Sentencing Law and Policy: You be the judge for "sentencing supernova": what punishment for former House speaker Dennis Hastert for structuring (and sex) offenses?

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April 26, 2016

You be the judge for "sentencing supernova": what punishment for former House speaker Dennis Hastert for structuring (and sex) offenses?

I have decided to call tomorrow's scheduled sentencing for former House speaker J. Dennis Hastert a "sentencing supernova." As science geeks know, and as this Wikipedia entry explains, a supernova is "an astronomical event that occurs during the last stellar evolutionary stages of a massive star's life, whose dramatic and catastrophic destruction is marked by one final titanic explosion." I consider any former speaker of the House to be a "massive star" and I look at his coming sentencing as the culmination of a "dramatic and catastrophic destruction" as it was slowly unearthed by federal authorities that he was committing federal banking offenses in order to pay hush money to one (of now it appears many) of Hastert's long-ago sex abuse victims.

I also am thinking of Hastert's sentencing in "supernova" terms because there are so many dynamic and debatable sentencing issues swirling around his case. This recent Chicago Tribune article, headlined "More than 40 letters in support of Hastert made public before sentencing," reviews just some of the sentencing issues in play (with my emphasis added):

More than 40 letters in support of former U.S. House Speaker Dennis Hastert — including one from his former congressional colleague Tom DeLay — were made public Friday evening in advance of his sentencing next week on hush money charges.

"We all have our flaws, but Dennis Hastert has very few," wrote DeLay, the Texas Republican who served as majority leader under Hastert in the early 2000s. "He doesn't deserve what he is going through. I ask that you consider the man that is before you and give him leniency where you can."...

Also included were letters from Hastert's wife, Jean, and sons Joshua and Ethan, who wrote of his devotion to his family and his good deeds as a coach, teacher and later as a politician. They also wrote of concerns over his failing health — Hastert's lawyers have said he suffered a stroke and near-fatal blood infection last year that left him hospitalized for weeks. "This has taken a terrible toll on our family," his wife wrote. "I am particularly worried that if he is taken from his home and the care he needs, his health will continue to deteriorate."

Hastert, 74, faces probation to up to five years in prison when he is sentenced Wednesday, although his plea agreement with prosecutors calls for a sentence of no more than six months behind bars. He pleaded guilty in October to one count of illegally structuring bank withdrawals to avoid reporting requirements, admitting in a plea agreement that he'd paid $1.7 million in cash to a person identified only as Individual A to cover up unspecified misconduct from decades earlier.

In a bombshell sentencing memorandum filed earlier this month, prosecutors alleged Hastert had sexually abused at least four wrestlers as well as a former team equipment manager when he was coach at Yorkville [more than 35 year ago]. The abuse allegedly occurred in hotel rooms during team trips and in almost-empty locker rooms, often after Hastert coaxed the teens into a compromising position by offering to massage them, prosecutors said. The filing also alleged that Hastert set up a recliner chair outside the locker room showers in order to sit and watch the boys....

When he was confronted by FBI agents about the unusual bank withdrawals in December 2014, Hastert lied and said he was just keeping his money safe because he didn't trust security at the banks, according to prosecutors. Later, he accused Individual A of extorting him by making false accusations of sexual abuse and even agreed to record phone conversations for the FBI — a gambit that fell apart when agents realized it was Hastert who was lying, according to prosecutors.

I have highlighted above the notable fact, thanks to a shrewd plea deal in this case, Hastert's punishment is statutorily limited to a prison sentencing range of zero to five years and that prosecutors are bound to recommend a sentence of no more than six months imprisonment. Prosecutors cut this deal, I suspect, because they realize that Hastert's old age and poor health and recent history of public service would make unlikely that a judge would sentence him to a very lengthy prison term.

That all said, it appears nearly undisputable that Hastert did sexually abuse numerous boys while serving as a wrestling coach decades ago and essentially got away with these crimes. (It is my understanding that the statute of limitations has passed so that he could not now be prosecuted for them.) His more recent bank/money structuring crimes are, of course, connected to these long-ago terrible crimes and Hastert also actively lied to public officials in a manner that could also have readily brought separate serious criminal charge for obstruction of justice.

Based on all these facts, I could make reasonabe arguments for sentences ranging from probation to five years, and I also could imagine lots of arguments for creative alternative sentencing terms instead of (or in addition to) a prison stint. For example, I believe some members of the community have urged the judge to require Hastert to make significant payment to groups that work with sexually abused boys. And perhaps one could strain to read federal law to argue that all of those abused by Hastert long ago are still technically victims of his more recent offenses and thus should be able to obtain some kind of restitution through his sentencing. (This would seem to be stretch, but there are reports that some other "victims" are planning to testify at Hastert's sentencing.)

So I sincerely wonder, dear readers, what supernova sentence you think should be impose in this case?

April 26, 2016 at 01:20 PM | Permalink

Comments

This case could almost pose as a starting point for the discussion of offense of conviction vs. actual conduct in a law school class. The convicted offense (the cover-up) is relatively minor and a probation disposition would be easy to justify. The actual conduct (the apparently multiple counts of child sex abuse) make the maximum sentence (five years) look like a slap on the wrist. The actual conduct makes Representative Delay's letter look like a bad joke, Given Representative Hastert's age, a 2-3 year sentence seems in the ballpark.

Posted by: tmm | Apr 26, 2016 1:45:46 PM

He deserves 5 years in sentence. There are hundreds of thousands of defendants in similar shoes who don't get such sweetheart deals and who also have health problems or are in old age. Why should Hastert get a pass? When did public service become a mitigating factor at sentencing? Public service, with all of its benefits, is not a mitigating factor.

As a note, I generally would favor probation or the smallest punishment possible, however, here is a high profile guy who should have known better -- he is not just a rich old white guy, but a former speaker of the House of Representatives. No break. If anything, the punishment should be the maximum allowed by statute -- 5 years.

Posted by: Nasty Brutish and Short | Apr 26, 2016 1:48:05 PM

Without knowing all the specifics of the case and applicable sentencing provisions, I use my own experience as a point of reference. About 5-7 years ago I served 60 days confinement in county jail for a first offense Driving Under Suspension. Given the nature of that offense and the sentence that was deemed to be "justice," I am left to compare it with Hastert's crime and question what would be "justice" in that situation. If 2 months in jail was warranted for driving a car while on a suspended license, what amount of time locked-up away from society is warranted for Hastert given his conduct?

Posted by: Anon | Apr 26, 2016 2:35:36 PM

@TMM. @Doug

So here is what I think is the $64,000 question. How is a SOL any different than acquitted conduct? It seems to me that if one is going to pontificate about acquitted conduct, as Doug is wont to do, a SOL has the exact same legal underpinnings. The only difference is the mechanism of operation. In acquitted conduct the jury says the person is not guilty and with a SOL a person is not guilty by operation of law.

So when Doug talks about Hastert's "terrible crimes" it seems to me he is talking out of his ass. Legally, there were no crimes.

Posted by: Daniel | Apr 26, 2016 3:26:32 PM

4.5 years

Posted by: feddefenselawyer | Apr 26, 2016 3:33:25 PM

A local sports broadcastor over here is sarcastically called the "Sports Pope" for his pontificating. Is Doug Berman the "Sentencing Pope"?

I think his "public service" here if anything makes things worse -- whatever the realistic person expects, a higher test can be made there. The integrity interests involved in the laws at issue, e.g., makes him violating them more of a concern. If anything, expect more out of that guy.

His age and health seem more of a factor. Anyway, "supernova" sounds to gradiose.

Posted by: Joe | Apr 26, 2016 3:48:19 PM

Perhaps, the best sentence is that imposed by the judge in Cheech and Chong album of many years ago:

"Bailiff, whack his peepee"

Posted by: Dave from Texas | Apr 26, 2016 3:56:29 PM

Dave from Texas, you bring me back a few years!!

Posted by: Emily | Apr 26, 2016 4:46:06 PM

Can Hastert be considered a victim of extortion? Just a question--so don't jump on me.

Posted by: federalist | Apr 26, 2016 4:59:02 PM

To Daniel:

Acquitted conduct: "not proven beyond a reasonable doubt," it doesn't mean it didn't happen, it just wasn't proven.

SOL Expired: "cannot be punished due to expiration of statute of limitations"

Doug is not speaking out of his ***. They are both the same. They both are wrong as Doug has argued. I don't believe Doug makes a distinction. But there is a key difference between the two that also connects them: 18 USC 3553(a) and 18 USC 3661. Let me explain. Even if acquitted conduct was prohibited, at present, a judge could consider it as a part of the history and characteristics of the offender under 18 USC 3553(a). Alternatively, a judge could consider it under 18 USC 3661, which provides that there is no limit on the information that a sentencing judge can consider. That's why I think most commentators miss the point about acquitted conduct: just prohibiting it is not going to solve the problem, there has to be some changes to 3553(a) and 3661.

Posted by: Response to Daniel | Apr 26, 2016 5:04:47 PM

Response to Federalist:

No, he cannot. In fact, he tried that explanation with the FBI and is lucky he didn't get charged with obstruction of justice -- a point the judge recently made. The FBI discovered that it was not extortion but an agreement between the two for confidentiality, which is perfectly legal.

Posted by: Response to Federalist | Apr 26, 2016 5:06:13 PM

Daniel, I don't find a difference. I find Hastert's case as exhibit 1 of why unconvicted bad acts (whether fact-finder concluded guilt not proven or it was simply never charged) are relevant. Exhibit 2 would be Al Capone on his tax evasion case. I have occasionally seen defendants who had lengthy histories of being associated with crimes but never enough to charge them. Folks with those types of records are not the same as somebody who has been clean as a whistle their entire life.

Posted by: tmm | Apr 26, 2016 5:57:47 PM

To Tmm:

But there is a problem with what you are suggesting TMM. Nobody's life is clean as a whistle. Most people, including you and I, have probably at some committed a felony, we just weren't caught. There are over 400,000 federal laws and who knows how many state laws -- its impossible not to break one. However, the trigger in the criminal justice system is a conviction to authorize punishment. It should logically also follow that any increase in the punishment should be closely tied to that conviction and the facts admitted or proven. However, post Watts and McMillan and other cases, this is now only a sentencing factor -- the distinction between sentencing factors and elements is wholly illusive because whatever that increases punishment should either be admitted or put to a jury.

And on this note I point out that a defendant who pleads guilty yet denies relevant conduct under the Guidelines or other issues that the Govt insists are relevant under 3553(a) or 3661 can end up losing his 3 points for acceptance of responsibility.

I don't think the guy should be punished based on uncharged conduct. Period. And the backdoor routes allowed under 3553(a) and 3661 are wrong.

As for Hastert, he still should get 5 years, with or without the abuse, because he helped write these laws and should have known better. His health is not a mitigating factor when so many other defendants have the same darn problems.

Posted by: Nasty Brutish and Short | Apr 26, 2016 10:35:40 PM

Sixty months reduced by the violin-playing factors to 12 months + one day, imprisonment.

Posted by: Diogenes | Apr 27, 2016 6:56:35 AM

The only worse offense is murder.

My sentencing thoughts go to the huge violation of trust and to the, apparently, unknown number of victims, many of whom, undoubtedly, have had emotional and psychological issues, which translate to monetary issues, since the abuse. A perfect example why sex abuse should have no statute of limitations.

5 years is extremely merciful and one hopes that Hastert sees it that way and can properly explain that to his family and supporters, who seem oblivious.

It is astounding, considering that the major crimes are beyond prosecution, that he was not charged with obstruction.

He has received a huge degree of undeserved breaks in his life when, instead, he should have been labelled a sex offender since his wrestling coach days and served significant jail time for those offenses.

It is unconscionable that the prosecutors have decided to give him even more breaks.

Posted by: Dudley Sharp | Apr 27, 2016 7:48:53 AM

Keep up the great comments, folks, and let me explain to Daniel why I view acquitted conduct and long-ago conduct VERY differently for sentencing purposes:

-- so called "acquitted conduct" has been subject to all constitutional procedures, the defendant has contested the evidence supporting a criminal charge, and a jury has deliberated and ruled that a defendant should not be held criminally responsible based on that specific charge. I think, for both constitutional and practical reasons, it is very problematic when a judge bases a major sentencing increase on this kind of "acquitted conduct." (I am not as troubled if a judge, based on his own clear and convincing fact-finding (AND NOT using guideline enhancements) and through a well-explained reasoned sentencing decision, decides that some of the acquitted conduct is relevant in his 3553(a) analysis as long as there are close connections between the convicted crime and the acquitted conduct.)

--- SOL expired criminal conduct is very different, especially in a case in which is seems that the defendant does not dispute the conduct. For starters, I do not see any constitutional implications as a reason to protect/preserve an SOL (e.g., I do not think an SOL is constitutionally required, and I am troubled that SOLs enable indisputably guilty to avoid consequences in service to the (suspect) interest in finality. I am not claiming all SOLs should be abolished, but I am saying that I see limited reason to be troubled by use of SOL protected criminal conduct at a future sentencing ESPECIALLY if the defendant does not dispute the facts of that criminal conduct.

Ultimately, I am generally against putting any formal and artificial limits on what undisputed conduct/facts should be considered at sentencing, but I am general for limiting the consideration of disputed facts at sentencing unless and until that facts have been legally established through the constitutional protections the Framers put in place to limit the government power to punish.

Hope this makes sense and does not seem like it is coming out of my ass.

Posted by: Doug B. | Apr 27, 2016 9:49:37 AM

Dennis Hastert may serve a small amount of time or most probably just probation for his banking crimes. He won't see the inside of a court house or a day in prison for his sex abuse. Nor will he have to register as a sex offender for his sexual misconduct.
Why? First, the statute of limitations has run out, essentially, he got away with it. More importantly, he's a government employee and as we all know, they get great benefits!

Posted by: kat | Apr 27, 2016 11:18:52 AM

Nasty, most sentencing statutes in most states allows sentencing courts to take into account the character of a defendant. Most people may not be perfect, but some people are more imperfect than others. If I see that a person has four prior license suspension for driving while intoxicated but all of the tickets were reduced to careless and imprudent driving, I am going to treat that person differently than somebody who has never had an alcohol-related license suspension (even though the burden of proof for a suspension is preponderance of the evidence). Not doing so is being willfully blind to the danger that an offender poses to the public.

Posted by: tmm | Apr 27, 2016 11:21:53 AM

Doug, of all people, you should be against the use of both acquitted conduct and any information or evidence or conduct that can be used to increase a defendant's sentence under 3553(a) or 3661. Because eliminating acquitted conduct will just mean it gets considered under 3553(a) or 3661. In other words, then, your entire pages of writing devoted to acquitted conduct would lead to nothing but an academic or theoretical fix with no real world implications and you know this: a judge is absolutely is not going to refuse to consider acquitted conduct when 3553(a) or 3661 is going to give him the opportunity. Judges are creative. You have to eliminate consideration of conduct that is barred by the SOL and uncharged conduct of any sort. You don't do that, you are leaving an octopus with 8 legs that's going to crawl all over the place again.....

I think we all agree that there are two overarching theories of punishment: retributive and utilitarian. From a theoretical perspective, Fraser and others, many of who have written in the Federal Sentencing Reporter, have always written that a retributive theory of punishment only allows punishment for conduct that has resulted in a conviction:

See Richard S. Frase, Prior-Conviction Sentencing Enhancement: Rationales and
Limits Based on Retributive and Utilitarian Proportionality Principles and Social Equality
Goals, in PREVIOUS CONVICTIONS AT SENTENCING: THEORETICAL AND APPLIED
PERSPECTIVE 122 (Julian V. Roberts & Andrew von Hirsh eds., 2010)

Its also not justified from a utilitarian perspective.

Posted by: Response to Doug Berman | Apr 27, 2016 1:25:03 PM

I am confused by what you are saying, Response. I think it would be MUCH more than "an academic or theoretical fix" if federal sentencing laws were interpreted to PRECLUDE acquitted conduct from being used (1) in any guideline calculations, and (2) from being the basis for any significant sentencing increase, and (3) from being used at all at sentencing absent a thorough a well-explained reasoned sentencing decision that bases consideration of such so-called acquitted conduct on 3553(a)(1) analysis that is focused on the "nature and circumstances" of the crime of conviction. Nearly every acquitted conduct case that I have worked on in the federal system would have come out differently if this was the applicable law.

Moreover, truly the only way realistically "to eliminate consideration of conduct that is barred by the SOL and uncharged conduct of any sort" is to have fixed, rigid, specific, precise sentences tied to the offense of conviction. Typically, motive is not an element of most crimes charge --- are you asserting, Response, that judges at sentencing should be barred from considering "uncharged" motives? Similarly, role in the offense and the particulars of victims are not elements of most crimes. Are you likewise asserting these "uncharged" elements of an offender's conduct should be entirely off-limits as sentencing considerations as well?

I share the (generally accepted) view that only the offense of conviction should be, to borrow a term from the Supreme Court, the lodestar for all sentencing determinations. But I do not think that ONLY the offense of conviction should be considered at sentencing --- both for retributive and utilitarian reasons (e.g., I do not think an offender's blameworthiness or dangerousness is ever going to be ENTIRELY/perfectly reflected by offense of conviction) and also for practical reasons (e.g., offense-only sentencing transfer extraordinary sentencing powers to prosecutors in their charging/bargaining decisions and it would make (often hidden) plea bargaining decisions by the parties de facto sentencing proceedings).

Finally, and critically, in Hastert's case, the offense of conviction did place an upper limit on the punishment Hastert faced: the judge here was not legally aloud to sentence Hastert to more than 5 years in prison. And I wonder how you would feel if the judge in this case, after swearing in open court that he "eliminated any consideration of conduct that is barred by the SOL and uncharged conduct of any sort," that he decided 5 years was the right retributivist and utilitarian punishment in light of only the offense of conviction. Would you believe the judge? (This is kind of what OJ's state judge did when sentencing him for his state robbery offense: she claimed she was not considering his prior murder charges, but she then got pretty close to maxing him out for sentences that typically carried much lower sentence for persons convicted for the first time.)

Posted by: Doug B. | Apr 27, 2016 4:29:35 PM

Doug:

1. You call the judge's consideration of Dennis Hastert's ("Mr. Hastert") abuse a "motive" that he was permitted to consider in fashioning a sentence for the structuring charge. What effect did this have? It permitted the judge to sentence him to 15 months as opposed to the Guideline range of 0-6 months. I don't think this can be sanctioned under a retributive theory of punishment, which is to punish only for conduct relating to the conviction. This is supported by numerous articles in the FSR and is a logical extension to your arguments against acquitted conduct -- retributive theories of punishment do not support punishment for this.

2. The Hastert case involved motive, but there are hundreds, perhaps thousands, of cases where it is not actually related conduct at all, but conduct that's just generally bad. In United States v. Fitch (9th Cir), the sentencing judge sentenced a man convicted of bank fraud to nearly the max based on the allegation in the PSR that he played a role in his wife's disappearance. The defendant's guideline range was just a few years, fairly short, and he was never charged with playing any role in his wife's disappearance. But, thanks to, 3553(a) and 3661 he is now effectively being punished for playing a role in his wife's disappearance.

3. You state:

if federal sentencing laws were interpreted to PRECLUDE acquitted conduct from being used (1) in any guideline calculations, and (2) from being the basis for any significant sentencing increase, and (3) from being used at all at sentencing absent a thorough a well-explained reasoned sentencing decision that bases consideration of such so-called acquitted conduct on 3553(a)(1) analysis that is focused on the "nature and circumstances" of the crime of conviction. Nearly every acquitted conduct case that I have worked on in the federal system would have come out differently if this was the applicable law.

Doug, you know perfectly well that if you leave open a door for a judge to consider acquitted conduct, even where it calls for a "well-explained reasoned" decision, that it will inevitably happen. Do you really think a "reasoned" requirement is going to change anything? Judges are tough little nails and they don't like to budge from what they have been used to for decade. Case in point, post-Booker, Judges still apply the Guidelines in a majority of the cases. In short, your attempt to address acquitted conduct would fail so long as you leave a door open because who is to define "well-explained reasoned decision"? The Courts of Appeal still can't agree on substantive reasonableness of a sentence!!! And Jurors would still complain, as they did in the aftermath of the Antwan Ball case in D.C. (something that you wrote about in this blog), because now that there is a "well-explained reasoned" decision, their verdict can be disregarded. It won't work in practice and would cause needless confusion.

As I said before, acquitted conduct cannot be fixed without addressing relevant conduct, 3553(a) and 3661. When you add "absent" or "but" or "reasoned decision" you complicate it, especially where us lawyers love debating every single letter, and voila you have yet another mess. Keep it simple. Tie punishment directly to the offense of conviction and put strict protection in place. If you prohibit it all together, and strengthen appellate review, then its more clear and its easier to avoid an OJ style sentencing in Nevada. You also don't need rigid sentencing guidelines.

4. I am not in favour of rigid Guidelines, especially where the Guidelines are overly harsh in the U.S. But at least when there were Guidelines, the Defendant would have been entitled to notice before the judge departed upwards at sentencing. I would be in favor of Guidelines if we had a complete overhaul of the system, where sentences were generally capped and imposed mostly on repeat offenders; there was an increase in good time and other credits; and there was a viable after-conviction re-entry system, leading to some type of expungement (modelled after the UK's Rehabilitation of Offenders Act).

On a final note, I have had clients who have been denied their 3 points for acceptance of responsibility because they simple disagreed and could not accept uncharged conduct that was unrelated to their offense of conviction. My clients have just walked away wondering what they were being punished for other than character? And a retributive theory of punishment does not allow increased punishment for just being a person of bad character.

I appreciate and I have enjoyed this discussion with you but I strongly disagree with you on this point.

Posted by: Response to Doug Berman | Apr 27, 2016 7:50:37 PM

Very interesting discussion!!!!!!!!!!!

I don't think you can have it both ways:

Doug:

(1) in any guideline calculations, and (2) from being the basis for any significant sentencing increase, and (3) from being used at all at sentencing absent a thorough a well-explained reasoned sentencing decision that bases consideration of such so-called acquitted conduct on 3553(a)(1) analysis that is focused on the "nature and circumstances" of the crime of conviction. Nearly every acquitted conduct case that I have worked on in the federal system would have come out differently if this was the applicable law.

You can't say acquitted conduct is unconstitutional and is not theoretically justified than leave a "but." If you leave the door open, it wont lead to a different result, it lead to a different argument by a prosecutor. What are you going to do where a jury renders a split verdict? Or the jury's verdict really makes no sense and its a close call. Then you have all the problems you started with and the fix would make it worse because it would continue to give this practice a veneer of constitutionality....

I completely agree with you on the example you gave regarding Simpson, but your solution isn't a solution unless you address the problems with relevant conduct, uncharged conduct and everything else that comes in or can come in under 3553(a)(1) and 3661.

The Responder:

You give a fair critique but now how would your proposal work? Rigid guidelines?

To both:

What are your thoughts and response overall? How can you distinguish (acquitted conduct, relevant conduct and uncharged unrelated conduct) and reconcile their consideration from a theoretical or practical perspective?

That's an essay question I'd never like to see on an exam!!!

Posted by: Student | Apr 27, 2016 8:18:46 PM

Prosecutors already hold all the cards. They already exercise virtually unreviewable authority over the charges they may bring against an individual. But if you limit it to ONLY the offense of conviction, then you don't have the statute of limitations and uncharged conduct issues because prosecutors cant charge such offenses anyways. So that argument doesnt hold up. You are right that only the offense of conviction will never fully capture an offender's blameworthiness, but right now, its capturing a lot more: character. We dont need judges value decisions on people's character. The offense of conviction is what authorizes them to punish so they should be limited to that and that alone. Once you start going outside, there are no limits. I tend to agree with the other posters who seem to argue that where uncharged conduct is concerned offenders are being punished for bad character along with the offense of conviction.

The above is in response to this and the invitation for a response:

But I do not think that ONLY the offense of conviction should be considered at sentencing --- both for retributive and utilitarian reasons (e.g., I do not think an offender's blameworthiness or dangerousness is ever going to be ENTIRELY/perfectly reflected by offense of conviction) and also for practical reasons (e.g., offense-only sentencing transfer extraordinary sentencing powers to prosecutors in their charging/bargaining decisions and it would make (often hidden) plea bargaining decisions by the parties de facto sentencing proceedings).

Posted by: Post-Grad Law Student | Apr 27, 2016 9:58:22 PM

@Doug

Your write, "(e.g., offense-only sentencing transfer extraordinary sentencing powers to prosecutors in their charging/bargaining decisions and it would make (often hidden) plea bargaining decisions by the parties de facto sentencing proceedings)."

Poster "Post Grad" directly above has it correct. The prosecutor already has virtually unchecked power to determine the sentencing. Yes, yes, I'll concede that there is some wiggle room and yes, yes in theory the judge can reject the plea deal. But neither of those things are common as a matter of /practice/. So your attempt to buttress your position with practical considerations proves too much because practically speaking offense-only sentencing would only be making practical difference in a small minority of cases. So whatever the merits or demerits of offense-only sentencing it cannot turn on practical consideration.

In my view the core of your position is this statement "Ultimately, I am generally against putting any formal and artificial limits on what undisputed conduct/facts should be considered at sentencing." To me, this reads like a plea for indeterminate sentencing, which I strongly oppose. I oppose these types of regimes for two reasons. One, because in my view their is a strong notice requirement implicit in the law. While I don't believe that every criminal consciously weighs the costs and benefits of doing the crime there is such a trade-off presumed. The law, any law, can have no deterring effect if the criminal cannot know with some degree of precision what the risk of his conduct is. Holmes said that every day a person wages their life on some prophecy unfulfilled. But he didn't think this gamble was pure shot in the dark.

The second reason is that life moves on. I am a strong supporter of firm SOL. While finality is not the only virtue in the law, the longer time passes the more important interests of closure become. Obama said he doesn't believe in "eternal war" so there has to be a stop somewhere and that place has to be a place of repose. Is that "artificial"? (to use your terms). Yes. But it is no more or less artificial than treating the age of majority as 18. Childhood has to stop somewhere.

The more you talk the more your position seems to justify Supremacy Clause's complaints about legal rent-seeking.

Posted by: Daniel | Apr 27, 2016 11:11:41 PM

Good points by all of you, but nobody seems to be confronting the reality that the only way to ensure that you will always "tie punishment directly to the offense of conviction" is to give sentencing judges ZERO discretion and assign fixed specific exact sentences to every single possible offense. I will explain this by posing a couple of deceptively simple questions to all those concerned about my position:

1. Generally: what do you think a judge should be able to consider at sentencing other than just the offense of conviction?

2. Specifically: what should be the sentence "tied to the offense" for, say, a 38-year-old man found with 454 illegal child porn pictures downloaded on his laptop (and let's assume tech reveals roughly 35 of these pics were downloaded in each of last 13 years)?

It is easy (but facile) to complain about uncharged and SOL conduct, and in extreme cases (like Fitch) the unfairness of giving such matters too much weight at sentencing is obvious. But should even actual adjudicated past criminal history be a sentencing consideration? Should the sentence for CP guy be impacted (a lot, a little?) by his four priors for shoplifting and for statutory rape during his late teens/early 20s? (Notably, ACCA litigation is so ugly and problematic because fixed sentence for gun possession is tied to offense-fixed past criminal history.)

Even more critically for any sentencing scheme, how would rigid offense-specific sentencing rules deal with multiple convictions and consecutive vs. concurrent sentencing?

For CP guy, will it be permissible (even obligatory!?!?) for prosecutors to charge 454 separate CP downloading offenses so that a judge will be imposing 454 fixed sentences that have to run consecutively? How about 13 such offense for each prior year of downloading with the judge having discretion (based on _____?) to decide whether 13 CP convictions will be served concurrent or consecutive? Or is this to be only one offense carrying one fixed sentence because _______?

Please understand I agree 100% that prosecutors have a whole lot of sentencing powers based on their charging and bargaining decisions in modern sentencing systems, but the only viable way in modern systems to check that power is to give judges more sentencing discretion, not less (also parole boards have an important role to play as well to limit the impact/import of prosecutors in sentencing realities). Critically, judicial sentencing discretion takes place in open court and can be subject to appellate review, but that really cannot be effectively done for prosecutorial discretion.

Looking forward to hearing multiple responses to my questions #1 and #2.

Posted by: Doug B. | Apr 28, 2016 9:15:29 AM

"but the only viable way in modern systems to check that power is to give judges more sentencing discretion"

I don't agree with this thesis but I think debating it takes us far afield from the point of this thread.

"but nobody seems to be confronting the reality that the only way to ensure that you will always "tie punishment directly to the offense of conviction" is to give sentencing judges ZERO discretion and assign fixed specific exact sentences to every single possible offense."

I don't agree with this claim either. For me, the debate isn't whether judges should have discretion--of course they should, how else can they serve as an independent check on the executive? (rhetorical question). The debate is about the limits and scope of that discretion because I don't believe that the best answer to an executive on a run-away train is for the judiciary to go off the rails too. Don't respond to crazy with crazy.

So. #1. My major beef is that I don't think that judges should care one whit about the nature and characteristics of the offender. I believe such criteria is inherently biased towards the elite. I do think that judges should care about the consequences of the crime to the victim.

#2. As you know, I think child porn is legal under the 1A so any sentence I could propose would be colored by my view that the person has not committed a crime at all. This is why I could never be a judge. I would feel compelled to resign rather than impose what I think are unconstitutional sentences ab inito.

Posted by: Daniel | Apr 28, 2016 2:55:34 PM

Hi Doug, I am the original poster and here is my response and I look forward to hearing your views as this has been a terrific discussion by all!

1. First, you state:

I don't agree and here is why:

I think you can provide sufficient safeguards to warrant appellate reversal if a sentencing judge considers acquitted conduct or uncharged conduct (whether subject to an SOL issue or not). Just as a sentencing judge cannot go above a statutory maximum, because he lacks authority, a sentencing judge can be prohibited from punishing a defendant for acquitted conduct or uncharged conduct. Your example that Hastert may have gotten 5 years even where the sentencing judge explicitly states that he didn't consider the uncharged conduct (the sexual abuse) is not exactly on point. If the Guideline range was 0-6 months and he imposed a 5 year sentence, it would not hold up (at least in most circuits) under post-Booker/Gall reasonablness review. More crucially, it would tie the sentence to the ofense of conviction alone -- which is something we should all advocate. Because one of the most important purposes of punishing offenders is communicative? We condemn the wrongful conduct that forms the basis of the offense, which is the elements of the offense. But once you get into uncharged conduct, a defendant and the public is left in the position of: "well, I was charged with structuring, but sentenced based on my uncharged conduct for allegedly abusing youngsters" or "I was charged with bank fraud, but sentenced based on my uncharged conduct for allegedly killing/playing a role in my wife's disappearance." The more clear a sentence is, the more truthful it is, the easier it is for defendants to understand, and its role as a deterrent would be strengthened because it would be easier to understand by the public. This is how it is done in other common law jurisdictions—many of which don’t have rigid guidelines—and it works fine.

2. Now to your deceptively simple questions:

A. Generally: what do you think a judge should be able to consider at sentencing other than just the offense of conviction?

Any mitigating factors including age, health, family ties, community ties, employment, including the effect of imprisonment on family etc. I would not limit mitigating factors as the Guidelines have done.

As for aggravating factors, they should be related to the offense and the offense alone and include duration, planning, and victims directly tied to the offense. The purpose of sentencing is not to insure every part of a person's wrongdoing or character is adequately captured or punished. It is to limit punishment to what is necessary, what is admitted or proven, and fashion a sentence based on that information. Normally, this would be easy. If I commit wire fraud and I scam a grandmother out of her money, the fact that the victim has now been left penniless should be considered. If I commit structuring and my motive was to hide my sexual abuse of young boys, it should not. Its not directly tied to the elements of the offense. It is deceptively simple but its clear and it has a very clear benefit: its easy to understand not just for judges and lawyers but also for the lay public. When a defendant is convicted or pleads guilty to X crime, he should be punished for X crime. That's easy to understand for everyone and it allows criminal sanctions to play their communicative role in society at large clearly. But when a defendant is convicted/pleads guilty to X but is punished for X+Y+Z, it no longer makes sense.

So I would NOT have considered Hastert's abuse of boys -- I absolutely do not condone Hastert’s conduct and abhor it but that's not the point of this discussion.

I have a serious problem with Hastert's sentence and the judge declaring that he was a "serial child molester." Being a serial child molester was not one of the elements of the offense. It may be a sentencing factor but that’s the point. This distinction is what has caused the whole mess and it was in Justice Breyer’s recent speech, the one you posted on this very blog.

This type of sentencing should be prohibited on normative, policy and constitutional grounds.

From a normative perspective, punishing for uncharged conduct, in my view, also undercuts the authority of the State to punish. It is, at its core, punishment for bad character because it is not punishment for the offense of conviction. And retributivists all universally agree that punishment for bad character is not valid. Let me pose this question to you Doug: putting Hastert to the side, what about a situation where the Government refuses to award the 3 points for acceptance for responsibility for unrelated and/or uncharged conduct? Wouldn’t you agree that that would cause serious problems all around?

From a policy perspective, by punishing defendants for uncharged conduct, i.e. bringing it in under 3553(a)(1) or 3661, the clarity surrounding the conviction is lost. One of the policy considerations for criminal justice is deterrence. In Hastert’s case, the deterrent value is lost because who will remember structuring? No one. They will all remember the child abuse allegations. To the extent the policy consideration is, “just don’t commit crime” or “be a nice person,” again, its not the Government’s role to preach, or punish/discipline bad character.

As for constitutional grounds, tell me Doug, why require proof beyond a reasonable doubt when all a prosecutor needs to do is just stick it in the PSR? If I commit bank fraud and plead but the prosecutor states I have killed someone (uncharged conduct), then what? This is not acquitted conduct. Its uncharged conduct and it has led to enormous problems—its not a rarity. Worse, there is nothing a defendant can do about it. There was one case where a district judge accused an ex-doctor of nearly killing a patient in a previous state criminal case when sentencing the doctor in a tax evasion case. The allegation regarding nearly killing a patient was just one paragraph in the PSR. The Judge imposed a higher sentence because, in his opinion, the defendant wasn’t adequately punished for it previously. A few years later, the first criminal conviction was expunged. As a part of that process, it came to light that the defendant never “nearly killed a patient.” Now, is that second sentencing judge going to eat his words? No. Can the defendant do anything about it? No. Now, back to the constitutional grounds, before we punish, we require a conviction. A conviction requires proof beyond a reasonable doubt of the elements of the offense. That’s what permits the punishment. No other sentencing factor should come in that enlarges the basis for punishment. In other words, there should be no distinction between sentencing factors and elements of the offense, and fidelity to longstanding constitutional principles require that judges stick to the offense of conviction and nothing else. This keeps it short and sweet and takes care of the normative, policy, and constitutional issues.

B. Specifically: what should be the sentence "tied to the offense" for, say, a 38-year-old man found with 454 illegal child porn pictures downloaded on his laptop (and let's assume tech reveals roughly 35 of these pics were downloaded in each of last 13 years)?

This question is easier. First, this 38-year-old defendant does not pose any problem because the offense would have been a “continuing offense.” Meaning, there would have been no statute of limitations problems. All of that could have been considered unless there was some type of clear break.

But lets assume for the sake of argument that there is a statute of limitations issue. The guidelines base sentence increases on the number of images, which can increase rapidly due to computer sharing of large files and counting of “images” contained in digital videos. There is a simple response to this: the images that fall outside the SOL don’t get counted in the Guideline calculation. If the Judge doesn’t like it, then tough and if he departs upwards, then there needs to be sufficient safeguards so this should lead to reversal. In my view, this approach is easier to secure and implement and better addresses the normative, policy and constitutional concerns I have raised above than to say we should prohibit acquitted conduct sentencing “absent compelling well-explained reasons,” and permit consideration of relevant and/or uncharged conduct and leave 3553(a)(1) and 3661 intact.

My solution—which I think is sensible and is the case in most other common law jurisdictions--would run up against realpolitik. Your solution would be a fix in name only.

3. But should even actual adjudicated past criminal history be a sentencing consideration?

No. From a retributive perspective, and I think you’ll agree, retributive theorists—try as they might—have concluded that retribution does not permit an increase in punishment based even on adjudicated past criminal history. There are numerous articles on this exact point by Frase, Roberts and others in the FSR and numerous published books in Chicago and Oxford. From a utilitarian perspective, at present, the consideration of past criminal history is ill-suited for its purposes because it more often than not overestimates the risk of recidivism. There was an article on this point by Frase, Roberts and others in the Feb. 2014 issue of the FSR.

4. You State:
Even more critically for any sentencing scheme, how would rigid offense-specific sentencing rules deal with multiple convictions and consecutive vs. concurrent sentencing?
For CP guy, will it be permissible (even obligatory!?!?) for prosecutors to charge 454 separate CP downloading offenses so that a judge will be imposing 454 fixed sentences that have to run consecutively? How about 13 such offense for each prior year of downloading with the judge having discretion (based on _____?) to decide whether 13 CP convictions will be served concurrent or consecutive? Or is this to be only one offense carrying one fixed sentence because _______?
Rigid offense specific sentencing rules would limit the problem for defendants and actually give judges the discretion they deserve focusing on the offense of conviction as opposed to uncharged conduct. If this gives prosecturos an incentive to bring 454 charges or actually charge the defendant with what he has actually done, then good. That’s not a bad thing. Judges love truth-in-sentencing, so why not have truth in charging and conviction?

I don’t see a consecutive sentence issue. If the offenses were part of the same scheme, even at present, they are almost always run concurrent, except where the Guidelines call for life or permit stacking. There is no basis for stacking in my solution or argument.

5. You Also State:

I agree with you. Judicial sentencing discretion is great but it also cannot be unchecked. There is no rule or empirical evidence to support the notion that sentencing discretion works better for defendants. Most judges are former ex-federal prosecutors. We don’t need rigid guidelines but we do need rigid rules on what can and cannot be the basis for punishment. This does not mean that a murderer or child abuser, who are actually charged and convicted, would walk out free or victims would be left feeling unsatisfied. To the contrary, if we tie and limit the basis for punishment to the offense of conviction (and I don’t see the stacking or consecutive sentence issue you raised), it provides clarity and certainty for everyone involved—the defendant knows exactly what he is being punished for because he was convicted or admitted it.

I know some have raised concerns that this can lead to lopsided results in favor of defendants were juries have returned not guilty verdicts but so be it. This can also lead to situations where a judge may very know and believe that a defendant is a murder or child abuser but only convicted of structuring getting 0 months or 6 months but that is how a criminal justice system should work if it is to have any principled foundation that concomitantly respects the rights of the accused. The goal of criminal justice is not and should not be to insure that each and every possible wrong a man commits in his life be punished when the opportunity arises.

Doug, I actively follow your blog and there has been a lot of discussion about criminal justice reform and the long sentences for drug dealers etc. The concerns at the heart of this discussion—acquitted conduct, relevant/uncharged conduct—play a crucial role for why/how sentences have rapidly increased. As for the solution you propose, I don’t think it would work in practice.

I leave you with these two question:

1. Again, putting Hastert to the side, what about a situation where James Doe is charged with bank fraud. He was previously acquitted of murder in state court despite overwhelming evidence because the jury believed that the glove did not fit and he couldn’t have been the murderer. At sentencing, the prosecution argues that James Doe is a murderer and he should finally be held accountable for his “crimes”? The defendant’s attorney objects and notes that he was acquitted. The prosecution now argues that Mr. James Doe is not entitled to his 3 points for acceptance of responsibility. The Judge agrees because by denying acquitted conduct, James Doe has not shown true remorse for his crimes and sentences him without the benefit of the 3 points or sentences him to the max. You don’t see an issue here? Don’t you think that a federal sentencing judge would be able to write a “well-reasoned” or “explained” decision to explain to an appellate court why he considered it? Of course a judge could do that. Now your fix works in name only.

2. Same scenario as above. But now the previous murder is uncharged. Never charged. Completely unrelated to the current offense. Now what? Judge again writes a compelling opinion on why he considered it. If you don’t limit the information a sentencing judge can consider in determining the basis for punishment, then you open pandora’s box and there is no closing it. Period.

Posted by: Response to Doug Berman 2 | Apr 28, 2016 4:11:28 PM

Doug, can you move this post higher up on your Blog so it can be accessed to more people for discussion purposes? This has been a great discussion so far and I would like to follow it.

Posted by: Question | Apr 28, 2016 4:28:23 PM

Question: I will try to replicate this somehow in a new post over the weekend, but I this that will prove challenging.

Response: much of what you say violates what you claim you care about when you reference sentencing judges being able to consider the "duration, planning, and victims directly tied to the offense" or CP guideline calculations because everything you mention is "uncharged conduct" just like motive or past bad acts are and only go to the judge for adjudication:

--- e.g., there is no element in any fraud crime that I know that involves the "that the victim (a grandmother) has now been left penniless"; this will be considered by a judge only if/when a "prosecutor ... sticks it in the PSR." And if the defendant were to contest these facts --- i.e., claims he know the old lady has an off-shore account in Panama with millions hidden away --- there will be no jury trial or proof BRD applied. A judge will adjudicate this claim, either formally or informally, maybe with, maybe without making findings on the record.

More to the point, Response, you did not answer my basic question about the CP guy: what do you think should be the actual specific sentence "tied to the offense of conviction" for receiving illegal child porn? I want a specific number, and then I want to know how you deal with prosecutors knowing that number and then structuring their charges for offenders who have received hundreds/thousands of such images.

In the end, I think you are conflating "uncharged conduct" in all your examples with "conduct that could have been (or was) the basis for separate charges." So you are really not against consideration of "uncharged conduct" but rather are against consideration of "other crimes that could (or were) charged." But the CP case is meant to highlight that lots of "uncharged conduct" could be turned into "conduct that could have been the basis for separate charges" (e.g., charging 1 count of CP receipt and having the # of images become a sentencing issue OR charging 454 counts of CP receipt, in which case the defendant could plead to just 50 counts and mount a defense to the other 404 based on my notion above).

I agree that a discretionary approach is far from perfect, but it is far more honest and realistic than the alternative, and it gets the job done on the record subject to review for reasonableness. Do you think the 15 months given to Hastert is unreasonable in light of his offense conduct? Indeed, arguably justice was not done in the Hastert case because he was guilty of (1) multiple structuring charges, and (2) obstruction of justice, and maybe lots of other crimes. Moreover, he was structuring to cover up child molestation --- so his past acts of molestation are directly connected to his crime of conviction. Do you not share my view that 15 months would be a crazy low sentence if he was really being punished for child molestation? And are you faulting the feds for not bringing additional charges -- e.g., if they think he should be punished for his initial lies to authorities, should the feds have felt duty bound to charge and only accept a plea to an additional obstruction of justice count? Should the feds have brought multiple structuring charges?

Focusing on James Doe, do you not think a prosecutor is (or should not be) influenced when charging him that he committed a prior murder? Do you think OJ gets prosecuted in Nevada for taking back his Heisman but for his criminal past? The Pandora's Box of considering acquitted/uncharged conduct that you fear in the open courtroom is wide open every single minute of every single day in the office of every single state and federal prosecutor (but behind closed doors) --- e.g., it is why Weldon Angelos was subject to stacked 924(c) charges, why Ed Young faced 15 years for possessing shotgun shells, and I am sure why the feds bothered to charge Hastert at all.

I agree that these issues have played a role in sentencing escalation, but only because we have tied far too many harsh consequences to marginal facts which are not so hard to prove. Weldon Angelos got 55 years mandatory for possessing guns while dealing pot, and he was not sentenced based on any uncharged or acquitted conduct. But he definitely was subject to stacked charging and was offered a poor plea deal because of what prosecutors thought he was "really" guilty of.

Finally, you should know I find retributivism a pretty vacuous theory of punishment when it comes to figuring out specific sentencing outcomes, and I am a utilitarian through and through. And part of being a utilitarian is not seeking to bias the rules for or against offenders or prosecutors --- I want rules that produce the best consequences. I agree that "the goal of criminal justice is not and should not be to insure that each and every possible wrong a man commits in his life be punished when the opportunity arises," but I do think the goal should be to impose the "best" sentence in each case and limiting information at sentencing, historically, has hurt that cause.

Posted by: Doug B. | Apr 28, 2016 5:41:43 PM

Doug,

I think a part of our disagreement is that I am a retributivist and you are a utilitarian. I believe that the significant rise in imprisonment and duration of imprisonment is actually due to the shift in the US federal and some state systems to a utilitarian theory of punishment. My issue with utilitarian’s is that both theoretically and practically it does more harm than good. I am sure you have heard of the argument that a utilitarian would condone the death of an innocent provided its for the greater good? In practice, the increasing levels of punishment for offenders with a criminal history also fall under utilitarianism, right? But there is no discrimination. Its just one foul swoop. Look at the federal sentencing guidelines. It’s just an automatic increase without any empirical evidence at each Category History Level to support that increase. Is there any empirical evidence to support the notion that by imprisoning offender James Doe x more number of months that it will fulfill any legitimate sentencing goals? No. Its arbitrary. You have a record, therefore, you are a higher risk offender, thus, you will spend 6 month or 1,2,3-10 years longer in prison than a first time offender. Its too sweeping and without any discrimination between the types of offenses, whether the past offending is related to or tied to the current offense or a repeat offense of the same kind etc.

In any event, a response to your post:

1. much of what you say violates what you claim you care about when you reference sentencing judges being able to consider the "duration, planning, and victims directly tied to the offense" or CP guideline calculations because everything you mention is "uncharged conduct" just like motive or past bad acts are and only go to the judge for adjudication:

e.g., there is no element in any fraud crime that I know that involves the "that the victim (a grandmother) has now been left penniless"; this will be considered by a judge only if/when a "prosecutor ... sticks it in the PSR." And if the defendant were to contest these facts --- i.e., claims he know the old lady has an off-shore account in Panama with millions hidden away --- there will be no jury trial or proof BRD applied. A judge will adjudicate this claim, either formally or informally, maybe with, maybe without making findings on the record.

You are correct but I disagree with your conclusion. My argument doesn’t violate what I say because my approach is tired directly to the offense or considers only what is a result of that offense and not a separate criminal conviction or what could be a criminal conviction. Of course, rendering a grandmother penniless is not an element of any fraud offense, but it is relevant if tied to the offense/count of conviction. If I wire $100,000 from a grandmother’s account into a fraudulent investment company and I plead guilty to that count, why shouldn’t I be held accountable? Its conduct that has led to harm and it is directly tied to the offense.

2. You state:

--- similarly, the FSG reference in the CP case to "the number of images, which can increase rapidly due to computer sharing of large files and counting of “images” contained in digital videos" all concern "uncharged conduct." Moreover, if CP guy want to admit to downloading 50 of the images, but claims someone else downloaded the other 404, there will not be a trial on that issue and a judge will apply guideline enhancements based on "uncharged conduct" related to the number of images involved.
Yes, this is how it is at present and its wrong. If the guy admits he downloaded 40 of those images and didn’t download the other 404 the Govt might even oppose his ability to get his 3 points for acceptance of responsibility. There are no protections for the defendant.
More to the point, Response, you did not answer my basic question about the CP guy: what do you think should be the actual specific sentence "tied to the offense of conviction" for receiving illegal child porn? I want a specific number, and then I want to know how you deal with prosecutors knowing that number and then structuring their charges for offenders who have received hundreds/thousands of such images.
Let’s assume that this individual is charged with 454 counts of child porn possession. He pleads guilty to those 50 offenses. What’s his sentence and exposure? It should be exactly whatever those 50 images add up to be and disregard the rest. No adding up under the Guidelines as relevant conduct, no consideration under 3553(a) or 3661. If the prosecution believes that the defendant is guilty of possessing 454 images, they can charge it and prove it at trial. It might be costly but that’s how its supposed to be, was supposed to be. Could you imagine the current system existing 270 or some odd years ago? Today’s system makes no sense. You plead guilty to X that’s it. No more.

And my above proposal is perfectly consistent with my grandmother example above. Here, James Doe is pleading guilty to and being punished for what he pled guilty to: charged conduct. He is liable to all the harm he caused from that charged conduct that he actually pled guilty to. The judge is free to consider the harm from the offenses he pled guilty to but not the rest. If there are 400 or 1,000 images that were not charged or were not admitted by the defendant then no.

I realize that under the guidelines that each image causes the Guideline to increase, thus, the sentencing judge makes the call at sentencing. But if a defendant pleads guilty to only possessing 1 image on X date than he should be punished for that. There is no need to go into this counting regimen. If there is more, the defendant can admit it or the Govt can prove it at trial.

3. You state:

I disagree. I am against consideration of any conduct that could have been the basis of a separate charge past, present or concurrently. Meaning, again, if I pled guilty to possessing 1 of those 454 images, then I should be punished for possessing 1, not 454. This is clear and straightforward.

Otherwise, I should plead guilty to having either 454 images or the Govt should establish it at trial. The current guideline approach for possession of child porn is wrong and its how we end up with the ridiculous sentences.

4. Your comments about Hastert – in short, why kid ourselves? He is special. If it were anybody else, he would have been charged with multiple counts, including obstruction of justice, and many other offenses. He got a sweetheart deal to begin with. And he is not the only one. Ex-police officers, some politicians, and others often get sweetheart deals. That’s not a problem with the Guidelines, that’s a problem with the system thinking they deserve special treatment. Case in point: Judge Jack Camp.

5. Prosecutors, you state:

Yes, I completely agree Doug. But prosecutor’s charging decisions are unreviewable in the US and due to the separation of powers I don’t think that’s likely to change. In civil law jurisdictions in Europe, it can be reviewed in some cases but that’s not going to happen in the US.

So, yes, absolutely you are correct. And, yes, the Pandora’s Box is wide open. But, no, Judges don’t need to buy into this hook line and sinker. A prosecutor may pick what charges to bring and who to bring them against but that does not mean the unfettered discretion of federal prosecutors to act and do as they please should continue all the way into the courtroom. Prosecutors are influenced by a lot of factors and more often than not its not “justice” but strategic litigation thinking and often include unfortunate variables such as “this guy is unlikely to get bail, it should be easy to get him to plead” or “this guy has a prior conviction, he’ll be easier to try,” and so on. Sometimes prosecutors forego big fish for the sake of a guy lower down on the totem pole. The Enron case had over 100 unindicted co-conspirators. Why did they pick some and not the others? It is irrelevant. That doesn’t mean though that once a defendant is found guilty/admits guilt for anything whatsoever, the floodgates open and he is now held to account for any piece of uncharged conduct that the prosecutor can stick in the PSR when it shares its files with that “neutral” Probation Officer….
5. You state:
I agree that these issues have played a role in sentencing escalation, but only because we have tied far too many harsh consequences to marginal facts which are not so hard to prove. Weldon Angelos got 55 years mandatory for possessing guns while dealing pot, and he was not sentenced based on any uncharged or acquitted conduct. But he definitely was subject to stacked charging and was offered a poor plea deal because of what prosecutors thought he was "really" guilty of.
Yes, I agree. The 924(c) in Angelos is a result of overcharging, disproportionate punishment, and a poorly written statute. Yes, even my approach would not eliminate peoples thoughts and my solution would not reform the prosecutor’s process and selection of charges but that doesn’t mean that the rest of my arguments are void. This, you have to agree, is a unique and unfortunately all-too-frequent example of the enormous power possessed by prosecutors.
I think we would both agree that sentences are far too long not just for drug offenders, but for most offenses that do not involve physical/bodily harm. If you are a true utilitarian you have to concede that most of the sentences today are not based on empirical considerations. Just look at the sentencing guideline table for federal offenses. What is the empirical justification for the differences in Criminal History Category 1, 2, 3 all the way to 6 that translate into a sentence of X number of months? Can you point me anywhere to answer that question? No, because it’s arbitrary.
Most of the guideline directives are arbitrary. Why do we have Bernard Madoff in jail for 150 years? Deterrence? We have been doing this since Milken who got 10 years and fraud prosecutions have simply been on a one way trajectory up. Sure, they fluctuate but they have never gone back down to the levels in the 1990s or 1980s , but sentences are now more severe than kidnapping or murder. Just by way of analogy, in the UK he would have gotten probably 12 years tops (based on similar cases) and been released after 6. In France, he would have gotten less than 5 (think Jerome Kreviel). In Italy, probably house arrest (think CEO of Parmalat who caused $18 billion in losses).

6. Finally:

I want rules that produce the best consequences. I agree that "the goal of criminal justice is not and should not be to insure that each and every possible wrong a man commits in his life be punished when the opportunity arises," but I do think the goal should be to impose the "best" sentence in each case and limiting information at sentencing, historically, has hurt that cause.

Information today and information in the past is not the same. Today, the positive/mitigating pieces of information such as age, health etc are not relevant considerations under the Guidelines. Yet, uncharged conduct or relevant conduct or acquitted conduct is fair game currently. Do you see the dichotomy? Basically, good stuff cant be considered but bad stuff should be. That’s how it works today: a defendant complains that his old age should be a mitigating factor but a judge says “I cant consider that, the Guidelines say that is normally not a valid ground but I can consider the fact that you allegedly killed your wife (although you were never charged for it).” You think this helps or that this is fair?

What we have today is anything but a “best consequence” outcome and if you are a through and through utilitarian what we have today does not work. Period. Look no further than recidivism statistics. Look at restitution statistics, yearly collection rates are less than 10% because the MVRA was a bad idea to start with – no consideration of whether an offender has any money. Look at re-integration statistics, which show that most offenders are relegated to second or third class citizens. Look at the economic impact on communities, again, its not a best outcome. There is certainly a place for imprisonment and certainly a bit of predictive indulgence (utilitarian) is necessary, but we have to engage in the prediction game, it should be based on statistics and empirical data.

Based on my discussion with Clients, that’s actually when they really feel the punishment. As you know, there is no expungement in the federal system. Some states also don’t have any expungement process. They are marked for life; the punishment does not end although its now just called a “collateral consequence.” What a silly distinction!!!!

On a side note, why do we have to rack our brain with this when there are examples in Europe that work better and are more comprehensive and lead to better results? (Politics and our Puritan roots?) (Sentences of over 30 years are very rare. There is usually some expungement or rehabilitation process that is not politicized and is automatic. Re-offending rates are lower. And so on)

7. Final:

Putting the prosecutor’s selection/charging process aside, if you limit the consideration to the conviction (whether by plea or conviction), you get a much simpler result. It wont fix everything but it goes a lot farther in achieving better results overall. If you are a utilitarian than better results overall should suffice because a mistake here or there is acceptable so long as it’s for the greater good. Right? If you were a retributivists, then we’d have to delve into each and every possible scenario and that would involve subjecting prosecutor charging decisions to review (as done in some European countries) but that’s never going to happen in the US. You mention the word Europe and for some reason some people’s skin crawl with revulsion. I have never understood why…..but that’s a discussion for a different day.

Posted by: Response to Doug 3 | Apr 28, 2016 9:03:04 PM

I think to achieve the results either Doug or the Responder is trying to achieve, the best results, you need a fundamental overhaul of the US criminal justice system. Best consequences is not happening now for anyone, offender, victim or society.

Posted by: Law student | Apr 28, 2016 9:23:44 PM

Doug writes, "I want a specific number, and then I want to know how you deal with prosecutors knowing that number and then structuring their charges for offenders who have received hundreds/thousands of such images."

Even though this wasn't directed to me I'll butt in anyway because I think this is a fair point by Doug. After all, the communicative or notice aspect of the law not only communicates information to potential criminals but also to prosecutors. My response to this problem gets into the issue I avoided in my most recent post above. I don't think we can talk about meaningful sentencing theory without talking about Congress (the legislative branches in general). It is they, as representatives of the people, who frame the debate. So long as the public wants to be "tough on crime" both judges and prosecutors will feel obligated (or at least justified) in being tough on crime. I don't think that giving judges more discretion to work around this political problem can work in the long run and in fact I think it is dangerous to do so because the judiciary is an inherently anti-democratic institution. I recognize that some people think that Congress is hopeless, regardless it is the elephant in the room.

So the way I would deal with "with prosecutors knowing that number" is that in a sane sentencing world established by Congress the prosecutor knowing that number would become irrelevant. Everyone should know that number. The problem is that Congress has enabled prosecutors will tools that allow them to take advantage of that information in ways the defense cannot. Structuring charges is just one of many examples.

Posted by: Daniel | Apr 28, 2016 10:03:26 PM

A specific number? If there are 454 images and he pleads guilty to possessing one image then one image and the rest are not coming in (the Guideline provisions notwithstanding). If there are 454 images, there should be 454 counts. If it takes up too much of the prosecutors time, so be it. If it clogs up the courts as some judges worry, then so be it. As Circuit Judge James C. Hill (11th Cir) said in Gilbert v. US, that's not a legitimate concern. It is a judge's job especially when we are tossing around lofty anomalous words like "justice." Justice, especially locking people away, shouldn't be one sided were "too much effort" for prosecutors or judges is a concern. Tie the punishment directly and only to the conviction or facts admitted. Don't distinguish between sentencing factors/elements or anything else. Anything that increases the punishment, that is not directly tied to the offense (within reason) gets excluded. Its simple. Its clear. Its doable. Its not convoluted and even a laymen can understand it.

Utilitarian -- can anyone here tell me what we have now is in any way achieving "best consequences"? No. And, Prof. Berman, I dont think even as a utilitarian you can state the current state of affairs can be justified by a utilitarian theory of punishment. Has locking people up in increasing numbers for increasingly longer periods of time led to better consequences for the offenders, the victims or society? No. Is there some empirical justification for all these fancy manoeuvres to bring in to sentencing every type of negative information (or in this case uncharged conduct) serving a legitimate policy end that outweighs the risks? No. The Fitch case in this discussion is glaring. How could a man be punished for X when he was convicted of Y?

Better consequences in terms of sentencing how? Let's just review the purposes of sentencing.

1. Rehabilitation -- does consideration of uncharged conduct, i.e. sexual abuse of boys, in Hastert's case or the alleged killing of a wife/lover (uncharged) in Fitch help rehabilitation?

2. Deterrence -- I think its the weakest point. Deterrence requires clarity. When a defendant is charged with structuring and punished for sexual abuse, it lacks clarity.

3. Protecting the public -- locking up everybody would better protect the public (at the very least, crimes that occur in prison don't get reported in the press every day).

But a utilitarian approach that permits uncharged conduct can also carry the risk of wrongfully punishing a defendant that was, let's say, really "innocent" of the uncharged conduct. Now, is that a better consequence? Same with acquitted conduct but it carries even greater problems because of the constitutional concerns. There is a huge risk that it over captures or estimates this need.

Overall, this leads to increased sentences with a disparate impact on minorities, costs the tax payer way too much money and its not a better consequence.

4. Just punishment -- sure, but what happens to proportionality? How do we measure proportionality now that we have the conviction for/plea to crime X but punishment is for X + Y + Z.

5. Other concerns like restitution etc are generally symbolic -- I agree with the other poster that the MVRA was a good idea in principle, a feel good piece of legislation.

How has better consequences worked for us so far?

As for Daniel's comments, there are a few pieces of literature in the FSR and elsewhere about how criminal justice policies are treated differently by politicians in Europe. Not every horrific crime is considered an opportunity to score political points. Unfortunately, that's not how it works in the US. But I disagree with Daniel that sentencing is a democratic affair at present. Yes, Congress directs the USSC to do X or Y and they are representatives of the people, provided, that we are naive enough to ignore gerrymandering. However, Daniel's other point makes more sense and ties in with the other response, whether the prosecutor knows the number should be irrelevant. If we look at this whole discussion and put our lawyer hats aside, it becomes rather clear. The artificial distinctions disappear.

In the past issue of the Georgetown or George Washington Law Review, can't remember which one, Judge Kozinski (or maybe it was Judge Rakoff in NY in the NY Times Book review) I think recounted a story about AUSAs in New York playing a game where they picked a celebrity at random and then tried to figure out the most severe charge (the one with the highest penalty). Is this really how justice should work now? Does this make sense? A federal court of appeals judge (or maybe judge Rakoff) recounts this story and not a single person is concerned about prosecutorial power? Does anyone remember Aaron Swartz? Did he really need to be charged with wire fraud? Did the feds need to even pick that case up from the local police?

Posted by: Law Student | Apr 28, 2016 11:45:13 PM

@Doug Berman

I am a defense attorney down south. How is this, at all, in any way shape or form leading to better consequences?

I am intrigued by one point in the response to Doug above, assuming for the sake of argument that uncharged conduct was the basis for a longer than called for sentence under the Guidelines (but below the statutory max). But it later turned out (years later) that the uncharged conduct was actually not true. What is a defendant to do? How do you disprove something you were never charged with but led to an increase in your punishment? It seems to me most procedural routes are closed to him and he is just simply s*** out of luck. Let's say Fitch's wife showed up in California tomorrow and said "sorry, I just went on a long vacation." 2255? Nope. A presidential pardon?

Hastert, a tough case. What if one of those four alleged victims, and lets just assume for the sake of argument that he just molested four in his entire life although I am sure there may have been more, comes back tomorrow or at some other time and says "you know what? I made it all up." Then what? Isn't this the risk that a utilitarian who seeks better consequences should protect against because this risk is not only possible but highly probable in less clear cut cases than Hastert? (Hastert -- bad cases make bad law).

Any input from Doug or practicing attorneys/prosecutors or judges would be appreciated.

Posted by: Brian | Apr 29, 2016 12:03:21 AM

You all continue to avoid what I am trying to ask with the CP guy case. I am not (yet) asking what number of images should be charged, but WHAT specific prison (or probation or fine) sentence would you as legislator/commission would link/tie to any single criminal charge on a single image? (I want to focus on just that case --- and not worry possible innocence OR about Congress or Europe OR any other real-world practicalities for now --- to help you all focus on what I see as the MAJOR challenges of any "charged conduct only" approach to sentencing.)

Let's assume you would impose fixed/max sentence of just 1 month in prison for CP receipt image and a fine of $1000 --- this would make this offense technically just a low-level misdemeanor; and I am leaving out criminal history AND/OR that CP guy works at a day-care facility AND/OR some images are toddlers AND/OR some images are his neighbor's kids and many other possible "uncharged" aggravators that would make this simple case harder and more realistic. Even without any extra complications --- and even with CP guy eager to come in to plead guilty ASAP because he is guilty and is now in treatment (and is eager to have no additional snooping into his other computers/past/family) --- here comes the hard part/challenge:

Prosecutor A thinks CP is awful and an ever-growing problem and so he charges all 454 images as separate counts and will not take a plea to anything less, so the (required?) fixed/max sentence for CP guy is about 40 years + $450,000+. Prosecutor B is a bit more sympathetic (or lazy), so he can/will charge/allow a plea to "just" 120 counts, and thus now the (required?) fixed/max sentence is 10 years, $120,000. Prosecutor C agrees with Holder and all you commentators that our prison sentences are all way too long and he can/will charge/plea to just 12 counts = 1 year, $12,000.

As I understand you all, you prefer/endorse a system --- and perhaps think it constitutionally required --- that the judges in these three cases WHICH ARE FACTUALLY IDENTICAL and involve no doubt about guilt are (duty bound? limited to?) imposing sentences of 40 years, 10 years and 1 year for the exact same simple offense conduct. And, of course, this is a world in which I made CP receipt a midemeanor with only 1 month in prison attached. In the real federal world, there is a 5-year minimum for each CP receipt count; in Arizona, it's a 10-year minimum for each count (see Berger case), in Florida, about a 3-year guildeline range for each count (see Vilca case). This charge-offense arbitrariness can be a huge problem even if sentences are set very low for each offense. When sentences are set higher for each count --- like in Berger or Angelos involving 924(c) --- the sentencing chuncks being handed out EXCLUSIVELY by prosecutors via charging/bargaining runs in years and decades, not just months.

All the problems you all are lamenting in extreme-case examples involve sentencing statutes set too harshly, real questions about guilt, and prosecutors using discretion in ways you find troublesome. I do not disagree, but history has shown that we make these problem MUCH, MUCH worse FOR RUN OF THE MILL CASES when we try to fix/tie judicial sentencing to specific offenses --- and this is because legislature have to set/tie specific sentences to specific offenses in the abstract so the number attached to each offense is based on aggravating offense possibilities rather than mitigating offender realities. That is the history of EVERY determinatine sentencing scheme in the US over the last 50 years, it is why the FSG have hundreds of aggravators as so few mitigators, and it is also why there is such a struggle to do any sentencing reform at the federal level, even modest stuff like equalizing crack/powder offenses.

(Realize if we was to focus on other commone federal crimes, the CP guy case could be a drug case with the prosecutors finding in the defendant's house 5,000 grams of crack --- is that to be charged as 1 drug possesion/distribution offense, or 5 charges each involving a 1 kilo of crack, or 100 each involving 50 grams of crack... all of which will likely end up turning on what fixed/max sentence you link to 50 grams of crack. Or it can be a fraud case involving bilking 100 people out of $10,000 each --- is that to be one fraud, or 5 charges each involving $200K or 100 each involving $10,000... all of which which will likely end up turning on what fixed/max sentence you link to a fraud of $10,000.)

The point I am trying to make --- and seemingly struggling to make you all understand --- is that your "charge offense only sentencing" approach both theoretically and historically INCREASES (1) the likelihood that SEVERE fixed sentences get tied to each SMALL version of offense conduct, and (2) how much REAL sentencing decisions are now in the hands ONLY of prosecutors rather than judges, and (3) that a prosecutors' (hidden, parochial) biases/admin/politics rather than (always vague) retributivist theory or utilitarian theory determines whatCP guy (and crack guy and fraud guy) gets at sentencing. (And if we throw in real-world politics, which of the prosecutors do you think is most likely to be celebrated by his superiors/community: I really doubt it is prosecutor C whe lets off CP guy with only 1 year).

So, please, rather than keep complaining about how bad things are in the real world, please, please, please explain to me what sentence you think should be tied/linked to the offense of receipt of 1 CP image in your idealized "charge offense only sentencing" world, and then explain to me how your idealized world instructs prosecutors to avoid the every-day risk that the same exact offender gets 40 years from prosecutor A, 10 years from prosecutor B, and 1 years for prosecutor C (all of whom are really trying best they can to do their jobs as they think you want them to do it in your idealized charge offense only sentencing world).

THANKS. I really need to understand how your visions of a proper sentencing system deal with this issue before I can really be confident you understand the real challenges posed by the sentencing world you all seem to dream about.

Posted by: Doug B. | Apr 29, 2016 11:39:17 AM

Doug, here is my response. My apologies for the delay, but I wanted to look up the Guidelines for federal child porn images before I responded.

1. You state:

"You all continue to avoid what I am trying to ask with the CP guy case. I am not (yet) asking what number of images should be charged, but WHAT specific prison (or probation or fine) sentence would you as legislator/commission would link/tie to any single criminal charge on a single image? (I want to focus on just that case --- and not worry possible innocence OR about Congress or Europe OR any other real-world practicalities for now --- to help you all focus on what I see as the MAJOR challenges of any "charged conduct only" approach to sentencing.)"

No, I am not trying to avoid it. The difference is you are attempting to analyze these arguments within the current framework, while I am saying the current framework is wrong. Also, your child porn analogy is off the mark. The number of images example you are giving is not the same as uncharged conduct that is not related to the offense. The CP example deals with the number of images in a related continuing offense. The example that concerns me is a Hastert type case where a structuring charge and conviction opens the door to punishment for child abuse, uncharged conduct.

Back to your example, CP posses 400 images. 50 were recent and fall within the statute of limitations and don't have any other problems. 400 fall outside. The base offense level is 18. Let's ignore all the other adjustments and just focus on USSG 2G2.2(3)(b)(7), which deals with the enhancements for number of images. He has 50, which calls for an increase of 2 points under 2G2.2(3)(b)(7)(A)(more than 10 but less than 150). Under the current system, the images that may be subject to statute of limitations or other concerns would come right in and he would be looking at an increase of 4 levels (2G2.2(3)(b)(7)(C)). Also, this is not necessarily uncharged conduct, its relevant conduct because its related and I am doubtful that there would be any statute of limitations issue because of a possible continuing offense argument.

Under my approach, he would be charged with 50 counts of possession for each image. Yes, his maximum statutory exposure would be increased. But his Guideline calculation would be automatically grouped and the base offense level would be 18, this addresses the problem and is really a way to lower sentences through the backdoor. And the level 18 offense can still be adjusted based on the other special factors in the Guideline (i.e. sadochistic or masochistic images). No stacking. CP would get whatever the Guideline sentence is for Offense Level 18 and his Criminal History Category equate to.

Doug, I understand your point. Yes, by requiring a prosecutor to charge everything separately, the maximum exposure is dramatically raised. The Bank Fraud example I gave earlier for one count is 30 years, but if you turn that into 10 counts, it goes up to 300 years. But that's only possible if the Guideline provisions call for stacking.

2. You state:

You are right. Those are real life problems that are not likely to be addressed but there is a proviso: where a defendant can be charged with more severe conduct, perhaps they should be. It's easier to defend against a charge in an indictment, which requires proof beyond a reasonable doubt, then a charge stuck in the PSR which only requires proof by preponderance of the evidence. Perhaps then more defendants will insist on going to trial? That wouldn't be a bad thing. But your original solution focused exclusively on acquitted conduct is a small academic tweak. If you allow sentencing judges to continue to base sentences on acquitted conduct provided they give compelling or well-explained reasons, most would be able to do so. You have covered the case of Antwuan Ball on this blog. That Judge already had discretion under the USS Guidelines, post-Booker and Gall, to impose a sentence (a variance) that did not take into account the acquitted conduct and he chose not to do so. Do you really think it would have been difficult for him to provide a well-reasoned explanation for his decision? No. So, what you'll end up with is an academic fix.

Also, you cannot address acquitted conduct without dealing with uncharged conduct and perhaps I should have limited to "un-related uncharged conduct." Hastert -- yes he is guilty of the uncharged conduct but that's not the point-- but the sentence is punishment for the equivalent of a child abuse conviction. The problem I have is that it is through a backdoor. Not all cases are clear as Hastert. In fact, most are not.

In the examples I gave you, the doctor and the fraudster (accused of killing his wife) and other examples, those defendants would not be able to challenge or get any relief for their sentencing judge's errors at present -- even if it turned out that the uncharged conduct was completely fabricated, provided, that the overall sentence did not exceed the statutory maximum on the counts of conviction. That's not a "better consequence."

4. You state:

Response:

Whether its one count with consideration of the rest or 500 counts, so long as the charges are grouped, instead of stacked, it should lead to the same sentence, provided there are no special characteristics listed in that Guideline. This avoids disparities between Prosecutors A, B and C.

I see your point but you talk about practicalities -- you haven't addressed the practical example I gave you:

Defendant John Doe is charged with bank fraud. Maximum exposure is 30 years. He pleads guilty and gets his 3 points for acceptance of responsibility. His guideline range is 15-21 months. His PSR/prosecutor states that he killed a wife. This is uncharged conduct. The judge now sentences this man post Booker/Gall etc to 30 years -- the maximum. He appeals and its affirmed because the judge could consider uncharged conduct and the judge did not exceed the statutory maximum on the count of conviction. He files a 2255, which is also denied. 4 years later into 30 year sentence, his wife shows up and says "I took a long vacation." Is there anything that man can do? No.

You talk about prosecutors having too much power under the charge offense sentencing approach. They already have too much power. They already pick what charges to bring and what to include in the PSR -- which has all the effects of the problem you are complaining about except its limited by the statutory maximum on the count of conviction. Isn't that the real difference?

Prosecutors already target which offenders they want to charge and which offenders they want to snitch and which ones should walk free unscathed. All of this happens already and, of course, they are all looking to get the best headline possible and that usually happens with a high sentence. I don't disagree. But I don't buy your parade of horribles argument. My approach would also require some fundamental adjustments to the Guidelines to make it work but yours would leave it alone with an academic tweak and call it a "fix" when its no fix at all.

And if you think that they should consider all this -- why shouldn't the Guidelines be more balanced? The directives about family ties, employment etc. The Guidelines already put too much emphasis on the offense and not enough emphasis on the offender (except where he has a criminal history).

My "vision"

A simple sentencing system requires tying the count of conviction to the punishment and where the offenses are part of a common scheme or plan or part of a continuing offense (i.e. where there are no statutory of limitations issues or uncharged conduct issues) requires grouping so you dont have 40-50-60 year sentences even if you Prosecutors A, B and C. This is easy to understand for the public and it works better for deterrence purposes. But even where a defendant does face such an exposure under my vision, at least he has fully earned it. If he goes to trial, then a jury will have to find him guilty beyond a reasonable doubt. If he pleads guilty, it will be facts admitted, not alleged. It would work.

Posted by: Response to Dough Berman | Apr 30, 2016 9:34:45 PM

Response, you complain at the outset that I am "attempting to analyze these arguments within the current framework," but then your "solution" persistently relies the the CURRENT GUIDELINE RULES FOR grouping vs stacking. Please understand that these very guidelines that are central to the current framework you lament. (You early on said in this setting that "I don’t see a consecutive sentence issue." This was the moment at which I was not longer confident you understood all these issues thoroughly, because this is EXCACTLY the grouping vs stacking issue and the ONLY issue that prosecutors and judges will care about if we requiring (or even permit) charging on any and every possible conviction. (Also, there are already lots of settings that by statute require stacking --- e.g., 924(c) in federal law, lots of state violence sentence enhancements --- and such a stacking requirement will be MUCH more common if we have a system that allows punishment based only on charged crimes. And the vast majority of the worst sentences in RUN OF THE MILL CASES emerge from the stacking problem linked to mandatory miminims.)

Again, you are rightly concerned with the extreme Fitch-type uncharged case, and I agree that such an approach to sentencing as trial-evasion should not be allowed. But even your latest restrictions on your concerns --- explaining that you are only trying to stay "limited to 'un-related uncharged conduct'" --- does not do the trick. I can say as a prosecutor that Hastert's bank offenses are related to his prior molestations,which were the but-for cause for subsequest offenses. Likewise, as a prosecutor, I can say that John Doe's murder of this wife was both the motive and means for his bank fraud. Just who decides if uncharged conduct is "related" or "unrelated" and what is the standard (causation? temporal? close-enough for the eyeball test?)?

I understand your concerns with the John Doe case, but that really happens only about once every 5 years (e.g., Hastert does not get maxed out, and I could make a strong assertion that 15 months was still too lenient even for his offense of conviction given its obviously related obstruction of justice). Moreover, my concerns about prosecutorial charging practices happens in just about EVERY SINGLE CASE THAT FEDERAL PROSECUTORS EVER CONSIDER CHARGING. Look at the Angelos case, which is as tpyical a low-level drug prosecution as you will ever find.

And, now by relying on "grouping" yet again, you continue to dodge all the hard issues here: specifically who decides what "grouping" takes place in the run-of-the-mill CP case of 500 images on a laptop (or 5000 grams of crack or $10 M in fraud from 100 distinct victimes). The point is that, unless and until you answer these kinds of "in the weeds" questions about grouping/stacking, your approach remains facile and only helps in the tough extreme cases and does nothing in run-of-the-mill cases.

Perhaps your only goal is to deal with the extreme case, but so does my proposal which included a requirement that there are "close connections between the convicted crime and the acquitted conduct." In the end, I think we are much closer substantively than you realize, but you wrongly think my proposal does not deal with the extreme cases that are driving your concerns.

Posted by: Doug B. | May 1, 2016 2:11:29 PM

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April 26, 2016

You be the judge for "sentencing supernova": what punishment for former House speaker Dennis Hastert for structuring (and sex) offenses?

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