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July 21, 2008

Should all "true" first offenders now get a sentencing discount in light of Gall and Kimbrough?

In the olden days when the federal sentencing guidelines were mandatory, the Supreme Court in Koon indicated that a district court departing downward from Criminal History Category I would "abuse[] its discretion by considering [a first offender's] low likelihood of recidivism [because the Sentencing] Commission took that factor into account in formulating the criminal history category."  But now, of course, the guidelines are merely advisory.  And Kimbrough strongly suggests that courts can and should look to research reports by the Sentencing Commission when deciding whether and when and how to vary from the guidelines.  And in May 2004, in this interesting report titled "Recidivism and the 'First Offender'," the Commission highlights empirical data showing very low recidivism rates for what I would call "true" first offenders:

The analysis [of empirical data on re-offending] delineates recidivism risk for offenders with minimal prior criminal history and shows that the risk is lowest for offenders with the least experience in the criminal justice system. Offenders with zero criminal history points have lower recidivism rates than offenders with one or more criminal history points.  Even among offenders with zero criminal history points, offenders who have never been arrested have the lowest recidivism risk of all.

These issues came to mind as I read closely the Sixth Circuit thoughtful work last week in US v. Duane, No. 06-6536 (6th Cir. July 17, 2008) (available here).  At the very end of Duane, the panel had this nuanced discussion of these issues in a post-Booker world:

[T]he district court did not respond to Duane’s first argument — that he deserved a more lenient sentence because he had zero criminal history points.  This was not a particularly strong argument given that Duane’s criminal history category was taken into account in determining his Guidelines range.  But the argument was not completely frivolous.  Because Duane had zero points at age 57, he might plausibly argue that even category I — which applies when a defendant has zero or one criminal history point(s) — overstated his criminal history to some degree. Although the district court would have ideally addressed this argument, we can hardly say that this failure alone constituted error in this case. Given that the district court imposed a within-Guidelines sentence, addressed the factors it found relevant, and addressed the majority of Duane’s arguments, we conclude that the district court did not err.

Though the Duane court does not reverse a within-guideline sentence for failure to consider low likelihood of recidivism for a "true" first offender, the panel's carefully discussion of this issue suggests district courts now have an obligation to address expressly these issues whenever a true first offender defendant urges a below-guideline sentence by saying he is very unlikely to even commit a crime again. 

Indeed, defendants and defense attorneys can (and perhaps should) stress the USSC's own research to assert that proper application of 3553(a) in the case of a "true" first offender now virtually demands a below-guideline sentence.  The argument would be that the considerations set forth in 3553(a)(2)(C) and in 3553(a)(6) are only properly acknowledged if and when a "true" first offender gets a lower sentence than the advisory range suggested for all the other persons with some criminal past that are lumped into Criminal History Category I.

July 21, 2008 at 01:10 PM | Permalink


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Prof. Berman:

The Tenth Circuit has adopted your position. See U.S. v. Huckins (10th Cir. June 25, 2008) (where D convicted of possession of child porn and guidelines 78-97 months, court’s variance to 24 months proper in part because this was defendant’s first conviction --rejecting government’s argument that guidelines already considered this by placing defendant in Crim. Cat. I. “although the Guidelines discourage granting a downward departure based upon criminal history when the defendant has been placed in a criminal history category of I...this is a not a departure case, it is a variance case....and, after Gall and Kimbrough, a factor’s disfavor by the Guidelines no longer excludes it from consideration under § 3553(a).... Therefore, a district court may weigh a defendant’s lack of a criminal record, even when the defendant has been placed into a criminal history category of I, in its § 3553(a) analysis.”).

Other cases supporting this argument can be found in "171 Easy Mitigating Factors."

Posted by: Michael R. Levine | Jul 21, 2008 2:48:07 PM

I'll take it a step further and make it very simple. Everyone should get ONE "get out of prison free" card for nonviolent offenses committed by those with no prior convictions. And by "get out of prison" I don't exclude some form of probation or community service, and certainly restitution if applicable.

For 95% of the population, the act of being arrested, placed in handcuffs and other restraints, fingerprinted, booked, processed, strip-searched and put in jail (if even for a day), having to make bond and comply with the conditions of bond, make multiple court appearances, face trial as a criminal defendant, and deal with the public shaming and publicity involved in the process is MORE than enough punishment. In fact, I'd say that alone amounts to cruel and unusual punishment for the average law-abiding citizen accused of nonviolently screwing up for the first time in his/her life. Martha Stewart is a perfect example, but obviously famous people have more to lose and more publicity (thus public shame) to face.

Posted by: bruce | Jul 21, 2008 3:52:10 PM

I agree totally with respect to the impact of the criminal process on most people--though I don't know if I would go as far as Bruce with respect to the one free card in 95% of the cases. But, for those old enough to remember, in pre-guideline days, i.e. before 1987, the federal courts frequently imposed probation in such cases at least in the districts where I practiced--Los Angeles, Hawaii, Sacramento, and Portland, Or.

Posted by: Michael R. Levinee | Jul 21, 2008 4:21:49 PM

100% of nonviolent cases. Not 95% of all cases.

Posted by: bruce | Jul 21, 2008 6:52:36 PM

I stumbled on this site and post through google. Thanks for posting this. It is music to my ears. I am living through this with my husband incarcerated and trying to find all the information I can to help him. Also, he was a criminal defense attorney when he was indicted in Federal Court for conspiracy to commit witness tamperning. He got 60 months.

Posted by: Jeanne Roth | Aug 19, 2008 7:26:19 PM

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