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August 9, 2006

Seventh Circuit issues another cracked opinion on the crack ratio

Perhaps courts ignore statutory text all the time while claiming to be faithful to legislative choices.  But I will never get accustom to the way circuit courts are fabricating stories about federal sentencing law to justify reversing district judge decisions not to follow the crack guidelines after Booker.  Today, the action is in the Seventh Circuit through its ruling in US v. Jointer, No. 05-4632 (7th Cir. Aug. 9th 2006) (available here).

In Jointer, the defendant pleaded guilty to a few minor crack sales in which apparently no serious violence was involved.  Then, after a thoughtful sentencing hearing in which the district court considered general and individual considerations, the judge imposed a sentence of more than seven years (87 months to be exact).  BY my lights, a sentence of 7+ years for minor drug sales seems pretty reasonable and compliant with Congress' instruction to sentencing judges in 18 U.S.C. § 3553(a) to "impose a sentence sufficient, but not greater than necessary, to comply with the purposes set forth in paragraph (2) of this subsection."

But, tellingly, the Jointer court never considers directly whether 7+ years was a reasonable sentence for the defendant's crimes, nor does it one address the text of 3553(a) or the purposes set forth in 3553(a)(2) that are to guide sentencing.  Instead, because the district court drew guidance from the US Sentencing Commission's suggestion that a 20:1 ratio would better serve congressional goals than the guidelines' current 100:1 ratio, the Jointer court decided the sentencing judge erred "as a matter of law."  According to Jointer, the district court "followed neither the statutory language set out by Congress nor the applicable guidelines sections."

HUH???  What statutory language did the district court not follow?  I have identified above the "statutory language set out by Congress" that the Seventh Circuit has ignored in Jointer, but I cannot for the life of me figure out what "statutory language set out by Congress" that the district court failed to follow.

Of course, if we were in a pre-Booker world, I could find point to 3553(b) which required the guidelines to be followed.  But that provision has been struck down as unconstitutional!  I just don't get it, and I sincerely hope that someone in the comments might help me understand.

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The Federal guideline system does not differentiate between the State’s several sentencing objectives. One of those objectives is to deter crimes by issuing warnings, which occurs before the fact. Those who commit a crime are to be penalized in a particular way. Warnings of this kind have to be enforced; otherwise they loose their credibility. Section 3553 (a) provides that a sentence must “ afford adequate deterrence to criminal conduct.” Legislators tend to elevate warnings of this kind without giving any attention to the cost effectiveness of their deterrent value. I believe that is what has happened in this case, but it makes good politics. We cannot be sure of this because the Guidelines are so poorly constructed.

Another objective is to hold those who have committed a criminal offense accountable. Punishment is used for this purpose. Section 3553 (a) provides that the sentence must “ reflect the seriousness of the offense” and so on. The action taken to enforce a warning may be very different from that needed to hold an offender accountable. Of course the more restrictive of these two should control, with the less restrictive action nested within the first. In this way both objectives are accomplished. These are two different ways of thinking about the same problem.

What this tells us is that it is time for the US Sentencing Commission to start over again.

Posted by: Tom McGee | Aug 9, 2006 7:35:13 PM

The Court completely assumes that the Anti-Drug Abuse Act's mandatory minimum provisions somehow preordained the Commission's decisions regarding drug quantities and relevant conduct. In FN 1 the Court says that the 100:1 ratio "originated in" the 1986 Anti-Drug Abuse Act. The opinion goes on to say that "The Sentencing Commission then set the Guidelines accordingly, adjusting the sentencing ranges for crack and powder to reflect Congress's decision."

Michael Tonry discusses the differences between the mandatory minimum sentences required by the 1986 legislation and the Guidelines' treatment of drug sentencing issues in his 2005 Stanford Law Review Article:

"Legislation enacted in 1986, for example, required five-, ten-, and twenty-year mandatory minimum sentences for offenders convicted of a wide range of drug offenses. Rather than simply provide that the affected offenders must be sentenced accordingly, the Commission exacerbated the legislation's effects in two principal ways: through the relevant conduct provisions, applying the mandatories to offenders not actually convicted of the predicate offenses; and by building intermediate steps between the mandatories so that, if five grams of crack triggered a five-year minimum and ten grams a ten-year minimum, amounts between five and ten grams triggered sentences between five and ten years."

Posted by: C.Hessick | Aug 9, 2006 9:32:09 PM

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