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January 23, 2007

Senators' brief supporting the government in Claiborne

In addition to the bottom-side briefs noted here, Senators Edward Kennedy, Orrin Hatch, and Dianne Feinstein have filed a "Brief in Support of Affirmance in Claiborne v. United States."  That brief can be accessed here thanks to the NYCDL, which now has updated its complete set of Claiborne and Rita briefs at this page.

I had heard that a Senators' brief was in the works, but I was hoping it might be filed not in support of either party (as was the brief I wrote for a group of law professors striking similar themes).  I am particularly disappointed that these Senators concluded that the district judge in Claiborne acted unreasonably when deciding that 15 months was a sufficient punishment for Mario Claiborne. 

Though I will have a lot more comments about all the bottom-side briefs in future posts, I find especially peculiar that the Senators' brief asserts that "The District Court Failed to State Clear and Principled Reasons for the Sentence It Imposed."  If their concern is ensuring that district courts state clear and principled reasons for sentences, the Senators really should have filed a brief in support of the defendant in Rita.  I have not heard a clear and principled reason — from the district court or the Fourth Circuit or from anyone else — as to why a decorated military veteran like Victor Vita should receive a prison sentence of 33 months for a seemingly minor, non-violent offense. 

UPDATE:  A partisan observer of federal sentencing had this immediate unvarnished reaction to the Senators' brief:

After a quick scan, the Senators' brief looks even more offensive than I expected.  And racist, I might add.

CLARIFICATION: A thoughtful and well-meaning reader has rightfully suggested that I not react to my disappointment over the Senators' brief by taking cheap shots or by indirectely suggesting anyone is a racist.  Indeed, this reader suggests I stress notable aspects of the substance of the Senators' brief, such as this interesting footnote:

[A]mici respectfully disagree with the proposition that sentencing decisions "must be done case by case and must be grounded in case-specific considerations," without reliance on broader principles that can be applied by courts in other cases.  See, e.g., United States v. Pho, 433 F.3d 53, 64-65 (1st Cir. 2006).  Uniformity is advanced by the development of rules of general applicability, not the exercise of unguided discretion on a case-by-case basis.

FURTHER EXPLANATION:  Highlighting the power of loaded charges, the term "racist" above has generated lots of reaction.  The partisan has sent me this further explanation: "if the Senators knew all of the facts regarding the crack guideline, they could not get behind affirmance of the Eighth Circuit's reversal of a perfectly reasonable application of 3553(a) that ameliorated the unreasonable effect of a guideline that everyone, including the Sentencing Commission, knows has a racially disparate impact."

For me, this whole debate highlights the importance of taking a critical race perspective on the modern state of federal sentencing.  As but one example, I highlighted in this post, consider that the USSC's March Booker report reveals that, after Booker, roughly 1 in 5 first offenders get a below-guideline sentence after Booker, but for black first offenders, the number is roughly 1 in 6; for hispanic first offenders, the number about 1 in 9.  And yet, sadly, these Senators have chosen to file a brief arguing that one of the rarer below-guideline sentences given to a black, non-violent first offender is unreasonable. 

January 23, 2007 at 11:31 AM | Permalink


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Does the anonymous commenter who calls Senators Kennedy, Feinstein, and Hatch "racist" have anything to back that up? Such allegations should not be made lightly.

Posted by: Kent Scheidegger | Jan 23, 2007 1:12:18 PM

Kent: The commenter immediately followed up with a clarification (I was a recipient, as was Doug, of the original message, which I do not believe was intended for publication) that the point is this: The crack guideline has a well-known racially disparate impact. The Senators are as well aware of this as anyone, and of the political pressures that have kept that serious policy error in the guidelines from being fixed for all these years. The failure to support as reasonable the modest efforts of a judge to ameliorate that effect in a particular case, where the other circumstances of the case suggest that the guideline sentence would be "greater than necessary" to achieve the statutory purposes of sentencing, is to give unnecessary support to that rigid guideline and thus to its racial impact.

Posted by: Peter G | Jan 23, 2007 3:08:29 PM

But the Senators argue that "the crack-powder disparity has a disproportionate impact on African-American defendants, their families, and their communities," and indeed acknowledge the possibility that courts "might cite the disproportionate emphasis assigned by the guidelines to the relevant quantity of crack cocaine as a principled reason for imposing a sentence below the applicable range." How does that "give unnecessary support to that rigid guideline and thus to its racial impact"?

Posted by: CS | Jan 23, 2007 3:26:06 PM

Because, CS, the law in the Fourth Circuit and everywhere else is that that is not a basis for a lower sentence. An affirmance by the Supreme Court would leave that intact. Claiborne would get the crack guideline sentence.

Posted by: asj | Jan 23, 2007 3:36:42 PM

Peter, these kinds of disparate impact arguments are certainly grounds for honest disagreement with the Senators and for criticism of them by those who disagree, but they are a long, long way from a justification for calling a person a racist, in my humble opinion.

Posted by: Kent Scheidegger | Jan 23, 2007 4:45:18 PM

Kent, I could send you the original e-mail off-blog. I promise you, the commenter (who is a very well-respected expert, and now a very embarrassed one) did not say or suggest that any of the Senators is a racist. No "person" was called "a racist," as is clear even from the sentence that Doug quoted. The argument in the brief was called "racist." That's not the same. An unfortunate choice of words, and subject to immediate "send-button" regrets because it was bound to be misunderstood, but not the same as a personal accusation.

Posted by: Peter G | Jan 23, 2007 5:02:57 PM

Why such a hyper-reaction to a single word that was an honest (though impulsive) reaction to the disappointment from seeing supposed liberal leaders advocating a longer sentence for a low-level, first-time, black crack offender?

I posted the reaction (after seeking approval) in part because I thought it expressed an understandable frustration with how the Senators decided to get involved in this case. (Keep in mind that they did not have to file anything AND it appears that they are the only one's supporting the government in Claiborne given that the USSC's brief is really focused on the issues in Rita).

Posted by: Doug B. | Jan 23, 2007 5:37:02 PM

Do I misunderstand their brief? It seems to conclude thusly:

"In the case below, the district court may have been justified
in imposing a sentence below the applicable guideline
range based on the circumstances of the offense, the defendant’s
background, and other factors – including the
disproportionate emphasis assigned by the sentencing
guidelines to the relevant quantity of crack cocaine. In our
view, however, the court failed to state a sufficiently clear
and principled basis for its sentence that can be readily
applied by other courts in like circumstances and reviewed
for reasonableness on appeal. The Eighth Circuit Court of
Appeals was therefore correct to remand the case for resentencing,
and we urge this Court to affirm that decision." (p 2)

So it appears they have no objection to the downward sentence, but do object to the lack of a "sufficiently clear and principled basis" for it in writing. And would not object to a lower sentence for crack:

"It is well-documented that the crack-powder disparity has a
disproportionate impact on African-American defendants,
their families, and their communities, see ABA Justice
Kennedy Commission Report, supra, Res. 121A at 28-29,
and as a result has undermined public confidence in the
criminal justice system. Such sentencing disparity is completely
contrary to the goals of the Sentencing Reform Act,
and § 3553(a) enables courts to consider this impact as they
develop principled rules on sentencing." (p 29)

So if the reasoning were stated in detail, cool. Yes? No?

Posted by: George | Jan 23, 2007 5:43:12 PM

"Racist" is a rather severe epithet these days. I'm not surprised at all by the reaction.

I don't think there's much of a distinction between calling a person racist and calling his argument racist. Some words like "liberal" or "formalist" or "long-winded" can be applied to arguments in a legal brief without necessarily criticizing the author. For other words, like "rude" or "insensitive" or "crass," the criticism can be directed at the argument, but it's silly to suggest that it's not directed at the author as well. Unless the e-mailer meant to suggest that the Senators brief draws on a pool of scholarship by white supremacists, I think it's a fair reading of the comment to suggest that the e-mailer was calling the Senators (or at least, the brief writers) racist.

In any case, as Mr. Goldberger et al. insist, it was an off-the-cuff reaction to a quick read of a lengthy legal brief. I wouldn't judge the speaker harshly for it.

Posted by: | Jan 23, 2007 6:29:28 PM

I thought "racially disparate impact" and "racist" were mutually exlusive. Or at least, the former excludes the latter.

Posted by: BruceM | Jan 23, 2007 6:57:28 PM

Peter & Doug, the anonymous post at 6:29 pretty well covers the bases, so I'll just leave it at that.

Posted by: Kent Scheidegger | Jan 23, 2007 7:23:38 PM

Doug, you need to change your original statement. From the reading above, the original author never called anyone racist, but used the PROPER terminology ("racially disparate impact"). The term "racist" is used too often in the crack/powder debate. The ratio is not racist, but is as the original commentator stated, it has a racially disparate impact. The original intent of the bill had no outwardly racial implications or justification, and the reason why it is still law is that politicians don't have the guts to lower sentences for crack offenders. There is NO ONE in DC who thinks 100-1 is proper. This whole "controversy" is your fault Doug, you shouldn't throw the word "racist" around so easily.

Posted by: Kelly Nance | Jan 24, 2007 7:33:06 AM

Did it strike anyone else as interesting that the brief criticizes mandatory minimums in fairly strong language at p. 13 & n.3?

Posted by: Practing Lawyer | Jan 24, 2007 3:08:18 PM

Turning to the merits of the brief--which is really the important issue--my reaction is that mandatory sentencing guidelines were Senator Kennedy's baby (with help from a few others) and he is determined to resurrect it.

He essentially asks the Supreme Court to restore mandatory guidelines, with the same narrow grounds for departure as before, but we'll pretend it isn't mandatory so we can circumvent that silly little Booker decision. Every departure must be carefully documented on the record so the appellate court can verify that the sentencing judge adhered closely to the guidelines, and didn't approve any departures not expressly authorized by the Sentencing Commission or appellate court.

The appellate court will police the system, enforcing the mandatory nature of the guidelines, just as before. i.e., Meet the new boss. Same as the old boss.

Posted by: Anonymous | Jan 24, 2007 7:47:57 PM

Dear Gov. Blagojevich and Political Body:
The purpose of this message is to get your attention and help with the high rate of foreclosures. Governor, have you ever stop to think about what is really happening to our economy, and the homeowners of Illinois.

In the past, it was brought to your attention by Madigan, that the reason for problem mortgages is because of the broker business, and he might have a point. However, how about the people in places like Wilmette, Highland Park, Park Forest....just to name a few of the high-end areas? Would you say that their foreclosure is due to the mortgage brokers or banks?
I know if you really knew the difference between the bank and the broker, you would probably have a different opinion about brokers. The Banks create the programs and loan terms, and the broker work within the confines of those programs being the facilitator between the bank and the customer. The Banks provide the programs and money. The Banks underwrite the files based on the program the broker submitted for customer. The broker did not create “pre-payment penalties; option-arms; six month – 10 year labors, or adjustable rates; interest only; negative amortization programs:” and these are just to name a few of the programs that the Banks present the brokers to sell on the market place.

I am not writing this letter to place blame on any particular industry, but right now we need to fix the dilemma of foreclosures that our state is going through.
Here is what happens when the homeowner finds himself in trouble.
1. In many cases the customer calls the lender after finding themselves in financial trouble by the second or third month, because they could not make payments
2. They call the lender and ask can they spread the amount owed over a couple of months only to find out that the lender will not allow this because it changes the terms of the Note.
3. It is now the forth month and the client calls again to see if they can refinance with the lender and the lender will not respond.
4. The lenders in Illinois cannot respond back with the customer until six months down. In the sixth month, the lender is now sending a letter to foreclose with a court order to appear.
5. It is now the seventh month, the customer is so overwhelm, that they leave their home because they could not get any help, and others will stay in the home only to receive a phone call from the lender asking them “what do you want to do with your home”?
6. The homeowner states that he or she would like to keep their home, for which the lender will than do a financial analysis to determine if they can make the payments, and at that time the lender will set-up a forbearance account for them.
7. If the lender cannot find any extra money, they will tell the homeowner that they need to sell the property
When lender is places the customers into forbearance it can create even more havoc. This is how forbearance works? The lender takes the months owed and divide it by twelve months and sometimes eighteen months, and attach it to the existing payment. Example, customer’s original payment was $1,200.00, and with the forbearance his payment could go up to $1,900 with the new arrangement. If customer could not make a payment of a lesser amount, how on earth can they make a payment of a much greater amount? This is setting this family up to fail.
The way that this problem could be solved Governor Blagojevich, is to have our lending institution place the arrears onto the back-end of the loan. This is how the automobile lenders treat their customer. If the client phones the auto company lender and tell them that they are having financial problems, the auto companies places that payment on the back end of the loan. By doing this, no one is aware this customer had a financial problem. This keep the auto companies selling cars and a thriving industry. The auto companies are not finding their cars left on the road or in pounds.

When homes go into foreclosure, there are a couple of things that happen:
It hurts the communities by having an abandoned home, because it creates, loss of values, property vandalism, crack homes, crimes such as rapes, murders and a whole roast of other problems. There are other effects which are created; homeless families, lost business for the community, lost taxes for the city and state, and weakened state economy, and a list that goes on forever. Nobody wins – not the homeowner, state, not even the bank because the vacancy could go on for years and lost revenue to the bank.

So why is our state government only looking at the lesser important issues when we have an avalanche that can stop our states growth and economy? Yes, the State is fighting the brokers but loosing the war to Foreclosures.

Mr. Governor, let our State be the pioneers for the country in encouraging the banks to start the process of saving our homes.

Let us be the State of “Save the Home” and no more “FORECLOSURES”.


Cynthia Young

Posted by: Cynthia Young | Aug 11, 2007 9:10:54 PM

Stop Forecosure Help

Posted by: EnTrust | Sep 22, 2007 7:37:41 AM

Although it may seem as though the bank would actively want to pursue the foreclosure and get it off the books, so to speak, many large lenders are working on hundreds or thousands of foreclosed properties. Many of the owners will simply give up on the home or be too frightened to ask for more time. The ones that are seriously looking into ways to stop foreclosure, though, will be able to convince the bank that they deserve more time. The bank would willingly offer more time to solve the problem, and it is easy enough to postpone the foreclosure auction. The extra fees and interest will just be added to the balance in the end, anyway, and be counted as an even larger tax deduction for the lender.

Posted by: John | Dec 4, 2007 4:26:53 AM

The banks main motto is not to attain the property but the loan amount, they go for foreclosure as they cannot keep the non-performing assets in the books of accounts for a long time.

Posted by: Steven | Mar 25, 2008 1:35:40 AM

Predatory lending is also a threat to deal with now a days. I am happy you wrote something worth reading about foreclosures. Foreclosure freeze for a wrongful foreclosure is a must. Lenders should explain terms and conditions in a simple manner to home owners. This would certainly decrease the amount of foreclosure fraud.

Posted by: foreclosure fraud | Oct 10, 2011 1:12:56 PM

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