What Wilson has wrong

In a prior post here, I have detailed the reasons why Judge Cassell's path-breaking post-Booker decision in Wilson (available here) "merits far more praise than criticism."  Though I believe, as I suggested here, that Wilson is a brilliant effort, many comments in prior posts have rightly spotlighted that Wilson is also a flawed effort.  This post, drawing on some of the comments and my own reflections, sets forth possible criticisms of Wilson:

1.  Consider the statute: To his credit, Judge Cassell considers the statutory parsimony mandate of 3553(a).  See Wilson slip op. at 21-23; see also my parsimony post here.  But another critical part of the statute, the requirement in 3553(a)(1) that a judge "shall consider ... the history and characteristics of the defendant," gets very short shrift in Judge Cassell's Wilson opinion.  Other than a very brief account of Wilson's criminal history, id. at 29, Judge Cassell's opinion does not discuss in any way defendant Wilson's personal history or characteristics. 

2.  Consider the timing: Though Judge Cassell merits praise for providing immediate guidance for lawyers and defendants facing sentencings in his court, he also perhaps merits criticism for not giving the parties an initial opportunity to file post-Booker briefs before issuing his opinion.  Judge Cassell did give the parties 10 days to file objections, but in many ways the die is cast.  (Notably, Judge Cassell engaged with points raised in my parsimony post, see id. at 21-23; he might well have also engaged with arguments raised by counsel.)  Though Judge Cassell was "reluctant to delay the sentencing," he still could have asked for letter briefs by Friday and come out with his ruling this Tuesday after the long weekend.

3.  Consider the dicta: At various points, Judge Cassell says he would give the guidelines "heavy weight" and depart only in "unusual cases for clearly identified and persuasive reasons."  Id. at 3, 25-26.  But elsewhere he asserts the guidelines will be followed in "all but the most unusual cases," id. at 6, and that they "should be followed in all but the most exceptional cases."  Id. at 25.  Perhaps this is semantics, but the latter comments suggest an unduly rigid approach to departures (especially since, as detailed in Table 9 of this set of USSC official statistics, recent data reveal that judges in the district of Utah had departed from the mandatory guidelines in more than 22% of all cases).

4.  Consider the purposes IN CONTEXT: Judge Cassell explains why the US Sentencing Commission is well positioned to consider sentencing purposes such as just punishment and deterrence from a system-wide perspective, id. at 10-19, but only a sentencing judge can assess these purposes from a case-specific perspective.  At page 14 of Wilson, Judge Cassell recognizes that crime control purposes implicate both "general deterrence" and "specific deterrence" and then says it is "difficult for an individual judge to make such determinations."  Though it surely is difficult for a judge to assess general deterrence, it is truly impossible for anyone but a judge to make a refined assessment of "specific deterrence" because this requires a focus on the history and characteristics of a particular defendant (see point 1 above).

More generally, after giving 20 pages to a wide-ranging discussion of purposes in general, id. at 6-26, Judge Cassell's opinion has only a single boiler-plate sentence asserting that his consideration of purposes for defendant Wilson prompts him to follow the guidelines.  Id. at 31-32.  The conclusory application of purposes to defendant Wilson reflects again Judge Cassell's systemic failure to seriously engage with the history and characteristics of the defendant throughout his Wilson ruling.

Though I could nitpick some other aspects of Wilson, I will stop here in part because I do not want all my commentary to unduly suggest that this one opinion should become a de facto precedent for other district judges.  I believe each individual judge has a constitutional obligation to reach her or his own judgments about the meaning and application of Booker and 18 USC 3553(a), which now both govern federal sentencing.  And, as I highlighted previously here, the new federal sentencing world will be built opinion by opinion, and Wilson should be seen as only the first (brilliant and flawed) brick.