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May 21, 2008

New sentencing opinion assails guideline conception of "similarly situated"

District Judge Nancy Gertner is in fine form with a new opinion in US v. Garrison, No. 07cr10142 (D. Mass. May 20, 2008) (available for download below).   Though covering lots of important post-Booker ground, Judge Gertner takes particular aim at the sentencing guidelines concept of "similarly situated" as highlighted by this passage:

The Guidelines define "similarly situated" only with reference to the particular guideline categories.  If a defendant had an offense level of 14 and a criminal history of I, the Guidelines assumed that you were similarly situated to other 14s and Is.  But in this case -- and perhaps many others -- that is a false assumption. Similarly situated with respect to the Guideline categories does not necessarily mean similarly situated with respect to the defendant's actual role in the criminal endeavor or his real culpability.  The individual supplying the drugs, for example, could have been a first offender, with a criminal history I, not because he had been crime-free all of his life but because he did not "do" street drug deals and thus rarely encountered government agents. And the reverse, an offender with a high criminal history score, could have been caught in this drug sweep even when his drug dealing was episodic, when he had tried to change the direction of his life.

The numbers -- the Guideline computation -- could mask real differences between offenders, in effect, a "false uniformity."  Sandra Guerra Thompson, The Booker Project: The Future of Federal Sentencing, 43 Hous. L. Rev. 269, 275 n.25 (2006); Michael M. O'Hear, The Myth of Uniformity, 17 Fed. Sent'g Rep. 249 (2005). It is especially important, now that the Guidelines are advisory, that judges are charged with looking beyond the Guidelines categories and that they know what their colleagues have done in comparable cases.  The new discretion will be influenced, as it should be, by the precedents of the court: a true common law of sentencing.

Download GarrisonSentencMemo.pdf

May 21, 2008 at 08:49 AM | Permalink


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I'm sympathetic as a general matter to the argument that "similarly situated" is a tougher relation to identify than is generally acknowledged, but Judge Gertner's examples give the impression that it would be appropriate to enhance a defendant's sentence on the basis of other crimes with which the defendant was neither charged nor convicted. Obviously that's permissible under the Guidelines, but it still strikes me as highly improper.

Posted by: | May 21, 2008 9:55:25 AM

Since at the end of the day the Guidelines can be disregarded, I don't know why she bothers. Maybe she just likes target practice.

By failing to back a Booker fix, the Sentencing Commission effectively accepted becomeing a punching bag for district judges. Or, as they say in Washington, the wages of lassitude is bad PR.

Posted by: Bill Otis | May 21, 2008 9:58:56 AM

It's an interesting opinion and a good example of how to write a defendant-friendly sentencing opinion that is sure to stand up on appeal, if it's appealed.

It's good for Garrison to have drawn a judge who apparently took her own initiative to develop a record.

As a legal matter, the opinion's great. Judges have a great deal of discretion between the statutory minimum and maximum for any particular offense, and Judge Gertner's opinion is very thorough and remarkably candid about precisely how her discretion worked in this case. I doubt I would have decided the case the same way if I were in her shoes, and I think that at points the opinion tries too hard to persuade the reader of its correctness (e.g. the overemphasis on what Garrison didn't do--I'm very curious about what's in the 16(!) pages of the PSR that describe Garrison's criminal history, which the opinion dismisses in a paragraph at p. 10).

Posted by: | May 21, 2008 2:13:07 PM

The sentencing commission recites with some pride the following: The Sentencing Reform Act of 1984 (Title II of the Comprehensive Crime Control Act of 1984) provides for the development of guidelines that will further the basic purposes of criminal punishment: deterrence, incapacitation, just punishment, and rehabilitation. The Act delegates broad authority to the Commission to review and rationalize the federal sentencing process.

Right from the gitgo, we are in trouble. The idea that any punishment, whether for minor or major offenses, can be tailored to satisfy all these basic punishments would be laughable if it were not for its consequences that make us cry. At least since the time of Kant, reflective persons have understood that just punishment (often called retribution) will not easily coincide with deterrence. As for rehabilitation, ever since the work of Sutherland in the 1930s, criminologists have realized that goal is a joke.

The mad calculations we find in each revision of the sentencing manual are enough to tax the skills of the best actuaries and, whatever their point, they are clearly not intended to rectify guideline errors. The current version goes on for a preposterous 42 pages, and that is no more than an exercise in the reader's endurance.

In the case under consideration, it is pretty clear that all Judge Gertner was concerned with was trying to be "fair" by reference with what sentences others in the "sweep" were receiving. This has zilch to do with rehabilitation, of course, and almost as little to do with the other presumptive goals of sentencing. She is entitled. Also, when one considers that guidelines, properly understood, should only be guides and not unbending rules, there is nothing very daring or imaginative about her departure from them. For some reason that eludes me, the law requires review of departures. (Review should be available but not mandatory.) In truth, there is much less to this case than meets the eye and scrutiny of Judge Gertner's reasoning is merely a way to stay busy.

Sidney Gendin,
Professor Emeritus
Philosophy of Law
Eastern Michigan University

Posted by: Sidney Gendin | May 22, 2008 8:41:38 AM

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