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October 19, 2004

Judge nullification (due to mandatory guidelines)?

In the Boston Globe yesterday was this interesting article discussing US District Judge Joseph L. Tauro's decision to use his power under Federal Rule 29 to acquit a lawyer charged with money laundering after the government had presented seven days of trial testimony linking the lawyer to ill-gotten monies. The formal legal basis for the acquittal, which cannot be appealed and is entirely unreviewable, seemed to be Judge Tauro's conclusion that there was insufficient evidence showing that the defendant knew he was receiving drug money. But I cannot help but speculate that Judge Tauro might have been more inclined to acquit because he thought an unduly severe sentence would be mandated by the federal sentencing guidelines if the defendant was convicted.

Students of capital sentencing know that an important historical justification for granting capital juries' sentencing discretion has been to avoid the risks of jury nullification. The concern is that, if a capital conviction mandates a death sentence, juries might be inclined to acquit a guilty but sympathetic defendant rather than condemn such a defendant to an automatic death. Such concerns about nullification in part prompted a legislative move to discretionary death sentencing in the 19th and 20th centuries, and also was integral to the Supreme Court's decision to declare mandatory death sentencing systems unconstitutional in the 1970s. Against this backdrop, I wonder whether some Rule 29 acquittals in the federal system may reflect a form of "judge nullification" — are federal judges perhaps sometimes more inclined to acquit a guilty but sympathetic defendant rather than condemn such a defendant to the severe mandatory sentences required under the federal guidelines?

Though I cannot nor should not question Judge Tauro's ruling without more direct information about the case, it was interesting to see a former federal prosecutor in the Globe article raising the notion that harsh federal guidelines could be prompting (inappropriate) Rule 29 acquittals:

Salem lawyer Jeanne Kempthorne, a former federal prosecutor, cited more than a dozen cases between 1996 and 2001 in which federal judges in Massachusetts acquitted defendants during trial. ''It is a system that invites abuse," she said. A judge may acquit a defendant simply because he doesn't like the federal sentencing guidelines, which call for long mandatory prison terms for certain crimes, Kempthorne said.

Though covering the basic legal issues effectively, the Globe article did not provide a lot of details about Judge Tauro's ruling. I am intrigued to know what sort of sentence the lawyer charged with money laundering was likely facing if he had been convicted in the trial before Judge Tauro.

UPDATE: Tom Lincoln discusses this case here and raises a number of excellent points about the realities of federal criminal practice. He also criticizes my speculation about Judge Tauro's decision being influenced by the harsh mandates of the guidelines, saying the point "would have been better left unsaid." Though I fully understand Tom's concerns that this post and speculation about Judge Tauro's decision could feed "prosecutorial claims of judicial abuse," my strong commitment to transparency (discussed here) entails that few if any points will be "left unsaid" on this blog.

But Tom's points help me realize that I ought to have at some point a post entitled "Prosecutor nullification (due to mandatory guidelines)?" This is because, while I am speculating, I am sure there are (many?) instances of a federal prosecutor not bringing or dismissing a charge primarily because he or she "thought an unduly severe sentence would be mandated by the federal sentencing guidelines if the defendant was convicted."

October 19, 2004 at 02:33 AM | Permalink


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Re: U.S. Court of Appeals for the Seventh Circuit in U.S. v. Paul A. Henningsen No. 03-3681 The court remanded the case back to the district court, but the court's mandate was stayed pending the Supreme Court decision in Booker.

Posted by: roxanne | Oct 19, 2004 8:17:30 AM

I hope that Judge Tauro did not do what you speculate he did.

There is an important distinction here. Prosecutors are within their rights not to bring a charge because they perceive the punishment as being too severe. We may not like the resulting disparity and DOJ has policies to discourage this, but the system accepts (in fact, needs) prosecutorial discretion. Juries, as the conscience of the community, arguably also have the right to nullify, although we are reluctant to tell them this.

Judges, in contrast, are not supposed to be advocates. They are supposed to follow the facts and the law. If the facts and the law take them to a place they deem to be improper or immoral, they have a few options. They can speak out. They can write about it, etc. However, they are not at liberty to cheat by ignoring the facts or the law to avoid the consequences they dislike. If judges cannot deal with imposing the penalty required by the facts and the law, they should resign. That act of protest is honorable and may be effective in advancing their view. Judge Martin did something like that to good effect. [However, he really retired with full benefits instead of the more difficult choice of resigning earlier.] Although the circumstances are quite different, I am reminded of Gandhi's remarks to the judge in his case: "The only course open to you, the judge, is . . . either to resign your post, or inflict on me the severest penalty, if you believe that the system and law you are assisting to administer are good for the people."

Posted by: what | Oct 19, 2004 8:45:07 AM

The old Reno Memo allowed prosecutors to consider the proportionality of the sentence in making charging decisions. Judges do not have that flexibility. They play different roles.

Posted by: Hmm | Oct 19, 2004 10:07:21 AM

Prof. Berman,

With all due respect, I think you misread (or perhaps it is just an ill-chosen phrase on his part) Tom Lincoln's point about this being better "left unsaid." Sometimes (perhaps usually) we mean by this--even though its true, better leave it out (for politeness's sake, say, or some other such prudential concern). But reading his post, I think he thinks it should be left unsaid because there is not a scintilla of evidence to support it, and it's a potentially explosive (in any event quite serious) charge.

You seem to read his post as a concession that what you are saying has merit but is better left unsaid, whereas I don't think he in any way endorses or joins your speculation. I don't think his point is in any way opposed to transparency, it is against what he at least tanks to be baseless speculation.

Best Regards,


Posted by: Fr. Bill | Oct 19, 2004 7:41:01 PM

Oops--in the above post I seem to have used "tanks" for either "thinks" or "takes"--either of which works much better than "tanks"...


Posted by: Fr. Bill | Oct 19, 2004 7:45:01 PM

Fair points, everyone, but I think it is critical to spotlight these issues, especially because federal prosecutors -- as evidenced by the comments of former prosecutor Jeanne Kempthorne -- certainly believe these are real issues.

Moreover, I wanted to raise this point because it serves as yet another reason to advocate against harsh mandatory sentencing. Giving judges discretion at sentencing to do justice can help avoid even the speculation that judges may be influenced to acquit for fear of unjust sentencing consequences. Realize that these arguments prevailed to prevent mandatory death sentencing, and mabe they can support arguments against manadtory minimum sentencing.

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