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October 3, 2009

"The American Inquisition: Sentencing after the Federal Guidelines"

The title of this post is the title of this draft article I just noticed on SSRN from Professor Ricardo Bascuas. Here is the abstract:

Despite the series of important Supreme Court sentencing decisions of the past ten years, federal sentencing remains fundamentally inquisitorial.  Although the guidelines are no longer legally binding, they continue to taint the entire federal criminal justice system by needlessly discouraging defendants from exercising their trial right and pressuring them to confess.  Their continued vitality is largely due to Justice Breyer’s persistent view, first as one of the architects of the original guidelines and later as a Supreme Court justice, that sentencing is an administrative problem requiring an administrative solution.  The heart of this solution is that the facts of each case and the appropriate punishment are to be determined not through the parties’ competing presentations, but through a probation officer’s purportedly 'neutral' investigation.  This method of resolving factual issues, together with the guidelines’ harsh penalties for invoking the right to trial and lavish rewards for incriminating others, result in a system that is not only unfair but also intrinsically incompatible with our adversarial system of justice.

Existing scholarship on the Federal Sentencing Guidelines has not examined how the guidelines purposefully discourage exercise of the right to trial and pressure defendants to admit to every allegation against them (and others).  The central role that the United States Probation Office plays has also not been thoroughly examined. Far from undertaking merely ministerial and innocuous tasks, as most of the existing scholarship assumes, probation officers are tasked by the guidelines with the most critical role at sentencing.  Often, they exert far greater influence on case outcomes than defense lawyers and prosecutors. The article concludes that the present sentencing process is unconstitutional but can be easily reformed by restoring control over each case to the parties.

October 3, 2009 at 09:55 PM | Permalink


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I am a private citizen not a member of the legal services industry. I have no criminal record. I was held by USDOJ for 5 months without a criminal charge. I was not arraigned. I was not told my rights. I was not sentenced. I did not plead guilty. There was no bail hearing. USDOJ said that the U.S. attorneys in Colorado and Wisconsin where I was detained had no record on me. USMS acted as a gestapo probably because their agents were cozy with former judge Naughty Nottingham, who ordered my illegal detentions, and provided him 24/7 security which probably means they went with him to strip clubs and brothels.

Chris Beall, then a partner at Faegre & Benson, served as a volunteer prosecutor. This was in a civil case docket (D of Col 02-1950) and he was a defense lawyer billing Mutual Insurance of Bermuda. He said in court that I did not have a right to a lawyer and that I did not have a right to an evidentiary hearing because "this is civil contempt". Nottingham said that I would only be allowed a five minute presentation and vowed that he would not listen.

USMS did not verify that there was an Oath or affirmation or that a USDOJ prosecutor requested execution of warrants. The warrants were not signed, didn't even have a judge's name, and did not list a federal offense. There was an order signed by a former clerk of court, Theresa Owens, that I should be held and taken to Nottingham, and the place for statute was crossed off. I was held in a state facility billing USMS and the place for statute number on their forms was empty and just filled in "hold for USMS". An assistant U.S. attorney Robert Anderson appeared at the hearing before Owens and said that the government was not a party to this but he did not protest my detention. The hearing that he came to was not on the court calendar. A year later Owens retroactively added it to the court calendar and claimed that Magistrate Crocker officiated but he was not there. My FOIA requests produced letters from DOJ saying that USDOJ in Colorado and Wisconsin had no records at all on me.

This resulted from a civil trial that was insured by Lloyds of London and Mutual Insurance of Bermuda. I was not even accused of disrupting a hearing, threatening a judge or perjury. I verified everything I wrote under penalty of perjury and noone has produced even a single fraudulent statement.

5 USC section 522 a (u) requires all government agencies with data matching programs to have a Data Integrity Board making annual reports to OMB but USDOJ skipped that law. USDOJ also administers programs that make people ineligible for scientific grants. USDOJ contracts with state facilities to detain people. On their forms the place for statute was blank.

Without a warrant backed by a DOJ Oath or affirmation as required by 4th amendment, or a written order requesting execution of a warrant, as required by Rules of Crim Procedure 4 4(c), and without an identified federal offense, USMS circulated my photo at the law library, went to my neighbors with my photo, came to my home, and called me and my family and threatened us. They also claimed that they asked the local police to detain me. They came to my home without a warrant and forced me into their vehicle.

I am upset because no one has been prosecuted and I have been denied recognition as a crime victim. I have constant nightmares about the USMS Gestapo.

Posted by: kay sieverding | Oct 4, 2009 12:08:16 PM

Another "ivory tower" view of federal sentencing rife with inaccuracies. In the first and foremost inaccuracy, the Court and not the probation office resolves factual issues at sentencing after each party has had an opportunity to receive and retain a copy of the PSR and file objections to any factual or policy matter.

It should be incumbent upon all law professors to spend some time in court before they flout their misconceptions and insinuations.

Posted by: mjs | Oct 4, 2009 7:46:50 PM

Probation officers are influential in sentencings, to the extent that they make recommendations to the court, and often raise issues in the PSR that one or both of the parties may hope would not be raised (unanticipated enhancements to the offense level, gounds for upward *and* downward departure/variance, etc.). The PSR sometimes (not always) results in the court asking the parties to address those issues, and sometimes the court decides to apply enhancements even if the parties previously agreed they shouldn't apply. Obviously that can influence the outcome.

But to suggest probation officers are more influential than prosecutors (who have discretion about the charge filed, the resulting mandatory minimums faced, and 5K1.1 motions, and what evidence will be shared with the probation officer or the court), and defense counsel (who can negotiate agreements, advise clients about accepting them, and present evidence about departures and variances) borders on absurd.

Posted by: USPO Esq | Oct 5, 2009 8:34:41 AM

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