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October 2, 2007

First-cut reactions to the Kimbrough transcript

Upon first read, the SCOTUS oral argument transcript in Kimbrough is a bit less frustrating because Kimbrough's lawyer did a nice job stressing that Derrick Kimbrough's 15-year sentence seems in harmony with the sentencing purposes Congress set forth in 3553(a)(2).  However, it is still aggravating to me that the Justices seem to approach these cases as if both district judges and circuit judges are always making broad systemic judgments about valid and invalid sentencing considerations.  But that's not what Congress in 3553(a) to do at sentencing. 

Instead, as a quick review of Congress's express commands in section 3553(a) of the Sentencing Reform Act makes clear, Congress told judges to "impose a sentence sufficient, but not greater than necessary, to comply with" the traditional purposes of sentencing (while also considering various relevant facts and factors including the guidelines).  By my lights, that is exactly what Judge Jackson did when sentencing Derrick Kimbrough (and also what Judge Pratt did when sentencing Brian Gall).  Tellingly, in the Kimbrough argument, the government never seriously asserts that 15 years' imprisonment was insufficient punishment for Derrick Kimbrough.

Another aggravating aspect of Kimbrough is the constant refrain about the potential harms of having different sentencing judges apply different cocaine sentencing ratios.  I understand this disparity worry, but I do not understand why it is a bigger problem than different prosecutors rewarding cooperation differently.  There is extensive evidence of profound disparity in how different prosecutors "reward" cooperation, and yet everyone accepts this as the price of giving prosecutors largely unregulated discretion to strike cooperation deals.  In the end, I think the Supreme Court must come to terms with the reality that some relatively minor disparity in crack sentencing outcomes is the price of allowing the guidelines to be advisory and avoiding the procedural requirements of Blakely.

October 2, 2007 at 08:09 PM | Permalink


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Your comments regarding the importance of measuring reasonableness against § 3553's standards are important, although, on the other hand, I think it would be fair to characterize what the Eighth Circuit was doing in Gall as just that -- the Circuit simply concluded that the factor "seriousness of the crime" was not adequately weighed by the district court, even given the substantial mitigating factors in the case. The Supreme Court's concern in Gall was how to keep Circuits from interfering with the district court's exercise of sentencing discretion in this arbitrary kind of way and still retain some kind of substantive reasonableness review, if possible.

Another thought. The statutory range ought perhaps to be one element informing reasonableness review. That is, in both Gall and Kimbrough, the proposed Guideline sentence and the sentence imposed were all clustered well to the bottom of the statutory range; its not as if the guidelines required a sentence near the top of the statutory range, and the sentence imposed was near the bottom. In Gall, the quarrel is about which of two sentences within the bottom sixth or seventh of the range (0-20) is better. In Kimbrough, the range was 15 to life, so the choice between 15 years and 19 years is, in terms of the whole range, relatively insignificant (although quite significant in terms of the command to impose a sentence "not greater than necessary"). When a non-guideline sentence is in the same general region of the statutory range as the guideline sentence, I think someone claiming it is unreasonable ought to bear a heavy burden on appeal to show that it is unreasonable.

Posted by: Dcounsel | Oct 3, 2007 9:51:46 AM

Dcounsel: This is a good point and I think what Ginsberg was especially interested in Gall, i.e. that there were valid 3553(a) factors that weren't fairly considered like his failure to report the conspiracy and his keeping the proceeds of the offense. Because, quite frankly, I don't find Gall's conduct all that sympathetic and there are many federal judges that would tend to agree and sentence him w/i the guidelines.

Posted by: dweedle | Oct 3, 2007 11:01:28 AM

Yes, dweedle, I'm not surprised that you agree with judges like those on the Eighth Circuit, judges who are crabbed, unforgiving, punishment-crazed people who think that more imprisonment is always better and that there's no societal harm in putting people in jail who only commited crimes for a brief period, haven't committed a crime in years, whose crime only carries a 3-year sentence under the guidelines, and who have, since withdrawing from crime, founded a business, employing several others, that might well collapse while they're jailed. I'm not surprised at all that you agree with the Eighth Circuit.

But the Supreme Court doesn't agree. That's one reason why Gall is going to be reversed. Count on it. They didn't take this case because they thought the Eighth Circuit had done the right thing.

Posted by: Dcounsel | Oct 3, 2007 11:14:00 AM

What about Gall's co-defendants who didn't slip the net for 5 years and failed to have an opportunity to have a well-financed change of heart? Spontaneous reform is a lot easier when you've made $40K tax free selling drugs. Gall might really have turned himself around but that doesn't mean he should avoid a fair and just punishment based on his criminal conduct.

His subsequent reform does carry weight, but justice wasn't done when you compare his sentence to those who committed the same offense. Some blinkered people seem to think throwing out the GL's and relying on an "abuse of discretion" standard will lead to better results. It won't. It'll lead to disparity and unfairness, just as in Gall.

If this were not a drug case I hardly think we'd be having the same argument. So let's be honest that this is more about the excessive punishment Congress has devised for drugs than any "reform" or other 3553(a) factors. If Gall had made child porn 5 years ago, for example, I don't think he'd be the poster boy he is now.

I happen to agree, BTW, that the punishment for selling X (or any other drug) is far too high. I firmly believe that mandatory minimums are pernicious and pointless. I'm all for reducing punishments for all non-violent drug offenses to the floor. If you want to go to Congress and complain about it I'll meet you there and hold your hand-painted "Drug Lawz Stink!" placard for you. But I won't help you argue for disparity and unfairness... even if you get all irrational on me and call me hurtful names [sob].

Also, based on the proceedings yesterday I think you'll be proven quite wrong about the outcome. I predict there will be a nearly status quo "Ritaville" mess this time next year. SCOTUS doesn't know how to fix this yet.

Posted by: dweedle | Oct 3, 2007 11:56:00 AM

"What about Gall's co-defendants who didn't slip the net for 5 years and failed to have an opportunity to have a well-financed change of heart?"

What about them? They had every opportunity to do just what Gall did -- quit selling drugs. They made money too, probably more than Gall since they were higher up the food chain. Instead of quitting, they kept selling and then ratted on him when they got caught. On what ground do you think they it's an injustice to them (who did nothing commendable) to give Gall a lower sentence for having done the right thing? To sentence all of them equally is "uniformity" carried to complete absurdity.

The problem you and your fellows on the Eight Circuit seem to have is that you are so punitive you can't see that the "seriousness" of the offense is but a single factor, not the be all and end all, of sentencing. Imprisoning people is costly and harmful, and, Congress says, must be avoided if not necessary. See § 3553(a). The district judge acted entirely reasonably in deciding it was not necessary here.

Posted by: Dcounsel | Oct 3, 2007 3:40:39 PM

They didn't have the chance (or the cash) to "do something commendable." What if they had worked with Mother Teresa before selling X? What then? That's the point. Because Gall was lucky enough to avoid prosecution for 5 years he gets a break? Don't think so.

Posted by: dweedle | Oct 4, 2007 12:30:45 PM

I am a defense attorney and teach Criminal Adjudication at Columbia Law School. I propose the following hypothetical questions inspired by the oral arguments in Gall and Kimbrough:

1. Assume that the Sentencing Commission has said that compulsive gambling may not be considered in fixing a defendant's sentences. Cf. 5H1.4 After Booker, may a district court disagree?

2. Would the answer be different if Congress enacted a statute stating that compulsive gambling is an illegitimate factor?

3. Could Congress delegate the power to decide whether compulsive gambiling is a legitmate sentencing factor to the Sentencing Commission? If it did and the Commission determined that compulsive gambling was not a legitimate factor, could a district court disagree? Has Congress so delegated?

4. If the guidelines are to be other than hortatory, isn't it true that a substantial variance downward should be supported by compelling reasons? And that the more substantial the variance the more compelling the reasons?

5. In sentencing a drug offender to the maximum sentence, a district judge said only "Drug dealing is bad and in my courtroom every drug dealer gets the maximum." Is the sentence per se unreasonable? Does that mean that a judge must find some aggravating fact (other than drug dealing) to impose the maximum sentence? If so, is that conclusion consistent with the Sixth Amendment?

6. Does Booker require that downward and upward variances be judged differently for reasonableness? (See questions 4 and 5 above) If so, could that conceivably be what Congress would have wanted had it known that mandatory guidelines were unconstitutional? Did the Booker remedial majority contemplate such a result?

Posted by: Paul Shechtman | Oct 9, 2007 11:22:04 AM

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