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January 19, 2005

Distinct views, but uniform brilliance (and results?)

After a careful read of Judge Adelman's Ranum opinion, I am struck not only by how distinctly the opinion interprets and applies Booker as compared to Judge Cassell's Wilson ruling, but also by how uniformly brilliant the analysis is in both opinions.  In addition, as I will explain below, I think the decisions, though seemingly disparate as a matter of tone and procedure, in fact both serve Congressional goals of uniformity, honesty and proportionality in sentencing.  Cf. Breyer opinion for Booker remedial majority at 21.

Before a discussion of the merits below, let me first complement both Judges Cassell and Adelman for their (speedy) efforts to provide guidance on the meaning of Booker (and also for alerting me to their rulings).  What Booker really means for federal sentencing depends on how it is applied in practice, and the rulings in Wilson and Ranum both provide clear and cogent accounts of how two judges think Booker must be applied.  As I suggested here, I suspect there will be a lot more analysis and insights for and from judges and litigants in the days ahead, and I sincerely believe we will best figure out the post-Booker world by having these discussions in an open, transparent and on-the-record way for all to see and debate.

On the merits, everyone should be focused first on the fact that Judge Cassell's sentence in Wilson treated the guidelines as nearly mandatory in a case which involved a violent crime committed by a person with a long criminal history (and, notably, the case apparently had no "Blakely facts" in dispute), while Judge Adelman's sentence in Ranum treated the guidelines as more advisory in a case which involved a non-violent crime committed by a first offender (and, notably, the case apparently did have some "Blakely facts" in dispute).

Many persons have rightfully distinguished how we should treat violent recidivists and non-violent first offenders at sentencing, and have also expressed concern about whether the federal guidelines do an adequate job in this regard.  Notably, these persons include (1) Justice Kennedy in his potent speech to the ABA in 2003 assailing the overall severity of federal sentencing terms, (2) the ABA Commission doing work in Justice Kennedy's name, and (3) key republican Senators on the Senate Judiciary Committee and AG nominee Alberto Gonzales (as detailed here based on the recent confirmation hearings).  To quote on this theme from a summary of the ABA's Kennedy Commission report: "Lengthy periods of incarceration should be reserved for offenders who pose the greatest danger to the community and who commit the most serious offenses, and alternatives to incarceration should be available for offenders who pose minimal risk to the community and appear likely to benefit from rehabilitation efforts."

In other words, achieving true substantive uniformity and proportionality in sentencing may call for Judge Cassell to follow the guidelines in Wilson and for Judge Adelman to depart from the guidelines in Ranum. (And, gosh, is there anything more refreshingly honest than seeing two capable judges have the opportunity to say and effectuate, on the record, what justice seems to demand in the case before them?)  Or put another way, everyone should be very cautious before jumping to the conclusion that the results in Wilson and Ranum represent undue disparity.  Only someone suffereing from, in Professor Marc Miller's terminology, sentencing equality pathology can quickly assert that Wilson and Ranum are obviously disparate in their ultimate results.

Finally, I am reminded of Judge Cassell's astute insight in Wilson that the "congressional view of how to structure [the] sentencing system will surely be informed by how judges respond to their newly-granted freedom under the 'advisory' Guidelines system."  Based on what I have seen so far in Wilson and Ranum, Congress should be very impressed and proud of the work being done by district courts in the wake of Booker and pleased with the first small bits of advisory guidelines dtata.  Indeed, I hope Representative Tom Feeney and every other member of Congress will read both Wilson and Ranum carefully before making any broad statements about whether federal judges can be trusted to sentence wisely and in good faith in the post-Booker environment.

January 19, 2005 at 04:14 PM | Permalink


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But how do you limit Wilson to its facts when Cassell expressly and repeatedly said he would apply the Guidelines as written to substantially all cases before him? At face value -- and I have no reason to take it otherwise -- Wilson appears motivated by Cassell's own policy-driven conception of post-Booker sentencing, not by any case-specific concerns.

Marc Fernich
Defense Lawyer
New York City

Posted by: Marc Fernich | Jan 19, 2005 4:39:47 PM

Marc is 100% right!!

The focus here is on process and not on severity or types of crimes. J. Casssell accepts the USSC policy choices while J. Adelman does not. Irrespective of who gets the resulting sentence "right" in these cases, the critical point is how judges will approach ALL cases.

Posted by: yo | Jan 19, 2005 11:42:46 PM

It seems to me that, while Judges Cassell and Adelman both reached the correct results in the cases before them, the underlying reasoning they used was diametrically opposite.

To put it another way: I think Wilson would have gotten about the same sentence from either judge. The guideline sentence is a severe one, but if any defendant deserved it, Wilson did.

But you can't say the same about Ranum. Judge Adelman pretty much ignored the guidelines in his case, resulting in a sentence dramatically lower than he would have received in a pre-Booker world. Given Judge Cassell's view that the guidelines should govern in nearly all cases, it's doubtful he would have received the same sentence from Judge Cassell.

Posted by: Marc Shepherd | Jan 20, 2005 9:27:10 AM

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