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January 5, 2007

Sentencing federalism: Judge Weinstein on state-federal disparity

I am pleased to see the Second Circuit Sentencing Blog is back in action, and especially happy it noted Judge Jack Weinstein's latest Booker work in US v. Brennan, No. 96-CR-793, 2007 WL 14590 (E.D.N.Y. Jan. 2, 2007) (download below).  In Brennan, Judge Weinstein relies on state-federal disaprity concerns — and relies heavily on the student note I just spotlighted here — to justify adjourning a federal supervised release proceeding.  Here are a few of many highlights from the opinion (with cites omitted):

This case illustrates the need to coordinate federal and state sentencing practices.  For reasons indicated below, the court defers to the state in this drug possession case....

Federal legislation recognizes the desirability of avoiding sentencing disparity.... The disparity referred to has usually been interpreted to apply horizontally to comparisons among federal defendants.  Yet, section 3553(a)(6) can also be interpreted to require consideration of vertical disparities between local state and federal sentences.  Criminal law and sentences in the past and today have been crafted by the states not the federal government; federal sentences have had little impact on most crimes.

From the point of view of the impact of sentencing on specific and general deterrence and on reducing recidivism rates, state-vertical coordination is more important than national-horizontal uniformity.  The public and criminals generally consider the local federal and state courts as part of a single protective institution.  Too great a disparity between state and federal prosecution and sentencing decisions will be seen by the public as creating unjustified disparities.  Section 3553 (a)(6) should be construed as covering disparities in state-federal as well as federal-federal comparative sentencing.

Considering comparable state sentences in formulating federal sentences will generally tend to reduce average time in prison.  Federal sentences are generally higher than state sentences.  This development may also moderate the power of prosecutors to whipsaw defendants — federal prosecutors intervening in state matters, and state prosecutors threatening deferral to federal prosecutions with the prospect of higher sentences.

Given the difference between the Federal and the New York State systems with regard to the assistance available to some offenders with substance abuse problems, the fact that the defendant has completed a detoxification program and is willing to be monitored in a state drug treatment program, family considerations, and the likelihood of more effective treatment out of as compared to in prison, justice would be better served within the state system. In an attempt to assist the defendant and his family, without endangering the public, the court should allow the defendant's present state drug possession charges to go forward in the state rather than the federal system.

Download brennan_opinion_from_weinstein.doc

I always enjoy Judge Weinstein's sentencing work, and his efforts in Brennan seem especially noteworthy because of the embrace of federalism values.  In this prior posts, I have set out reasons for rooting for criminal justice federalism, and I am pleased whenever a jurist explores federalism themes when facing novel federal criminal justice issues (as Judge Nancy Gertner did in a distinct context a few month ago).  I hope Booker and other developments keep these legal process issues front-and-center, even though they often get lost in substantive debates over specific sentencing policies.

I doubt the prosecutors in New York are too pleased with this ruling.  But I also suspect that they may fear that some Second Circuit panels might embrace Judge Weinstein's reasoning.  It will be interesting to see if Brennan gets appealed in some way.

January 5, 2007 at 02:46 PM | Permalink


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I disagree with Judge Weinstein analysis, insofar as it might be used by federal sentencing judges to deviate from the Guidelines. Although he exhibits great thought and care in reaching his conclusion -- a trademark of his -- the application of his analysis in the sentencing context ignores the federal government's unique interest in sentencing those who violate its laws, an interest that is wholly independent of the interests of the people of any individual state.

Taking state-federal disparities into account during sentencing ignores the federal government's sovereign prerogative to regulate conduct within its sphere and punish it accordingly. That the people of New York, for example, have determined that certain criminal conduct does not warrant a significant sentence does not impede the people of the United States from punishing more severely the same criminal conduct -- provided, of course, that Congress possesses the authority to regulate such conduct.

Taking state-federal disparities into account also will result in sentencing at the lowest-common denominator, effectively letting the citizens of the state with the least severe sentences to dictate federal sentencing policy.

Posted by: Anonymous | Jan 5, 2007 3:12:08 PM

Sounds like classic federalism at its finest, Anonymous. If you believe that federal power should always trump state interests, your view makes sense. But many argue that the Framers wanted matters to be the other way around (perhaps especially when states are dealing with local issues like crime and are also tilting toward human liberty).

Posted by: Doug B. | Jan 5, 2007 3:16:24 PM

I agree that if Congress wanted federal courts to take state-federal disparities into account, then by all means, federal judges should be permitted to do so. There is no evidence, however, that Congress intended for such disparities to enter into the federal sentencing calculus.

And, in my mind, there is no credible constitutional argument for such disparities to be taken into account. Where Congress has the authority to regulate, its power is plenary.

If the public is truly troubled by state-federal disparities, it can petition the federal government for change. But it would be inappropriate for a federal judge to determine that such disparity warrants a revision of federal sentencing policy, absent a direction from Congress.

Posted by: Anonymous | Jan 5, 2007 3:39:58 PM

Anonymous, as far as I can tell, Judge Weinstein is not making a constitutionl argument. He is interpreting a federal statute. The statute says that reducing unwanted sentencing disparities is one of the factors for courts to consider. It does not say which disparities, so this is a matter for judicial interpretation.

Posted by: Marc Shepherd | Jan 5, 2007 4:35:32 PM

Marc, I think, though that interpreting the statute that way would make federal lenience turn on the state in which a particular crime occurs, and that cannot be right. All other things being equal, the time a federal defendant serves shouldn't turn on whether he committed his crime in California or Rhode Island--since it is supposed to be unitary law. Now, of course, venue probably does matter and does create disparities, but that's no reason to go further down the road and enshrine disparity in sentencing law itself.

Posted by: federalist | Jan 5, 2007 4:56:51 PM

My constitutional point was merely in response to Prof. Berman's post, in which he alluded to the Framers' intent.

In addition to the problems highlighted by Federalist, it bears noting that, in interpreting an ambiguous provision, a court should resort to legislative history. That legislative history makes plain Congress's concern about unwarranted disparities among federal courts. It has been some time since I read through the legislative documents, but I am relatively certain that Congress expressed no similar concern about state-federal disparities.

Posted by: Anonymous | Jan 5, 2007 6:02:59 PM

If we are going to think about the legislative history, we ought also to realize the SRA was passed at a time when the federal criminal docket was about 10,000 cases. Now it is roughly 10 times bigger and involves a lot more low-level offenses. That might impact how Congress would now look at state-federal disparity, especially since it has, through fast-track authorization, undermined the concept of unitary federal sentencing law.

Posted by: Doug B. | Jan 5, 2007 6:09:22 PM

And while we are on the topic of the SRA and legislative history, let's not forget that Congress intended *mandatory* guidelines (no matter what Justice Breyer says in Booker). But I digress ....

Posted by: | Jan 5, 2007 6:24:14 PM

Fast-track is a different animal than enshrining different state approaches in sentencing law.

Posted by: federalist | Jan 5, 2007 6:28:53 PM

It doesn't matter what Congress now intends -- unless it acts. It only matters what Congress did and would have done had it known that mandatory application of the Guidelines is unconstitutional. The Apprendi issue has nothing to do with state-federal disparities. Booker has no bearing on 3553(a)(6). Indeed, Booker itself only purported to restructure two singular provisions of the SRA.

Believe me, I am all for rewriting the Guidelines -- and overhauling federal sentencing in general. But this is a policy discussion that should be addressed by Congress and the Commission, not federal judges (again, absent constitutional consideration that simply are not present with respect to 3553(a)(6)). That is not to say the judges do not have a place in the policy debate: They can lament all they want. But judges cannot unilaterally rewrite policy.

Posted by: Anonymous | Jan 5, 2007 6:44:46 PM

Mandatory guidelines are NOT unconstitutional. Mandatory guidelines based on facts *found by a judge* ARE unconstitutional. As far as judges not unilaterally rewriting policy goes, perhaps Justice Breyer should have thought of that in Booker before he produced Exhibit A.

Posted by: | Jan 5, 2007 6:52:06 PM

My opinion is if Congress wanted federal courts to take state-federal disparities in a account, federal judges should be permitted to do so. There is no evidence, however, that Congress intended for such disparities to enter into the federal sentencing calculus.In addition to the problems highlighted by Federalist a court should resort to legislative history.

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Posted by: Gomez | Nov 15, 2008 3:53:26 AM

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