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May 3, 2010

Can, should and will district judges start giving effect to proposed amended guidelines ASAP?

This article from the Wall Street Journal, which is headlined "New Factors to Help Judges Determine Leniency," effectively the proposed new federal guideline amendments released on Friday by the US Sentencing Commission (basics here):

New rules will make it easier for federal judges to consider criminal defendants' military service, age, and mental and emotional conditions in determining more lenient prison sentences, a federal agency announced on Friday.

Defense lawyers and some judges cheered the move by the U.S. Sentencing Commission, which develops advisory guidelines that most federal judges use to calculate sentences. The commission had been considering updating the rules.

As a result of the changes, which takes effect on Nov. 1, some defendants could receive a reduction of several months or several years, said Mauro Wolfe, a former federal prosecutor who is now a defense attorney in New York.  "Judges will start paying more attention to this around the country," said John Kane, a federal judge in Denver. Mr. Kane recently gave a sentence of probation, rather than prison, to an Iraq war veteran. Previously the sentencing commission said factors such as age and military service "are not ordinarily relevant in determining" whether a lower sentence is warranted....

The new rules potentially reduce the prison sentence for some defendants with recent criminal history. Separately, they allow judges to send certain nonviolent drug offenders to treatment programs rather than prison.

There has been a judicial movement toward more-lenient sentencing for certain types of defendants in recent years. For example, a growing number of federal judges have given breaks to individuals convicted of viewing child pornography but who aren't themselves molesters, according to recent data.

As more military veterans return from Iraq and Afghanistan and have developed behavioral problems, some judges started taking their military service into account when deciding on prison time.

Some federal judges also give credit for charitable giving and other good deeds. However, the commission on Friday didn't budge on its stance that judges generally shouldn't take into consideration such acts.

As spotlighted by the question in the title to this post, these proposed guideline amendments set up one of the most interesting and intricate formal legal questions of the post Bookerera --- namely whether district judges can and/or should and/or will start giving effect to the substance of these new guidelines during sentencings over ne next six months while the proposed amendments are subject to congressional review. 

Formally, as the WSJ piece notes, the proposed amended guidelines do not become legally effective until November 1, 2010, and Congress has authority during this period to pass legislation to reject the Sentencing Commission's proposed changes.  But it seem very unlikely that Congress will reject these changes, and district courts right now have an on-going obligation to sentence in accord with the provisions of 3553(a).  And, given that the Commission has now formally and functionally indicated its view the provisions of 3553(a) are better served by sentencing in accord with its amended guidelines, a district court should probably feel free, and maybe even should feel and obligation, to sentence in accord with this new proposed guidelines ASAP.

I heard reports back when the USSC lowered the crack guidelines that a lot of sentencings were simply put on hold during this six-month interregnum when newly issued guidelines are formally still just proposed amendments.  But these new proposed amendments, especially the provisions concerning the consideration of age and mental/emotional conditions, could implicate almost every pending sentencing.  (For example, in the high-profile Rubashkin case (basics here and here), both the defendant's age and mental/emotional condition were stressed by the defense as a reason for a more lenient sentence.) 

Consequently, unless district courts are prepared to postpone all sentencings not controlled by mandatory minimum sentencing terms, judges will have to confront in some manner the question of whether and how to give effect to these new proposed guidelines in pending cases.  And, with luck, some of these judges will author thoughtful written opinions to perhaps get a real common-law dialogue started concerning precisely how best to give effect to military service, age, and mental and emotional conditions at sentencing.

Related posts on the new proposed sentencing guidelines :

May 3, 2010 at 11:01 AM | Permalink


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Prof. Berman,

Why does it matter whether judges can, should or will give effect to these proposed amendments when they can just consider background under 3553(a)? Is the thought that since there remains a 'gravitational pull' towards the guidelines ranges, that these amendments will allow judges to take these matters into consideration more freely?


Posted by: Noam | May 3, 2010 1:15:30 PM

You note one real-world reason why these amendments matter. In addition, grant of a departure under these new amendments, rather than a variance via 3553(a), could make a lower sentence subject to the presumption of reasonableness that many circuits apply to within-guideline sentences. Relatedly, the failure to give effect to these amendments, once they become law, could be the basis for a defense claim of unreasonableness on appeal. And so on, and so on....

In short, the guidelines still matter a lot even after Booker in a lot of cases and for a lot of judges.

Posted by: Doug B. | May 3, 2010 2:32:52 PM

Can they: yes, absolutely. Under 3553, the judges can sentence as-if the amendments are in effect. They won't be able to call the new departures "departures" until the effective date, but the 3553(a) analysis certainly can take into account the proposed "deparures" under the rubric of a "variance."

Should they: yes, absolutely. The USSC's statement that such amendments to the guidelines are necessary is a compelling reason to effectuate the amendments, even prior to their "official" effective date. Further, because most of this year’s amendments are all the result of the Commission’s institutional role, they are entitled to great weight.

Will they: Let's hope so.

Posted by: DEJ | May 3, 2010 2:47:00 PM

After advising the court of the upcoming amendment last Thursday I had a District Judge ignore, in accordance with 3553(a), the recency provisions of USSG Chapter Four

Posted by: K | May 3, 2010 8:37:52 PM

The Third Circuit has stated that a district court should consider amendments pending before Congress because they reflect the "Commission's current policy position ... [that] may have some influence on the judge's ultimate discretionary choice of sentence.” United States v. Godin (“ Godin II ”), 522 F.3d 133, 134 (1st Cir.2008) (cited in United States v. Ahrendt, 560 F.3d 69 (1st Cir. 2009). If counsel does not bring these pending amendments to the district court's attention now, an appellate court is unlikely to remand for consideration. See United States v. Alexander, 553 F.3d 591, 593 (7th Cir. 2009).

Posted by: Denise Barrett | May 4, 2010 12:34:48 PM

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