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September 30, 2013

Advice for the US Sentencing Commission from former USDJ Nancy Gertner

Nancy-gertnerI am genuinely unsure if the US Sentencing Commission gets to keep working if we end up having a federal government shut-down this week.  But I am sure that the USSC starts an official new fiscal year as of tomorrow morning and that any government shut-down is not going to keep federal defendants from being sentenced and that the USSC will be up-and-running in some capacity both sooner and later.  For those reasons, I am pleased right now to be able to post these comments sent my way by former federal district judge (and now Harvard law professor) Nancy Gertner about what the USSC ought to be doing as FY 2014 in the federal sentencing system gets underway:

At a time when the “common law of sentencing,” is being shaped in federal district courts, why does the Sentencing Commission only post Circuit Court decisions on its web site?  In 2012, sentences that had been appealed on the grounds of unreasonableness were affirmed 95 percent of the time.  And that rate has remained steady on the national level: In 2011, the affirmance rate was roughly 94 percent; in 2010 it was approximately 96 percent; and in 2009, 97 percent affirmances.  In my circuit, the First Circuit, not a single sentence was deemed unreasonable on appeal in 2011 or 2012, and only a handful of cases qualified in the immediately preceding years. In effect, as with other areas of law where the standards of review are forgiving (think evidentiary appeals on forensic issues which are reviewed for “abuse of discretion” and rarely overturned), the appellate courts are not defining substantive sentencing standards, and imposing only minimal procedural ones.

Clearly most of the meaningful sentencing developments -- the substantive sentencing standards, the guideline analysis and trenchant critique -- are happening at the district court level in the decisions of judges like John Gleeson and Jack Weinstein (S.D.N.Y.), Mark Bennett (N.D. Iowa), Ellen Huvelle (D.C.), Paul Friedman (D.C.) and Lynn Adelman (E.D. Wisconsin). While not all judges take the time to write formal sentencing opinions, those that do should have their work circulated by our “expert” Commission rather than being ignored.

If the Commission is interested in minimizing disparity in sentencing in a post-Booker world (which should be one of its goals -- hardly the only one), what better way than to make certain that the opinions of district court judges are communicated more broadly to the federal bench?  When these judges offer a reasoned analysis of the Guidelines or an alternative way of analyzing the cases, why not ensure that other judges see their work and decide whether to follow it?  Other judges can look at their reasoning– not as binding precedent, but as a template for the cases they see, e.g. here’s one approach to firearms cases, non violent drug offenders, white collar cases, etc.  If a common law of sentencing is ever to evolve -- supplementing (or in some cases supplanting) the Guidelines -- why not assist in its development? In a common law system, decisional law establishes standards. Uniformity is not enforced from above -- as in civil code countries -- but evolves from reasoned judicial decisions.  In effect, with advisory Guidelines, we have a hybrid system -- Guidelines and decisional law.

To look at the Commission web site, there is only one orthodoxy -- the Guidelines, and Appellate Court decisions that rarely say much of anything.  In fact, the message conveyed by the web site is that the Commission is not interested in uniformity as a general matter, just one kind of uniformity -- the uniform enforcement of its flawed product, the U.S. Sentencing Guidelines.  Teach the Guidelines.  Describe appellate court decisions affirming whatever the district courts do without meaningful analysis.  Ignore the fine work of the judges trying to create meaningful standards where it counts the most, in the sentencing of individuals.

September 30, 2013 at 10:15 AM | Permalink


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You have to give Nancy Gertner the Masterpiece of Bad Timing Award for gushing about Weinstein mere days after his self-adoring, if fatuous and legally absurd, opinion hits the streets.

Way to go, Prof. Gertner!

P.S. But one must agree: Why look at the opinions of higher courts (consisting of panels of judges) when one could look at the opinions of an extremist fringe of assorted individual judges on lower courts?

I must say, Gertner hasn't changed a bit from her days of being one such judge.

Posted by: Bill Otis | Sep 30, 2013 4:25:22 PM

Judge Gertner highlights the problem of having a common-law sentencing regime that suffers from a dearth of common-law judging. Her thoughts on common-law sentencing are spot on, but with great respect for Judge Gertner (with whom I agree on sentencing issues generally), I think she's a little misguided here.

It isn’t surprising—or at all strange—that the Commission would focus on appellate decisions. After all, one of the Commission's primary statutory missions--and one that the U.S. Supreme Court has largely stayed out of--is the maintenance of uniformity and resolution of circuit splits in the interpretation of the guidelines. The Commission rightfully (and accurately) assumes that conflicts among the district courts in terms of application and interpretation of the guidelines will be evidence in the various circuit opinions it studies. And all of that doesn't touch on the obvious fact that appellate decisions, by definition, hold tremendous sway in sentencing. The very high rate of affirmance tells more of a story about federal sentencing law and how judges apply the guidelines than any individual opinion of an appellate court or district judge possibly could. What matters more to a federal judge looking for guidance on sentencing decisions? The opinions of one of my colleagues, which may or may not be in sync with many of my fellow jurists, or the degree to which the appellate court will tolerate variances from the guidelines?

Judge Gertner's comments are instead better directed to another constituency: district judges. The fact that she can pinpoint the handful of judges that do most of the substantive writing on sentencing topics is telling. The development of the common law is as much about the articulation of principles in the usual case as it is about the application of the law at the margins. Unfortunately, district judges tend only write or speak at length at the margins or in very high profile cases--and even then, frequently only when they feel the guidelines and/or mandatory minimums produce a sentence that is unduly harsh. Judges would be well advised to discuss the issues as thoroughly when they feel that a sentence is particularly warranted, and to explain in greater detail how the 3553(a) factors work in run-of-the-mill cases. If any branch has control over the sources of common law that can really shape sentencing, it is the Judiciary. The more district judges write about sentencing, the more likely it is that their decisions will shape both appellate review and the Commission's work. The FJC could just as easily serve as a collection point for those opinions.

Relatedly, it's really not accurate to say that the Sentencing Commission ignores the work of the judges (and others like them) that she's identified. First, just because the decisions are not posted on its website, does not mean that they are ignored. They certainly stand out among the many voices that the Commission synthesizes in doing its work. Moreover, the Commission relies heavily on the feedback that all judges (not just the few who write at length) give through the Judicial Conference, in testimony at hearings, and in the data points represented in every single sentencing decision that are collected, studied, and relied upon (perhaps even to a fault) by the Commission.

Posted by: anon | Sep 30, 2013 5:57:06 PM

Would that we could hear more from anon (with whom I disagree on substance but who actually thinks things through) and less from Gertner (who may have had a non-ideologically driven moment at some point in her life, I just don't know when).

Posted by: Bill Otis | Sep 30, 2013 7:57:51 PM

Is there an established doctrine of legality in the criminal law? Has it been settled law for 200 years?

Isn't sentencing the most important result of the criminal law? Does or should legality apply to sentencing? Can legality apply to the crime, and common law jurisprudence apply to sentencing? Only in the Twilight Zone. Welcome to the Twilight Zone.

Posted by: Supremacy Claus | Oct 1, 2013 6:45:03 AM

Perhaps, Judge Gertner has that moment Otis when she thinks about what a right wing "the prosecution" can do no wrong broken record, partisan hack you are.😄

Posted by: Steve Prof | Oct 1, 2013 6:54:21 PM

another useless federal agency..I have worked there and any sane mind can see the fat cats picking up pay checks at the expense of tax payers...

Posted by: david barkin | Oct 3, 2013 3:21:34 PM

Thank you to DB, for a refreshing bit of candor.

One has to wonder why it is still around, since mandatory sentences have ended.

Posted by: Supremacy Claus | Oct 3, 2013 6:26:07 PM

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