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."

Kimbrough case bringing attention to crack sentencing

Among many virtues of SCOTUS attention to post-Booker issues is the spotlight it can bring on particularly ugly features of the federal sentencing system.  This is most apparently, of course, in the context of the Kimbrough case's focus on crack cocaine sentencing realities.  And today there are notable pieces in two major newspapers:

• The Houston Chronicle has this effective article entitled "Sentencing disparity for cocaine under attack"

• The Philadelphia Inquirer has this potent commentary from Marc Mauer entitled "The selective and unfair penalty for crack"

Especially in the wake of the Jena 6 march last week, I am hopeful (but not optimistic) that the attention Kimbrough generates could possibly bring the crack/powder discussion back into congressional view.

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

Should Kimbrough be vacated and remanded given USSC amendments and SG concessions?

This weekend I read closely the Government's brief in Kimbrough (available here).  The brief is effective, but it largely dodges discussion of the import of the Sentencing Commission's proposed crack guideline amendment (archive here), and it also makes a number of significant concessions.  These concessions late in the Kimbrough brief especially caught my attention:

[A] court could disagree with the Guidelines’ treatment of a crack offender’s role in the offense, or (as was seemingly the case here) with the Guidelines’ treatment of the offender’s prior military service....

While courts could not rely on [US Sentencing Commission] reports as a basis for categorically disagreeing with the 100:1 ratio, courts could properly consider those reports in determining whether a particular defendant’s commission of a crack-cocaine offense implicates the policy reasons underlying Congress’s harsher treatment of crack offenses.  See United States v. Ricks, No. 05-4832, 2007 WL 2068098, at *6 (3d Cir. July 20, 2007); United States v. Jointer, 457 F.3d 682, 687 (7th Cir. 2006), petition for cert. pending, No. 06-7600 (filed Oct. 27, 2006); Williams, 456 F.3d at 1369.  For example, one of the justifications for the 100:1 ratio was that crack cocaine is more closely correlated with the commission of other serious crimes (based on the greater propensity of individuals trafficking in crack to carry weapons).  See, e.g., United States Sentencing Commission, Special Report to the Congress: Cocaine and Federal Sentencing Policy 184-185 (1995).  Accordingly, it would not be inconsistent with congressional policy for a court to conclude that, based on the individualized circumstance that a crack offender did not carry a weapon or otherwise threaten violence in connection with the offense, a downward variance would be appropriate.

In other words, in Kimbrough, the Government is conceding that almost any reasoned factual or policy basis for not following the crack guidelines in an individual case could justify a below-guideline crack sentence.  (And, though not saying so explicitly, the Government seems to hint that Derrick Kimbrough's below-guideline sentence might well have been justified on such grounds.)  Throw in the fact that the USSC's proposed crack amendments might be made retroactive (and thus applicable to Derrick Kimbrough) before the Supreme Court has a chance to render an opinion, and I am now thinking the Court's best move might be to just kick Kimbrough — and all other crack cases in which cert. petitions are pending — back to the circuit courts for reconsideration.

Some related posts:

• The Government's merits brief in Kimbrough
• ABA makes pitch for USSC crack amendments to be made retroactive
• Why the USSC's new crack work is soooooo significant
• How will the new USSC crack work impact present (and past) cases?
• Conclusive proof old crack guidelines unreasonable
• Previewing the (quite unpredictable) new federal politics of crack sentencing

The Government's merits brief in Kimbrough

This Government just filed its merits brief in US v. Kimbrough, the crack-cocaine 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.  Here is the first paragraph of the summary of the argument:

Congress has the power to prescribe the appropriate level of punishment for criminal offenses.  It may not only set minimum and maximum penalties for an offense, but also restrict the courts’ exercise of discretion within the statutory sentencing range.  Where Congress imposes such restrictions, and where those restrictions do not violate the Constitution, courts are bound to abide by them.  That is true even though courts otherwise have broad discretion in imposing sentence under the Sentencing Reform Act of 1984, 18 U.S.C. 3551 et seq., as modified by this Court in United States v. Booker, 543 U.S. 220 (2005).  The Sentencing Guidelines are now advisory, and courts may vary based solely on policy considerations, including disagreements with the Guidelines.  But where Congress has made a specific policy determination concerning a particular offense (or offense or offender characteristic) that legally binds sentencing courts, and the Commission (as it must) incorporates that policy judgment into the Guidelines in order to maintain a rational and logical sentencing structure, that specific determination restricts the general freedom that sentencing courts have to apply the factors set forth in 18 U.S.C. 3553(a). Congress did not intend for the general standards in Section 3553(a) to trump specific policy determinations that Congress itself directs to sentencing courts.  Booker provides for review of sentences for “reasonableness,” and a sentencing court does not act reasonably when it rejects a specific congressional mandate.

Download kimbrough_govt_brief.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.

The sentencing transcript in Kimbrough

In this prior post, I discussed some of the issues (and linked the cert papers) related to the Supreme Court's cert grant last Monday in Kimbrough v. United States, No. 06-6330, the crack sentencing case.  I have since had a chance to review the transcript fromt the district court sentencing in Kimbrough, which I provide for downloading below.

In an effort to putting aside all the intricate legal issues related to Booker and 3553(a) and guideline provisions, I would like to read comments from folks after they review this transcript on the most basic and essential question: was the sentence given by Judge Raymond Jackson to Derrick Kimbrough on April 15, 2005 reasonable?

Download kimbrough_sentencing_transcript.pdf

Some recent related posts:

• Thinking through Kimbrough and the state of crack sentencing
• SCOTUS scratches my sentencing itch, but also has me scratching my head
• A coming reasonableness clusterf#@k?  Ruminations while waiting for Rita

Thinking through Kimbrough and the state of crack sentencing

The Supreme Court's cert grant last Monday in Kimbrough v. United States, No. 06-6330, justifiably received a lot of attention (see here) because it appears that SCOTUS is finally going to get involved in the long-standing debate over crack sentencing (which has hit new heights since Booker).  Notably, this morning brings two distinct commentaries here and here calling upon the Supreme Court and others to do something about crack sentencing inequities. 

But, the timing and the context for the Court's foray into this arena has me still scratching my head about what the Justices are up to with federal sentencing these days.  Let me explain:

1.  Quirky facts:  The cert papers in Kimbrough — and here are links to Kimbrough's petition, the government's response, and Kimbrough's reply — indicate the case facts are very quirky.  According to the cert petition, Derrick Kimbrough pleaded guilty without a plea agreement and "turn[ed] down the government's offer to dismiss the § 924(c) count," which added five extra mandatory years to his sentence.  And yet, for some unclear reason, Kimbrough was denied an "acceptance of responsibility" reduction.  I am wondering what weird back-story might explain all this.

2.  Quirky timing:  Last month the US Sentencing Commission proposed amendments to the crack guidelines and strongly encourage Congress to make further adjustments (details in this archive).  The new crack guidelines will become effective (absent congressional action) November 1, which will be after SCOTUS hears argument, but before a ruling, in Kimbrough.  Though the district court's initial sentencing in Kimbrough makes the USSC's amendment not directly relevant, now seems like an especially quirky time for the Justices to be opining on crack sentencing dynamics.

That all said, simply the cert grant in Kimbrough should help lower court judges and Congress and the Justice Department and the USSC and others appreciate the need to focus on cocaine sentencing justice throughout 2007.  That alone makes the grant in Kimbrough valuable, even if curious.