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April 24, 2018

The challenge of modern federal sentencing: "there are 15 distinct factors in 3553(a)"

The line in quotes in the title of this post is a phrase that was uttered yesterday by Deputy Attorney General Rod Rosenstein during Supreme Court oral argument in Chavez-Meza v. United States. (The full argument transcript is available at this link.)  Based on my review of the transcript, I think DAG Rosenstein did himself proud before SCOTUS, and I am especially proud of his accounting of the many factors in 18 USC � 3553(a).

Specifically, I am keen on this accounting of the 3553(a) factors because I have long preached that there are four distinct sentence factors packaged in 18 USC � 3553(a)(1), which calls upon courts to consider "the nature and circumstances of the offense and the history and characteristics of the defendant."  Often when talking to students about a sentencing problem I give, I stress that plain text of � 3553(a)(1) indicates Congress wants judges to consider distinctly an offense's nature (drugs or fraud) as well as its circumstances (lengthy or limited); to consider distinctly a defendant's history (abused or educated) as well as his characteristics (remorseful or brazen).  I think DAG Rosenstein's statement that "there are 15 distinct factors in 3553(a)" is built upon counting � 3553(a)(1) as itself having four factors.

Moving beyond my own quirky affinity for � 3553(a)(1), I wonder if readers can readily think of any other area of federal law that calls upon judges to consider "15 distinct factors" as part of their decision-making.  I do realize that many capital sentencing statutes call upon juries and/or judges to balance or weigh even more factors that appear in 18 USC � 3553(a).  But I would be especially eager to hear from folks about other areas of law that but a comparable factor burden on federal judges.

April 24, 2018 at 11:42 AM | Permalink


Only 15?

Posted by: Joe | Apr 24, 2018 11:47:51 AM

It is not found within any statute but I know that there is federal judicial precedent that enumerates at least a dozen different factors judges are supposed to consider when determining whether there has been a fraudulent transfer in the bankruptcy context, once one moves beyond the situations that are presumptively fraudulent as per the bankruptcy code.

Posted by: Yabba Dabba Don't | Apr 24, 2018 12:11:51 PM

Bad link. The link that says it's to the argument transcript leads to the 3553(a) statutory text instead.

Posted by: Def. Atty. | Apr 26, 2018 3:36:54 PM

Sorry about that link, I think it is now fixed.

Posted by: Doug B | Apr 27, 2018 8:32:47 AM

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