough reasonableness cases are due to be argued starting at 10am (and transcripts of the arguments ought to be available here by this afternoon).  Warren Richey has this article in the Christian Science Monitor previewing both cases, and the AP has this new report focused on Kimbrough and crack sentencing.

I have, of course, lots and lots of posts on these cases, most of which can be accessed through the Gall case index and the Kimbrough case index (the briefs are there, too).  In addition, the posts spotlighted below have some of my focused commentary on these cases.

• SCOTUS scratches my sentencing itch, but also has me scratching my head
• Read all about Rita (and get ready for Gall and Kimbrough)
• A few of my scholarly thoughts on Rita

On Gall:

• Talk about having Gall
• Is Gall the most important SCOTUS sentencing case?
• Detailing sound "policy disagreements with the Guidelines" to justify variances

On Kimbrough:

• Thinking through Kimbrough and the state of crack sentencing
• Latest FSR issue covers crack sentencing
• Should Kimbrough be vacated and remanded given USSC amendments and SG concessions?

UPDATE:  NPR has this nice overview piece by Nina Totenberg , and SCOTUSblog has basics and links to its wiki here.

Eighth Circuit adjudicates state justification law to uphold sentencing enhancement

I will never ceased to be amazed at all the state substantive criminal law that federal courts adjudicate (by a preponderance of the evidence) as part of federal guideline sentencing.  Today the Eighth Circuit has a fascinating short ruling in US v. Raglin, No. 06-3432 (8th Cir. Sept. 4, 2007) (available here) that ought to intrigue everyone in law school interested in any of a variety of criminal law issues.

The facts in Raglin read like a Crim Law exam (in fact, I'll have to remember this case when I have an exam to write).  Undercover cops posing as drug dealers went onto the defendant's property, though they moved to nearly public property when the defendant yelled at them.  Apparently unhappy with their continued activity, the defendant then came out of his house with a loaded gun to shoo these "drug dealers" away.  But then the cops showed their badges, chased the defendant into his house, and arrested him.  Notably, the defendant "was charged with aggravated assault in state court, but that charge was dismissed after he was indicted on this federal charge [of felon in possession of a firearm]."

I'll make everyone read the case to see how all this becomes a federal sentencing issue (and since it is an Eighth Circuit case, you already know the outcome).  But, as a Blakely fan, I cannot help but note this case as yet another amazing example of federal judges essentially trying defendants (by a preponderance of the evidence) for unadjudicated state crimes in order to apply federal guideline enhancements.  Personally, I really don't think Raglin is what the Framers had in mind when they created a system of limited federal government and wrote detailed criminal procedural rights in the first Eight Amendments.

Intriguing split First Circuit ruling on sentence for failing to appear

Anyone interested in statutory interpretation as well as sentencing should check out the First Circuit's work today in US v. Smith, No. 07-1246 (1st Cir. Aug. 21, 2007) (available here).  A split panel comes to different view on this issue (as stated in the majority opinion):

[In this case we must] decide a surprisingly controversial question: if the failure to appear relates to a supervised release revocation hearing, is the relevant punishment under the statute the period of incarceration available for the supervised release violation, or the period of incarceration available for the underlying offense which led to the imposition of the supervised release condition?

S.COTUS here in his summary at AL&P provides this amusing account of the First Circuit's work in answering this question:

Using the rhetoric of “plain language” (and, of course, looking outside the statute) the First concludes that a supervised release violation isn’t a “criminal offense.”

[Judge] Selya dissents, saying that the result doesn’t track Congress’s intent, which was “...plainly to create a hierarchy of penalties geared to the magnitude of the sentence that was at stake in connection with the proceeding for which the defendant failed to appear.”  Oh great.  The majority says the text is “clear” (and looks outside the statute) and the dissent says that the “intent” is clear.

Great new resource on judicial views on the federal sentencing guidelines

I am  happy to know about a spotlight a great new federal sentencing resource created by Professor David Zlotnick, who in recent years has been doing some of the most innovative and important "ground-level" work on federal sentencing reforms.  Here is David's own description of his new website:

I am pleased to announce that the website for my federal sentencing project can be now be accessed at this link. The underlying research for this project was funded by a Soros Senior Justice Fellowship grant and was conducted over the past four and a half years. The heart of the work is contained in forty comprehensive case studies of federal cases in which Republican appointees complained that the sentences required by law were excessive. These profiles are the most comprehensively documented cases studies of federal sentencings available on the Internet.

The site also includes a draft of my forthcoming article in the Colorado Law Review, "The Future of Federal Sentencing Policy: Learning Lessons from Republican Appointees in the Guidelines Era." This article contains a blueprint for sentencing reform legislation that might resonate with this cohort of federal judges in the post-Booker era.

The launch of the website this summer is intended to allow my work to be used by sentencing reformers in the upcoming debate in Congress over the Sentencing Commission's proposed changes to the crack cocaine penalties. By showing that Republican appointees share many of the same concerns as academics and criminal defense attorneys, I hope to explode the myth of the liberal federal judiciary and pave the wave for meaningful and bipartisan sentencing reform.

Ninth Circuit limits application of firearms enhancment

In a case that mentions Rambo and quotes from 12 Angry Men, a Ninth Circuit panel today in US v. Jimison, No. 06-30417 (9th Cir. July 16, 2007) (available here), limits the reach of a firearms enhancement under the federal sentencing guidelines.  Perhaps the fact that Hollywood is within the circuit helps account for the cinematic qualities of the decision in Jimison.

Ninth Circuit panel debates sentencing enhancement

Anyone seeking an interesting Scooter sentencing break can check out today's split Ninth Circuit panel decision in US v. Gonzales, No. 05-10543 (9th Cir. July 3, 2007) (available here).  The majority in Gonzales upholds a "district court's decision to impose a nine-level sentencing enhancement for reckless endangerment of the aircraft" over a lengthy dissent by Judge Tashima.  (Given the colorful facts described by the majority, I doubt President Bush will be reducing Salvador Gonzalez's sentence anytime soon.)

Some empirical realities of federal sentencing decision-making

Fortuitously timed in light of the Rita ruling, Max Schanzenbach and Emerson Tiller now have here posted on SSRN an important new paper entitled "Reviewing the Sentencing Guidelines: Judicial Politics, Empirical Evidence, and Reform." Here is the abstract:

This article presents the first large-scale empirical study of federal guidelines sentencing that matches offenders to the sentencing judge. We confirm the widely-held belief that political ideology matters in criminal sentencing – specifically, Republican-appointed judges give longer sentences than Democrat-appointees with regard to certain crimes.  More interestingly, we find evidence consistent with positive political theory that such decision making is nested within the broader political-ideological relationship of the sentencing judge and the overseeing circuit court.  We find, for example, that Democrat-appointed judges depart from the Sentencing Guidelines to give shorter sentences more often and to a greater degree when the reviewing court is politically aligned (circuit majority Democrat-appointed) than when not aligned (circuit majority Republican-appointed).  We then discuss the Supreme Court's evolving sentencing jurisprudence and the likely impact of alternatives to the present system.

We conclude that Guidelines improves sentencing consistency and preserves the benefit of appellate review.  We also proposes two potential reforms: first, mandating open access to judge identifiers in sentencing data for researchers to study sources of judicial bias; and, second, mandating ideologically mixed appellate panels for review of criminal sentences to prevent the more extreme instances of ideological alignment that frequently occur between district and circuit court panels that lead to more extreme outcomes in sentencing.

Download it while Rita is hot....

SCOTUS scratches my sentencing itch, but also has me scratching my head

I am, of course, excited that the Supreme Court has now taken up two new federal sentencing cases, Kimbrough from the Fourth Circuit and Gall from the Eighth Circuit, to deal with post-Booker sentencing issues (basics here).  Based on a quick review (and helpful reader comments) and more from SCOTUSblog, it seems that that Gall is a partial replacement for the Claiborne case because it addresses a below-guideline sentence reversed by the Eighth Circuit.  But unlike Claiborne, Gall is not a crack case, so Kimbrough was apparently taken to allow the Justices to address directly whether a district court may deviate from the guidelines based on a disaffinity for the harsh crack guidelines.

Perhaps the key and most significant fact in both Gall and Kimbrough is that the district court in both cases imposed a below-guideline sentence that a circuit court thereafter reversed as unreasonable.  In sharp contrast, the Rita case still pending before SCOTUS (and still expected to be decided this term?) deals with a within-guideline sentence imposed by the district court and affirmed as presumptively reasonable by the Fourth Circuit.  Also significant is that the Supreme Court apparently plans to hear Gall and Kimbrough under a normal schedule next Fall, but likely still will issue a ruling in Rita this month.

So, adding up these pieces, what does this likely mean for the future of federal sentencing law and post-Booker jurisprudence?  I am still scratching my head, but let me venture a few ruminations:

1.  Based on the 1996 Koon decision, I have long thought that even anti-Blakely Justices favor significant district court discretion over circuit court lawmaking in the sentence arena.  Consequently, I have always expect that the post-Booker cases would champion district court discretion (and perhaps fault excessive circuit court intervention) in sentencing determinations.

2.  The "problem" with Rita is that championing district court discretion by affirming the sentence imposed by the district court also serves, at least indirectly, to praise the guidelines.  (And, conversely, reversing in Rita might suggest reasonableness review should be aggressive.)

3.  Without the Claiborne companion, the Justices may be worried that Rita alone wont allow the development of the complete message they wish to send to lower courts about post-Booker doctrines and practices.

4.  But all the timing (and the many options) have me really puzzled.  Whatever the court does with Rita, the holding and the dicta will reverberate through the federal sentencing world ASAP.  And yet, as the Rita pebble (or boulder) ripples through the federal sentencing pond, everyone will know that the Justices have just picked up two more rocks to throw into the pond.  And, under usual timelines, we shouldn't expect rulings in Gall and Kimbrough until perhaps January 2008 or later.

5.  Sadly, I am now worried we might know who's the next President before we know what Booker really means for federal sentencing.  Oy vey.... though I guess it's good for my business.

Should SCOTUS now just remand Claiborne in light of the new USSC report?

The new USSC cocaine report provides so much to discuss (basics here), I am not sure where to start.  In the hope generating a lawyerly debate, I'll start with these provocative questions:

1.  Should the Justices now just simply remand the Claiborne case — which concerns the reasonableness of a below-the-old-crack-guideline sentence — to the Eighth Circuit for reconsideration in light of the new USSC report and amendments?

2.  Should the Justices request letter briefs on this issue from the parties and/or should Claiborne's lawyer or the Solicitor General request a remand?

Put simply, the new report and amendments from the USSC provides powerful new evidence about the reasonableness of crack sentences, especially for low-level offenders like Mario Claiborne.  Though I thought that Claiborne's below-guideline sentence was reasonable before the USSC latest analysis, the USSC report provides a lot of new information and perspective on any decision to give a below-the-old-crack-guideline sentence.

As question 2 suggests, this issues seems lively enough to justify soliciting input from the parties.  And, in my view, some (or all) of the lawyers might reasonably decide their client's interests would be best served by a simple remand without SCOTUS consideration on the merits. 

(Of course, I would be greatly disappointed if the Supreme Court does not fully address post-Booker sentencing realities this term.  But SCOTUS can and will speak to many post-Booker issues in Rita even if it were to remand Claiborne without any discussion of the merits.)

Conclusive proof old crack guidelines unreasonable

Though it's still a few more days until the US Sentencing Commission releases its new cocaine sentencing report (background here and here), the USSC has now posted on its website this reader-friendly version of all its new proposed guidelines amendments.  (It also has released online this Spring 2007 newsletter which summarizes the new amendments and other USSC developments.)

The reader-friendly document describing the reasons for the USSC's new crack changes provides further support for my long-held view that the old crack guidelines were presumptively unreasonable.  Consider these paragraphs (and especially the highlighted sections):

Current data and information continue to support the Commission’s consistently held position that the 100-to-1 drug quantity ratio significantly undermines various congressional objectives set forth in the Sentencing Reform Act and elsewhere.  These findings will be more thoroughly explained in a forthcoming report that will present to Congress, on or before May 15, 2007, a number of recommendations for modifications to the statutory penalties for crack cocaine offenses. It is the Commission’s firm desire that this report will facilitate prompt congressional action addressing the 100- to-1 drug quantity ratio.

The Commission’s recommendation and strong desire for prompt legislative action notwithstanding, the problems associated with the 100-to-1 drug quantity ratio are so urgent and compelling that this amendment is promulgated as an interim measure to alleviate some of those problems.  The Commission has concluded that the manner in which the Drug Quantity Table in §2D1.1 was constructed to incorporate the statutory mandatory minimum penalties for crack cocaine offenses is an area in which the Federal sentencing guidelines contribute to the problems associated with the 100-to-1 drug quantity ratio....

Having concluded once again that the 100-to-1 drug quantity ratio should be modified, the Commission recognizes that establishing federal cocaine sentencing policy ultimately is Congress’s prerogative. Accordingly, the Commission tailored the amendment to fit within the existing statutory penalty scheme by assigning base offense levels that provide guideline ranges that include the statutory mandatory minimum penalties for crack cocaine offenses.  The Commission, however, views the amendment only as an interim solution to some of the problems associated with the 100-to-1 drug quantity ratio. It is neither a permanent nor a complete solution to those problems.

This fully up-to-date and expert analysis from the USSC provides, in my view, conclusive evidence that a sentence imposed within the old crack guidelines is NOT likely to serve the purposes of punishment Congress set forth in 3553(a)(2).  Consequently, each every defendant sentenced within the old crack guidelines has a very strong basis for arguing on appeal that his sentence is unreasonable (and certainly that a presumption of reasonableness should not apply to any within-the-old-crack-guideline sentence).

Related posts on the USSC new crack work:

• USSC provides (yummy?) half-a-loaf crack amendment
• Why the USSC's new crack work is soooooo significant
• How will the new USSC crack work impact present (and past) cases?
• Previewing the (quite unpredictable) new federal politics of crack sentencing

Second Circuit reverses large downward departure

The Second Circuit today in US v. Canova, No. 05-6439 (2d Cir. May 8, 2007) (available here) reverses a large downward departure. Here is the opening paragraph of a lengthy and thoughtful opinion (written by one of my former bosses):

This sentencing appeal primarily concerns the reasonableness of a downward departure from a Sentencing Guidelines calculation and the reasonableness of the resulting sentence.  The Government appeals from the November 17, 2005, judgment by the District Court for the District of Connecticut (Alfred V. Covello, District Judge) resentencing the Defendant, John Canova, after a remand from this Court, to one year’s probation and a $1,000 fine. The Government contends that the District Court’s 15-level downward departure was unreasonable and that we should remand with instructions to impose a sentence of not less than 12 months.  We agree that a remand for resentencing is required, but decline to specify a minimum sentence.

Notably, Canova is remarkably guideline-centric, primarily because the district court apparently was intent to use guideline departure provisions, rather than the instructions of 3553(a), to justify a below-guideline sentence.  Because the Second Circuit does not address 3553(a) factors in this latest opinion, it would seem that the district court could yet again give its desired sentence by now relying on 3553(a) instead of traditional departure rationales.

USSC provides (yummy?) half-a-loaf crack amendment

As detailed in this official press release, the US Sentencing Commission has now completed a significant set of proposed amendments to the federal sentencing guidelines.  And though there are lots of big and small stories in all the proposed amendments, the biggest news concerns a proposed amendment to the crack guideline (and a coming report).  Here is the crack discussion of the USSC's press release:

[T]he Commission unanimously announced today that it will submit to Congress on or before May 15, 2007, a report on federal cocaine sentencing policy.  The report will set forth current data and information that continue to support the Commission's consistently held position that the 100-to-1 crack-powder drug quantity ratio significantly undermines various congressional objectives set forth in the Sentencing Reform Act and elsewhere.  The Commission also will make recommendations to Congress in the report for modifications to the statutory penalties for crack cocaine offenses.  At today's meeting, the Commission expressed its firm desire that this report will facilitate prompt congressional action addressing the 100-to-1 crack-powder drug quantity ratio.

The Commission also voted today to promulgate an amendment that modifies the penalties for crack cocaine offenses.  The Commission described the problems associated with the 100-to-1 drug quantity ratio as so urgent and compelling that it promulgated the guideline amendment as a measure to alleviate some of those problems.  The statutory penalties for crack cocaine offenses require a five-year mandatory minimum sentence for a first-time trafficking offense involving 5 grams or more of crack cocaine, and a ten-year mandatory minimum penalty for a first-time trafficking offense involving 50 grams or more of crack cocaine.  When Congress established these penalties in 1986, the Commission responded by incorporating the statutory mandatory minimum sentences into the guidelines to provide guideline sentencing ranges that are above the statutory mandatory minimum penalties. First-time offenses involving 5 grams or more of crack cocaine receive a sentencing guideline range of 63 to 78 months, and first-time offenses involving 50 grams or more of crack cocaine receive a sentencing guideline range of 121 to 151 months, before accounting for other relevant factors under the guidelines.

The Commission's amendment modifies the guideline drug quantity thresholds to provide guideline sentencing ranges that include the statutory mandatory minimum penalties for crack cocaine offenses. Accordingly, under the amendment, a first-time trafficking offense involving 5 grams of crack cocaine will receive a guideline sentencing range of 51 to 63 months, and a first-time trafficking offense involving 50 grams or more of crack cocaine will receive a guideline sentencing range of 97 to 121 months, before accounting for other relevant factors under the guidelines.  Under the statutory mandatory minimum penalties, however, a five- and ten-year sentence will still be required, respectively.  As a result, the Commission's amendment provides some relief to crack cocaine offenders impacted by the disparity created by federal cocaine sentencing policy.

The Commission emphasized and expressed its strong view that the amendment is only a partial solution to some of the problems associated with the 100-to-1 drug quantity ratio. Any comprehensive solution to the 100-to-1 drug quantity ratio would require appropriate legislative action by Congress.

The text of the Commission's amendments and its accompanying 2007 report to Congress, Cocaine and Federal Sentencing Policy, will be available in the coming weeks on the Commission's website, www.ussc.gov.

This is HUGE news, and pretty encouraging for those long hopeful for significant reforms to the crack guidelines.  And yet, even if/when these amendments become official, there is still a significant crack-powder disparity.  However, the language used in the official USSC press release has me optimistic that the USSC is really ready to rumble with Congress on these issues and that its May 15 report to Congress will be forceful.

Notably, FAMM already has this press release highlighting the mixed, but positive, realities of these major crack sentencing developments:

"While this incremental change is a far cry from the 'equalization' of crack and powder cocaine the Commission recommended in 1995, it is a long overdue first step to improving crack sentences," said Julie Stewart, president of Families Against Mandatory Minimums (FAMM).

The possible ripple effects of this fascinating USSC development on all the on-going work of all the federal sentencing players in each branch cannot be overstated.  Throughout the weekend, I plan to provide branch-by-branch commentary on how the USSC's actions could and should be received.

In KC with lots happening and perhaps coming crack guideline news!?!?

I am in Kansas City for a CLE presentation this afternoon, but have access to a computer just long enough to report that I do not have enough time to report all the stuff going on today.  Helpfully, How Appealing has great coverage of lots and lots of stuff that should be of interesting to sentencing (and blogging) fans, and Ohio Death Penalty Information and StandDown Texas Project have lots of new death penalty items.

But the biggest brewing news for federal sentencing fans comes from the US Sentencing Commission, which has just noticed this meeting for 7pm tonight (!).  On the agenda for the USSC version of Friday Night Lights is this tantalizing item: "Possible Votes to Promulgate and/or Publish Proposed Amendments on Federal Cocaine Sentencing."

I hope to be able to report on what comes from this meeting ASAP, and I am already giddy with anticipation about what the USSC might do on the crack front (and what the post-Booker implications might be for every branch of the federal government).  Also, as noted here, I have been hearing buzz about lots of other positive amendments in the works from the USSC, too.  So, though I will be off-line most of today, I expect the USSC could deliver news that will ensure I will be making up for lost time tonight and over the weekend. 

While I am away, anyone want to start speculating on exactly what the USSC might be doing on the crack guidelines?

Big FSG seminar now just a month away

As I have mentioned before, the Annual National Seminar on the Federal Sentencing Guidelines, co-sponsored by the US Sentencing Commission and the Federal Bar Association, is an event not to be missed.   The sixteenth version this year takes place in Salt Lake City, Utah on May 23-25.  All the particulars of this exciting event are set out in this event brochure, which highlights that the Seminar presents an opportunity to commune with the entire sentencing commission, many staff, key judges, prosecutors, professors and others coping with post-Booker realities.

I'll be there moderating a great panel on "Guideline Departures & Variances Outside the Range under § 3553(a)."   I am hoping, though doubtful, that Claiborne and Rita will be decided by event.  Even if they aren't, I am sure there will be plenty to talk about. 

Latest OSJCL issue on-line

Though it still does not yet feel like winter has ended the Spring 2007 issue of the Ohio State Journal of Criminal Law is already available on-line here.  Though I am biased, I think this new issue is terrific; the articles in the symposium on Mercy and Clemency and other pieces are all quite thought-provoking. 

Hard-core sentencing fans should especially enjoy the written-up version of Judge Nancy Gertner's OSU Blackmun Lecture.  Judge Gertner's essay is entitled "From Omnipotence to Impotence: American Judges and Sentencing," and can be accessed at this link.

Time to register for the annual FSG seminar

Now is the time to sign up for the Sixteenth Annual National Seminar on the Federal Sentencing Guidelines, co-sponsored by the US Sentencing Commission and the Federal Bar Association, which takes place on May 23-25 in Salt Lake City, Utah.  All the particulars of this exciting event are set out in this event brochure, which highlights that the Seminar presents an opportunity to commune with the entire sentencing commission, many staff, key judges, prosecutors, professors and others coping with post-Booker realities.

As detailed in the brochure, this Seminar brings together many folks who are really in-the-know about federal sentencing law and practice.  I am honored to be moderating a great panel on "Guideline Departures & Variances Outside the Range under § 3553(a)."   Though I doubt Claiborne and Rita will be decided by May, the event will be especially exciting if the Justices tell us more about what Booker means as we head to Utah.

Feds moving to reduce Abramoff's sentence for cooperation

As all participants in the federal sentencing system know, the best rats always eventually get fed some sentence-reduction cheese.  And today, as detailed in this AP story, the high-profile cooperator making headlines is Jack Abramoff.  Here are the basics:

Federal prosecutors took the first steps toward reducing the prison sentence of former Washington lobbyist Jack Abramoff, currently scheduled for release in 2011 for a Florida fraud conviction.  Documents filed in federal court say Abramoff has provided "substantial assistance" in a separate Washington corruption scandal investigation and continues to work with investigators from his prison cell in Cumberland, Md.

Assistant U.S. Attorney Paul F. Schwartz did not recommend how much Abramoff's sentence should be cut.  In the court papers filed Wednesday, Schwartz said prosecutors would recommend a reduction in his sentence and would file further documents describing the "nature, extent and value" of his cooperation

Obedience to authority studies and a provocative parallel

Over at The Situationist, Philip Zimbardo is doing a series of posts discussing Stanley Milgram's famous obedience to authority experiments and his famous Stanford prison experiment.  In my view, anyone working in the criminal justice arena (or really in any legal field) should know about Milgram's experiments and his remarkable findings; these new Zimbardo posts at The Situationist provide a great up-to-date entry into these important (and always timely) human dynamics.

Among many other highlights, this Zimbardo post reviews "ten lessons from the Milgram studies" concerning "what strategies can seduce ordinary citizens to engage in apparently harmful behavior."  I cannot help but notice that one could find indirect expression of many such "strategies" in the functional operation of severe sentencing rules that demand imposition of extraordinary prison terms seemingly without concern for substantive, case-specific notions of justice.  Consider these entries from the Zimbardo list of Milgram's obedience to authority lessons:

• Present basic rules to be followed that seem to make sense before their actual use but can then be used arbitrarily and impersonally to justify mindless compliance.  The authorities will change the rules as necessary but will insist that rules are rules and must be followed....

• Alter the semantics of the act, the actor, and the action — replacing unpleasant reality with desirable rhetoric, gilding the frame so that the real picture is disguised....

• Create opportunities for the diffusion of responsibility or abdication of responsibility for negative outcomes....

• Gradually change the nature of the authority figure from initially "just" and reasonable to "unjust" and demanding, even irrational....

A informed suggestion that FSG for white-collar offenses are presumptively unreasonable

I noted here two new Yale Law Journal's Pocket Part pieces exploring the severity of modern white-collar sentences.  Though both pieces have various flourishes, I found especially notable these first two sentences from the commentary by Andrew Weissmann and Joshua Block:

At the margins, the current Federal Sentencing Guidelines for fraud and other white-collar offenses are too severe.  Even when a corporate leader has engaged in massive fraud affecting thousands of people, such as what occurred at Enron, sentences of twenty or more years hardly seem necessary to satisfy the traditional sentencing goals of specific and general deterrence — or even retribution.

These lines are notable particularly because co-author Andrew Weissmann, who's now an attorney at Jenner & Block, formerly served as Director of the United States Department of Justice Enron Task Force.  So, by my lights, the former director of DOJ top white-collar task force views the "current Federal Sentencing Guidelines for fraud and other white-collar offenses" as too severe and "greater than necessary" to serve the purposes of punishment set out by Congress in 3553(a)(2).  That seems like pretty strong evidence that all guidelines sentences for white-collar offenses ought to be considered presumptively unreasonable, and certainly not presumptively reasonable.

Some related posts:

• Thoughtful reflection on Skilling sentence
• Debating life imprisonment for white-collar offenses
• Are the federal guidelines too tough on white-collar offenders?
• Tough sentences for white-collar offenders
• A record-long white-collar sentence in Atlanta