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June 19, 2010

In praise of the US Sentencing Commission and hopeful about federal sentencing's future

As I continue a too-long trek back from the US Sentencing Commission's big national conference in New Orleans, I wanted to do this quick post to praise the USSC's continuing efforts to enable sentencing data and the voices of judges and sentencing practitioners drive federal sentencing reform in this post-Booker world.  More broadly, I wanted to explain why, at least right now, I am more hopeful about the future of federal sentencing than I have been in a long time.

My positive feelings about the US Sentencing Commission and federal sentencing's future are no doubt impacted by the benefits of spending most of my time in the ivory tower (and perhaps also a belly too full of beignets and fried seafood).  On the ground, there surely remain plenty of problems and injustices in the sentencing of some (many?) of the nearly 80,000 federal defendants being sentenced each year.  Nevertheless, viewed from the ivory tower, the federal sentencing system finally seems to be moving in the right direction: the chief policy-makers within and around the Sentencing Commission (as well asmost federal judges and the Department of Justice) seem soundly focused on preserving the best features, and remedying the most troublesome features, of the federal sentencing system that Booker created.  Though the post-Booker world is far from perfect, there now seems to be a pretty sound case-level balance between system-wide sentencing rules and reasoned sentencing discretion and also a pretty sound commitment by all the policy makes to keep improving the system-wide sentencing rules.

Of course, the story is not all rosy in any branch of the federal government.  Congress cannot get around to making even a modest change to the severe crack mandatory minimum sentencing statutes that all agree are unjust.  The Sentencing Commission is yet to really go at modifying the most problematic aspects of the drug, fraud and porn possession guidelines.  President Obama continues to reveal that he lacks the wisdom and courage needed to exercise his historically important clemency powers in any way.  And the federal prison population continues to hit record high levels every month.  Still, despite all these persistent disconcerting realities, for the first time that I can remembers, I am more hopeful and optimistic than cynical and pessimistic about the directions in which federal sentencing law and practice seem to be heading.

Especially because I fear that the great fun I had in New Orleans at the USSC conference my be giving me too rosy a view of where federal sentencing matters stand and are headed half a decade after Booker, I welcome any and all comments intended to kill my law nerd buzz.

June 19, 2010 at 11:10 AM | Permalink


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Oprah or Glenn Beck will criticize the changes as "weak on crime" and the whole shebang gets put in a drawer. Buzz killed?

Posted by: NickS | Jun 19, 2010 12:53:17 PM

Although it pains me a bit to say so, given all the effort that has gone into reform of sentencing law over the last 25 years, the system we had in place in 1977, when i first became involved in all of this as a federal prosecutor, actually made more sense. The system we had then did of course give virtually unlimited sentencing discretion to federal judges. But I rarely saw that discretion abused in any meaningful way. The sentences were much shorter then, but one advantage of that was that they did give a convicted defendant some hope of righting his or her ship and still finding some kind of life for themselves after prison. That is not the system we have now.

I see sentences all the time for first time drug offenders and zero criminal history point, first time child pornography possessors of 15 or 20 years as a matter of course. Truly, we might as well take them out and shoot them. There is no way to expect someone can come back from that kind of sentence and make something meaningful of their life. And the sentences for these offenses very much dwarf what we can get for truly violent offenders or fraudsters who actually, intentionally, hurt their victims (Needless to say, my sympathies for "white collar" offenders who make it their life's work to strip innocent victims of their life savings and their ability to retire with some dignity is not so great).

In short, the system as we have it, with all its politically driven mandatory minimums and canabalistic guidelines for crimes that are at best "malum in prohibitum"offenses, while preserving relatively modest sentenses for what are plainly "malum in se" crimes, remains broken, likely beyond repair in my lifetime at least. It is increasingly hard to do my job in such a business, because it saddens me every day. And the worst thing is that over the life of the guidelines system, prosecutors, probation officers, judges, and even defense lawyers have become so desensitized to how extraordinarily long all these senteneces are today that they are genuinely puzzled as to why anyone would balk at a relatively low sentence of "only" 10 years.

I recall a policeman i helped convict in 1979. He was charged with participating actively in a heroin conspiracy in a major midwestern city. He was sentenced to 7 years in prison, which, back then, meant he would serve only like 4 or 5 years. Did he re-offend after that? I don't think so. Did he go on to live a worthy life after that? I believe he did. Today, he might well have gotten a sentence of 15 or 20 years. How would society have benefitted from the extra 8 or 13 years incarceration? No way I can imagine.

So I continue to believe the federal system is desperately in need of an overhaul. It is not going to get one. Because to fix what is broke would require an enormous amount of political courage, and we know to a moral certainty that the one item in the most short supply is political courage among our elected officials.

Posted by: Grotius | Jun 19, 2010 4:28:58 PM

I am glad the criminal cult conclave went well. When people who think alike and want to make no waves in their comfortable arrangements get together to sycophantically kiss rear and to make no waves that might break the mood of kiss-kiss, it can be fun and pleasant.

The sole validation of sentencing and of government is physical security of those who pay government to provide it.

I will bet only 10 cents because it is like stealing. No one, not even the waitresses, ever mentioned the V word. That rude, bad language, pesky V word, 5 million of them of violent crime, and 17,000, perhaps 70,000 murdered, butchered like it would not be allowed at the stock yards.

You elites continue to kiss up, to enjoy your fine food, and luxurious accommodations. Just do not stray more than a block from the tourist and convention areas that have good protection. Or you will find out what I am talking about.

Posted by: Supremacy Claus | Jun 19, 2010 6:20:30 PM

Can't add much to Grotius's eloquent summation.

Though a distinction should be made between hardcore "fraudsters" Grotius seemed to have in mind and ordinary white-collar business people crushed and discarded in grandstanding, guilt-by-association RICO sweeps.

Posted by: JohnK | Jun 20, 2010 10:51:50 AM

It is painful. While nuanced and parsed opinions and decisions trickle in and modify the harshness of our criminal justice system, we pay for hundreds of thousands of our sons, fathers, mothers, husbands and friends who remain behind bars.

I do believe this is a part of the anti government sentiment on both sides of the political spectrum.

Posted by: beth | Jun 20, 2010 11:57:12 AM

"The sole validation of sentencing and of government is physical security of those who pay government to provide it."

And you honestly think that sentencing people to longer and longer prison terms will make society function better in the long run? And that it will serve as a disincentive to commit crime? That's awfully short-sighted and dismissive of all the data on the correlation between incarceration and crime.

Posted by: NickS - student | Jun 20, 2010 12:02:16 PM

That was very well said Grotius. I find some of these sentences for drug offenses unbelievable. While I was not practicing prior to the Sentencing Reform Act, I do recall that, in the late 70s and into the 80s, it was one politician after another, wearing a cowboy hat (I believe this was literally true at times), trying to stir people up in relation to how they could be tougher on drugs than other politicians.
It is frightening to see someone, without any violent past or even allegations of ever having committed a violent act, to go down for decades based on what can be a small amount of drugs. I still do not understand how, unless there is some racial motivation involved, it is possible to have one person have the same degree of liability for adding baking soda to 50 grams of cocaine (and then cooking it) as the person who is distributing 500 grams of powder to which other people are very likely adding baking soda to that powder. β€œ[N]early all cocaine is initially distributed in powder form until some later time in the distribution chain when some is then converted to crack.” United States Sentencing Commission, Special Report to Congress: Cocaine and Federal Sentencing Policy, I. Introduction, p. 5 (April, 1997).

Posted by: Tim Holloway | Jun 20, 2010 12:59:53 PM

Grotius: If you did not see wildly disparate sentences being imposed upon similarly-situated individuals you were clearly looking the other way.

Sentencing Guidelines were a necessary development in the federal system. One could argue that drug, child-porn, and other offenses were ratcheted too high but that is a different argument. No one-not even Federal Judges-want to see a return to luck of the draw sentencing.

Posted by: mjs | Jun 20, 2010 1:18:53 PM

Nick: I believe accuracy in incapacitation makes us safer. The self-dealing incompetent, the lawyer, in charge of the criminal law devoid of any knowledge, this dumbass incompetent, allows 9 of 10 serious crimes to go unanswered. Why? He depends on the criminal for his job. Scare or inconvenience the lawyer client, the career criminal, and the self-dealing, internal traitor loses his job, a do nothing government sinecure.

All other goals of the criminal law are unlawful, worthless, immature, religion based, or unconstitutional.

OK, he does nothing about 9 of 10 serious crimes. When he has the person, he pleads some unrelated charge. When he takes the criminal to trial, a worthless, anti-scientific Medieval garbage method of arriving at a random answer or at answering the question of whether the jury liked the defendant or the prosecutor more, he railroads a bunch of innocent people, even to death row.

How long will the public allow the self-dealing incompetent to run the criminal law? The pest is unbearable from every side of the criminal law.

Posted by: Supremacy Claus | Jun 20, 2010 1:37:06 PM

Beth: When you say, government, what is that?

It is a wholly owned subsidiary of the criminal cult enterprise that is the lawyer profession. They make 99% of the policy decisions. People say, government does nothing well. That is true if you feel the duty of government is to protect us, and to achieve tasks together that none of us can achieve alone. If you know its sole true aim, it is wildly successful, lawyer rent seeking.

If you have ever been the victim of a violent crime, you can the lawyer/government. It was likely carried out by a lawyer client, well known to the government since age three, and whose criminality had the foreseeability of planetary orbits, and by the hundreds a year.

If you are a civilian, you fully understand what I have said. If you are a lawyer, your cult indoctrination was so good, that you are hearing only foreign language gibberish, and have no idea what I am talking about. This indoctrination was so good, you did not even know you were put through it. However, you are a very intelligent who came to believe in the supernatural and in garbage Scholasticist nonsense. With this indoctrination theory, you would have to explain why you believe in mind reading, in future forecasting, in fictional character setting the standard of conduct, that twelve strangers off the street can detect the truth by using their gut feelings. Your intellectual culture is ridiculous, and its sole validation comes from Army Airborne. Your sicko beliefs in the supernatural are imposed on our secular nation at the point of a gun by an unelected elite in out of control insurrection against the constitution.

Posted by: Supremacy Claus | Jun 20, 2010 3:09:58 PM

I probably did not see wildly disparate sentences because I practiced in only a single district back then. In my experience, they were not disparate, within my district, tho they may well have been when looking at the situation nationwide. But to think that the guidelines have eliminated disparities nationwide is also naive. Take drug offenses. Sentences are driven by estimations of drug quantities. In small districts, like mine, drug quantities are often based on historical guesses based on the recollections of drug addled co-consspirators who make statements about the culpability of their confederates. In bigger districts, these cases never find their way into federal court. If you are not able to produce a similar quantity in actual drugs to place on the table in court, then there is no time for a case based on merely historical recollections of co-conspirators. So at the end of the day, defendants in small districts are treated, under the guidelines, like king pins in big districts, and sentenced accordingly.

The point is that the main point of the guidelines.....eliminating disparities in sentencing accross the board.....is not really achievable because cases that are prosecuted as kingpins in large districts never occur in small districts......so to keep our numbers up and our stats relevant, we treat small time drug dealers as if they were kingpins, and sentence them accordingly,,,,,when they just aren't.

At the end of the day, the real truth is that we cannot come up with some sort of moral calculus that mathematically guarantees justice. And given the competitive enterprise that is involved in interdicting crime, I prefer simply relying on sensible judges exercising their discretion than the exercise of a political judgment by assorted numbskull congressmen.

Posted by: Grotius | Jun 20, 2010 7:16:56 PM

Grotius is correct. Kingpins can plea and testify and receive probation. A lower level distributor may not have enough information or property to give up. Charges are stacked and with conspiracy laws the lower level distributor becomes a kingpin. There really is no consistency. Prosecutors are in charge of sentencing - not judges.

Another interesting thing that happens is the same loads are attributed to many individuals. Thus, a large load of pot is attributed to many defendants to add to their sentencing level. Sometimes this is done over a period of years.

Posted by: beth | Jun 20, 2010 7:57:39 PM

I don't want to kill your buzz. Just the opposite, I want you to be inspired to keep up the good fight. Maybe the buzz will help you do that.

We can disagree about the changes that should be made, but hope that we can make the system better is worth a lot.

Thanks for all that you do -- to everyone on this site (including Supremacy Claus).

Posted by: Mark | Jun 20, 2010 8:58:01 PM

Mark: I am the only one here standing between the lawyer profession and the concentration camps when payback for the next major terror nuclear attack begins. Once it begins, all my arguing on behalf of the rule of law, on behalf of that fragile flower of Athens, the constitution, will fall on deaf military ears.

Posted by: Supremacy Claus | Jun 20, 2010 11:40:31 PM

For what it is worth, I just had a case were the co-Ds were the source for estimating quantities. This was in Detroit. So, I am not sure I agree with the idea that this tends to only happen in rural, as opposed to urban, districts.
You may also note there is some case law, at least in the 6th Circuit, that indicates the sentencing judge should be concerned about Co-Ds statements regarding quantities. See, United States v. Hunt, 487 F.3d 347, 352-353 (6th Cir. 2007); see also, United States v. Kerr, 876 F.2d 1440, 1446 (9th Cir. 1989)(β€œThe mere statements of an anonymous informant, standing alone, do not bear sufficient indicia of reliability to support a finding of fact by even a preponderance of the evidence.” ) The following is from Hunt:
This court has explicitly stated that the district court may consider hearsay in sentencing, but the district court must "find[] it to have sufficient or minimally adequate indicia of reliability." United States v. Silverman, 976 F.2d 1502, 1513 (6th Cir. 1992) (en banc), cert. denied, 507 U.S. 990, 123 L. Ed. 2d 159, 113 S. Ct. 1595 (1993); see also United States v. Gibbs, 182 F.3d 408, 441 (6th Cir.), cert. denied, 528 U.S. 1051, 145 L. Ed. 2d 492, 120 S. Ct. 592 (1999). Moreover, "[d]ue to a co-conspirator's 'strong motivation to implicate the defendant and to exonerate himself,' a co-conspirator's statements about the defendant's involvement in the crime should be viewed with 'special suspicion.'" United States v. Gomez-Lemos, 939 F.2d 326, 330 (6th Cir. 1991) (quoting Lee v. Illinois, 476 U.S. 530, 541, 106 S. Ct. 2056, 90 L. Ed. 2d 514 (1986)); see also Hill v. Hofbauer, 337 F.3d 706, 717 (6th Cir. 2003) (noting that statements made to the police by a co-conspirator require "closer scrutiny," in part because such statements may be "motivated by a desire to curry the favor of law enforcement officials"). Thus, the statements of Farris and Joe Hunt required, as hearsay, sufficient indicia of reliability in order to support the district court's conclusion, and were even more suspect as statements by co-conspirators made out of an explicit or implicit desire to secure favorable treatment from the police. See United States v. Huckins, 53 F.3d 276, 279 (9th Cir. 1994) (concluding that a hearsay statement of a co-conspirator had no indicia of reliability and thus could not properly be considered in sentencing).

Posted by: Tim Holloway | Jun 21, 2010 1:28:57 PM

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