Sentencing Law and Policy

If you are eager for access to all parts of the new US Sentencing Commission Booker report...

Federal practitioner Mark Allenbaugh has posted via this special page (which is part of his firm website) all the separate parts of the US Sentencing Commission's massive report on the post-Booker federal sentencing system. 

Regular readers will recall that I had the honor, via this post, of being the first website to post Part A of the new USSC Booker report (and an accompanying press release) due to the technical difficulties facing the USSC website thanks to the Anonymous scoundrals.  I has been hoping, now a full three weeks after the US Sentencing Commission's website was hacked up and taken down, that the USSC would have its on-line home back in working order.  But, as of this writing, the USSC's main webpage is still "under construction." 

Word among those in the know is that, within the next few weeks, the US Sentencing Commission will also be releasing a big new report about federal child porn sentencing.  I remain hopeful that the USSC's website will be back in action by the time the CP report is ready.  But I suppose only time will tell.

Recent related posts:

• US Sentencing Commission releases (and provides on-line here only) new Booker report
• Summary of key USSC findings in its big new Booker report
• Wall Street Journal covers USSC's new Booker report (and its unusual coverage)

DC Circuit works hard to figure out just what Freeman means for guideline retroactivity

An informed and thoughtful reader recommended to me today's interesting rulng by a DC Circuit panel in US v. Epps, No. 11-3002 (DC Cir. Feb 12, 2013) (available here).  The Epps court, in a setting which one judge thought make the case moot, has to unpack the SCOTUS Freeman decision concerning plea agreements and guideline retroactivity. Among other interesting aspects of the case, the panel unpacks the important issue of which SCOTUS opinion controls when the Justices divide 4-1-4 . Here is how the Epps opinion gets started:

In Freeman v. United States, 131 S. Ct. 2685 (2011), the Supreme Court held that the district court is not categorically barred from reducing a defendant’s sentence under 18 U.S.C. § 3582(c)(2) where the defendant entered into a plea agreement pursuant to Federal Rule of Criminal Procedure 11(c)(1)(C).  The decision was splintered, however, with the plurality and concurring opinions adopting different reasoning. Prior to Freeman, the district court denied Ricardo Epps’ § 3582(c)(2) motion for a reduction of his Rule 11(c)(1)(C) sentence.  United States v. Epps, 756 F. Supp. 2d 88 (D.D.C. 2010).  Epps appeals, contending that there is no controlling opinion in Freeman and that because the district court (as well as the Rule 11(c)(1)(C) agreement) relied upon the crack-cocaine Guidelines range when determining whether to accept the stipulated sentence, his sentence was imposed “based on” the Guidelines range and the district court was authorized under § 3582(c)(2) to reconsider and reduce his sentence in light of the Sentencing Commission’s reduction of the sentencing range applicable to him.  For the following reasons, we reverse and remand the case to the district court.

"Plea Bargaining, Sentence Modifications, and the Real World"

The title of this post is the title of this new paper on SSRN by Julian A. Cook. Here is the abstract:

This article examines the 2011 Supreme Court decision in United States v. Freeman.  At issue was whether defendants, such as Freeman, who enter a guilty plea pursuant to a binding plea agreement, are entitled to seek a modification of their sentence when the guideline range applicable to their offense has subsequently been lowered by the United States Sentencing Commission.  By a five-to-four vote, the Court found that Freeman was eligible to seek a sentence reduction.  However, as the article explains, the concurring and controlling opinion of Justice Sotomayor may ultimately prove to be problematic for criminal defendants generally and for the Commission for many years to come.  In her opinion, Sotomayor suggests, in dicta, that the government can preempt future sentencing reduction claims through the insertion in plea agreements of waiver clauses. Should the Department of Justice adopt such a policy, the article warns of (and describes) the long-term adverse consequences that such a decision would have for criminal defendants and for ability of the Commission to achieve equity through guideline sentencing.

As part of its critique of Freeman, the article also explains why the Freeman Court erred in its analytical approach.  In so doing, it illuminates the real world of plea bargaining in the Freeman context, and explains why this plea negotiation truism provides a sounder, firmer, and clearer foundation to decide not only Freeman-type cases but any such case involving a sentence reduction claim.  The article also uses Freeman to highlight and correct a common misunderstanding about the nature of plea agreement contracts.  It explains why plea agreements have been erroneously construed as unilateral arrangements between the prosecution and the defendant, and why they should properly be interpreted as bilateral contracts involving three parties — the prosecution, the defendant and the court.

Guest post on Amish sentencing: "A Travesty in Cleveland"

Experienced lawyer and federal sentencing guru Mark Allenbaugh (firm website here) attended this past Friday's high-profile federal sentencing of the Amish defendants involved in the high-profile beard-cutting attacks in northern Ohio.  I am pleased to be able to now reprint his lengthy guest-post on the sentencing proceedings:

Living in northeast Ohio, I have encountered Amish on several occasions, usually on the road behind their horse-drawn buggies, but never in a courtroom.  Yesterday I had the opportunity to sit through perhaps the most surreal sentencing I will ever encounter. Reminiscent of the movie “Witness,” the followers of Samuel Mullet, Jr. sat on the right side, with the women wearing kerchiefs, while victims and their supporters sat on the left with the women wearing bonnets — the only apparent distinction between the two groups. The men, all in similar attire, had large, solid hands, built up from years of farming, some with flecks of mud on their clothing.  They sat quiet, subdued, and unlike the “English” present, did not speak among themselves.

These obviously were simple, passive people, involved in a serious and unfortunate dispute.  A dispute that resulted in shameful and abusive conduct by Mullet and some of his followers against other Amish: beard and hair cutting, which held religious symbolism. This conduct, while criminal, was not tantamount to the seriousness reflected in the severity of the sentences handed down.   That Mullet received a 15-year sentence for ordering the assaults, and that his remaining followers received from a year-and-a-day to 7 years, which will result in effectively orphaning a few dozen children, was the most surreal part of yesterday’s sentencing.

Given the severity of the sentences the government (incredulously sought) — in Mullet’s case, life — it was surprising that statistics were not raised during the hearing.

First, 18 U.S.C. s. 249 offenses are rarely prosecuted, and despite their high-profile nature, hate crimes generally are rarely sentenced.  While the FBI reports that in 2011 there were 6,222 hate crime incidents, per the most recent U.S. Sentencing Commission datafile, there were exactly two cases involving a 249 charge in 2011, and the hate crime enhancement at 3A1.1 was applied a mere 35 times.  Likewise, section 2H1.1 of the guidelines under which Mullet and his co-defendants were sentenced was applied only 47 times last year.  Section 2A4.1, which governs kidnapping and was the ultimate guideline the court utilized for sentencing, was applied in slightly more cases: 108 out of over 86,000 cases.  In light of recent and widespread criticism regarding the guidelines lacking empirical support, it would seem that offenses rarely prosecuted and guidelines rarely utilized in such unique circumstances as these would render any sentencing range not only questionable, but plainly inapplicable.

Second, while at a considerable variance from the advisory guideline sentence of life, Mullet’s sentence still is nearly equivalent to the median sentence for murder (189 months), and far, far greater than those for manslaughter (37 months), sexual abuse (87 months), assault (27 months) and arson (50 months).  While it is close to the median sentence for kidnapping (184 months), given that this was a kidnapping in a very technical sense (much as this was only a technical hate crime), that should have given the Court considerable pause before imposing such a draconian sentence.  Is Mullet’s offense really the equivalent of a murder and more serious than manslaughter?

Finally, Mullet is 67.  A 15-year sentence still effectively is a life sentence for him.  With an already over-crowded federal prison system and growing, Mullet’s time will be even more onerous than most in light of his age and most glaringly, his cultural and religious background, will make him highly susceptible to abuse.  Further, his age will impose additional financial burdens on the BOP, with some estimates as high as $90,000 per year. Is this an appropriate use of the public fisc?

This was an awful case from every perspective.  Why the federal government thought it was appropriate to bring criminal charges under truly unique circumstances defies explanation.  Clearly, the courts of Ohio could have (and should have) addressed this matter.  The sentences handed down merely have compounded the travesty of this prosecution.  While Judge Polster did an admirable job in detailing his reasoning — especially noting the irony of the Amish defendants trampling the very Constitution that makes their lifestyle possible — but for the absurdity of a federal sentencing system that has for years encouraged the judiciary to hand out multi-year sentences as if they are candy, one wonders how Judge Polster would have sentenced unencumbered by a sentencing regime that clearly did not contemplate the facts of this case and has otherwise run amok.

The federal government not only chose to prosecute these assaults as if they were kidnappings but hate crimes.  While technically hate crimes given the religious motivation for the assaults, the assaults, which left no permanent physical injuries, certainly were nowhere of the kind the statute was intended to address, while the punishment, ironically, was.  Indeed, the hate crime statute upon which the defendants’ convictions rested — 18 U.S.C. s. 249 — was enacted as part of the Matthew Shepard and James Byrd, Jr. Hate Crimes Prevention Act of 2009.  Both Shepard and Byrd were the victims of the most atrocious and violent hate crimes in recent memory — Shepard tortured and left to die tied to a fence in Wyoming because of his sexual orientation, and Byrd gruesomely dragged to his death and decapitated behind a pick-up because of his race.  Sentencing these Amish assaults as if they were equivalent to the offenses suffered by Shepard and Byrd is an affront to their memories.  Hopefully the Sixth Circuit will rectify this manifest injustice.

Related posts:

• Ohio Amish hair-cutting incidents now a federal hate crimes sentencing matter
• Stark extremes for forthcoming debate over federal sentencing of Amish beard-cutters
• Interesting defense arguments for sentencing leniency in Amish beard-cutting case
• Feds request LWOP for Samuel Mullet Sr., leader of Amish beard-cutting gang
• Are tough sentences sought in Amish beard-cutting case part of a DOJ "war on religion"?
• "Amish beard-cutting ringleader gets 15 years"

District judge rejects too sweet federal plea deal for long-time fraudster in Pennsylvania

A helpful reader sent along this interesting local article from Pennsylvania, eadlined "Rosetti plea rejected by judge," reports on a case in which a federal judge took the usual step of rejecting a plea deal as too lenient. Here are the details:

In a strong rebuke calling for "just punishment," a federal judge has rejected the plea agreement made by Fred Rosetti, Ed.D., former executive director of the Northeastern Educational Intermediate Unit.   The deal, which called for 12 to 18 months in prison, is not appropriate for the "defendant's longstanding, pervasive and wide-ranging criminal activities," U.S. District Judge Robert D. Mariani wrote in his order.

Dr. Rosetti, who is accused of intentionally failing to record sick and vacation days, creating false travel vouchers and ordering employees to do personal tasks for him, now has the option of withdrawing his plea and going to trial or keeping his plea and letting the judge determine his sentence.  He could also try to negotiate a new plea agreement.

"The sentence proposed by the plea agreement, as well as the agreement's other terms, do not reflect the seriousness of the offense, do not promote respect for the law and do not provide just punishment for the offense," Judge Mariani's order states.

In October, Dr. Rosetti pleaded guilty to theft and mail fraud charges in a plea deal with prosecutors that called for 12 to 18 months of imprisonment and restitution of $120,000....  A presentence investigation report completed earlier this month and prepared by the United States Probation Office "describes a 12-year pattern of abuse of public trust and executive authority for private gain."

The report, which is not available to the public but part of which is detailed in Judge Mariani's order, describes how Dr. Rosetti intentionally failed to document time off from the NEIU, in the form of vacation, personal and sick leave.  For every day he did not record, he received a larger payout....

Other actions described in the order include ... 127 fraudulent travel vouchers, which Dr. Rosetti created or ordered employees to create, at a cost of $18,106.75.  Dr. Rosetti threatened employees with the loss of their jobs if they did not oblige....

The presentence report indicates the loss to the NEIU totals $137,944.13, but the plea agreement calls for restitution of $120,000.  The difference is significant because the amount could lead to a stricter sentence under federal sentencing guidelines that call for 27 to 33 months in prison....

The report also details the defendant's attempt to "obstruct or impede the administration of justice." Dr. Rosetti has been on home confinement since contacting witnesses this spring and subsequently spent 12 nights in jail....

When Dr. Rosetti was indicted in February 2012, prosecutors said that if convicted of the most serious charges, he could have faced 10 years in prison, a $250,000 fine and the forfeiture of $240,000, the contents of two bank accounts and his Archbald home. Dr. Rosetti originally faced 13 counts of fraud, theft and money laundering.  The plea agreement Judge Mariani rejected called for Dr. Rosetti to plead guilty on two counts: Count 1, mail fraud relating to a package delivered at NEIU expense; and Count 8, theft concerning programs receiving federal funds....

A hearing has been scheduled for Feb. 21 to inform Dr. Rosetti of his options and give him an opportunity to withdraw his plea.  If he does not withdraw his plea, a sentencing hearing is scheduled for March 5.  Judge Mariani would then determine Dr. Rosetti's punishment.

The District Court's 11-page order explaining its ruling is available at this link.

Feds seeking upward departure for local comptroller engaged in long-time fraud

As detailed in this Chicago Tribune article, federal prosecutors have found a white-collar case in which they think the federal guidelines are not tough enough. Here are the basics:

In the spring of 2010, the city of Dixon was in a financial death spiral, with a budget deficit closing in on $4 million, no working cash flow and drastic cuts needed in services and hiring to stay afloat.   Longtime Comptroller Rita Crundwell gave commissioners a familiar excuse for the crisis: Declining tax revenues in a bad economy and late state payments had drained the town's coffers.

Yet Crundwell was living it up with massive amounts of stolen taxpayer money. In 2010 alone, federal authorities say, Crundwell plundered more than $5.5 million, money that went to buy an 80-acre ranch and farmhouse outside town, expand her championship horse business, fund lavish birthday parties for herself in tony Venice Beach, Fla., and buy luxury vehicles and jewelry.

In newly filed court papers ahead of Crundwell's sentencing next week, federal prosecutors are seeking as much as 20 years in prison, laying out in the greatest detail yet how her nearly $54 million in thefts beginning in 1991 devastated the northwest Illinois town's budget as well as public confidence in its government officials....

Crundwell ordinarily would face a sentence of about 12.5 to 16 years in prison under federal sentencing guidelines. But prosecutors want U.S. District Judge Philip Reinhard in Rockford to go higher because of the decades-long scheme and staggering losses.

In a response filed Tuesday, Crundwell's attorney, Public Defender Paul Gaziano, asked for a sentence at the low end of the guidelines. Gaziano noted that a 20-year sentence would likely mean that Crundwell, 60, would spend the rest of her life in prison.  He also argued that she has cooperated with authorities once the fraud was uncovered last April and has helped the town recoup some of its losses by selling off millions of dollars in horses, real estate and other assets....

When Crundwell pleaded guilty last November to a single count of wire fraud, acting U.S. Attorney Gary Shapiro called it the largest theft of government funds in Illinois history. In her plea agreement with prosecutors, Crundwell, who served as the city's comptroller starting in 1983, admitted transferring money from city funds into a bank account bearing her name that she secretly opened in December 1990.

The thefts grew bolder over time, but it wasn't until she started spending long periods away from City Hall, traveling the country to compete in horse shows, that her scheme unraveled. In 2011, the city clerk, filling in for Crundwell, discovered the secret account and informed the mayor, who tipped off law enforcement, authorities have said.

In the early years, Crundwell annually stole a few hundred thousand dollars, but by the late 1990s, as her quarter-horse business expanded and gained national attention, the thefts exploded, growing to more than $1 million in 1999, then nearly doubling to $2 million the next year, according to prosecutors.  The town's financial straits worsened, and cuts to each annual budget multiplied.  By 2008, the shortfalls reached crisis levels.  At a special City Council meeting that March, Finance Commissioner Roy Bridgeman reported that the budget deficit approached nearly $1.2 million and warned of staff cutbacks, according to court records.

Professor Todd Haugh sent me an intriguing note about this case after the feds filed its sentencing documents, which he has graciously allowed me to post here:

The government's sentencing memorandum is pretty incredible. Not only does it ask for an upward departure from the sentencing guidelines (which are already at 210-262 months based on the dollar amount and her position of trust) to a sentence of 27-34 years (324-405 months), but it includes a five-part timeline/slideshow detailing the crime and Crundwell's personal expenditures. I've never seen anything like that in 10 years of defending white collar cases, particularly when the original guideline range is that high already.... The tone of the slideshow, not surprisingly, is greed, greed, greed, and it's filled with color pictures of all the things this women bought with the illegally-obtained funds.

To put the possible sentence in perspective, if Crundwell gets anywhere close to 34 years, she will be in the upper-echelon of white collar defendants receiving heightened sentences. Skilling got 24 years; Rajaratnum got 11; Rigas got 20; Peter Madoff got 10; etc. She would be getting close to even the big Ponzi schemers (the CEO of Peregrine just got 50 years for a $100M Ponzi)....

To me, this is classic government piling on of a white collar offender in the name of assuaging community anger (which is highly concentrated here). It does very little to further the goals of sentencing (I suppose retributivists could argue the additional 100+ months are necessary but even that seems a stretch given the already high sentence), and it's simply advancing the crime master narrative of "all white collar offenders should be given life sentences because they are greedy and evil."... But it also demonstrates how the fraud guideline becomes a little silly at the high loss levels and how 3553 can be a weapon for the prosecution, not just a shield for the defense.

"Crime That No Longer Pays: Bank Robberies on the Decline as Criminals See Greater Rewards in Online Theft"

The title of this post is the headline of this interesting new piece from the Wall Street Journal.  Here are excerpts:

The recent surge in cybercrime comes with a silver lining: Bank robberies are plummeting, as criminals seem to wise up to the fact that heists just don't pay like they used to.

Bank holdups have been nearly cut in half over the past decade — to 5.1 robberies per 100 U.S. banks in 2011.  Though the nationwide crime rate is dropping, the decline in bank robberies far exceeds the decline in other crimes, according to Federal Bureau of Investigation data.  Preliminary 2012 figures released last week show the lowest tally in decades: 3,870 bank robberies, down from more than 5,000 a year earlier.

Bank-security experts and former FBI agents attribute the decline to stepped-up security and tougher sentencing for bank robbers.  Many also say that more recently, sophisticated criminals are recognizing bank robbery as a high-risk, low-reward crime and are migrating online....

Though electronic bank crimes have taken far more money than physical robberies in recent years, the shift has resulted in less violence.  In 2011, bank robberies left 88 injured and 13 dead — roughly 40% lower than both statistics for 2003, the earliest FBI figures available....

The crime hit its peak in 1991, with nearly 9,400 robberies, and is still favored by some. Last month, after a bank robbery in Elgin, Ill., police arrested Jeremy Evans of nearby Carol Stream, who the FBI believes is the so-called Ray-Bandit.  He is linked to 17 bank robberies in seven states while sporting a pair of Ray-Ban-style sunglasses.

Increasingly, though, transactions have migrated to automated teller machines and online — and criminals have followed them.  Bill Rehder, who investigated bank robberies for the FBI for 31 years, said the decline began in the 1990s, when banks began bolstering security at branches, including bulletproof barriers in front of tellers and vestibules that locked criminals inside.....

Also helping are federal sentencing guidelines for convicted bank robbers introduced in 1987, which allow judges to add years for a criminal history or use of a weapon, security experts said.  In the early 1980s, a former Los Angeles antiques dealer named Eddie Dodson single-handedly robbed 64 banks, before pleading guilty to eight robberies and serving 10 years in prison.  After his release, he robbed eight more banks, said Mr. Rehder, the FBI agent who helped catch him — twice.

Compare that with the case of Harold Walden, a teenager convicted in 1992 of robbing five banks who is serving a 73-year prison sentence.  "Once you're caught now, you're going to get hammered," Mr. Rehder said.  "That acts not only as a deterrent, but it also locks these [serial robbers] up for a long time."

Among the tough normative issues that these kinds of crime stories raise is the fundamental question of whether, as a result of formal and informal moves to replace real-world behaviors with more digital/cyber activities, we should be clebrating that there is much less violent crime even though there may now be much more overall crime.

Some related posts on the great modern crime decline: 

• Is the great US crime decline now finally over?: BJS reports crime up in 2011
• FBI reports crime was down yet again in 2011 (though BJS said it was up)
• Should we thank unleaded gas and the EPA for the great modern crime decline?
• Is there really a simple explanation for record-low homicide rate in NYC (or the increase in Chicago)?
• Still more (and still puzzling) crime rate declines reported by FBI
• Effective Washington Post commentary talks up great (and still puzzling) crime decline
• Amazingly great new FBI data: crime down yet again in start of 2011!
• Still more great news and data on the latest crime rates in the United States
• Remarkable drop in US violent crimes rates in 2010 according to latest BJS data
• Wonderfully puzzling violent crime rate continue to decline (despite NFL lockout)

US District Judge Bennet details flaws in career offender guideline in yet another potent opinion

Last week I noted the potent opinion in US v. Diaz, No. 11-CR-00821-2 (E.D.N.Y. Jan. 28, 2013) (discussed in this post), in which US District Judge John Gleeson explained why he believes the federal drug quantity guidelines should get little weight at sentencing.  Coincidentally, another thorough take down of another set of guidelines also was handed down last week by another thoughtful district judge — via a lengthy opinion that I only recently found time to read and now post.

US District Judge Mark Bennett's opinion in US v. Newhouse, No. CR 11-3030-MWB (D. Iowa jan. 30, 2013) (available for download below), is another must-read and an "instant classic" like Diaz. I cannot do justice to Judge Bennett's 68-page opinion in Newhouse, so I will be content to let the first few paragraphs (with important footnotes left out, but emphasis in original) serve as an appetite wheter:

Does the grid and bear it scheme of the U.S. Sentencing Guideline Career Offender recidivist enhancement, § 4B1.1, raise a specter of aperiodic, irrational, and arbitrary sentencing guideline ranges in some cases?  This issue is squarely raised by Lori Ann Newhouse, a low-level pill smurfer, “[a] person who busily goes from store to store acquiring pseudoephedrine pills for a meth cook, usually in exchange for finished product.”   Not only is Newhouse a mere pill smurfer, she is truly a “one day” Career Offender because her two prior drug predicate offenses arose out of a single police raid of a Motel 6 room over a decade ago, on February 26, 2002, in Altoona, Iowa, when Newhouse was just 22 years old.  The police found Newhouse and three others in the motel room.  Newhouse was charged in state court and pled guilty to possession with intent to deliver 3.29 grams of methamphetamine and 14.72 grams of psilocybin mushrooms.  She was sentenced to probation on both charges, but on different days, by Chief Judge Arthur Gamble of the Fifth Judicial District of Iowa.  For reasons unknown, but likely random, the local prosecutor filed the two charges on separate days.  Ironically, if the two charges had been filed in the same charging document — or the defense lawyer, the prosecutor, the judge or the court administer had scheduled the two sentencings for the same day — Newhouse would not be a Career Offender.

Because of Newhouse’s Career Offender status, her U.S. Sentencing Guideline range was enhanced from 70-87 months to a staggering and mind-numbing 262 to 327 months. This breathes real life into the observation of the Seventh Circuit Court of Appeals, a year before Newhouse pled to the state court drug charges, that: “The consequences of being deemed a career offender for purposes of section 4B1.1 of the U.S. Sentencing Guidelines are grave.” United States v. Hoults, 240 F.3d 647, 648 (7th Cir. 2001).  Newhouse is just one of thousands of “low hanging fruit” — non-violent drug addicts captured by the War on Drugs and filling federal prisons far beyond their capacity. See United States v. Vasquez, No. 09-CR-259 (JG), 2010 WL 1257359, at *3 (E.D.N.Y. Mar. 30, 2010) (observing that in “the war on drugs” “prosecutors can decide that street-level defendants like Vasquez — the low-hanging fruit for law enforcement — must receive the harsh sentences that Congress intended for kingpins and managers, no matter how many other factors weigh in favor of less severe sentences.”); see also Susan Stuart, War As Metaphor And The Rule Of Law In Crisis: The Lessons We Should Have Learned From the War On Drugs, 36 S. ILL. U. L.J. 1, 5 (2011) (pointing out that the war on drugs “has lasted longer than the reigns of the Roman Emperors Caligula through Nero.”); Marc Mauer, The Sentencing Project, The Changing Racial Dynamics of the War on Drugs 1 (2009) (reporting that there has been an 1100% increase in the number of persons incarcerated on drug charges since 1980, from about 40,000 people to 500,000 in 2009).

Download Judge Bennett US v. Newhouse Opinion

As folks around my age may remember well from Saturday mornings long ago, one key distinguishing features of Smurf Village — beyond, of course, a disturbing gender imbalance and a communist social structure (with Papa Smurf as general secretary) — was the ability for every inhabitant to use the word "smurf" to mean whatever Smurfs wanted the word to mean. This ruling by Judge Bennett provide a useful window into just how smurfed-up the guidelines lingo can be, as one prior minor crime a decade earlier can turn a low-level, non-violent drug defendant into a "Career Offender."

Summary of key USSC findings in its big new Booker report

As explained here, unfortunately, wascally on-line wabbits have so far managed to allow only the first big part of US Sentencing Commission super-sized new Booker report to be available on-line only via this SL&P link.  Fortunately, because others are primarily in charge of chasing down the annoying anonymous hackers (and because the NRA is primarily in charge of making sure all the rest of us have a right to use maximum firepower when hunting other forms of wabbits), I can spend my time trying to take stock of all the incredible effort and research reflected in the part of the new USSC Booker report now available for general consumption.

Though I am still just start to scratch the massive surface of the mass of information in just the first part of the new USSC Bookerreport, I can begin some assessment of what's in there by first praising the Commission for having a handy list of bolded "key findings" summarized in the first chapter.  Here, in full text, are all the bolded key findings set out in the report's Overview chapter [with my own numbers added]:

[1] The number of federal offenders has substantially increased, and most federal offenders have continued to receive substantial sentences of imprisonment.

[2] The guidelines have remained the essential starting point for all federal sentences and have continued to influence sentences significantly.

[3] The influence of the guidelines, as measured by the relationship between the average guideline minimum and the average sentence, has generally remained stable in drug trafficking, firearms, and immigration offenses, but has diminished in fraud and child pornography offenses.

[4] For most offense types, the rate of within range sentences has decreased while the rate of below range sentences (both government sponsored and non-government sponsored) has increased over time.

[5] The influence of the guidelines, as measured by the relationship between the average guideline minimum and the average sentence, and as measured by within range rates, has varied by circuit.

[6] The rates of non-government sponsored below range sentences have increased in most districts and the variation in such rates across districts for most offenses was greatest in the Gall period, indicating that sentencing outcomes increasingly depend upon the district in which the defendant is sentenced.

[7] For offenses in the aggregate, the average extent of the reduction for non-government sponsored below range sentences has been approximately 40 percent below the guideline minimum during all periods (amounting to average reductions of 17 to 21 months); however, the extent of the reduction has varied by offense type.

[8]Prosecutorial practices have contributed to disparities in federal sentencing.

[9] Variation in the rates of non-government sponsored below range sentences among judges within the same district has increased in most districts since Booker, indicating that sentencing outcomes increasingly depend upon the judge to whom the case is assigned.

[10] Appellate review has not promoted uniformity in sentencing to the extent the Supreme Court anticipated in Booker.

[11] Demographic factors (such as race, gender, and citizenship) have been associated with sentence length at higher rates in the Gall period than in previous periods.

I do not think any of these key findings are especially surprising, though I suspect some (many?) will still prove to be somewhat controversial.  Most fundamentally, I am certain that all of these findings could be "spun" in any number of ways in any number of settings.  For example, I think one might reasonably wonder whether finding 8 concerning prosecutors contributing to disparties best explains finding 11 concerning increased demographic disparities.  (Also, it is especially interesting to consider how one might spin findings 2 and 5 and 6 in the on-going Supreme Court litigation concerning the application of ex post facto doctrines in the post-Booker advisory guideline system.)

All these key findings should and likely will engender lots of discussion and debate in the weeks ahead.  For now, though, I am eager to hear from readers about which particular finding they consider most important or least important (or, perhaps, least likely to get enough attention or most likely to get too much attention).   As one who has long been concerned that federal sentencing severity and the overall growth in the total number federal defendants gets too little attention while disparity gets too much attention, I will assert that finding 1 above and the realities it reflects is really the most important big-picture take-away point.  I have a feeling, though, that others may have distinct views.

Recent related post:

• US Sentencing Commission releases (and provides on-line here only) new Booker report

US Sentencing Commission releases (and provides on-line here only) new Booker report

I was very excited late yesterday to get a call from people at the US Sentencing Commission to tell me (1) that the USSC had completed and was starting to distribute its latest big new report on federal sentencing practice since Booker, and (2) that I could be the first website to post the report (and an accompanying press release) on-line due to the technical challenged now facing the USSC website.  Ergo, below are these documents, and here are excerpts from the press release (which is dated January 30, 2013):

Today the United States Sentencing Commission submitted to Congress its report assessing the continuing impact on the federal sentencing system of the Supreme Court’s 2005 opinion in United States v. Booker, which rendered the sentencing guidelines advisory.

Judge Patti B. Saris, chair of the Commission, stated: “The sentencing guidelines remain the essential starting point for determining all federal sentences and continue to exert significant influence on federal sentencing trends over time. Four out of five sentences imposed are either within the guideline range or below the guideline range at the request of the government. However, there are certain trends the Commission finds troubling, including increased regional and demographic differences.”

The Commission undertook statistical analyses of federal sentencing data spanning a broad time frame, from October 1995 through September 2011, and focused on offenses that comprise over 80 percent of the federal criminal docket (drug trafficking, immigration, fraud, firearms, child pornography, and career offenders). The study shows that sentences for drug trafficking, immigration, and firearms offenses continue to track the guidelines closely, but in recent years sentences for fraud and child pornography offenses have increasingly diverged from the guidelines.

The rate at which courts impose sentences within the applicable guideline range has decreased over the four time periods studied, from a high of 70.1 percent to 53.9 percent during the most recent time period studied. Much of this decrease is attributable to a corresponding increase in below range sentences not requested by the government, from a low of 5.7 percent to 17.4 percent during the most recent time period. These trends were consistent across all offense types studied, but to different degrees depending on the offense. Sentencing data from the last two fiscal years indicates that the rate of below range sentences has plateaued.

The study also reveals increased differences in rates of below range sentences across the nation, ranging from less than ten percent in some districts to more than 40 percent in others during the most recent time period studied. Furthermore, judges within the same district increasingly vary from the guidelines at different rates.

The study shows that prosecutorial practices also contribute to differences in sentencing. For example, certain charging practices vary and prosecutors in more districts are making motions for below range variances from the guidelines....

In addition to the printed portion of the report, the Commission will soon be making extensive data and information available online.

Download Booker_PressRelease_final

Download Part A - Continuing Impact of Booker on Federal Sentencing

Lots and lots of commentary on the report will follow the days ahead, but today I am otherwise tied up.

US District Judge Gleeson assails drug guidelines in another potent opinon

A number of helpful readers made sure I did not miss the latest doozy of an opinion issued by US District Judge John Gleeson in United States v. Diaz, No. 11-CR-00821-2 (E.D.N.Y. Jan. 28, 2013) (available for download below).  The opinion is a must-read for various reasons — one reader described it to me as an "instant classic" — and these opening points hint at the opinion's coverage:

Last year in United States v. Dossie, I wrote about how the mandatory minimum sentences in drug trafficking cases distort the sentencing process and mandate unjust sentences. This case illustrates a separate but related defect in our federal sentencing regime....

Diaz will be sentenced in a few weeks, and when that happens I will carefully consider all the factors set forth in 18 U.S.C. § 3553(a) except one — the length of imprisonment recommended by the United States Sentencing Commission’s Guidelines Manual. Though I will not ignore Diaz’s Guidelines range, I will place almost no weight on it because of my fundamental policy disagreement with the offense guideline that produces it. In fairness to the government, I write here to explain my belief that the offense guideline for heroin, cocaine, and crack offenses (“drug trafficking offenses”) is deeply and structurally flawed. As a result, it produces ranges that are excessively severe across a broad range of cases, including this one.

The flaw is simply stated: the Guidelines ranges for drug trafficking offenses are not based on empirical data, Commission expertise, or the actual culpability of defendants. If they were, they would be much less severe, and judges would respect them more. Instead, they are driven by drug type and quantity, which are poor proxies for culpability.

These passages from the body of the lengthy Diaz opinion reveal just some of its many flourishes:

If the Commission wants greater adherence to the Guidelines, as it should, it needs to get better at fixing broken offense guidelines.  The drug trafficking offense guideline was born broken.  Many judges will not respect it because as long as the sentences it produces are linked to the ADAA’s mandatory minimums, they will be too severe.  Indeed, as discussed further below, for almost two decades the nation’s judges have been telling the Commission to de-link the drug trafficking offense guideline from those harsh mandatory minimums and to reduce the sentencing ranges.  The Commission should listen and act.  It should use its resources, knowledge, and expertise to fashion fair sentencing ranges for drug trafficking offenses.  That process will take time.  In the meantime, because real people, families, and communities are harmed by the current ranges, it should immediately lower them by a third....

Let those who advocate for longer prison terms, and even a return to the dark days of mandatory Guidelines, go ahead and make their case.  The debate is good for the health of our federal criminal justice system.  But the suggestion that federal sentences should become more severe in the name of racial equality is preposterous.  That case has emphatically not been made, and the Commission’s repeated suggestion that it has insults the entire judiciary and demeans the Commission itself.  If it does nothing else, the Commission should take affirmative steps to remove the race issue, which it unwisely inserted into the discussion of federal sentencing policy, from the debate....

The Commission should use its resources, knowledge, and expertise to fashion fair sentencing ranges for drug trafficking offenses.  If it does, those ranges will be substantially lower than the ranges produced by the current offense guideline.  The deep, easily traceable structural flaw in the current drug trafficking offense guideline produces advisory ranges that are greater than necessary to comply with the purposes of sentencing.  We must never lose sight of the fact that real people are at the receiving end of these sentences.  Incarceration is often necessary, but the unnecessarily punitive extra months and years the drug trafficking offense guideline advises us to dish out matter: children grow up; loved ones drift away; employment opportunities fade; parents die.

Download United States v. Ysidro Diaz

Should status as sitting state justice be an aggravating sentencing factor under 3553(a)?

The question in the title of this post is prompted by this local report on a federal plea deal put together in a high-profile federal prosecution in Michigan. The article is headlined "Former Michigan Supreme Court Justice Diane Hathaway pleads guilty to felony bank fraud," and here is the backstory:

Retired Michigan Supreme Court Justice Diane Hathaway pleaded guilty to felony bank fraud today and is expected to be sentenced on May 28. Hathaway stood quietly at a podium in U.S District Court in Ann Arbor this morning, acknowledging she intentionally defrauded a federally insured financial institution with the short sale of her Grosse Pointe Park home.

According to an agreement negotiated with the U.S. Attorney’s Office, her punishment is limited to up to 18 months behind bars or could be as little as 4-10 months if a pre-sentence report determines there was no actual financial loss. Hathaway also could receive a sentece of 3-5 years of supervised release, be fined up to $30,000 and pay restitution of up to $90,000, according to the agreement. She waived her right to appeal the case after sentencing....

Hathaway’s only “no” response came when O’Meara asked her about using her position as a Michigan Supreme Court judge as part of the scheme. “Did you use your status as a public employee in your attempt to defraud?” O’Meara asked her. “No,” she responded.

Hathaway was charged Jan. 18 with one count of bank fraud after investigators said she moved ownership of property in Florida to relatives so she could qualify for the short sale. Hathaway allegedly told financial institution ING Direct she could no longer afford the house payments on the Michigan home. In a civil filing in November, the U.S. Justice Department accused Hathaway and her husband, attorney Michael Kingsley, of fraudulently concealing their net worth.

The short sale in Michigan allowed the couple to erase nearly $600,000 in mortgage debt on the $1.5-million Grosse Pointe Park home on Lakeview Court, which eventually sold for $850,000. The debt-free Windermere, Fla., home then went back into their names. Hathaway’s attorney, Steve Fishman, said outside the courthouse that ING Direct is claiming they lost far less than the mortgage debt erased by the short sale.

"It's important for people to know that now we're down to the actual loss as calculated by ING ... and they're saying it's between $40,000 and $90,000," Fishman said, pointing out Hathaway could have just walked away from the home altogether. "I say the loss is nothing ... because the bank netted probably in the vicinity of $150,000 more from the fact that there was a short sale than if it had been a foreclosure and a sheriff's sale. And that will be part of the discussion when we come back for sentencing."

Hathaway left the bench after announcing the decision to retire Jan. 7 after the Judicial Tenure Commission filed a complaint and sought her immediate suspension. The commission alleged she committed "blatant and brazen" misconduct violations in connection with private real estate transactions.

As federal sentencing practitioners know well, the key federal sentencing statute requires a sentencing judge to consider "the nature and circumstances of the offense and the history and characteristics of the defendant." Though it appears there may be some dispute over the details of the offense here, there is no dispute that the defendant was a sitting Michigan Supreme Court Justice at the time of her offense.

If the defendant here had used her official position to facilitate the offense, there is little doubt that her status would be an aggravating factor (and the guidelines themselves include an upward adjustment on this basis). But the question prompted by this story and the title of this post is whether her status ought to be considered an aggravating sentencing factor even though it apparently played no role in her crime.

Does four years seem just and effective as federal sentence for high-profile obscenity convictions?

The question in the title of this post is prompted by this Los Angeles Times report on a lengthy and high-profile federal prosecution.  The piece is headlined "Maker of porn films gets 4 years in prison in federal obscenity case," and here are the case specifics:

A Los Angeles-based creator of pornographic fetish films was sentenced to four years in federal prison Wednesday for producing and selling obscene material.

Ira Isaacs, 61, received the sentence after a six-year prosecution that included two mistrials and led to the public admonishment of federal Judge Alex Kozinski, who recused himself from the proceedings after a Times investigation found that he placed pornographic images on an Internet server that could be accessed by the public.  Kozinski is the chief judge of the U.S. 9th Circuit Court of Appeals.

Doing business under the name L.A. Media, Isaacs produced, starred in, and distributed pornographic films through a website he advertised as "the Web's largest fetish VHS, DVD superstore."  Some of his films, which depict bestiality and sexual situations involving human excrement, were shown to the jury during his third trial last April.

Although the defense argued that Isaacs' work was protected by the 1st Amendment, there was a general consensus about the appeal of the films, which had titles such as "Hollywood Scat Amateurs No. 7."

"They were so disgusting I couldn't even watch them," said Isaacs' attorney Roger Diamond, who said he averted his eyes and read a book as the 90-minute films were played in court. "But that doesn't mean they're not free speech."

Isaacs said his films were supposed to shock and disgust people in a way that deconstructs their conception of art. He turned down a plea bargain that would have saved him from incarceration and said he had no regrets. "It makes people think, 'What is art? Can art be gross?' " he said....

Prosecutor Michael Grant said Isaacs had never mentioned artistic intentions until he was in front of a court. "Since 1999, he has operated a business with one goal in mind: make money off of individuals that enjoy sick materials," Grant said in court.

Diamond asked the judge to lighten the sentence to probation because he said Isaacs had accepted responsibility for his crimes. But Judge George H. King, who presided over the case, said Isaacs had sought to "cloak himself" in the 1st Amendment with a "cynical post-hoc justification" and was not "a defender of the 1st Amendment."

Addressing Isaacs directly, King said, "You are an abuser of the 1st Amendment. You cheapen the 1st Amendment." King said that because Isaacs continued selling the films, even plugging his website on a radio show two days after his conviction, incarceration was a necessary "deterrent." Isaacs must also pay more than $10,000 in fines, as well as submit to community supervision for three years after his release from prison.

Isaacs was asked to report to federal authorities by Feb. 19, but he plans to file an appeal. Clad in a fedora and a baggy gray suit after the sentencing, he appeared unfazed by the prospect of prison time. "That's the Academy Award I just won in there," Isaacs said. "That's an artist's dream."

In other press accounts of the sentencing, I have seen reported that the statutory sentencing range in this case was 0 to 20 years of imprisonment. And an extended account of the sentencing via this adult industry news website xbiz.com indicates that the four year sentence was a below-guideline sentence because, it appears, the calculated guideline range was 51 to 71 months.

"Decoupling Federal Offense Guidelines from Statutory Limits on Sentencing"

The title of this post is the title of this notable new federal sentencing article by Professor Kevin Bennardo which is now available via SSRN. Here is the abstract:

When incorporating statutorily-mandated minimum and maximum sentences into offense guideline, the United States Sentencing Commission must strike a delicate balance between promulgating guidelines that are consistent with federal law and carrying out its characteristic institutional role of advising sentencing courts of proper punishment based on empirical data and national experience.

This article recommends that, in general, when a statutory limit on sentencing deviates from what the Commission deems to be fair punishment, the Commission should incorporate the statutory limit into the offense guideline to the least extent possible. Although this approach may lead to cliffs and plateaus in the Guidelines ranges and thereby diminish relative fairness between similarly-situated offenders, this approach maximizes the imposition of actually fair sentences (as viewed by the Commission) within the confines of the statutory scheme.

Controlled substance offenses, however, are an exception. In some instances, drug offenders are relieved from the application of an otherwise-applicable mandatory minimum sentence through the operation of the so-called “safety valve” or, in some circuits, because the government failed to plead the triggering drug quantity in the indictment or prove it beyond a reasonable doubt. To achieve actual fairness for these offenders, the Commission should apply a controlled substance offense guideline that takes no account of statutory limits on sentencing.

By amending offense guidelines that incorporate mandatory minimums to more closely reflect its own research and expertise, the Commission will better achieve offense guidelines that produce Guidelines ranges that the Commission views as actually fair.

Report on the US Sentencing Commission's first public meeting of 2013

Experienced lawyer and federal sentencing guru Mark Allenbaugh (firm website here) attended yesterday's meeting of the US Sentencing Commission and authored this lengthy guest-post on what he saw:

In its first public meeting of the year, the U.S. Sentencing Commission yesterday voted to publish for comment a series of proposed amendments somewhat heavy on intellectual property issues, and also announced updates on some highly anticipated reports.

INTELLECTUAL PROPERTY OFFENSES

In response to recent legislation, the Commission published for comment proposed amendments regarding counterfeit “pre-retail” medical products, counterfeit military goods, and counterfeit drugs,. These types of offenses are currently referenced to USSG 2B1.1(Fraud) in the case of the medical products, 2B5.3 (Criminal Infringement of Copyright or Trademark) in the case of the military goods, and 2N2.1 (Tampering with Consumer Products) in the case of drugs. While these offenses rarely are prosecuted, apparently there have been some high-profile cases that Congress believes warrants new legislation. The Commission’s proposed amendments propose new specific offense characteristic that would increase the offense level 2 to 4 levels.

In response to a Congressional directive in the Foreign and Economic Espionage Penalty Enhancement Act, the Commission also is seeking comment (as opposed to proposing amendments at this juncture) on matters involving the theft of trade secrets and economic espionage by foreign entities.  Such offenses, while certainly high profile, also are rarely prosecuted.

OTHER MATTERS

The Commission published a proposed amendment in response to the recent Supreme Court case Setser v. United States, which held that a federal court has the discretion to order that a sentence run consecutive or concurrent to an anticipated, but not yet imposed, term of imprisonment.  Courts of course have had the discretion to impose consecutive or concurrent terms of imprisonment to previously imposed sentences that have not yet been discharged.   Setser clarified that this discretion also applies to anticipated sentences.  Accordingly, the Commission is proposed to amend USSG 5G1.3 to apply to apply to Setser situations.

In response to a circuit split, the Commission also published proposed amendments to the tax guidelines at 2T1.1 that would allow (or disallow) a sentencing court to credit a defendant for any credits, deductions or exemptions that the defendant could have claimed at the time the tax offense was committed.

Also in response to a circuit split regarding whether courts have maintain discretion to grant the additional one-level reduction for acceptance of responsibility made on government, the Commission is proposing to adopt the position of the Fifth Circuit that the additional reduction “is the district court’s — not the government’s — even though the court may only do so on the government’s motion.”  United States v. Williamson, 598 F.3d 227, 230 (5th Cir. 2010).  The Seventh Circuit currently goes the other way, holding that upon government motion, a sentencing court must award the additional level reduction. See United States v. Mount, 675 F.3d 1052 (7th Cir. 2012).

UPDATES

Finally, the Commission also announced updates on two highly anticipated reports. The Commission plans to publish a report on the impact of Booker on Federal Sentencing within approximately a month.   A report on Child Pornography sentencing is set to be published shortly after that in late February/early March (which was originally due out by the end of last year).   Rumor has it that the Child Pornography report will be defendant-friendly (and in light of the massive amount of criticism regarding 2G2.2, how could it be otherwise?).

The Commission of course still is looking at issues involving mandatory minimums as well as sentencing for economic crimes (with how loss operates being a central issue). Similarly, expect to see possible proposed amendments or requests for comment on definitions of crimes of violence, aggravated and violent felonies, and drug trafficking offenses, as well as a possible report (or update of prior work) regarding recidivism. Of note in the priorities issued late last year is the “possible development of recommendations for using information obtained from such study to reduce costs of incarceration and overcapacity of prisons.”  As prison overcapacity and costs of incarceration have been hot topics of late, the Commission hopefully will be addressing these specific issues shortly and in substance as a follow-up to Judge Saris’s letter last summer to the Senate Judiciary Committee.

District Judge at resentencing continues to resist federal child porn guidelines even after Sixth Circuit reversal

While I was traveling to New Orleans yesterday, back in my hometown a federal district court judge continued to make news in his second effort at sentencing a elderly federal defendant in a child pornography downloading case.  This local story, headlined "Judge blasts sentencing guidelines: Man's original punishment tossed on appeal," provides the notable details:

A federal judge in Columbus criticized sentencing guidelines for child-pornography offenses yesterday as he imposed a stricter sentence on a Mount Vernon man whose original sentence was rejected by an appeals court.

U.S. District Judge James L. Graham said he “continues to have significant concerns about the helpfulness of those guidelines.” He made his comments during a resentencing hearing for Richard Bistline, 70, who pleaded guilty in April 2009 to one count of possessing child pornography. Federal sentencing guidelines recommended a sentence of 63 to 78 months.

Graham sentenced Bistline in January 2010 to one day in prison and 10 years of supervised probation. Federal prosecutors appealed the sentence, which the 6th U.S. District Court of Appeals overturned in January 2012, saying it “does not remotely meet the criteria that Congress laid out” for criminal sentencing.

Graham imposed the same sentence yesterday but ruled that Bistline must be confined to his Knox County home for the first three years of probation. He credited Bistline with the one day he served in prison, three years served on probation and nine months of home confinement that he served while awaiting his original sentence.

Assistant U.S. Attorney Deborah Solove had requested a five-year prison sentence, followed by five years of probation. She objected to the new sentence, saying it was “not reasonable.”

The judge said he was guided by appeals-court rulings that upheld sentences in similar child-pornography cases that included one day of prison and at least one year of home confinement. He cited statistics from the Federal Bureau of Prisons showing that federal judges across the country impose sentences below those recommended in the sentencing guidelines in more than half of child-pornography cases....

Bistline, a former Michigan schoolteacher with no criminal record, was arrested after a task force investigating online crimes against children downloaded images of child pornography that had come from Bistline’s home computer. A search of the computer uncovered 305 images and 56 videos of children posing naked or involved in sex acts with adults....

In the three years since his conviction, Bistline has complied with the terms of probation, successfully completed a one-year sex-offender treatment program, had no access to computers and understands the harm caused to the victims of child pornography, Graham said.  Defense attorney Jonathan Tyack told the judge that the past three years “have shown that (Bistline) was worthy of your original sentence.” 

Graham also said he was influenced by concerns about Bistline’s age and deteriorating health.  According to medical records presented to the court, Bistline has had two strokes and suffered a heart attack a year ago. He also cares for his wife, who has cancer. Sending him to prison for five years “would be a life sentence, or more accurately a death sentence,” the judge said.

It will be very interesting to see if federal prosecutors seek to appeal this sentencing yet again to the Sixth Circuit.  If they do, I would set the very early "betting line" on reversal at 50/50:  some judges on the Sixth Circuit surely will be troubled that Judge Graham imposed nearly the same sentence even after his first sentence was reversed as unreasonable; but some judges may be moved by the additional reasons Judge Graham gave upon resentencing for not changing the sentence dramatically.

Prior related post:

• Sixth Circuit finds substantively unreasonable a one-day of lock-up for child porn downloading

Is the US Sentencing Commission soon to be dominated by district judges?

The question in the title of this post is prompted in part by this new post at The BLT, which is headline "Senate Questions D.C. Federal Court Nominee on Sentencing Guidelines." Here are snippets from the post providing some background for my question:

At a confirmation hearing this morning before the Senate Judiciary Committee, U.S. District Court for the District of Columbia judicial nominee Ketanji Brown Jackson fielded questions about her views on how she would handle terrorist detainee cases and how she would use federal sentencing guidelines.

Jackson, vice chair of the U.S. Sentencing Commission since early 2010, was nominated by President Barack Obama in September to fill the seat vacated by now-retired U.S. District Judge Henry Kennedy Jr. If confirmed, she would fill the sole open judgeship on the court.

Jackson didn't encounter opposition during today's hearing. Even her introduction was bipartisan: she was introduced by Representative Eleanor Holmes Norton (D-D.C.), who recommended Jackson to the White House, and Representative Paul Ryan (R-Wisc.), who is related to Jackson and offered his "unequivocal" support. Before her appointment to the sentencing commission, Jackson was of counsel at Morrison & Foerster. She served as a federal public defender from 2005 to 2007 and as an assistant special counsel to the sentencing commission from 2003 to 2005.... Senator Chuck Grassley (R-Iowa) asked ... Jackson about sentencing practices in the D.C. court, saying he was under the impression that local judges were frequently issuing sentences the departed from federal guidelines. Jackson said the commission was finishing a nationwide analysis of sentencing data, but added that the commission was "concerned" about the trend of more judges issuing sentences outside of the guidelines in certain types of cases. She didn't speak specifically to the D.C. court.

Senator Richard Blumenthal (D-Conn.) asked Jackson about the commission's decision in 2011 to retroactively apply reduced sentencing guidelines for cases involving crack cocaine. She said that the commission is required to consider retroactivity whenever it comes out with reduced guidelines and found that it was appropriate for those cases.

Blumenthal then asked about how Jackson would decide whether to depart from sentencing guidelines. Jackson replied that she didn't find any one factor more persuasive than another — the nature of the offense or a defendants' history, for instance — and would individually evaluate each case.

If — and I sincerely hope when — Commissioner Jackson becomes US Distict Court Judge Jackson, the US Sentencing Commission will then have four federal district judges among its six current commissioners. Though I believe the Commission had four judges as Commissioners for a brief period in the early 1990s, I believe one was a Circuit judge and I am sure the USSC has never had two-thirds of its members serving as active sentencing judges.

I do not think it is a huge problem to have so many district judges on the Commission at once, especially because the current crop is a diverse lot both in terms of experience and perspective.  Nevertheless, because it only takes four votes on the seven-member commission to make decisions, and because there are so many different stakeholders who should have a formal voice in USSC decision-making, I hope President Obama will consider seriously a non-judge nominee for the current open spot on the Commission and for future opennings.

IMPORTANT UPDATE:  A helpful reader reminded me (1) that I had totally forgotten that Prez Obama nominated US District Judge Charles Breyer to the open slot on the USSC earlier this year, though he still awaits full Senate confirmation, and (2) that District Judge Howell and Vice Chair Will Carr are now serving now only in hold-over status and will no longer be on the Commission as of the start of the new Congress.

Assuming District Judge Breyer is confirmed to the USSC and Commissioner Jackson is confirmed as a judge in short order, then as of the start of 2013 the US Sentencing Commission will have four district judges among five active members. If neither is confirmed, then the USSC will have three district judges among four active members.

In accord with sentiments above, I hope not only that all the pending nominations get Senate confirmation, but also that Prez Obama will very early in 2013 name new nomination to fill the soon-to-be empty slots in the Commission with some more great folks who are not now federal district judges.

Fraud sentencing of National Lampoon CEO no laughing matter (though recommended sentence are funny)

A notable white-collar sentencing took place in federal court in Indiana today, as reported in this AP piece headlined "Ex-National Lampoon CEO sentenced to 50 years in jail."  Here are the details:

A financier and former chief executive of humor magazine National Lampoon convicted of swindling investors out of about $200 million was sentenced Friday to 50 years in prison.

U.S. District Judge Jane Magnus-Stinson said the case against Timothy Durham was characterized by "deceit, greed and arrogance" and that Durham had violated the trust of thousands of small investors from the American Heartland.  "We drive Chevys and Buicks and Ford, not Ducatis. That's how most of us roll," Magnus-Stinson said. "When they're defrauded, it is the most serious offense because it undermines the fabric of this country."...

Prosecutors have said [Durham and his codefendants] stripped Akron, Ohio-based Fair Finance of its assets and used the money to buy mansions, classic cars and other luxury items and to keep another of Durham's company afloat. The men were convicted of operating an elaborate Ponzi scheme to hide the company's depleted condition from regulators and investors, many of whom were elderly.

Durham's attorney, John Tompkins, argued at trial that Durham and the others were caught off-guard by the economic crisis of 2008 and bewildered when regulators placed them under more strict scrutiny and investors made a run on the company. Attorneys for all three men had asked the judge for lighter sentences than those recommended. Tompkins sought a total of five years for Durham — three years in prison and two years of home detention.

Prosecutors had wanted 225 years for Durham. Magnus-Stinson said she couldn't sentence him to that much because that number would be as "puffed up" as statements that he held $280 million in assets. But she clearly showed her displeasure with Durham, telling him he had been "raised better" and noting that though he testified that he "felt terribly" for the victims, he had shown no sincere remorse.

Barbara Lukacik, 74, an Ohio nun who said she lost $125,000 in the Fair Finance collapse, said she had forgiven Durham and the others but testified before the sentencing that a lengthy sentence was warranted. "If you receive a short sentence — a slap on the wrist, so to say — I do not think it will be enough time for your heart and your conscience to realize your sin and your greed," she said.

There is nothing funny about lives ruined by a massive fraud and by a decision to impose a 50-year prison sentence on a white-collar scoundral. But this story struck me as especially blogworthy and somewhat laughable on a Friday afternoon because of the seemingly crazy (though arguably not foolish) sentencing recommendations coming from the parties.  I know I would never in good conscious be able to seriously advocate for a sentence of 225 years in prison for anyone, and I probably also could not urge only 3 years in prison for a massive Ponzi schemer.  At both extremes, the recommendations coming from the parties here seem more fitting for the National Lampoon's pages than federal court filings.

SCOTUS grants cert on post-Booker ex post facto issue and DNA collection from arrestees

As reported in this SCOTUSblog post, the Supreme Court granted cert in four cases on Friday afternoon, two of which involve interesting criminal justice issues.  Both the criminal justice grants will get much less attention than the Justices' decision to take up a Voting Rights Act case.  (And the cool post-Booker sentencing issue in one of the criminal justice grants will get less attention than the DNA issue in the other.)  Via SCOTUSblog, here are the basics of the two criminal justice grants:

** Maryland v. King (12-207): Whether it violates the Fourth Amendment rights of an individual who is arrested and charged with a serious crime, but not convicted, for police to take an involuntary DNA sample.  Chief Justice John G. Roberts, Jr., earlier had blocked a ruling by Maryland’s highest state court finding a Fourth Amendment violation when the individual has not yet been convicted of a crime.

** Peugh v. United States (12-62): Whether it is a violation of the Constitution’s Ex Post Facto clause for a federal judge to impose a criminal sentence based on federal Guidelines in effect at the time of sentencing, if that sentence is longer than the Guidelines had specified at the time the crime was committed.  Lower courts are split on the issue.

In the weeks ahead, I will have a lot to say about Peugh, which raises interesting issues concerning the import and impact of the guidelines in the post-Booker federal sentencing system.

Judge Bright (in dissent) assails fraud guidelines and rote recitation of 3553(a) factors

Dissenting from an Eighth Circuit panel opinion today in US v. Spencer, No. 11-3463 (8th Cir. Nov. 7, 2012) (available here), Judge Myron Bright has lots to say about the harshness of the guidelines and about the failure of district judges to adequately explain their sentencing decisions.  Here is an excerpt (with most cites omitted) from a lengthy dissent worthy of a full read:

The fraud guidelines have been heavily criticized because they no longer provide a reasonable starting point for sentencing.  Adjustments based on the amount of loss lead to astronomical sentences that have little connection to criminality.  The much-below guidelines sentence imposed on Spencer suggests that the guidelines simply did not apply here. No reasonable judge would have imposed a sentence of over 20 years.  Spencer had zero criminal history points.  But even if the guidelines should not apply to a particular offender and his crime, a sentencing judge should not have unlimited discretion to impose a sentence without some proper basis.  A sentencing judge should be guided by § 3553(a). In order to adequately review a sentence, we need the sentencing judge to perform an analysis under § 3553(a) and to explain this analysis on the record.  Here, we do not know which § 3553(a) factors the sentencing judge relied on.  Saying simply, “This sentence is appropriate under § 3553,” is no different than an opinion stating “I hold for Party A because my findings are in his favor.”...

A district court is not required to provide “a mechanical recitation of the § 3553(a) factors when determining a sentence.”  United States v. Feemster, 572 F.3d 455, 461 (8th Cir. 2009) (quotation omitted).  However, I believe the converse is also true — a mechanical recitation that the sentence complies with the requirements of § 3553(a) is insufficient.  It is impossible for an appellate court to meaningfully review a sentence without the underlying rationale.  This is especially true in areas like fraud, where the guidelines have been consistently and repeatedly disregarded by sentencing judges....

To ensure that criminal defendants receive fair sentences, this dissent urges that sentencing judges always engage in a meaningful analysis of the § 3553(a) factors — the process should not devolve to be rote, mechanical, and artificial.  Whether imposing a sentence within, above, or below the guidelines, the touchstone should always be the standard in § 3553 of a sentence sufficient but not greater than necessary and judges should verify the sentence pursuant to § 3553(a), explaining for the record “(1) the nature and circumstances of the offense and the history and characteristics of the defendant; (2) the need for the sentence imposed… (6) the need to avoid unwarranted disparities.” Id.

I acknowledge that conducting a § 3553(a) analysis in every case may be more work for a sentencing judge.  But this worthwhile endeavor could lead to great improvement in our current system.  Now sentencing courts have virtually unlimited discretion because appeals courts such as the Eighth Circuit will uphold a sentence as long as the sentencing judge says nothing more than, “I have…considered the other factors described in§ 3553(a)…. I find that the sentence imposed on [the defendant] is reasonable in light of the factors.” United States v. Hernandez, 518 F.3d 613, 616-17 (8th Cir. 2008) (upholding a sentence because the district court “expressly stated” it considered the § 3553(a) factors without further analysis); see also United States v. McGlothen, 556 F.3d 698, 702 (8th Cir. 2009) (“[T]here is no need to recite each § 3553 factor.”); United States v. Dieken, 432 F.3d 906 (8th Cir. 2006) (“[W]e do not require a district court to categorically rehearse each of the section 3553(a) factors on the record.” ).  I strongly disagree with the comments stated above in these appellate cases.