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February 16, 2009

Notable briefing on fast-track disparity issue after Kimbrough

As I noted in this recent post, one (of many) persistent post-Booker jurisprudence hot-spots concerns whether defendants who are not within so-called "fast-track" districts should be eligible for comparable early-plea sentencing reductions when their cases are factually similar to those who get the benefit of such reductions in "fast-track" districts.  A helpful reader has recently sent along two notable briefs that talk through this important issue with lots of sophistication and also provide lots of original information and documents concerning "fast-track" practices.

The first document is an effective amicus brief, which can be downloaded below, that has recently been filed in the Seventh Circuit on these issues.  Here is the first paragraph of that brief:

The Supreme Court’s decision in Kimbroughgives sentencing courts discretion to correct for unwarranted disparities created by the Department of Justice’s (DOJ) selective use of fast-track plea bargaining in illegal reentry cases, whether implemented through U.S.S.G. § 5K3.1 or charge bargaining, for three reasons: (1) the disparities that result from U.S.S.G. § 5K3.1 are not mandated by Congress; (2) the Sentencing Commission did not act in its characteristic institutional role when promulgating § 5K3.1; and (3) Congress certainly never “warranted” the disparities created by charge-bargaining fast-track programs.

Download Seventh Cir Fast track Amicus with Appendix

The second document is an effective cert petition, which can be downloaded below, that documents all the different ways these issues have been unpacked in the lower courts.  Here is the first paragraph of the statement of the case from the cert petition:

This case raises an important question over which Circuit Courts of Appeals are split: whether a district court has sentencing discretion to consider punishment disparities among defendants guilty of similar conduct and with similar criminal histories, when the disparities are caused by the Government’s “early-disposition” or “fast-track” policy designed to serve the Government’s purported administrative interest, but are applied sporadically in only a small minority of districts around the country.

Download Cert Petition on fast track

February 16, 2009 at 05:46 PM | Permalink


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