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August 5, 2008

Practitioner's Notes: Federal Sentencing Guideline Analysis Has No Place in State Court

It seems obvious, at least to me, that the federal sentencing guidelines do not apply in state courts.  Indeed, there is an intermediate appellate decision in New York in which this “issue” was addressed by the court.  The Appellate Division, First Department, in People v. Sung Min, 249 A.D.2d 130, 671 N.Y.S.2d 480 (1st Dept. 1998), explains:  “While there exist United States Sentencing Guidelines established by the United States Sentencing Commission, pursuant to 28 USC § 994, they apply exclusively to Federal Courts.  There are no sentencing guidelines for New York State Courts.”

Apparently, however, it is less obvious to others, as intrepid state and local prosecutors are trying to impose the federal sentencing guidelines on state court criminal sentencings by suggesting that they are “informative.”  This very tactic was recently tried by the New York Attorney General’s Office in a state criminal action in which the defendants were charged with a violation of the Donnelly Act, New York’s antitrust statute.  It was argued that because Donnelly Act jurisprudence is based largely upon federal antitrust cases, consideration of the sentences that would have been imposed had these changes been brought federally would be meaningful to the state court.  Fortunately, the sentencing court held that it was not.

Introducing the federal sentencing guidelines into the New York state system would be an unmitigated disaster.  The federal sentencing guidelines generally provide for sentences that are substantially harsher than most state sentences for equivalent conduct.  And with good reason, not the least of which being there are far fewer federal cases.  Because the federal criminal justice system has the luxury of bringing far fewer cases, it can devote more resources to each one.  State systems, particularly states like New York, have to move many, many cases, and do so quickly.  If state prosecutors made a “federal case” out of every state crime for which there were an equivalent federal crime, many already overburdened state systems would collapse under the weight.  The prisons couldn’t handle all of the prisoners with such longer sentences.  Nor could the prosecutors or the courts, as a system with more severe sentences and less flexibility in plea negotiations would likely create many more trials, and longer pretrial processes.  Thus, as much as hyper-aggressive state prosecutors would love to take advantage of the draconian federal sentencing guidelines, doing so is a mistake.

Besides, I’ve never liked the guidelines.  My learned colleagues have argued that the guidelines promote uniformity and proportionality, but I’ve always been of the view that they prevent judges from recognizing each crime’s differences and each individual defendant’s unique circumstances.  I’ve always thought that if you were concerned that judges weren’t being fair and uniform, the solution was to get better judges and to train them better, not handcuff them with complicated rules that try to reduce complex human issues into black and white mathematical formulas.  Although some of these concerns may have been alleviated, in part, by the Booker decision, the guidelines remain an important part of the federal sentencing process.  However, regardless of whether the federal sentencing guidelines assist in the exercise of good judgment or impinge upon it, let that debate stay in federal court.

Richard Spinogatti

Proskauer Rose

August 5, 2008 at 12:33 PM | Permalink


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Ultimately I think I agree with you, but you've set this up as a bit of a straw man. First of all there's an enormous difference between arguing that the Guidelines should apply directly in state court and arguing that they are "informative" or persuasive for comparable state offenses. Certainly if the Guidelines are, as they purport to be, based on state-of-the-art social science research and reflect, as they supposedly do, the optimal degree of punishment necessary to achieve the goals of deterrence, retribution, and rehabilitation (policy goals which apply in state courts to the same degree as in federal courts), an argument could be made that state courts should avail themselves of the Sentencing Commission's expertise in criminology by considering the sentence that would apply in the federal system. Indeed, in order to defeat that argument I think we have to acknowledge that the pretense that the Guidelines are based on anything more objective and reliable than the Sentencing Commission's own subjective sense of what sentences are appropriate is nothing more than a convenient fiction.

"I’ve always thought that if you were concerned that judges weren’t being fair and uniform, the solution was to get better judges and to train them better. . . ."

This is, with all due respect, absurd. The disparity problems that were amply documented in the 1970s during the lead-up to the SRA had nothing to do with incompetence or lack of training on the part of federal judges; they arose because of the inherent subjectivity in evaluating all of the aspects of the offense and the offender, which you acknowledge are "complex," in the process of deciding on a sentence. Your suggestion that every judge appointed to the federal bench prior to November 1, 1987 was an incompetent dimbulb simply ignores the very real problems that the Guidelines were intended to remedy. I'll agree with you that a case might be made that the cure is worse than the disease in this case, but pretending that there was no problem to begin with that couldn't have been cured by "training" is just dishonest.

Posted by: Anon | Aug 5, 2008 3:05:00 PM

Federal officials love to take credit for work they haven't done, and making states apply Federal statutes falls under that umbrella. Whether it's the Bush administration attempting to make all states abide their Constitutional interpretation, or whether it's Congress demanding all states follow their laws, any politician is looking to get reelected based upon violating the rights of the states.

Posted by: Joe | Aug 5, 2008 3:17:11 PM

I hate the guidelines, always have. But to play devil's advocate for a second... assuming the elements of the offense are substantively similar, why would the Federal Sentencing Guidelines not be informative to what a proper sentence should be in a state court? Is there much difference between "advisory" and "informative" anyway? Yes federal courts have to "consult" the (advisory) guidelines and state courts certainly do not. But at the end of the day, the guidelines are not binding, but it's a "black box" where you input offense and offense data and get the output of a sentencing range. How appropriate that sentencing range is, of course, is a completely different subject that's been debated here for years.

But as long as a state court doesn't treat it as binding, why can't it be "informative"? If I were the defense attorney I'd certainly require the state prosecutor to honor things like 5K1 substantial assistance, acceptance of responsibility credit, etc. Is there a pre-sentence report (some states have them)?

Don't get me wrong, I'd hate to see any increase in use or reliance on the USSG, especially in state courts. Although in some cases, a state court defendant might be the one who'd want to argue for "informative" use of the USSG. Many state courts just toss out 20, 25, 35, 50 year punishments for routine felonies like free samples of sausage at a Costco. And the USSG is based on parole being taken into consideration, since the federal system no longer has parole. State courts do. I can see many situations where the USSG would lead to a 5-10 year sentence where a state court (especially a state court jury) would more than likely hand down a 30+ year sentence. If a state court defendant were to get a 5-10 year sentence "informed" by the USSG, and then be allowed parole on top of that, it could lead to a much shorter sentence.

My point is prosecutors will cite the USSG when it helps them, but defendants could do the same thing. At the end of the day, we all know federal crimes cannot be charged in state court and the USSG are not applicable to state crimes. But can someone give me a good argument as to why they would not be "informative" to a state-law crime with elements substantially similar to a federal crime for purposes of calculating an offense level and sentencing range under the USSG?

Posted by: bruce | Aug 5, 2008 4:22:13 PM

Well, if a federal judge says state sentences are "informative," I think in the Second Circuit at least, she gets reversed.

Posted by: David in NY | Aug 6, 2008 10:05:46 AM

David: Can you mention specific cases where that has happened; I am curious.

Personally, I like the idea of guidelines so long as they are exactly that, guidelines (i.e, advisory). There is always a tension between the notion of justice as uniformity and the notion of justice as specificity. I don't believe that judges should have unlimited discretion to impose any sentence they want; that would make the the Legislatures/Congress frivolous. On the other hand, I don't believe that the political branches can micromanage individual cases because they are not close enough to the specific facts to do that. So there has to be a balance somewhere and in all honesty, after Gall, I think we are getting to a fairly decent place.

Posted by: Daniel | Aug 6, 2008 5:19:43 PM

I am not an attorney, just a regular citizen that would like to see major reforms in State and Federal justice. I just wanted to say that sentencing in this country as a whole has spiraled out of control. The rates of incarceration and ridiculously long sentences are wasting valuable tax dollars and destroying lives. Dozens of crime and punishment reports by true professionals in the field have pointed out time after time that we are creating criminals at a dangerous rate and the youth of this country are paying the price. Joe was right. These courts seem to hand out life sentences for non murder cases like they are ordering their lunch. Our punishments no longer fit the crimes and everyone knows it. This is about the continued growth and job creation for law enforcement. Every family in this country will eventually be affected.

Posted by: Morris | Aug 9, 2008 11:13:25 AM

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