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December 13, 2007

One (of many) tough questions after Gall and Kimbrough

As I have noted, Gall and Kimbrough leave plenty of questions to consider (and reconsider) in lower courts now that we know the guidelines are really, truly advisory.  Today's New York Sun has this great piece, headlined "Guns Case Is a Test Of Discretion," spotlighting a case that presents one of these questions.  Here is how it starts:

A gun trafficking case out of Brooklyn is emerging as the next test over how much discretion federal judges have in setting prison sentences. 

In two decisions this week, the U.S. Supreme Court offered judges greater leeway in deciding for how long to put criminals away. Neither case addressed the vexing question of whether more time can be tacked on just because the crime occurred someplace urban such as New York City, where the chances seem higher that innocent bystanders will be hurt any time a crime is committed. In other words, if judges are now more free to consider penitence, what then of population density?

That question is already at the center of a legal tug of war over how much prison time an elderly diabetic, Gerard Cavera, will receive for trafficking firearms. The judge in the case, Charles Sifton of U.S. District Court in Brooklyn, has sought to stick Cavera with a longer sentence than even the prosecutors sought.  The judge argues that guns are generally more damaging in New York City than other areas.

Related posts about Cavera and "local conditions" as a sentencing factor:

December 13, 2007 at 10:59 AM | Permalink


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Actually, I think Gall & Kimbrough did address this question. As long as it's a reasonbale consideration, it is fair game. Moreover, judging from his questioning at the Rita, Gall & Kimbrough oral arguments, this is exactly the kind of thing Breyer seemed to want judges to be able to consider.

Posted by: | Dec 13, 2007 12:50:06 PM

There are few things I call judicial activism. But, where a judge frustrates the intent of the BOTH parties, in my view, it is judicial activism.

A prosecutor has access to information and policy arguments that a judge does not have. When a prosecutor seeks a given sentence he is doing it for a reason. Usually he seeks the highest sentence that his policy and practice allows. (Which might not be the highest allowable under the guidelines or the sentence.) Some prosecutors may ask for certain sentences to establish a pattern of operations with the defense. Some prosecutors may be cognizant of the price of incarcerating people. Judges simply are not up on these issues. Nor should they be.

For a judge to second-guess the prosecutor’s decision based on material that is only vaguely in the record (and not introduced by the judge) actually does rise to the level of activism.

But, there may be other non-Booker problems with such an un-sought increase.

Posted by: S.cotus | Dec 13, 2007 1:06:31 PM

On that note, how could a judge ever reject the prosecutor's suggested sentence? If the judge is so clearly lacking in the necessary information to provide a sentence, shouldn't the prosecutor be giving that info to him/her?

Posted by: JustClerk | Dec 13, 2007 1:55:29 PM

The practice has always troubled me, as I don't think a court should be providing a remedy that neither party had sought. Nevertheless, the law does allow the judge to impose a stiffer sentence than the government seeks.

Posted by: Marc Shepherd | Dec 13, 2007 2:07:34 PM

It seems bizarre, because the court wouldn’t have jurisdiction over the matter unless the prosecutor commenced the whole thing in the first place. The judge has access to nothing more than the parties choose to give him. It may well be that the parties don’t want to give the judge access to certain facts.

Whether it is “legal” or not, is probably something that is unsettled at the moment. Whatever the case, I think we probably can all agree that a judge that sentences above what the prosecutor asks for is probably on a power trip.

Posted by: S.cotus | Dec 13, 2007 3:53:00 PM

"the judge has access to nothing more than the parties choose to give him"? what about the PSR? are you saying the probation officer can exclude or fail to include facts material to the sentence? Further, the judge can ask. I have seen judges ask both parties for more information many, many times.

Besides, the entire point of a judge giving the sentence, not the prosecutor, is separation of powers. We do not want the executive branch to have all that power. Then they would be on the "power trip." Finally, judges see more sentencings than any one prosecutor, the judge may wish his or her sentencing practice to be consistent. Prosecutors can range in what they ask for, for the same predicate offense and guideline range dramatically. I have seen different AUSAs ask for very different ranges in the guidelines, with no rhyme or reason--or at least none articulated to the Court. The idea behind the judge sentencing to what he/she thinks warranted is then they WILL explain it, in court, for all the world to understand. If they don't, the Judge HAS to explain why s/he sentences what s/he sentences to be upheld on reasonableness review. And if the guideline range is over 24 months, s/he has to explain why s/he picked what she did under the guideline-enabling statute.

Posted by: k | Dec 13, 2007 5:18:36 PM

The judge can ask. But that doesn’t mean he is entitled to an answer. In fact, he isn’t. People (like me) simply refused to provide judges with more information where it was not warranted. The judge is, under some circumstances, free to draw whatever inferences he wants.

Whether a judge sees more sentencing than a prosecutor is irrelevant. Judges are not entitled to replace the judgment of the parties (and Congress) with their “expertise.”

It is precisely for separation of powers reasons that higher sentences are a problem. While deference to the prosecutor on the actual sentence would be an egregious breach of the separation between the executive and the judicial powers, determining that a defendant was entitled to a higher sentence than the executive thought would reach its goals replaces its judgment with that of the judge’s.

At some level, a lower sentence then the lowest requested by the defendant. However, I am not sure if he would have standing to complain about this.

I will concede that Booker (and its progeny) breathe new life into these debates, so we probably will see a few more cases dealing with these issues, especially in light of the newly-revived parsimony principle.

Posted by: S.cotus | Dec 13, 2007 6:20:44 PM

As far as I know, it is well settled law that the judge can sentence above the government's request. I dislike the practice, but I don't believe there's any question that it's allowed, and I don't see it changing.

Among the many sentencing ills, this one is pretty far down the list, because it seldom happens. Far more defendants fall victims to unjust mandatory minimums and/or count-stacking than those who are sentenced above the prosecution's request.

Posted by: Marc Shepherd | Dec 14, 2007 9:06:18 AM

I usually find myself in agreement with you, S.cotus, but not this time. The Government has a responsibility to seek the sentence that it believes is just, and the sentencing court has the responsibility to impose the sentence it believes is just. Rarely will the latter be higher than the former, but I've yet to hear a persuasive argument that the term sought by the Government is somehow a cap beyond which any sentence is "activist." The Government chooses a proposed sentence based on its estimation of the case, but the only restrictions on the court's discretion are the Guidelines, section 3553, the statute of conviction, and the Constitution. Everything else is mere argument.

I do not agree with you that a judge who sentences about the Government's request is necessarily on a power trip. One may disagree with Judge Sifton's decision in Cavera, and the Second Circuit certainly did, but if Judge Sifton was wrong, he was not wrong because the sentence reached exceeded that sought by the Government -- he was wrong because he considered improper factors. Consider the implications of arguing that his position would somehow have been rendered correct, all other considerations being the same, had the Government agreed with him.

Posted by: M. | Dec 14, 2007 12:38:58 PM

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