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August 27, 2007

Detailing sound "policy disagreements with the Guidelines" to justify variances

This weekend I read closely the Government's brief in Gall (available here).  The brief is quite well done and effective, in part because it makes many sound and significant concessions.  Most critically, as previously highlighted here, the Government's brief repeatedly explains that district courts can vary from the Guidelines "based solely on policy disagreements with the Guidelines."  Gov't Brief in Gall at 36; accord id. at 37 n.11 ("sentencing courts may impose non-Guidelines sentences based on policy disagreements with the Sentencing Commission"); see also id. at 32 ("variances need not be justified solely on factual grounds but may ... be based on reasoned policy considerations").

In light of this important concession, I decided to begin a list of "reasoned policy considerations" for disagreeing with certain Guidelines.  Notably, as highlighted below, some policy reasons for varying from the Guidelines are suggested by the Commission's own research.  For now, I have started this list without detailed explanations, though I may annotate this list in future posts (and readers are encouraged to add to the list in the comments).

Policy Reasons for Variances Suggested by the Commission

1.  Crack guidelines are much too harsh relative to powder guidelines, especially for low-level offenders

2.  Career offender guidelines are too harsh, especially for offenders with relatively minor prior offenses

3.  Criminal history category I may overstate the risk of recidivism for "true" first offenders

Policy Reasons for Variances Suggested by Many Others

4.  The guidelines unduly emphasize quantities (like loss calculations and drug weights) and ignore true culpability considerations based on a defendant's mental state

5.  The guidelines too readily rely on uncharged (and even acquitted) conduct to greatly increase offense levels

6.  The guidelines categorize many minor prior offenses as "crimes of violence" to enhance sentences

7.  The guidelines fail to encourage alternatives to incarceration, especially for non-violent first offenders

8.  The guidelines fail to incorporate relevant personal circumstances, such as mental conditions, prior good works (like military service), family circumstances, drug dependence

9.  The guidelines generally fail to give voice and attention to victims' interests or to the interest of other third parties impacted by the crime and punishment

August 27, 2007 at 11:13 AM | Permalink


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So... basically federal sentences are generally too long. 2, 3, 6, and 8 are basically complaints that the Guidelines paint with too broad a brush, not that they make bad policy. District Judges can agree with 2, 3, 6, and 8, say that the particular defendant is "outside the heartland" in some way, and not express any "policy disagreement with the Guidelines."

(1) -- There are at least 2 ways to fix a disparity. Perhaps powder defendants should be punished more harshly, or perhaps the Guidelines should be adjusted to split the difference.

(3) seems strange, considering that it provides for a range starting at zero for the first eight categories of offense. If someone's criminal history category is I, and his offense level is 43, the resulting life sentence probably isn't directed at the likelihood of recidivism (except in the sense that even a small chance of a repeat of that level of offense is sufficient justification to throw away the key).

(4) seems strange. First, what's the basis for saying that the Guidelines ignore mental states? Second, the debate between consequentialists and retributivists is a very interesting one, but one of the loudest complaints from anti-Guidelines types is that small fry are punished too harshly when it comes to drugs. It seems to me that drug quantity is the best proxy we have to distinguish among sentences for drug dealers. If we're all retributivists now, then certain things shouldn't even be crimes. Should a judge be allowed to sentence a defendant to time served on the grounds that the charge is for something that shouldn't be a crime?

(8) also happens to be a reason for granting departures, iirc. If the Guidelines "fail to consider" something, as opposed to "preclude consideration" of something, then a judge's consideration of that thing isn't a policy disagreement.

Posted by: | Aug 27, 2007 12:00:44 PM

Should the fraud guidelines be adjusted for inflation? Or should fraudsters, due to their reprehensible conduct, be subject to bracket creep, just as the rest of us were before they put inflation adjustments into the income tax rates?

Also, I believe there is justification for sentencing above the guildelines in some cases of violence against a person. Specifically:

Solicitation to commit murder -- base level is 33. Why not 43?

Aggravated assault -- Base level is 14. Permanent or life-threatening injury adds 7 levels. I think it would not be difficult to come up with scenarios where the level is 21, but the combined level easily justifies a longer sentence.

Threatening or harassing communications -- base level is 12. Depending on the circumstances, I believe a level that is significantly higher or lower could easily be justified.

Posted by: William Jockusch | Aug 27, 2007 1:06:35 PM

A few quick replies to 12:00:44 PM:

On matter #1: The USSC itself says that crack sentences are unfairly too harsh, so raising powder sentences will aggravate bad guidelines policy.

On matter #3: The USSC itself says that criminal history category I prolematically lumps together true first offenders with those with minor legislative histories, though I agree that the criminal history axis is not just about recidivism.

On matter #4: The guidelines do not generally require a strong subjective culpable mental state for loss or drug quantity enhancements -- quantities that are "reasonably foreseeable" will result in enhancements. As for your other point, this goes to debating substantive crimes, not setting sentences.

On matter #8: I have long argued that all these matters could/should be departure matters, but some circuits have held otherwise. The jey idea is that, even with such past holdings, the government recognizes that these matter could justify variances.

Posted by: Doug B. | Aug 27, 2007 9:35:34 PM

Some one please translate this. I'm not a lawyer. Can some one please tell me what importance this case has in some one that is about to be sentenced in federal court whose sentencing guidelines say 7-9 years but the statue allows for probation? specially if the perosn has never been arrested for anythign before and was 19 at the time of the offense, and fully coperated from beggining.

Posted by: EJ | Aug 28, 2007 12:13:58 AM

Prof. Berman, thanks for the response. It clears up some of the things I was confused about. My main point, though, is that many of these arguments can support variances without running afoul of the "no variances based on policy disagreement with the Guidelines" principle.

If the argument is that X guideline is too harsh, especially for certain people, the people whom the guideline treats especially harshly are probably outside of the "heartland," and a sentencing judge can probably cut those people a break without worrying about being reversed.

The paradigmatic case of "categorical" reasoning, I think, is the crack guidelines. Every crack offender would be punished much less harshly if he had the same amount of powder.

Perhaps the cases haven't understood it this way, but I think there's a meaningful distinction between saying (1) the Guidelines have some rough edges that judges may smooth out, and (2) some of the Guidelines represent incorrect conscious policy choices. Some of the arguments above seem to fall in the first category rather than the second.

Posted by: 12:00:44 | Aug 28, 2007 9:03:48 AM

EJ: First, I'm not a practicing lawyer, and this isn't legal advice. We (the anonymous blog commenters) are trying to figure out if the law is about to change and if so, how it might change and how it should. If you're planning on making any real decisions that affect a 19-year-old who faces the possibility of spending most of his 20s in prison, you should talk to a lawyer who knows what he's doing.

That said, the best "lay-sense" I can make of this discussion is this. If the Guidelines are truly advisory, a defendant should be able to make any argument that a sentence lower than 7 years would be a fair one.

The only things that should bind a judge are: (1) the statutory minimum, (2) the statutory maxiumum, (3) 18 U.S.C. sec. 3553(a), which tells a judge to impose a sentence "sufficient, but no greater than necessary" to comply with the purposes of sentencing, and (4) the rule that the courts of appeals have set out that the judge must at least crunch the numbers and do a Guidelines calculation.

A defendant should be able to argue that the Guidelines sentence is simply unreasonable. Lots of the courts of appeals have said that the defendant can't argue that, but can only argue: (1) that his is a special case somehow, or (2) that the Guidelines missed something (as opposed to consciously chose not to consider something). That used to be the government's position, but the brief in Gall indicates that it might be moving away from that. Even so, it's just a brief, it's certainly not "the law" (yet), and I don't know if the government can be held to that position in other cases.

If the government is changing its mind, as Prof. Berman has pointed out before, that's probably a good thing and probably makes the most sense of the relevant law.

Posted by: | Aug 28, 2007 9:09:17 AM

Continuing the dialogue with 12:00:44 PM: I concur that many of these points could and likely should be the basis for sound "out of the heartland" departures, rather than for variances. But many circuits have defined permissible grounds for departure very narrowly, and so it is important for many advocates to be able to couch these arguments in distinct (i.e., policy disagreement) terms.

On the other comment thread, thanks whomever for the anon reply to EJ.

Posted by: Doug B. | Aug 28, 2007 12:20:21 PM

With all due respect, it seems to me that your exception(s) completely swallow the rule. Now, I realize that the counter position is to have a rule with no exceptions, but it seems to me that your exceptions do away with remedial Booker altogether. If that's your intent, that's fine, but otherwise, I don't see this flying.

Posted by: waiting for a new boss (f/k/a anonymous) | Aug 28, 2007 5:53:10 PM

Dear "waiting...",

What are the "exceptions" and what is the "rule"? Remedial Booker says the guidelines are now advisory, not mandatory. That "rule," in my view, must include an authority for district courts to reject (reasonably and based on 3553(a) consideration) the application of particular Guidelines when they give bad advice.

All 9 of my points above seek to spotlight areas in which certain guidelines often give bad advice. The first 3 are areas that the USSC itself says are sometimes "bad policy" guidelines, the other 6 are areas in which others have (reasonably) argued that the Guidelines can give bad advice.

I do not think "advisory" can sensibly mean that you must follow the advice absent a fact-specific reason not to. Indeed, this is the key point that the SG is conceding in the Gall brief.

Posted by: Doug B. | Aug 28, 2007 9:20:12 PM

Thank you for the reply. The lawyer of the person, of whom i'm speaking about doesn't seem to care much, but I will be checking this website so I can be informed.

By the way, I just read a message that says to specify my profession, I'm a college, but not in Law School. I'm considering attending law school, but it seems like it may not happen. Anyway, thank you for your assistance.

Posted by: EJ | Aug 29, 2007 2:16:26 AM

Prof: The problem with #1 is it is not a policy disagreement with the guidelines, it's a policy disagreement with CONGRESS who established the mandatory minimum that sets the ratio. The recent amendment to the crack guideline does away with the 100-1 "ratio" in respect to all points on the scale other than the mand mins. So, moving forward a "policy disagreement" with the crack guideline is a direct challenge to the mand mins (and Congress), not some random policy thought up by the Commission in a cocaine stupor.

Posted by: Dweedle | Aug 29, 2007 1:17:49 PM

Dweedle, I don't think you understand the discussion.

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