Sentencing Law and Policy

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.

Is Gall the most important SCOTUS sentencing case?

The long-standing debate over crack sentencing policy ensures that the Kimbrough case gets lots of media attention (see here and here), and national fixation with the death penalty ensures that Baze will always be an above-the-fold story (see here and here).  Nevertheless, as we gear up for a major SCOTUS sentencing term, I think Gall may end up being the case and ruling with the greatest long-term significance and impact. 

Whether the Supreme Court uses Gall to broaden or restrict the scope of post-Booker discretion, the decision in Gall is likely to impact greatly how all district courts sentence after Booker.  The decision will also likely frame future debates over Booker as a new Attorney General (and eventually a new administration) takes stock of federal sentencing realities. 

For more on the Gall case and related issues, the Des Moines Register has this helpful article and this effective editorial.  The article notes that the Gall case "could affect criminal sentences in every federal courtroom in America," and the editorial calls for "Congress [to] eliminate the garden-variety drug prosecutions and return the federal courts to their original purpose of hearing major criminal cases that cut across state lines and exceed local authority and resources."

Some related SCOTUS new Term posts:

• A big SCOTUS sentencing Term in the works?
• Serious SCOTUS sentencing fun soon to begin
• Baze lethal injection case index
• Gall reasonableness case index
• Kimbrough reasonableness case index

UPDATE:  This CNN piece about the new SCOTUS Term is headlined "Law-and-order issues top Supreme Court docket."

Read all about Rita (and get ready for Gall and Kimbrough)

I am pleased to see that the Denver University Law Review now has all the papers in its special symposium on Rita now available at this link.  A list of the titles and contributors shows why anyone interested in federal sentencing after Booker has to cruise over and check out all the paper in the symposium:

• Rerouted on the Way to Apprendi-land: Booker, Rita, and the Future of Sentencing in the Federal Courts: An Introduction
  Sam Kamin 

• Rita, Reasoned Sentencing, and Resistance to Change
  Douglas A. Berman 

• Empirical Questions and Evidence in Rita v. United States
  Paul J. Hofer 

• Rita, District Court Discretion, and Fairness in Federal Sentencing   
  Hon. Lynn Adelman & Jon Deitrich

• Rita Needs Gall—How to Make the Guidelines Advisory
  Hon. Nancy Gertner

• An Appellate Perspective On Federal Sentencing After Booker and Rita
  Hon. Jeffrey S. Sutton

Reply briefs in Gall and Kimbrough

Though I am still in a haze over Baze (details here), sentencing fans should be sure not to forget that we are but a week away from oral argument in the Booker reasonableness cases of Gall and Kimbrough.  Helping to get my mind back on these federal sentencing cases — which are, realistically, a lot more important to a lot more defendants than Baze — are the just-filed reply briefs from the petitioners.

Based on a quick review, both briefs look like great reads, and they can be downloaded here:

Download 066330_kimbrough_reply.pdf

Download gall_reply_brief.pdf

Detailing sound "policy disagreements with the Guidelines" to justify variances

This weekend I read closely the Government's brief in Gall (available here).  The brief is quite well done and effective, in part because it makes many sound and significant concessions.  Most critically, as previously highlighted here, the Government's brief repeatedly explains that district courts can vary from the Guidelines "based solely on policy disagreements with the Guidelines."  Gov't Brief in Gall at 36; accord id. at 37 n.11 ("sentencing courts may impose non-Guidelines sentences based on policy disagreements with the Sentencing Commission"); see also id. at 32 ("variances need not be justified solely on factual grounds but may ... be based on reasoned policy considerations").

In light of this important concession, I decided to begin a list of "reasoned policy considerations" for disagreeing with certain Guidelines.  Notably, as highlighted below, some policy reasons for varying from the Guidelines are suggested by the Commission's own research.  For now, I have started this list without detailed explanations, though I may annotate this list in future posts (and readers are encouraged to add to the list in the comments).

Policy Reasons for Variances Suggested by the Commission

1.  Crack guidelines are much too harsh relative to powder guidelines, especially for low-level offenders

2.  Career offender guidelines are too harsh, especially for offenders with relatively minor prior offenses

3.  Criminal history category I may overstate the risk of recidivism for "true" first offenders

Policy Reasons for Variances Suggested by Many Others

4.  The guidelines unduly emphasize quantities (like loss calculations and drug weights) and ignore true culpability considerations based on a defendant's mental state

5.  The guidelines too readily rely on uncharged (and even acquitted) conduct to greatly increase offense levels

6.  The guidelines categorize many minor prior offenses as "crimes of violence" to enhance sentences

7.  The guidelines fail to encourage alternatives to incarceration, especially for non-violent first offenders

8.  The guidelines fail to incorporate relevant personal circumstances, such as mental conditions, prior good works (like military service), family circumstances, drug dependence

9.  The guidelines generally fail to give voice and attention to victims' interests or to the interest of other third parties impacted by the crime and punishment

Government concedes in Gall that variances can be "based solely on policy disagreements with the Guidelines"

This week the Government filed its merits brief in US v. Gall, the below-guidelines reasonableness case to be heard by the Supreme Court at the start of the new Term, and it is available for download below.  Confirming an important point conceded by Deputy SG during last Term's oral arguments, the Government's Gall brief states repeatedly that policy disagreements with the Guidelines can be a valid basis for a variance — even though many circuit have held otherwise (like the Tenth Circuit in a split ruling yesterday) and even though many lower court briefs filed by the Government have argued otherwise.

Here is a brief snippet from the summary of argument in the Government's Gall brief that spotlights this important point:

Contrary to petitioner’s suggestion, proportionality review does not require an “extraordinary” justification for every non-Guidelines sentence.  Only sentences that dramatically vary from the range require substantial justification. Similarly, proportionality review does not demand that every variance be supported by a “fact” that is not encompassed within the jury verdict or guilty plea.  Considerations of policy, as well as facts, can support a variance; the test is the cogency and strength of the rationale, not whether it is fact-based.

Download gall_sg_merits.pdf

Top-side briefs in Gall and Kimbrough

All the briefs on the petitioners/defendants' side of the two pending SCOTUS reasonableness cases, Gall v. United States and Kimbrough v. United States, were filed last week. I believe all of these briefs can be accessed at this page created on the New York Council of Defense Lawyers ("NYCDL") website.  (In addition, Paul Rashkind has assembled a lot of the briefs here, and I believe they will also appeal on this defender website eventually.)

I have only so far had a chance to read some of the briefs (in part because I was helping with this NYCDL brief in Gall).  There appears to be a lot of interesting and important post-Rita work being done in these briefs, and readers are encouraged to spotlight particular efforts and passages they consider especially notable.  I hope to find time after the bottom-side briefs are filed to comment on what the Justices might think about what they are being told.

UPDATE:  I have been told that briefs on the defender website are available here for Gall and here for Kimbrough.

Talk about having Gall

Though the Supreme Court's cert grant yesterday in Kimbrough (details here and here) is deservedly getting a lot of attention because of the long-standing debate over federal crack sentencing, the decision by the Justices to take up Gall to replace Claiborne is also very significant. 

As detailed in the district court's sentencing opinion (available below), the facts in Gall are quite compelling in support of a below guideline sentence.  Here is one of many choice paragraphs from the terrific Judge Pratt of Iowa explaining his sentencing decision in Gall:

Any term of imprisonment in this case would be counter effective by depriving society of the contributions of the Defendant who, the Court has found, understands the consequences of his criminal conduct and is doing everything in his power to forge a new life.  The Defendant's post-offense conduct indicates neither that he will return to criminal behavior nor that the Defendant is a danger to society.  In fact, the Defendant's post-offense conduct was not motivated by a desire to please the Court or any other governmental agency, but was the pre-Indictment product of the Defendant's own desire to lead a better life.  Indeed, a sentence of imprisonment may work to promote not respect, but derision, of the law if the law is viewed as merely a means to dispense harsh punishment without taking into account the real conduct and circumstances involved in sentencing.

Download Gall_District_Sent._Mem.pdf

Of course, the Eighth Circuit, which reversed the below-guideline probation sentence given to Brian Michael Gall, saw matters differently.  I briefly discussed the circuit opinion in Gall in this post, and here is a paragraph from the panel's opinion that explains its basic view of the case:

Here, the district court imposed a sentence of probation when the bottom of Gall's advisory Guidelines range was 30 months' incarceration.  In essence, this amounts to a 100% downward variance, as Gall will not serve any prison time. Such a variance is extraordinary. "An extraordinary reduction must be supported by extraordinary circumstances." United States v. Dalton, 404 F.3d 1029, 1033 (8th Cir. 2005); see also Claiborne, 439 F.3d at 481 (holding that the district court's imposition of a 15-month sentence when the Guidelines range was 37 to 46 months' imprisonment, a 60% downward variance, was unreasonable).  We conclude that this extraordinary variance is not supported by extraordinary justifications.