Sentencing Law and Policy

"Should a man convicted of murder help set D.C. sentencing guidelines?"

The title of this post is the headline of this new lengthy Washington Post article.  Here are excerpts:

The D.C. Council is set to decide Tuesday whether a man who spent 27 years behind bars for murder should serve on a city commission that drafts and modifies criminal sentencing guidelines — a nomination that is likely to spark heated debate.

Proponents argue that the appointment would give the panel a new perspective on the issue of incarceration, while the District’s top prosecutor warned that the nominee, Joel Castón, could push the commission in a soft-on-crime direction.

Castón, in a Monday evening interview, said Graves misrepresented his character and incorrectly assumed his perspective simply because he has been incarcerated....

Castón was released from prison last year, nearly three decades after he killed an 18-year-old man in a 1994 parking lot shooting. In 2021, while still a prisoner, he was elected to the D.C. Advisory Neighborhood Commission, becoming the first incarcerated person voted into public office in the city.

Council Chairman Phil Mendelson (D), who nominated Castón to the 12-member sentencing commission, said in an interview that the panel expressed interest in having a previously incarcerated person join the group. Linden Fry, the commission’s executive director, said members began discussing the addition of a person who had been incarcerated after they learned “how other sentencing commissions in the United States have added returned-citizen members.”...

But Matthew M. Graves, the U.S. attorney for the District, whose office prosecutes felony cases in the city, questioned Castón’s integrity in a letter to Mendelson.  Graves said the nominee would be likely to advocate for lesser sentencing ranges that would make it even harder for prosecutors to secure prison time for people convicted of firearm violations in the nation’s capital....

Minimum and maximum sentences for crimes are established by District law, and D.C. Superior Court judges impose prison time within those ranges. In deciding what a particular sentence should be, judges rely on a manual containing elaborate formulas for calculating an appropriate prison term based partly on a defendant’s criminal background and the specifics of the offense.  The resulting guidelines are advisory, and judges can depart from them — although data published by the commission last year showed that judges’ sentences hewed to the recommendations in nearly 97 percent of felony cases.  The sentencing commission governs the manual and any revisions to it.

This WaPo piece provides a lot more background and context for the notable sparring over this potential appointment to the District’s Sentencing Commission.  And here are some other local recent media pieces have recently discussed these matters:

• "DC Council's nomination for the sentencing commission faces pushback from US Attorney"
• "‘Stop this revolving door’: US attorney pushes back on DC Council’s sentencing commission nominee"

The recent five-page letter from US Attorney Michael Graves to the Members of the Council of the District of Columbia, which is dated January 2, 2024, is available at this link.

Notable new US Sentencing Commission primers on federal crime victim rights

The US Sentencing Commission has just released a couple of new primers on crime victims' right in the federal criminal justice system. Here are links to USSC pages about the short reports and descriptions:

Crime Victims' Rights

(April 2021) This primer provides a general overview of crime victims’ rights under the Crime Victims’ Rights Act (“CVRA”), as described in 18 U.S.C. § 3771, the related provisions of the Mandatory Victim Restitution Act (“MVRA”) and the Victim and Witness Restitution Act (“VWRA”), and the Amy, Vicky, and Andy Child Pornography Victim Assistance Act of 2018. The Sentencing Guidelines implement the CVRA through USSG §6A1.5 and the related restitution provisions through USSG §§5E1.1 and 8B1.1.  Although the CVRA applies broadly to pretrial, trial, sentencing, and post-sentencing proceedings, this primer focuses primarily on its application to sentencing and post-sentencing issues, including revocations of probation, supervised release, habeas proceedings, and parole proceedings.  This primer is not intended as a comprehensive compilation of case law or as a substitute for independent research and primary authority.

Economic Crime Victims

(April 2021) This primer provides a general overview of selected guideline issues related to victims in offenses sentenced under §2B1.1 (“Larceny, Embezzlement, and Other Forms of Theft; Offenses Involving Stolen Property; Property Damage or Destruction; Fraud or Deceit; Forgery; Offenses Involving Altered or Counterfeit Instruments Other than Counterfeit Bearer Obligations of the United States”).  Although the primer identifies some of the relevant cases and concepts, it is not intended as a comprehensive compilation of the cases or analysis related to these issues.

Saddened by the passing of Justice Ruth Bader Ginsburg, who gave us advisory federal sentencing guidelines

I was sad to see this news this evening:

Supreme Court Justice Ruth Bader Ginsburg, a diminutive yet towering women’s rights champion who became the court’s second female justice, died Friday at her home in Washington.  She was 87.  Ginsburg died of complications from metastatic pancreatic cancer, the court said....

Chief Justice John Roberts mourned Ginsburg’s passing.  “Our Nation has lost a jurist of historic stature. We at the Supreme Court have lost a cherished colleague.  Today we mourn, but with confidence that future generations will remember Ruth Bader Ginsburg as we knew her — a tireless and resolute champion of justice,” Roberts said in a statement....

Her appointment by President Bill Clinton in 1993 was the first by a Democrat in 26 years.  She initially found a comfortable ideological home somewhere left of center on a conservative court dominated by Republican appointees. Her liberal voice grew stronger the longer she served....

On the court, where she was known as a facile writer, her most significant majority opinions were the 1996 ruling that ordered the Virginia Military Institute to accept women or give up its state funding, and the 2015 decision that upheld independent commissions some states use to draw congressional districts.

Besides civil rights, Ginsburg took an interest in capital punishment, voting repeatedly to limit its use.  During her tenure, the court declared it unconstitutional for states to execute the intellectually disabled and killers younger than 18. In addition, she questioned the quality of lawyers for poor accused murderers....

Ginsburg authored powerful dissents of her own in cases involving abortion, voting rights and pay discrimination against women.  She said some were aimed at swaying the opinions of her fellow judges while others were “an appeal to the intelligence of another day” in the hopes that they would provide guidance to future courts.  “Hope springs eternal,” she said in 2007, “and when I am writing a dissent, I’m always hoping for that fifth or sixth vote — even though I’m disappointed more often than not.”

She wrote memorably in 2013 that the court’s decision to cut out a key part of the federal law that had ensured the voting rights of Black people, Hispanics and other minorities was “like throwing away your umbrella in a rainstorm because you are not getting wet.”

When I think about Justice Ginsburg's sentencing legacy, I do not think about any single opinion but rather about two notable votes. Specifically, Justice Ginsburg was the sole justice to vote with both remarkable majority opinions in US v. Booker: she was the key fifth vote for the merits opinion finding the mandatory federal guidelines unconstitutional and she was the key fifth vote for the remedial opinion making the guidelines advisory. Notably, Justice Ginsburg did not write any opinion in Booker to explain either vote, but her two votes gave us the advisory guideline system that has now defined the federal sentencing system for well over fifteen years.

"The Effects of Voluntary and Presumptive Sentencing Guidelines"

The title of this post is the title of this notable new empirical article authored by Griffin Sims Edwards, Stephen Rushin and Joseph Colquitt.  Here is its abstract:

This Article empirically illustrates that the introduction of voluntary and presumptive sentencing guidelines at the state-level can contribute to statistically significant reductions in sentence length, inter-judge disparities, and racial disparities.

For much of American history, judges had largely unguided discretion to select criminal sentences within statutorily authorized ranges.  But in the mid-to-late twentieth century, states and the federal government began experimenting with sentencing guidelines designed to reign in judicial discretion to ensure that similarly situated offenders received comparable sentences.  Some states have made their guidelines voluntary, while others have made their guidelines presumptive or mandatory, meaning that judges must generally adhere to them unless they can justify a departure.

In order to explore the effects of both voluntary and presumptive sentencing guidelines on judicial behavior, this Article relies on a comprehensive dataset of 221,934 criminal sentences handed down by 355 different judges in Alabama between 2002 and 2015.  This dataset provides a unique opportunity to address this empirical question, in part because of Alabama’s legislative history.  Between 2002 and 2006, Alabama had no sentencing guidelines. In 2006, the state introduced voluntary sentencing guidelines.  Then in 2013, the state made these sentencing guidelines presumptive for some non-violent offenses.

Using a difference-in-difference framework, we find that the introduction of voluntary sentencing guidelines in Alabama coincided with a decrease in average sentence length of around seven months.  When the same guidelines became presumptive, the average sentence length dropped by almost two years.  Further, using a triple difference framework, we show that the adoption of these sentencing guidelines coincided with around eight to twelve-month reductions in race-based sentencing disparities and substantial reductions in inter-judge sentencing disparities across all classes of offenders.  Combined, this data suggests that voluntary and presumptive sentencing guidelines can help states combat inequality in their criminal justice systems while controlling the sizes of their prison populations.

Fourth Circuit affirms officer Michael Slager "conviction" (by a judge at sentencing) of murdering Walter Scott

I noted in posts here and here back in December 2017 that, after the high-profile shooting and then state and federal prosecutions of former South Carolina police officer Michael Slager for killing Walter Scott, the real action in his case became a federal sentencing "trial" after Slager pleaded guilty to a federal civil rights offense.  This "trial" was really a judicial inquisition in which a federal sentencing judge took testimony at a sentencing hearing in order to decide whether Slager's crime was "really" second-degree murder or voluntary manslaughter for purposes of calculating the appropriate guideline range.  

Notably, the presentence report in Slager's case suggested a prison term of between 10 and 13 years based on the conclusion that his crime should be viewed as voluntary manslaughter (and his defense attorneys requested an even lower sentence).  But federal prosecutors successfully argued that the district court should, after applying the guidelines for second-degree murder and obstruction of justice, impose a prison sentence for Slager within an enhanced guideline range of roughly 17 to 22 years of imprisonment.  The judge, after a multi-day hearing, "convicted" Slager of second-degree murder and ultimately imposed a 20-year prison term.  Yesterday the Fourth Circuit affirmed the sentence in US v. Slager, No. 18-4036 (4th Cir. Jan 8, 2019) (available here). Here is how that opinion gets started and a passage from the heart of the opinion:

Defendant Michael Slager (“Defendant”), a former officer with the North Charleston Police Department, admitted that he “willfully” shot and killed Walter Scott (“Scott”), when Scott was unarmed and fleeing arrest.  Defendant further admitted that his decision to shoot Scott was “objectively unreasonable.”  Based on those admissions, Defendant pleaded guilty to depriving Scott of his civil rights under color of law.  The district court sentenced Defendant to a 240-month term of imprisonment.  Before this Court, Defendant argues that the district court reversibly erred in setting his sentence by: (1) using second-degree murder as the sentencing cross-reference for his offense rather than voluntary manslaughter, and (2) applying a two-level enhancement for obstruction of justice.  Finding no reversible error, we affirm Defendant’s sentence....

“When sentencing courts engage in fact finding, preponderance of the evidence is the appropriate standard of proof.” United States v. Span, 789 F.3d 320, 334 (4th Cir. 2015) (citations and alterations omitted). We “will not reverse a lower court’s findings of fact simply because we would have decided the case differently.” Id. (quoting Easley v. Cromartie, 532 U.S. 234, 242 (2001)).  Instead, clear error exists only when “the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.” Id. (quoting Easley, 532 U.S. at 242)....

Because Santana’s video does not capture the entirety of the disputed period, the court based many of its factual findings on its assessment of the credibility of the two testifying eyewitnesses to the encounter: Defendant and Santana.  Examining at length each of Defendant’s four accounts of the encounter, the court discredited Defendant’s testimony as “contradictory,” “self-serving, evolving, and internally inconsistent.” Slager, 2018 WL 445497, at *4–6.  The record amply supports that credibility determination....

In conclusion, the district court did not reversibly err by inferring Defendant’s malice from the facts it found credible. Moreover, the court did not reversibly err by determining that Defendant’s malice was not negated by “sudden quarrel or heat of passion.” Accordingly, the court properly cross-referenced second-degree murder.

I take no issue with the substantive conclusions of the courts here, but I still always find it jarring when district judges at sentencing are resolving factual disputes and reaching judgments about criminal behavior that have long traditionally been classic jury issues. But, thanks to the remedial opinion in Booker, these matters can still be resolved by judges at sentencing because their findings result in only advisory recommendations rather than sentencing mandates.

Prior related posts:

• After his guilty plea to a civil rights offense, what federal guideline range and ultimate sentence will Michael Slager face for killing Walter Scott?
• Latest trial of Michael Slager for killing Walter Scott taking place during his federal sentencing for civil rights offense
• Judge "convicts" Michael Slager of murdering Walter Scott and gives him 20 years in federal prison

Now a full decade after Rita, Gall and Kimbrough, do any Justices still care about reasonableness review?

The question in the title of this post is prompted in part by my work, recently and in prior years, on amicus briefs in which I have noted to the US Supreme Court that many judges and many commentators have suggested that the appellate review of sentences — and all of federal sentencing under advisory Guidelines — would benefit significantly from the Court's further guidance on the contours of reasonableness review.   

A little more that a decade ago, the jurisprudential troika of Rita, Gall and Kimbrough provided an initial SCOTUS accounting of reasonableness review.  But it is now pretty easy to provide a string cite of commentary noting the mess that reasonableness review has become in the circuits.  See, e.g.,  Carrie Leonetti, De Facto Mandatory: A Quantitative Assessment Of Reasonableness Review After Booker, 66 DePaul L. Rev. 51 (2016) (lamenting disparate circuit approaches to reasonableness review creating a “patchwork of guideline sentencing in which defendants’ sentences are dictated more by the happenstance of geography than by the Supreme Court’s jurisprudence”); Note, More Than a Formality: The Case for Meaningful Substantive Reasonableness Review, 127 Harv. L. Rev. 951 (2014) (discussing a “number of notable circuit splits” concerning reasonableness review); D. Michael Fisher, Still in Balance? Federal District Court Discretion and Appellate Review Six Years After Booker, 49 Duq. L. Rev. 641, 649-61 (2011) (noting that “the courts of appeals have differed over how to apply the [reasonableness] standard” and “have split on several important legal questions”).

My decision to gripe on this front today is also prompted by this pending cert petition in Ford-Bey v. US recently brought to my attention.  Here is the question presented to the Supreme Court in this petition:

In Rita v. United States, 551 U.S. 338 (2007), the Court held that an appellate court could presume that a procedurally reasonable within-Guidelines sentence is also substantively reasonable. But the Court stressed that the presumption was rebuttable, reflecting only that a sentence is more likely to be substantively reasonable where the district judge and the Sentencing Commission agree.

A decade later, the majority of Circuits have never found Rita’s presumption rebutted. In that time, fewer than ten defendants nationwide have succeeded in rebutting Rita’s presumption.  Here, the Fourth Circuit issued a routine per curiam affirmance, despite petitioner’s extraordinary post-sentencing rehabilitation — and despite the Commission’s 2012 decision to withdraw all guidance on post-sentencing rehabilitation.

Has Rita’s non-binding presumption of reasonableness become effectively binding?

Silk Road creator Ross Ulbricht raises notable sentencing issue in SCOTUS cert petition

As detailed in this new Reason piece, headlined "Ross Ulbricht Files Appeal to the Supreme Court on His Life Sentence Without Parole: Silk Road founder's appeal stresses the dangerous Fourth and Sixth Amendment implications of his prosecution and sentencing," a notable federal criminal defendant is bringing some notable issues to the Supreme Court via a new cert petition. The full cert petition is available at this link, and here are the petition's seemingly simple questions presented:

1. Whether the warrantless seizure of an individual’s Internet traffic information without probable cause violates the Fourth Amendment.

2. Whether the Sixth Amendment permits judges to find the facts necessary to support an otherwise unreasonable sentence.

SCOTUS gurus know that the first question intersects with issues in the pending Carpenter case, and that fact alone might make this high-profile case a poor vehicle for getting to the post-Booker sentencing issue also raised. The petition, notably, suggests "It would be most efficient for the Court to resolve the question presented in this case now, while it is considering a related question in Carpenter."

SCOTUS gurus know that the second question is one that has been repeatedly avoided by SCOTUS since its Booker-Rita rulings wherein the late Justice Scalia suggested that, even within the advisory guideline system created by Booker, there must be some Sixth Amendment limits on findings by judges to justify lengthy prison sentences.  Despite pushing the matter, Justice Scalia could not garner enough votes for this Sixth Amendment issue to be addressed by the full Court on the merits before his untimely demise.  I am not really expecting a different reality now, although Ulbricht's lawyers astutely notes in his cert petition that Justice Scalia's replacement has previously suggested concerns on this front:

Shortly after Justice Scalia’s opinion in Jones, then-Judge Gorsuch similarly observed that “[i]t is far from certain whether the Constitution allows” a judge to increase a defendant’s sentence within the statutorily authorized range “based on facts the judge finds without the aid of a jury or the defendant’s consent.” United States v. Sabillon-Umana, 772 F.3d 1328, 1331 (10th Cir. 2014) (citing Jones).  Three years later, however, that question re- mains unanswered by the Court, despite intervening opportunities to address it.

A few prior related posts on sentencing and appeals of Ross Ulbricht:

• You be the judge: what federal sentence for Silk Road creator Ross Ulbricht?
• Notable developments in prelude to federal sentencing for Silk Road creator Ross Ulbricht
• Debate over harms of online drug market now at center of upcoming sentencing of Silk Road creator Ross Ulbricht
• "Before sentencing, Ulbricht begs for leniency: 'please leave me my old age'"
• Feds seeking LWOP sentence for Silk Road creator Ross Ulbricht
• Second Circuit affirms convictions and LWOP sentence for Silk Road creator Ross Ulbricht

Latest trial of Michael Slager for killing Walter Scott taking place during his federal sentencing for civil rights offense

As noted in this post from May, after a state mistrial in December 2016, former South Carolina police officer Michael Slager pleaded guilty to a federal civil rights offense as a result of his lethal shooting of Walter Scott.  That resolution all but ensured that continued debate concerning Slager's action would take place during his federal sentencing.  And this local article reporting on the first day of that sentencing highlights that this continued debate is in the form of a kind of mini-trial at sentencing.  Here are some details:

What Walter Scott did during his fatal confrontation with North Charleston officer Michael Slager and what the policeman said afterward quickly became the focus of the first day of Slager’s sentencing hearing.

Slager, 36, already has acknowledged violating Scott’s civil rights by repeatedly shooting the fleeing black man as a bystander filmed the encounter. He pleaded guilty to that in May, but key facts remain in dispute — a point on full display Monday at the federal courthouse in downtown Charleston.

Before hashing out a penalty, a judge must decide this week what underlying offense Slager committed in depriving Scott of his constitutional right to be free of excessive force: murder or voluntary manslaughter. After listening to three government witnesses, the judge gave no initial indication on how he might rule. The proceeding is expected to resume Tuesday morning, possibly with another prosecution witness before the defense takes over.

Prosecutors said Scott was simply trying to escape a traffic stop, and they called eyewitness Feidin Santana to back up their contention that Slager murdered Scott and lied to cover his tracks. They rejected Slager’s explanation for the shooting: that he fired only after Scott took his Taser. “I saw a man just determined to get away and leave,” Santana said of Scott. “Like I say in the video, it was an abuse — something unnecessary.”

It was the second time Santana publicly testified against Slager, whose murder trial in state court ended a year ago with a hung jury. Portions of his latest account in U.S. District Court were geared toward helping Judge David Norton decide whether Scott’s conduct contributed to Slager’s decision to shoot. Prosecutors said no; it was wrong from the moment the officer first pulled the trigger.

But defense lawyers said Scott could have at any point stopped and surrendered, and lead attorney Andy Savage pressed Santana about whether Scott had ever raised his arms and given up. “If that happened,” Santana responded, “we wouldn’t be here.”

Santana’s video footage of the April 4, 2015, killing brought national scrutiny to North Charleston amid a broader examination of police-involved deaths across the country. It also landed Slager in jail on a state murder charge when the cellphone clip emerged publicly three days later.

But the jurors in the state case were unable to agree whether he had committed a crime. At least one of them sat in the courtroom Monday, this time as an observer....

The hearing resembled a trial without the same rules of evidence and procedures that can slow proceedings. And the ultimate arbiter of justice is Norton, who can pick any sentence between no prison time and up to life behind bars.  A pre-sentencing report suggested a term of between 10 and nearly 13 years in prison, but defense attorneys asked the judge Monday for a “significant” departure from those guidelines because of the role Scott played in his own death.

In my prior post about this case after Slager's plea, I calculated based on the government advocating for the court to apply the guidelines for second degree murder and obstruction of justice that Slager would be facing a guideline range of roughly 17 to 22 years of imprisonment. But it would appear that the PSR in this case has urged the court to consider Slager guilty only of voluntary manslaughter for sentencing purposes. Of course, Slager has in fact only pleaded guilty to "a violation of 18 U.S.C. § 242, Deprivation of Rights Under Color of Law," but in the magical world of federal sentencing the offense of conviction still often does not really matter all that much.  In this high-profile case, it will be a judge not a jury tasked with both deciding what crime he really committed and what sentence should go with that crime.

Prior related post:

• After his guilty plea to a civil rights offense, what federal guideline range and ultimate sentence will Michael Slager face for killing Walter Scott?

"Cost-Benefit Analysis and Retroactivity: The brief for respondent in Beckles v. U.S."

The title of this is the title of this timely and astute New Jersey Law Journal commentary authored by (former federal prosecutor) Steven Sanders. I recommend the piece in full, and here are excerpts from its beginning and ending:

In late June, the Supreme Court granted certiorari in Beckles v. United States, 136 S. Ct. 2510 (2016).  Beckles actually raises three questions, but only two of them are pertinent here: (1) is the "residual clause" of the U.S. Sentencing Guidelines' career offender provision void for vagueness under Johnson v. United States, 135 S.Ct. 2551 (2014); and (2) can a defendant whose Guidelines sentence became final before Johnson issued nonetheless invoke Johnson's new rule in a motion filed under 28 U.S.C. §2255.  In its recently filed merits brief, the government argues that the answer to question (1) is "yes," but that Beckles and thousands like him have no legal remedy because the answer to question (2) is "no."

The government's non-retroactivity argument in Beckles represents a total reversal of the position it took before the en banc Eleventh Circuit only one month before Johnson issued. And that reversal seems to stem from the government's concern about the costs the justice system would incur from conducting resentencings for prisoners who very likely would receive lower sentences were they afforded a remedy.  The government's belief that the costs of dispensing justice outweigh the benefits (i.e., less prison time for thousands of people the government acknowledges have been over-sentenced) is eye-opening, to say the least.  That it has broadcast that belief in a Supreme Court brief is downright disturbing....

In sum, the government's retroactivity position in Beckles seems more like a belated attempt at damage control than a principled effort to apply the law consistently across a set of similarly situated defendants.  The government would do well to heed Solicitor General Frederick Lehmann's powerful observation — now inscribed on the walls of the Department of Justice — that "[t]he United States wins its point whenever justice is done its citizens in the courts." See Brady v. Maryland, 373 U.S. 83, 87 & n.2 (1963).

A few of many related prior posts and related materials:

• SCOTUS grants cert on Johnson application to career offender guidelines
• Empirical SCOTUS highlights how sentencing cases of OT 15 already "have the greatest downstream effects" in lower courts
• "What Lurks Below Beckles"
• Beckles v. United States -- Amici Curiae Brief of Scholars of Criminal Law, Federal Courts, and Sentencing in Support of Petitioner
• Topical archive of many related posts:  Vagueness in Johnson and thereafter

Over lengthy dissents, en banc Eleventh Circuit shuts 2255 door to claims based on advisory guideline misapplication

The Eleventh Circuit has today provided some special weekend reading for hard-core federal sentencing fans with a special interest in finality issues (which, I realize, might be a small group).  Specifically, the en banc ruling together with dissents in Spencer v. US, No. 10-10676 (11th Cir. Nov. 14, 2014) (available here), runs more than 100 pages. More than three-quarters of those pages come from the dissents to a majority opinion (per Judge William Pryor) that begins this way:

This appeal concerns whether a federal prisoner may relitigate an alleged misapplication of the advisory United States Sentencing Guidelines in a collateral attack on a final sentence.  After he pleaded guilty to distributing cocaine and we affirmed the judgment against him, Kevin Spencer moved to vacate his sentence of imprisonment, 28 U.S.C. § 2255, for an alleged error in the application of the advisory guidelines. Spencer argues that an intervening decision of the Supreme Court, Begay v. United States, 553 U.S. 137, 128 S. Ct. 1581 (2008), makes clear that the district court and this Court erroneously classified him as a “career offender” based on a prior conviction for felony child abuse, which he argues is not a “crime of violence.”  United States Sentencing Guidelines Manual § 4B1.1 (Nov. 2006).  Spencer maintains that this alleged error represents a “fundamental defect which inherently results in a complete miscarriage of justice,” Hill v. United States, 368 U.S. 424, 428, 82 S. Ct. 468, 471 (1962), that can be revisited on collateral review.  We disagree.

Spencer cannot collaterally attack his sentence based on a misapplication of the advisory guidelines.  Spencer’s sentence falls below the statutory maximum, and his prior conviction for felony child abuse has not been vacated. Spencer’s sentence was and remains lawful.  We affirm the denial of Spencer’s motion to vacate his sentence.

At the very end of a very long week, I cannot do justice to the majority opinios or the dissents in this space, so I will close by quoting from the start of one of the dissents (per Judge Jordan) to highlight the human story at the center of the legal debate in Spencer:

At the end of the day, what constitutes a fundamental defect resulting in a complete miscarriage of justice comes down to a matter of considered judgment.  In my judgment, having an individual serve an additional 81 months in prison due to an erroneous career offender designation under the advisory Sentencing Guidelines constitutes such a miscarriage of justice, and for that reason I respectfully dissent.

Kevin Spencer is serving more than 12 years in prison (151 months to be exact) for selling $20 worth of crack cocaine.  The panel found, see Spencer v. United States, 727 F.3d 1076, 1100 (11th Cir. 2013), the government now concedes, see En Banc Brief for the United States at 57-58, and the majority does not dispute, that Mr. Spencer’s mistaken career offender designation more than doubled his advisory sentencing range from 70-87 months to 151-188 months.  For those of us familiar with — and sometimes numbed by — the ranges produced by application of the Sentencing Guidelines, it may be easy to overlook the dramatic increase resulting from the error.  To put it in perspective, the 81-month increase is roughly the time needed to complete both college and law school.

Mr. Spencer timely and consistently objected to the career offender designation, only to be told he was wrong.  As it turns out, he was right.  Unfortunately, the majority now rules that Mr. Spencer cannot use 28 U.S.C. § 2255 to correct the error.

Reviewing Alabama's (somewhat successful) use of sentencing guidelines to reduce prison growth

As highlighted in this lengthy local article, headlined "Sentencing reform has slowed, not stopped, inmate growth," sentencing and sentencing reform in Alabama has been a dynamic process that includes sentencing guidelines intended to steer more offenders away from prison. Here are some details:

The state's sentencing structure has a huge impact on the prison population, which is at about 190 percent the capacity it was designed for. A 24-member panel — the Prison Reform Task Force — is working with the Council of State Governments Justice Center to analyze the system and find ways to reduce overcrowding, reduce recidivism and improve public safety.

Andy Barbee, research manager of the CSG's justice center, said Alabama's switch in October 2013 to presumptive guidelines — which judges are required to use unless there's a mitigating or aggravating factor to be considered — has accelerated a downward trend in the number of sentences to prison and the lengths of those sentences. Those guidelines, however, only apply to drug and theft cases.

That trend started in 2006, when voluntary guidelines were made available for judges to use. Judges still had the option to choose existing sentencing laws, but had to acknowledge for the record that voluntary guidelines were considered, Barbee said. The state took those guidelines a step forward when they approved legislation in 2012 that established the presumptive guidelines....

The new guidelines use a point system that weighs factors such as past criminal history and facts of the crime to impose a sentence, said Bennet Wright, executive director of the Alabama Sentencing Commission. The commission is the research arm of the criminal justice system. It's responsible for implementing changes when laws change and making annual recommendations for improvements to the governor, Legislature, chief justice and attorney general.

Wright said the purpose of creating the presumptive guidelines was to provide uniform sentencing practices across Alabama counties, and to make sure the system is fair, effective and encourages community supervision for nonviolent offenders.

But because there are scarce drug rehabilitation and mental health resources and those vary county by county, more structured and uniform assessments of those in the criminal justice system need to be in place to make sure services are effective. "At some point, the state will have to make a bigger investment in community services and supervision programming," Wright said. "Matching offenders with the right services lowers the likelihood that they'll commit more crimes."

The presumptive guidelines are binding unless a judge decides to downgrade the sentence based on facts, or unless an aggravating factor that might warrant a harsher sentence is proved, Wright said. Barbee said the switch to presumptive guidelines was a bold move in the right direction that took political courage, but the next step is to make sure the structure in place continues to evolve. He said similar changes need to happen with parole.

Although the number of arrests, sentences to prison and lengths of sentence are decreasing, the prison population is still on the rise. However, the presumptive guidelines are projected to slow the tremendous growth that the prison population would have seen otherwise, Wright said. "The presumptive guidelines are not going to drastically lower the prison population," Wright said. "It would be a modest reduction at best, but more than likely, it would result in a stabilization. The point is, if you didn't have them, the prison population would just grow, grow, grow."

Much of the current prison population was punished under a set of laws that provided more serious punishments to a larger class of offenses, Barbee said. "Simply waiting on the guidelines to have an effect won't get the system where it wants to be until many years out," Barbee said. "Therefore it's critical, if the state wants to have a near-term impact on the crisis level of overcrowding, it looks beyond sentencing."

Barbee said there are some caveats with the state's sentencing guidelines. Burglary is considered a violent crime, regardless of whether anyone else was involved during the burglary.... He also said Alabama has one of the lowest felony theft thresholds in the country at $500. The threshold was recently raised from $250, he said, and most states are at about $1,000 or $2,000.

The fact that the state's laws don't consider weight or amount when it comes to drug crimes also makes it more likely that punishment might not match the crime. He said any amount of drug possession other than marijuana — whether it's one pill or a pound of cocaine — is a felony.

Three Justices dissent from denial of certiorari in Jones/Ball acquitted conduct case

I am very disappointed to have to report that this morning the Supreme Court denied certiorari review in the notable federal drug sentencing case from DC involving Antwan Ball and his co-defendants concerning judicial fact-finding to increase a federal guideline sentence contrary to a jury acquittal.  As I noted in this post last week, Jones v. US, No. 13-10026, was relisted by the Justices after their "long conference."  Now today's SCOTUS order list has at the very end the news that cert has been denied in Jones v. US, No. 13-10026, with a three-page dissent from that decision authored by Justice Scalia and joined by Justices Thomas and Ginsburg.  Mega-bummer!!!

Here is the bulk of Justice Scalia's dissent from the denial of cert in Jones (with emphasis in the original): 

A jury convicted petitioners Joseph Jones, Desmond Thurston, and Antwuan Ball of distributing very small amounts of crack cocaine, and acquitted them of conspiring to distribute drugs. The sentencing judge, however, found that they had engaged in the charged conspiracy and, relying largely on that finding, imposed sentences that petitioners say were many times longer than those the Guidelines would otherwise have recommended.

Petitioners present a strong case that, but for the judge’s finding of fact, their sentences would have been “substantively unreasonable” and therefore illegal.  See Rita v. United States, 551 U.S. 338, 372 (2007) (SCALIA, J., joined by THOMAS, J., concurring in part and concurring in judgment).  If so, their constitutional rights were violated.  The Sixth Amendment, together with the Fifth Amendment’s Due Process Clause, “requires that each element of a crime” be either admitted by the defendant, or “proved to the jury beyond a reasonable doubt.”  Alleyne v. United States, 570 U. S. ___, ___ (2013) (slip op., at 3). Any fact that increases the penalty to which a defendant is exposed constitutes an element of a crime, Apprendi v. New Jersey, 530 U.S. 466, 483, n. 10, 490 (2000), and “must be found by a jury, not a judge,” Cunningham v. California, 549 U. S. 270, 281 (2007).  We have held that a substantively unreasonable penalty is illegal and must be set aside.  Gall v. United States, 552 U.S. 38, 51 (2007).  It unavoidably follows that any fact necessary to prevent a sentence from being substantively unreasonable — thereby exposing the defendant to the longer sentence — is an element that must be either admitted by the defendant or found by the jury.  It may not be found by a judge.

For years, however, we have refrained from saying so.  In Rita v. United States, we dismissed the possibility of Sixth Amendment violations resulting from substantive reasonableness review as hypothetical and not presented by the facts of the case.  We thus left for another day the question whether the Sixth Amendment is violated when courts impose sentences that, but for a judge-found fact, would be reversed for substantive unreasonableness.  551 U.S., at 353; see also id., at 366 (Stevens, J., joined in part by GINSBURG, J., concurring) (“Such a hypothetical case should be decided if and when it arises”).  Nonetheless, the Courts of Appeals have uniformly taken our continuing silence to suggest that the Constitution does permit otherwise unreasonable sentences supported by judicial factfinding, so long as they are within the statutory range....

This has gone on long enough.  The present petition presents the nonhypothetical case the Court claimed to have been waiting for.  And it is a particularly appealing case, because not only did no jury convict these defendants of the offense the sentencing judge thought them guilty of, but a jury acquitted them of that offense.  Petitioners were convicted of distributing drugs, but acquitted of conspiring to distribute drugs.  The sentencing judge found that petitioners had engaged in the conspiracy of which the jury acquitted them. The Guidelines, petitioners claim, recommend sentences of between 27 and 71 months for their distribution convictions.  But in light of the conspiracy finding, the court calculated much higher Guidelines ranges, and sentenced Jones, Thurston, and Ball to 180, 194, and 225 months’ imprisonment.  

On petitioners’ appeal, the D. C. Circuit held that even if their sentences would have been substantively unreasonable but for judge-found facts, their Sixth Amendment rights were not violated.  744 F. 3d 1362, 1369 (2014).  We should grant certiorari to put an end to the unbroken string of cases disregarding the Sixth Amendment — or to eliminate the Sixth Amendment difficulty by acknowledging that all sentences below the statutory maximum are substantively reasonable.

I am especially disappointed that Justice Scalia and his joiners here could not garner one more vote to grant cert from any of the newer Justices who came on the Court after Blakely and Booker became the Sixth Amendment law of the land.  Of course, Justice Alito has frequently shown his disaffinity for expanding the Sixth Amendment rights recognized in those cases.  But Chief Justice Roberts joined the Blakely gang in applying (and arguably expanding) Sixth Amendment rights in Cunningham v. California and Justices Sotomayor and Kagan have "shown empathy" for defendants seeking expanded applications of the Sixth Amendment in more recent cases such as Alleyne.  As I will explain in a future post, anyone (like me) hoping that Justices Sotomayor and Kagan might end up being even more committed to defendants' procedural rights at sentencing has to be deeply troubled by their disinclination to provide a fourth vote for granting cert in Jones.

Previous related posts on this case and acquitted conduct sentencing enhancements:

• Rooting for acquitted conduct petition grant from SCOTUS long conference
• Trying not to get too excited about SCOTUS relist in Jones/Ball acquitted conduct case
• Extended examination of ugliness of acquitted conduct enhancement
• Latest chapter in notable federal acquitted conduct case from DC
• "When Acquitted Doesn't Mean Acquitted"
• DC Circuit gives disconcertingly short-shrift to Antwuan Ball's many significant sentencing claims
• Notable follow-up thoughts on acquitted conduct and the sentencing of Antwuan Ball
• Strong commentary on acquitted conduct sentencing
• Sincere questions about acquitted conduct sentencing
• Amicus brief in Sixth Circuit acquitted conduct case focused on statutory issues

Rooting for acquitted conduct petition grant from SCOTUS long conference

Today, on the first Monday before the first Monday in October, the US Supreme Court Justices meet for the so called "long conference" at which they consider which of the large number of cert petitions that piled up over the summer ought to be heard during the Court's upcoming term. SCOTUSblog this morning here reviews some of the highest profile matters sure to generate the bulk of coverage and commentary.

Of course, I am always hoping/rooting for the Justices to grant cert on any and all sentencing issues. But there is one particular case, Jones v. US coming up from the DC Circuit, in which I filed an amicus in support of cert and thus in which I have a particular interest.  Regular readers of this blog are familiar with this case, which concerns judicial fact-finding to increase a federal guideline sentence contrary to a jury acquittal. (In prior posts (some of which appear below), I stressed the sentence given to one of the co-defendants in this Jones case, Antwan Ball.)

Over at SCOTUSblog, Lyle Denniston provided this effective review of the case and the SCOTUS filings a few weeks ago, and I encourage readers to check out that post or my prior posts linked below for context and background.  Here I will be content to provide this link to the cert petition and this link to my amicus brief in support of cert, as well as these paragraphs from the start of my amicus brief:

Sentencing rules permitting substantive circumvention of the jury’s work enables overzealous prosecutors to run roughshod over the traditional democratic checks of the adversarial criminal process the Framers built into the U.S. Constitution.  When applicable rules allow enhancement based on any and all jury-rejected “facts,” prosecutors can brazenly charge any and all offenses for which there is a sliver of evidence, and pursue those charges throughout trial without fear of any consequences when seeking later to make out their case to a sentencing judge.  When acquittals carry no real sentencing consequences, prosecutors have nothing to lose (and much to gain) from bringing multiple charges even when they might expect many such charges to be ultimately rejected by a jury.  Prosecutors can overcharge defendants safe in the belief they can renew their allegations for judicial reconsideration as long as the jury finds that the defendant did something wrong.  Indeed, piling on charges makes it more likely that the jury will convict of at least one charge, thus opening the door for prosecutors to re-litigate all their allegations before the judge.  Under such practices, the sentencing becomes a trial, and the trial becomes just a convenient dress rehearsal for prosecutors....

The Petitioners contend, as several Justices have already observed, that the Sixth Amendment is implicated whenever a legal rule (in this case, substantive reasonableness review) makes judge-discovered facts necessary for a lengthy sentence.  Amicus further highlights that this case presents the narrowest and most troubling instance of such a Sixth Amendment problem — namely express judicial reliance on so-called “acquitted conduct” involving jury-rejected, judge-discovered offense facts to calculate an enhanced Guideline sentencing range and thereby justify an aggravated sentence.  By allowing prosecutors and judges to nullify jury findings at sentencing such as in the case at bar, the citizen jury is “relegated to making a determination that the defendant at some point did something wrong,” and the jury trial is rendered “a mere preliminary to a judicial inquisition into the facts of the crime the State actually seeks to punish.” Blakely, 542 U.S. at 306-07.

Though various forms of judicial fact-finding within structured sentencing systems may raise constitutional concerns, this case only concerns the uniquely serious and dangerous erosion of Sixth Amendment substance if and when Guideline ranges are enhanced by facts indisputably rejected by the jury.  It may remain possible “to give intelligible content to the right of a jury trial,” Blakely, 542 U.S. at 305-06, by allowing broad judicial sentencing discretion to be informed by Guidelines calculated based on facts never contested before a jury.  But when a federal judge significantly enhances a prison sentence based expressly on allegations indisputably rejected by a jury verdict of not guilty, the jury trial right is rendered unintelligible and takes on a meaning that could only be advanced by a Franz Kafka character and not by the Framers of our Constitution.

Previous related posts on this case and acquitted conduct sentencing enhancements:

• Extended examination of ugliness of acquitted conduct enhancement
• Latest chapter in notable federal acquitted conduct case from DC
• "When Acquitted Doesn't Mean Acquitted"
• DC Circuit gives disconcertingly short-shrift to Antwuan Ball's many significant sentencing claims
• Notable follow-up thoughts on acquitted conduct and the sentencing of Antwuan Ball
• Strong commentary on acquitted conduct sentencing
• Sincere questions about acquitted conduct sentencing
• Amicus brief in Sixth Circuit acquitted conduct case focused on statutory issues

"Procedural Rights at Sentencing"

The title of this post is the headline of this notable new article by Carissa Byrne Hessick and F. Andrew Hessick.  Here is the abstract:

In determining which constitutional procedural rights apply at sentencing, courts have distinguished between mandatory and discretionary sentencing systems.  For mandatory systems ― systems that limit sentencing factors and specify particular punishments based on particular facts ― defendants enjoy important rights including the right to a jury, the right to proof beyond a reasonable doubt, the right to notice of potential sentencing aggravators, and the right not to be sentence based on ex post facto laws.  By contrast, for discretionary systems ― systems that leave the determination of sentencing factors and how much punishment to impose based on particular facts to the judge’s discretion ― defendants do not enjoy these protections.

This Article challenges this discrepancy.  It argues that, given the rationales underlying each of these rights, there is equal reason to apply these rights in discretionary sentencing systems as in mandatory ones.  As it explains, procedural rights regulate the means by which facts are found and the manner in which courts use those facts, and consequently are critical to discretionary systems.  Just as in mandatory sentencing systems, judges in discretionary systems must make factual findings to determine the appropriate sentence to impose.  The Article argues that the various justifications for providing fewer procedures in discretionary schemes are based on misconceptions about the nature of discretion at sentencing and inaccurate historical analysis.

New guidelines for sentencing sex offenses promulgated in the UK

This notable new story from across the pond, headlined "Sex offences sentencing overhaul: More emphasis on long-term impact on victims as celebrities have fame used against them," highlights that sentencing rules in other nations also often get ratcheted up following public concern about too lenient sentences in high-profile cases. Here are the basics:

Celebrities who commit sex-offences could see their public image used against them when being sentenced as part of an overhaul of decade-old sentencing guidance for judges in England and Wales. Sex-offenders who are considered to have abused their position of power may be handed longer jail sentences when the guidelines come into effect in April 2014.

Previous “good character” may be considered as an aggravating factor when it has been used to commit a sexual offence, new guidelines drawn up by the Sentencing Council said. The guidelines cover more than 50 offences including rape, child sex offences and trafficking and focus more on the long-term and psychological impact on victims than the previous 2004 guidelines.  They also introduce a higher starting point for sentences for offences such as rape of 15 years.

The new guidance was drawn up by the Sentencing Council after a public consultation and research was undertaken with victims groups, medical practitioners, police, NGOs, magistrates and judges. “Across the justice system, changes have been made to ensure that the alleged offenders' behaviour and the context and circumstances of the incident are scrutinised, rather than the credibility of the victim,” Chief Constable David Whatton, national policing lead for violence and public protection, said....

The guidelines come following a series of high-profile sex offence cases, including revelations about disgraced TV presenter Jimmy Savile, that lead to high numbers of sex attack victims coming forward.  Cases involving grooming gangs in Rochdale and Oxford separately raised questions about social care and attitudes held towards victims....

While the Sentencing Council can recommend a starting point, offenders can still only receive the maximum sentence available at the time the offence was committed.

"Parole: Corpse or Phoenix?"

The title of this post is the title of this very interesting looking new paper authored by Paul Larkin Jr. of The Heritage Foundation and now available via SSRN.  Here is the abstract:

For most of the twentieth century, the federal government used an indeterminate sentencing system at the front end of the correctional process and a parole system at the back end in order to determine when an offender should be released from prison. In 1984, Congress sought completely to revise the federal sentencing and correctional processes. Congress adopted a mandatory sentencing guidelines system in order to restrain the discretionary sentencing authority that federal courts traditionally had enjoyed. Congress rejected an advisory guidelines system because Congress believed that such a process would not eliminate the sentencing disparities that had plagued the federal criminal justice system for decades. Because the new mandatory guidelines would both regularize the sentencing decision and determine when a prisoner would be released, Congress repealed the federal parole laws as being unnecessary. The Supreme Court upheld the constitutionality of the new system over separation of challenges in Mistretta v. United States, 488 U.S. 361 (1989), and parole seemed to have passed into history.

Sixteen years later in United States v. Booker, 543 U.S. 220 (2005), however, the Court held that the same mandatory sentencing guidelines system upheld in Mistretta violated a defendant’s rights under the Sixth Amendment Jury Trial Clause. Booker and later decisions have made the federal sentencing guidelines advisory. The problem is that Congress rejected an advisory guidelines system and would not have repealed the parole laws if the federal sentencing process did not strictly constrain district courts’ sentencing authority. One of the consequences of the Booker decision, accordingly, is that federal sentencing now is susceptible to the same disparities that Congress sought to remedy with mandatory determinate sentencing guidelines in 1984. The article discusses the question whether the Booker decision has breathed new life into the federal parole laws now that the condition precedent for their repeal, adoption of a mandatory sentencing guidelines system, is no longer in effect.

New DOJ memo makes all illegal re-entry defendants "eligible" for fast-track departure!

Huge (and complicated) federal sentencing news has just emerged today from the US Justice Department via this new memorandum, dated January 31, 2012, from Deputy AG Cole to all United States Attorneys with the subject line of "Department Policy on Early Disposition or 'Fast-Track' Programs."  Here is the start of this memo -- which I will start calling the Cole Fast-Track Memo -- and the key paragraphs explaining the significant DOJ policy change that this memo represents:

In the 1990s, United States Attorneys’ Offices and the Department developed early disposition or “fast-track” programs as a matter of prosecutorial discretion to handle increasingly large numbers of criminal immigration cases arising along the southwestern border of the United States. The Prosecutorial Remedies and Other Tools to End the Exploitation of Children Today Act (“PROTECT Act”), Pub. L. No. 108-066, 117 Stat. 650, Apr. 30, 2003, harmonized these programs with the departure provisions of the federal Sentencing Guidelines. More specifically, the PROTECT Act directed the Sentencing Commission to promulgate a statement by October 27, 2003, authorizing downward sentence departures of no more than four levels as part of an early disposition program authorized by the Attorney General and the United States Attorney.  See Pub. L. No. 108-21, § 401(m)(2)(B), 117 Stat. 650, 675 (2003).

This memorandum sets forth the revised policy and criteria for fast-track programs....

On September 22, 2003, then-Attorney General Ashcroft issued a memorandum setting forth the criteria to be used by United States Attorneys’ offices (USAOs) seeking to establish fast-track programs.  Since this memorandum was issued, the legal and operational circumstances surrounding fast-track programs have changed. Fast-track programs are no longer limited to the southwestern border districts; rather, some, but not all, non-border districts have sought and received authorization to implement fast-track programs. The existence of these programs in some, but not all, districts has generated a concern that defendants are being treated differently depending on where in the United States they are charged and sentenced.

In addition, the Sentencing Guidelines are no longer mandatory, and federal courts of appeals are divided on whether a sentencing court in a non-fast-track district may vary downwards from the Guidelines range to reflect disparities with defendants who are eligible to receive a fast-track sentencing discount.  Because of this circuit conflict, USAOs in non-fast-track districts routinely face motions for variances based on fast-track programs in other districts. Courts that grant such variances are left to impose sentences that introduce additional sentencing disparities.  In light of these circumstances, the Department conducted an internal review of authorized fast-track programs.  After consultation with the United States Attorneys in both affected and non-affected districts, the Department is revising its fast-track policy and establishing uniform, baseline eligibility requirements for any defendant who qualifies for fast-track treatment, regardless of where that defendant is prosecuted.

This outcome is consistent with the Department’s position on the Sentencing Guidelines as a means to achieve reasonable sentencing uniformity, and with Attorney General Holder’s memorandum on charging and sentencing, which states that persons who commit similar crimes and have similar culpability should, to the extent possible, be treated similarly....

Districts prosecuting felony illegal reentry cases should implement this new policy no later than by March 1, 2012. This will provide any needed transition, especially for those districts without fast-track programs currently in place.

For those who defend illegal immigration cases, particularly in districts without an authorized fast-track programs and without circuit law blessing fast-track variances, this is huge and great news because it means that defendants there are now potentially eligible for a sentencing discount that was not previously available.  However, for those who were previously able to get the benefit of some looser fast-track policies (which in some districts applied even to non-immigration cases), this memo may actually take away more than it gives.

This important new DOJ memo/policy and its potential ripple effects are too big for me to get my head around right now, in part because immigration offenses make up the largest percentage of the federal criminal docket and in part because fast-track departures have long been the most opaque facet of this docket.  The latest USSC data, for example, reports that in the last fiscal year (FY 2011) there were more than 28,000 federal criminal immigration cases, among which there were more than 7,500 fast-track departures and more than 2,500 variances.  The FY 2011 data also show that there were over 1,400 fast-track departures in non-immigration cases (almost all in drug trafficking cases). 

So, if I fully understand the likely impact of Cole Fast-Track Memo, for FY 2013 when this new policy is fully implemented, we should expect around 10,000 fast-track departures per year in immigration cases and zero fast-track departures in all other kinds of federal criminal cases.  Put another (perhaps more tangible) way, this new Cole Fast-Track Memo will mean 50+ immigration cases and 25+ drug cases each an every week will be processed (and reflected in federal sentencing data) quite differently.  Of course, all of this new case processing might not mean significant changes in final sentences, though big changes in the sentencing process often ends up resulting in at least some important changes in sentencing outcomes.

In subsequent posts, I will comment more on this policy change and praise DOJ for it.  Until then, I would be especially grateful to hear comments from those "on-the-ground" about what they expect this new DOJ memo/policy might mean for federal case processing and federal sentencing policy.

US Sentencing Commission meeting this week to consider guideline amendments

As detailed in this official notice, "a public meeting of the [US Sentencing] Commission is scheduled for Tuesday, January 10, 2012, at 2:00 p.m." And on the official agenda is "Possible Votes to Publish Proposed Guideline Amendments and Issues for Comment."

As reported in this prior post from last summer, the USSC had a lot of high-profile matters on its list of possible priority policy issues for this year's amendment cycle, including continued reviews of the drug and kiddie porn guidelines.   I am not expecting to see any blockbuster amendments being proposed this year, but one never knows.   But I am inclined to predict (and fear) that the USSC may be especially timid this year because of last fall's House hearing in which the Commission got a lot of grief from congressional Republicans.

A few recent related posts:

• US Sentencing Commission provides notice of proposed 2012 priorities
• "Should the USSC publish sentencing data for individual judges?"
• Witnesses identified for House hearing on post-Booker federal sentencing
• Early reactions to the (too) quick House hearing on post-Booker sentencing

"No Change in Sight for Sentencing Guidelines"

The title of this post is the headline of this recent piece by Professor (and former federal prosecutor) Wes Porter appearing in the legal newspaper The Recorder.  Here are excerpts:

The past decade has brought dramatic and progressive change to criminal sentencing in federal court. The continued utility of the United States Sentencing Commission and its sentencing guidelines miraculously survived this change.  The Supreme Court, in its 2005 decision in U.S. v. Booker, rescued the guidelines from obscurity in order to continue to promote the sentencing policy goals of uniformity and proportionality.  However, the next important change needed is the least likely to occur — the Sentencing Commission itself must steward the "evolution" of its guidelines.

District judges routinely reject certain provisions of the guidelines as unhelpful.  The Sentencing Commission must reinvent itself by reshaping its guidelines post-Booker.  To start, the commission should remove the provisions in the guidelines that courts regularly exercise their discretion to disregard.  And examples of routinely disregarded guideline provisions are not hard to find.

For example, the guidelines still require district judges to calculate and consult artificially enhanced punishments based upon often uncharged — and sometimes acquitted — conduct called "relevant conduct."  The guidelines still require courts to consult its recidivism (re-)classifications such as the "career offender" provision.  Here, the judge has all the details of the defendant's criminal history and resulting (already severe) sentencing range, yet the guidelines require the court to consider a more severe sentence because of its recidivism label.  The guidelines still require parties to litigate, and judges to find, whether conduct qualifies for other guideline-created labels, such as whether it is "serious," "violent" or "sophisticated."...

[Since] Booker, district judges generally have embraced the sentencing policy goals, consulted the guidelines and imposed "reasonable" sentences.  Congress fortunately has not attempted to legislate a fix to a sentencing process that is not yet broken.  The federal sentencing process has played out as intended by the Supreme Court and as well as could have been expected for the Sentencing Commission.  Yet, with respect to these unhelpful guideline provisions, district judges are required to make findings about them and consult the resulting calculation, but they then may exercise their discretion to ignore the provisions when imposing a sentence....

Many provisions in the guidelines do not provide any helpful information to the court at sentencing.  Only the resulting calculation is helpful to the court as an "anchoring" reference for its sentence....

There are many explanations for the lower sentences since Booker.  Many believe that the guidelines were skewed too high. Others argue that district judges, particularly guideline-era judges, have gained greater comfort with sentencing discretion and accounting for individual circumstances. The explanation, however, also may reflect the district judges' exercise of their discretion to disregard unhelpful provisions in the guidelines.  The sentencing commission should review these trends and remove generally disregarded provisions of the guidelines to promote continued uniformity and proportionality....

Many provisions in the guidelines involve wholly unhelpful manipulations and recategorizations of information already available to the court.  In fact, certain problematic provisions skew the "anchoring" guideline calculation and mislead the district court's sentencing decision. The Sentencing Commission should endeavor to weed these provisions out of the guidelines....

The Sentencing Commission should appreciate that only a meaningful guideline calculation assists the court when exercising its discretion, and that only a meaningful anchoring reference continues to promote uniform and proportional sentences in federal court.  The anchoring guideline calculation could have sustained meaning in the post-Booker sentencing process if the Sentencing Commission evaluated trends and trimmed the guidelines back.  Without a dramatic change, the post-Booker sentencing process will become increasingly inefficient and largely a waste of time and resources.

Additional written testimony submitted at House Booker hearing

At the tail end of yesterday's hearing of the Subcommittee on Crime, Terrorism, and Homeland Security of the House Judiciary Committee, titled "Uncertain Justice: The Status of Federal Sentencing and the U.S. Sentencing Commission Six Years after U.S. v. Booker," the members of the committee entered into the record submitted written testimony submitted by some public policy groups.  I hope to be able to provide links to all this submitted testimony, and already available at this link is testimony authored by Testimony of Mary Price, the Vice President and General Counsel of Families Against Mandatory Minimums (FAMM).  I believe a number of defense groups also submitted testimony, which I will post if/when I can find it.

UPDATE:  Here is a link to testimony from the ACLU submitted to the house subcommittee.

Some recent related posts about the House hearing:

• Witnesses identified for House hearing on post-Booker federal sentencing
• Webcast of House hearing on federal sentencing after Booker available 
• "Should sentences reflect the will of the public?"
• "Should the USSC publish sentencing data for individual judges?"
• Early reactions to the (too) quick House hearing on post-Booker sentencing

Webcast of House hearing on federal sentencing after Booker available

As reported in this prior post, this morning  the Subcommittee on Crime, Terrorism, and Homeland Security of the House Judiciary Committee is conducting a hearing to examine the post-Booker federal sentencing system.  The hearing is titled "Uncertain Justice: The Status of Federal Sentencing and the U.S. Sentencing Commission Six Years after U.S. v. Booker," and a webcast can be accessed via this calender entry  [Update: Written testimony from the witnesses are now linked here].  I will do a little live-blogging as I follow along.

10:04:  Rep. James Sensenbrenner (R-WI) has begun the hearing and is reading a prepared statement in which he complains at great length about sentencing disparities and says that Booker, in his view, "destroyed the guidelines."  He is also complaining that the US Sentencing Commission has not proposed a "Booker fix" in the last six years, and also complaining about the USSC making its new lower crack guidelines retroactive, and also complaining about the USSC's operating budget going up.

10:06:  Rep. Bobby Scott (D-VA) has begun his opening statement and says that Booker was the fix, not something that needs fixing.  He also is noting that the number of judicial variances from the guidelines went down in the last quarter of FY11 and that prosecutors sponsor and/or do not object to the vast majority of non-guideline sentences.

10:10:  Rep. John Conyers (D-MI) says a few things off the cuff that do little more than make Rick Perry seem eloquent by comparison.

10:20: USSC Chair Judge Patti Saris (very detailed written testimony here) begins witness testimony by stressing how Supreme Court Booker caselaw has impacted federal sentencing.  She says the guidelines exert a "demonstrable gravitation pull" on sentencing, but also says that USSC recognizes "weaknesses" in the advisory guideline system.  Chair Saris says USSC recommends these legislative changes by Congress:

1. Congress should make reasonableness review tougher, especially for non-guideline sentences
2. Congress should clarify statutory directives that are in tension
3. Congress should clarify and codify that guidelines should be given substantial weight

Saris also indicates that three reports are forthcoming from the USSC: one on mandatory minimums, one on child porn sentencing, and one based on the testimony offered today about the post-Booker system.

10:26:  Matthew Miner, White & Case partner (written testimony here), begins his testimony by stressing disparities between sentencing outcomes in Southern and Northern districts of New York.  He urges a "presumptively applicable" guideline system and recognizes that this system needs to comply with Apprendi/Blakely rights and says that it should not be too hard for juries to make special sentencing-related findings. Paraphrasing: "If we can trust juries to make findings in death penalty cases, we can trust them to find aggravating factors for guideline sentencing."  As a first step, making reasonableness review tougher would be a modest reform that would "go a long way" to reducing disparity.

10:31:  William Otis, Georgetown Professor Law (written testimony here), begins his testimony by stressing importance of being a nation of laws, but says sentencing is now not a system of law but "a lottery."  He notes that downward departures, which "favor the criminal," are 20 times more common than upward departures.  He complains that the USSC has "compounded the problem" of Booker by encouraging departures based on offender characteristics, and that it has embraced a system that is "random and watered-down."  

10:36:  James Felman, Kynes, Markman & Felman partner (written testimony here), begins his testimony by saying advisory sentencing system "best achieves" the goals of Sentencing Reform Act.  He stresses that sentences have not gone down since Booker in fraud and child porn cases, but rather have gone up greatly since Booker.  Says Mr. Otis is "incorrect" that the recent trend show continued movement away from guidelines, and he also notes that departures and variances from guidelines are modest.

I will cover follow-up Q & A in a separate post...

Eleventh Circuit weighs in on ex post facto issues after Booker

Though Booker has been the law of the federal sentencing land for more than six years now, the impact of the decision on ex post facto doctrines concerning guideline application remains unresolved in most circuits (and, it seems, under-litigated in most settings).  Today, the Eleventh Circuit weighs in on this issue in US v.  Wetherald, No. 09-11687 (11th Cir. March 28, 2011) (available here).  Here are passages from the opinion:

This court has yet to directly address the ex post facto implications of Booker on the Guidelines.... Nevertheless, while we have not addressed the question as presented in this case, we have affirmed the underlying principles that led to the application of the Ex Post Facto Clause in our pre-Booker opinions.

Our sister circuits have split on the impact of Booker in regards to the Ex Post Facto Clause.  The Seventh Circuit has taken the view that the Ex Post Facto Clause no longer poses a problem, as it applies “only to laws and regulations that bind rather than advise.” United States v. Demaree, 459 F.3d 791, 795 (7th Cir. 2006)...  The D.C. Circuit has squarely rejected this position, finding that the application of a harsher Guidelines range in place at sentencing presents a constitutional problem.  United States v. Turner, 548 F.3d 1094, 1099–1100 (D.C. Cir. 2008)....

Because it is consistent both with our interpretation of Supreme Court precedent and this circuit’s jurisprudence, we find the approach taken by the D.C. Circuit more compelling than that of the Seventh Circuit. It is true that the Guidelines are no longer mandatory, but neither are they without force.  The simple reality of sentencing is that a “sentencing judge, as a matter of process, will normally begin by considering the presentence report and its interpretation of the Guidelines.” Rita v. United States, 551 U.S. 338, 351, 127 S. Ct. 2456, 2465 (2007). As the D.C. Circuit noted, “Practically speaking, applicable Sentencing Guidelines provide a starting point or ‘anchor’ for judges and are likely to influence the sentences judges impose.” Turner, 548 F.3d at 1099.  This starting point serves to cabin the potential sentence that may be imposed, and the Supreme Court has recognized that the appeals courts may presume the reasonableness of a sentence that reflects the district court’s proper application of the Sentencing Guidelines. Rita, 551 U.S. at 347, 127 S. Ct. at 2462. We also have acknowledged that “ordinarily we would expect a sentence within the Guidelines range to be reasonable.” United States v. Talley, 431 F.3d 784, 788 (11th Cir. 2005). Although we have declined to find that a sentence within the Guidelines range is reasonable per se, we have noted that the Guidelines remain “central to the sentencing process” and that “our ordinary expectation still has to be measured against the record, and the party who challenges the sentence bears the burden of establishing that the sentence is unreasonable in the light of both that record and the factors in section 3553(a).” Id. at 787, 788...

Thus, the application of the correct Guidelines range is of critical importance, and it cannot be said that the Ex Post Facto Clause is never implicated when a more recent, harsher, set of Guidelines is employed. But it is equally clear that we need not “invalidate every sentence imposed after a Guidelines range has been increased after the date of the offense.” Ortiz, 621 F.3d at 87.  Rather, we will look to the sentence as applied to determine whether the change created “‘a sufficient risk of increasing the measure of punishment attached to the covered crimes.’” Garner, 529 U.S. at 250, 120 S. Ct. at 1367 (quoting Cal. Dep’t of Corr. v. Morales, 514 U.S. 499, 509, 115 S. Ct. 1597, 1603 (1995)). This standard is consistent with our precedent.  As we said in Kapordelis, “While we have held that the district court must correctly calculate the Guidelines before imposing a sentence, we are not required to vacate a sentence if it is likely that, under the correctly calculated Guidelines, the district court would have imposed the same sentence.” 569 F.3d at 1314.  Therefore, we will only find an Ex Post Facto Clause violation when a district judge’s selection of a Guidelines range in effect at the time of sentencing rather than that at the time of the offense results in a substantial risk of harsher punishment.  This standard recognizes the ongoing importance of the Sentencing Guidelines while maintaining the district court’s broad discretion to consider relevant information in formulating an appropriate sentence.

A few related posts on post-Booker ex post issues (with ruling dates in parentheses):

• Seventh Circuit holds ex post facto no longer applicable to guideline changes after Booker (2006)
• DC Circuit produces crisp split on ex post issues after Booker (finally!!) (2008)
• Fourth Circuit rules that Ex Post Facto Clause still limits application of new advisory guidelines (2010)
• A notable district court opinion on the post-Booker ex post facto issue (2010) 

Show me the role reversal when sentencing guidelines are more lenient

Anyone familiar with advocacy and debate surrounding federal sentencing knows that federal prosecutors are frequently extolling the virtue of sentencing guidelines and that defense attorenys are frequently excoriating the guidelines.  Though the prosecutors claim they are fans of crime-based consistency and defenders claim they are eager for consideration of individual circumstances, what really seem to be driving the advocacy and debate is how relatively severe the sentences are set under the federal guidelines for most crimes.

Some new proof that debates over the virtues and vices of guidelines are really driven by views about sentence severity and leniency is emerging from the Show Me state these days.  This local article, headlined "Missouri overhauling controversial sentencing guidelines," spotlights the role reversal in who is articulating which talking points about sentencing guidelines when the guidelines seem to be too lenient rather than too tough in most cases:

The Missouri Legislature requires the Missouri Sentencing Advisory Commission to figure averages of actual sentences every year for every possible crime, and from those to calculate ranges of "recommended sentences."

State Supreme Court Judge Michael Wolff, who heads the commission, has appointed a subcommittee to review the process. The results could be small tweaks to the 175-page sentencing guide or a complete overhaul. "The subcommittee can take a fresh look at it and make sure we're presenting information in the sentencing process that will be helpful for the judge," Wolff said.

For years, many Missouri prosecutors have called guidelines "meaningless" and "a waste of resources." They say the system is unfair because officials lump categories of crimes together, and some crimes are not charged often enough to make a meaningful calculation.

The guidelines do not take into account when a defendant is convicted of multiple crimes at the same time, critics say, and they never call for the maximum sentence allowed by law. "There is simply no way to provide for enough variables in any recommendations that make it meaningful in sentencing," said Zahnd, the Platte County prosecutor.

St. Louis Circuit Attorney Jennifer Joyce said she has been against the guidelines since getting elected more than a decade ago. "Each case needs to be evaluated on its own merits," she said. "There is no formula that is going to ensure that justice is done."

She offered the example of Tyran Hubbard, who pleaded guilty in 2007 in St. Louis Circuit Court of forcible rape and sodomy.  He had raped and beaten a female college student at gunpoint in her apartment, was interrupted attempting a similar crime less than a week later and eventually was arrested lurking near apartments where many college students live.  The guidelines recommended 12 years in prison. Judge Timothy J. Wilson gave Hubbard 30 years.

The guidelines do have supporters, who argue that the information empowers judges and sets realistic expectations for people not familiar with the judicial process.  St. Louis Public Defender Mary Fox said that defense attorneys often highlight recommended sentences when advocating for their clients.  "They're reasonable," Fox said. "They are a good starting point; then a judge has to take a look at each case individually."  Fox said the guidelines took into account plenty of factors — including criminal history, education, age and employment.

Wolff, the Supreme Court judge, said data showed that 90 percent of Missouri sentences end up within the recommended range.  He said only 5 percent of defendants were sent to prison when the guidelines recommended probation.

"This is just a piece of information about what judges are doing in the whole, not what ought to happen in any given cases," Wolff said. "We make it clear that the judge is free to give a more harsh or lenient sentence within the statutes." He added, "You can argue from any individual case that a recommendation seems too lenient."

James McConnell, the prosecutor in Shelby County, who will serve on the subcommittee, said the debate usually came over violent or sex crimes.  He said there was not much disagreement about sentences for property crimes.  Some lawmakers have proposed eliminating recommendations for the most serious crimes, McConnell said. "Those are the ones in which most of the time prosecutors don't think they make sense," he explained.

As federal sentencing fans know, it is the prosecutors in the federal system who generally argue that the federal guidelines provide a reasonable sentencing starting point, and it is the defense attorney who are heard to complain that no formula can ensure sentencing justice.  But, in Missouri, since the starting points provided by the state advisory guidelines are more to the defense's liking, we instead get the roles reversed and the state defenders are defending guidelines against (over-stated) attacks by state prosecutors.

Debate across the pond on sentencing and sentencing guidelines

A helpful reader sent me this interesting story from The Times, which is headlined "Sentencing Council: judges told that justice is safe from ‘tramline’ sentencing."  The piece is intrguing not only because it details the recent history of sentencing reform efforts in the UK, but also because it echoes the recent history and debate over US federal sentencing law and policy.  Here is how the piece begins:

It must be the toughest judicial brief going: tasked with overseeing sentencing in England and Wales, when prisons are full to bursting and there is no money to build any more.  But Lord Justice Leveson is firm about one thing: “I have not considered this as a brief to produce guidelines that are going to reduce the prison population.”

Leveson, 60, a senior Court of Appeal judge, took on the role in April of chairing the new Sentencing Council.  It has a far-reaching remit to issue guidelines and monitor the impact and cost of sentencing changes.  But he insists: “There is nothing in the legislation that requires us to have regard to resources — although ... we must spell out the resource implications of changes in sentencing practice, of new guidelines or legislation.  But we will still do what we think is right.”

The council of eight judges and six lay members will have a key input into government penal policy.  Ironically, the original plan was quite the opposite: politicians hoped to secure some control over judges’ sentencing practice.

It was concern about rising prison numbers that prompted ministers to set up an inquiry into how they could secure a better match of supply and demand in the prison system.  The report, from Lord Carter of Coles, led to a working group under Lord Justice Gage being asked to examine the American “grid” model — a tick-box approach that would have tightly fettered judicial discretion.  The idea was firmly rejected.

Instead, the Sentencing Council was proposed, to replace the old Sentencing Guidelines Council and Sentencing Advisory Panel.  But the change is not just one of name and streamlining.  For a start, judges “must follow” the sentencing guidelines, not just “take account of” as before.

Judges bristled.  How can this be squared with their independence and freedom to tailor sentences to the crime?  Leveson insists that it can; and that judges are now sanguine about the change.  “Guidelines are not tramlines.  The Coroners and Justice Act 2009 gives judges the freedom not to follow the guidelines where that is not in the interests of justice.”

What, then, will the new council achieve?  “I want to see a consistent approach to sentences — from Bristol to Birmingham, Bolton to Basildon.  I want people to feel confident with the courts system by providing clear information on how people are sentenced.”

Judges do not always make clear that the guideline is the default starting point, he says. That needed spelling out; and better reporting of the reasons for a sentence by the media.  To this end, he plans to gather data in the shape of feedback from judges.  A pilot scheme has started in four Crown Court centres.  The task is huge — the council has economists and statisticians but the prize, in terms of future targeting of resources, “could be substantial”.

I think I may have to make "guidelines are not tramlines" my new sentencing reform mantra.

Fourth Circuit rules that Ex Post Facto Clause still limits application of new advisory guidelines

In an interesting and thoughtful new split ruling, the majority of a panel of the Fourth Circuit has today ruled in US v. Lewis, No. 09-4343 (4th Cir. March 27, 2010) (available here), that the Ex Post Facto Clause still limits the authority of district courts to rely on newer, more severe, now-advisory federal sentencing guidelines. Here is how this important new opinion begins:

Derrick E. Lewis appeals from his conviction and sentence in the Eastern District of Virginia for unlawful possession of a firearm by a convicted felon, in contravention of 18 U.S.C. § 922(g)(1).  After Lewis committed the offense of conviction, but before he was sentenced, the Sentencing Guidelines were amended to include a higher base offense level for the offense, resulting in an advisory Guidelines range that was nearly double that calculated under the Guidelines in effect at the time of his offense.  After determining that application of the amended 2008 Guidelines would contravene the Ex Post Facto Clause of the Constitution, the district court applied the 2005 Guidelines in effect at the time of the offense of conviction. See United States v. Lewis, 603 F. Supp. 2d 874 (E.D. Va. 2009).  The Government has appealed from the court’s Ex Post Facto Clause ruling. Lewis has cross-appealed, contending that the court erred in denying his motion to suppress the firearm underlying his conviction.  As explained below, we reject both contentions and affirm.

And here is how the Lewis opinion frames the debate on this issue and explains its basic ruling:

In 2005, however, the Booker decision of the Supreme Court rendered the Guidelines advisory. See United States v. Booker, 543 U.S. 220, 245 (2005).  Post-Booker, the courts of appeals have disagreed on whether the Ex Post Facto Clause prohibits a sentencing court from retroactively applying severity-enhancing Guidelines amendments. In United States v. Turner, the D.C. Circuit recognized this disagreement and ruled that such retroactive application contravenes the Ex Post Facto Clause. See 548 F.3d 1094, 1100 (D.C. Cir. 2008).  Two years earlier, the Seventh Circuit had concluded, in United States v. Demaree, that the Ex Post Facto Clause does not bar retroactive application of severity-increasing Guidelines amendments.  See459 F.3d 791, 795 (7th Cir. 2006). Although we have previously recognized this circuit split, we have not had occasion to rule on the issue. See, e.g., United States v. Rooks, 596 F.3d 204, 214 n.11 (4th Cir. 2010).

Because the Guidelines represent the crucial "starting point," as well as the "initial benchmark," for the regimented sentencing process employed by the sentencing courts within this Circuit, see Gall v. United States, 552 U.S. 38, 49 (2007), an increased advisory Guidelines range poses a significant risk that a defendant will be subject to increased punishment.  Accordingly, as explained below, we join the D.C. Circuit in concluding — as did the district court — that the retroactive application of severity-enhancing Guidelines amendments contravenes the Ex Post Facto Clause.  See Turner, 548 F.3d at 1100.

Intriguingly, Chief District Judge Joseph Goodwin dissents from this part of the panel's ruling, and his thoughtful dissenting opinion starts this way:

Although I agree with my colleagues on the motion to suppress issue, I cannot join the ex post facto aspect of the majority opinion.  The majority holds that the retroactive application of a revised Sentencing Guideline range that results in a higher recommended sentence violates the Constitution’s ex post facto prohibition.  In so doing, the majority ignores the reality that the Guidelines lack legal force.  It also creates a constitutional contradiction by ignoring the Sixth Amendment implications of treating the Guidelines as anything more than advisory.  Therefore, I respectfully dissent.

If the government decides to appeal this ruling to the Supreme Court (and I am not sure that it will, at least not until after perhaps trying to take this matter en banc), I think a cert grant would be pretty likely. 

Interesting discussion of the rule of lenity's application to advisory guidelines

A helpful reader alerted me to a very interesting concurring opinion authored by Judge Pryor (joined by Judge Fay) in the Eleventh Circuit's decision in US v. Wright, No. 09-12685 (11th Cir. May 26, 2010) (available here).  The decision talks through the interplay of the rule of lenity and guideline application.  Here is how Judge Pyror's opinion gets started:

I concur fully in the majority opinion.  I agree that we have no occasion to apply the rule of lenity in this appeal because section 4A1.2(k)(1) of the Sentencing Guidelines is unambiguous, but I write separately to explain why I doubt the rule of lenity should play any role in our interpretation of advisory Sentencing Guidelines.

Departure patterns as a guide to whether guidelines are balanced

This effective local article about judicial departure rates from Virginia's state sentencing guidelines provides a terrific reminder about what judicial decisions can tell us about balances (and imbalances) in an advisory sentencing system.  Here are some statistical snippets from the article:

According to the Virginia Criminal Sentencing Commission’s 2008 annual report, judges in the 16th Circuit sentenced criminals in felony cases within sentencing guidelines 76.9 percent of the time.  They strayed from sentencing guidelines for more serious consequences in 13.7 percent of 642 cases while opting for lighter sentences in 9.3 percent.

In fiscal 2007, 16th Circuit judges followed the guidelines for 80.6 percent of 568 total cases. The judges in the circuit ... chose more severe sentences 8.8 percent of the time and lighter sentences 10.6 percent of the time....

The most recent commission report also detailed statewide compliance to sentencing guidelines in certain crimes.  Judges across Virginia stuck to sentencing guidelines 63.4 percent of the time in 232 total homicide cases, choosing more serious sentences 21.6 percent of the time and less severe sentences 15.1 percent of the time. 

Morris said he wasn’t surprised that judges strayed from the guidelines more often in violent crimes.  “That is where judges are really considering punishment and removing the person from the community for a lengthy period of time,” Morris said.

Of the 551 sexual assault cases in fiscal 2008, 20.5 percent of sentences were higher than the guidelines suggested, while 13.2 percent were lower than the recommendation. However, 22.8 percent of 202 total rape cases had less severe sentences, while 8.9 percent of sentences were more severe. Officials explained that disparity might have to do with the number of charges that falls into the sexual assault category, potential factual issues in rape cases and certain factors, such as age, that can worsen the recommended sentences.

In fiscal 2008, judges stuck to the guidelines more often in fraud, high abuse-risk drug and larceny cases, with 84.5 percent, 83.3 percent and 82.8 percent in compliance, respectively.

These data (as well as those reflected in the chart reprinted here) showcase that Virginia state judges are, generally speaking, as likely to find a guideline-recommended sentence to be too lenient as too harsh.  In sharp contrast, in the federal system, sentencing judges are roughly 10 times more likely to sentence below the guidelines than above the guidelines.  (In drug trafficking case, this ratio goes even higher; judges conclude that the federal guideline range is too harsh roughly 20 times more often than they conclude the federal guideline range is too lenient.)

Though a perfectly equal amount of upward and downward departures does not necessarily shows that a guideline system is perfectly balanced, a departure pattern like what we see in Virginia seems much sounder than what we see in the federal system.  And, what is especially troubling is that, both before and after Booker, despite departure patterns suggesting the federal guidelines are already way too harsh, the vast majority of US Sentencing Commission guideline amendments call for making the guidelines even harsher.

Crunching the numbers on a presumption of reasonablenss

I was very pleased to learn of this new article on SSRN, which examines empirically the impact of the presumption of reasonableness for within-guideline sentences.  The article by Alex Robbins and Lynda Lao is entitled "The Effect of Presumptions: An Empirical Examination of Inter-Circuit Sentencing Disparities After United States v. Booker," and here is the full abstract:

In the two years since United States v. Booker, the circuits have divided over how to use the Federal Criminal Sentencing Guidelines when reviewing sentences imposed by district courts. Seven circuits have held that a sentence within the Guidelines range is entitled to a presumption of reasonableness on appeal; five have held that it is not.  Although the Supreme Court's recent holding in Rita v. United States allows the courts of appeals to adopt a presumption of reasonableness for within-Guidelines sentences, it does not require them to, and so the circuit split remains.

Using this circuit split as a natural experiment, we undertake what we believe to be the first statistically robust analysis of the effect of a presumption of reasonableness on sentences imposed at the federal district court level.  Specifically, using 145,047 individual-level observations recorded by the United States Sentencing Commission (comprising all recorded federal sentences in all twelve circuits for a one-year period beginning in November 2004 and ending in October 2006), we perform a multivariate regression analysis to determine how a circuit's adoption or rejection of a presumption of reasonableness for within-Guidelines sentences affects the frequency with which district courts impose below-Guidelines sentences.  We find that a circuit's adoption of a presumption of reasonableness decreases the frequency of below-Guidelines sentences by less than one percent, although this result is statistically significant.

Our results do not, however, robustly support the inverse hypothesis that a circuit's rejection of a presumption of reasonableness increases the frequency of below-Guidelines sentences. The effect of such a rejection is insignificant when we control for circuit-specific fixed effects, and appears to be driven almost entirely by the particular behavior of the Second Circuit.  Finally, we are similarly unable to find robust empirical support for the hypothesis that intercircuit differences in sentencing after Booker can be explained simply by a circuit's underlying characteristics.

Alabama legislature approves voluntary guidelines

As detailed in this article, after a very long reform process, the "Alabama Legislature gave final approval Thursday to three bills supported by Gov. Bob Riley to reform Alabama's sentencing procedures and help ease overcrowding in state prisons."  Specifically, the "key bill in the package would provide judges with a voluntary list of recommended sentences for various crimes."   I found this passage in the article especially interesting:

The sponsor of the legislation, Rep. Marcel Black, D-Tuscumbia, said the purpose of the bill setting voluntary sentencing guidelines was so that a person convicted of committing a crime in one part of the state will receive a similar punishment as a person convicted of the same crime in a different area.  But Black said judges will still have the option to give a lenient sentence or a harsher sentence when needed.  "Every theft case is not the same.  Every murder case is not the same," Black said.

Perhaps we might encourage state representative Black to take a meeting with federal representative Sensenbrenner (who apparently does not quite see the virtues of judicial discretion).

Alabama sentencing reform moving forward

As detailed in articles here and here, the "Alabama House passed eight bills Tuesday in a package supported by Gov. Bob Riley to reform Alabama's sentencing procedures and help ease overcrowding in state prisons."  A basic list of the reforms in these bills is available here.  The Alabama Sentencing Commission, which recommended these bills, has a lot more details about these reforms at this webpage and in this legislative pamphlet.

One bill provides for the adoption of voluntary sentencing guidelines.  Here is how the Alabama Sentencing Commission describes the bill in its legislative pamphlet:

In compliance with the directives included in the Sentencing Reform Act of 2003, this bill proposes adoption of voluntary sentencing standards for 26 felony offenses. These sentencing recommendations are historically based voluntary, non-appealable sentence recommendations developed for personal, property and drug crimes, representing 87% of all felony convictions and sentences imposed in Alabama over a five year period.  The recommended sentence ranges and dispositions for the covered offenses are in lieu of the wider ranges under existing statutory law and provide uniform sentencing recommendations for trial court judges in sentencing convicted felons. These standards, which are voluntary, address both the length of sentences and the disposition of the offender (probation, intermediate alternative or prison).

Notably, proposals for the adoption of voluntary guidelines have been making the rounds for a few year, but Alabama prison overcrowding crisis seems to have finally pushed the reform forward.  A few months ago, a state Task Force on Prison Crowding released this report which suggested enactment of these guidelines was key to dealing with the prison overcrowding problem.

Notable new paper on voluntary guidelines

Thanks to this post at the Legal Theory Blog, I see an interesting new paper at SSRN about state sentencing systems and voluntary guidelines (topics which are also addressed in the latest FSR issue about Blakely in the states).  Authored by John Pfaff, and available for download here, the new paper is entitled "The Continued Vitality of Structured Sentencing Following Blakely: The Effectiveness of Voluntary Guidelines."  Here is the abstract:

This Article explores the extent to which voluntary, non-binding criminal sentencing guidelines influence the sentencing behavior of state trial judges. In particular, it focuses on the ability of such guidelines to encourage judges to sentence consistently and to avoid improperly taking into account a defendant's race or sex. It also compares such guidelines to more-binding presumptive guidelines, which were recently found constitutionally impermissible in Blakely v Washington.

In general, the results indicate that voluntary guidelines are able to accomplish much, though not all, that presumptive guidelines were able to, especially with respect to sentence variation.  For example, voluntary guidelines appear to reduce a measure of variation in sentence length by as much as 28% for violent crimes and 17% for property crimes. By comparison, the analogous results for presumptive guidelines are a 48% drop for violent crimes and a 45% drop for property crimes. For the use of impermissible factors, the results are more ambiguous.  Presumptive guidelines appear in general to be slightly more effective than voluntary, but not consistently, and voluntary guidelines still appear to reduce the role of race and sex at sentencing; due to limitations in the data used for this project, however, it is difficult to draw clear inferences about the welfare implications of the changes with regards to the use of impermissible factors.

Furthermore, voluntary guidelines appear to avoid some of the problems associated with other alternatives, such as sentencing juries and the increased use of mandatory minimums.  In short, voluntary guidelines appear to be a viable, albeit somewhat less effective, alternative to presumptive guidelines in the wake of Blakely.

Problems in Indiana with advisory fix

This morning brings this interesting AP story from Indiana concerning the state's decision to respond legislatively to Blakely issues by converting its mandatory sentencing system into an advisory system.  In the piece, Prof. Joel Schumm is quoted calling "the new law, which took effect in April, 'a pretty enormous setback' that undid decades of work toward making sentences fairer."  And:

The new law could expose judges to extreme pressure to impose harsher sentences in line with the wishes of victims and their families, Schumm said.  "To be honest with you, I think it could mean a lot more appeals and a lot longer sentences," he said.

The article also quotes lawyer Michael Ausbrook, of INCourts fame.  The piece is headlined "Sentencing law may increase appeals; Change is called 'enormous setback.'"  But for sentencing insiders who would understand the references, a more fitting title might be, "States should be wary of fixing Blakely with Booker."

I wonder how Virginia would assess Martha Stewart's risk

Two interesting news items today from east coast posts almost cry out to be merged: this story from the New York Post reports that the "feds are investigating whether former jailbird Martha Stewart violated the rules of her house arrest when she attended a Time magazine gala last week," while this story from the Washington Post reports that Virginia is set to expand the use of its controversial "risk assessment" instrument to "help figure out whether criminals who violate the terms of their probation should be sent back to prison for years or diverted to lower-security detention centers for several months."

Reading the stories in sequence led me to wonder what Martha might score on Virginia's risk assessment measures.  My guess is that all white-collar offenders do pretty well within Virginia's risk assessment instrument (and I think this sample worksheet from Virginia might be similar to what would be used to "score" Martha). 

Needless to say, the NY Post treats the Martha story with levity (quoting comedian Jon Stewart), while the Wash Post treats the Virginia story with gravitas (quoting Virginia sentencing commission director Rick Kern).  Meanwhile, Ellen Podgor over at the White Collar Crime Prof Blog in this post raises some interesting questions about the Martha story.

Topical highlights from Day 2 of the USSC hearings

Rather than provide testimony highlights as I did here for USSC hearing day 1, I thought it might be more beneficial to spotlight some of the biggest topical issues developed during the second day and throughout all the hearings.  Though I urge review of the testimony linked here for a more thorough account of issued covered, here are just a few of the topics still spinning in my mind after the hearings.

1. The collection and presentation of post-Booker data: As stressed in this prior post, everyone is focused on the importance of district courts providing, and the USSC effectively analyzing, post-Booker data.  But a number of Commissioners astutely asked about how the data ought to be parsed.  Especially important, as a number of folks noted, was how cases involving a variance from the guidelines are coded, assessed and publically discussed.

2. The availability and nature of appeals: A few witnesses, including Robert McCampbell representing DOJ, suggested that the appellate review provisions of 3742 are still to be read to mean that sentences within the guidelines after Booker are not subject to appeal for general reasonableness (though, of course, the guideline calculations could still be challenged for all the "old" reasons).  This important and interesting issue of when appeals are even authorized will, I suspect, need to be litigated in the months ahead.  Relatedly, all the state sentencing witnesses noted that no jurisdiction with true advisory guidelines has any track-record with appellate review.  Thus, the federal guidelines are in uncharted territory with advisory guidelines with appeals, and everyone at the hearings could only begin to suggest what reasonableness review will come to look like.

3.  The substantial substantial assistance problem: A number of folks addressed how 5K1.1 departures will operate in an advisory system, and McCampbell suggested that the loss of the leverage which facilitated truly effective cooperation in a mandatory system was DOJ's biggest worry.  More than a few witnesses suggested different small ways to address try to address this matter, and I think it will be an area to be watching very closely in the weeks ahead.

Taking stock of advisory guideline systems

With Booker making advisory guidelines a reality in the federal system, a careful examination of our modern experiences with advisory systems are in order.  As detailed in this post, the  Federal Sentencing Reporter will soon be publishing a timely article entitled on "Advisory Guidelines in the Post-Blakely Era," authored by the executive directors of two sentencing commissions involved in the development of advisory guideline system.  Relatedly, Adam Liptak has this thoughtful article today in the New York Times examining the operation of advisory guideline systems in the states.

In addition, because I am about to do a Chicago public radio show with University of Chicago Professor Albert W. Alschuler, I was reminded that Professor Alschuler was among the first to forcefully advocate advisory guidelines as the right federal response to Blakely (the original draft of Al's article is available here).  Reviewing that pre-Booker article this morning, which is To Sever or not to Sever? Why Blakely Requires Action by Congress, 17 Federal Sentencing Reporter 11 (Oct 2004), I was terrifically amused by this wonderfully ironic paragraph in its introduction:

This commentary proposes a sentencing system that courts could not implement without Congressional action — one in which judges would be guided but not bound by sentencing guidelines, in which they would impose determinate sentences not subject to adjustment by a parole board, and in which their sentences would be subject to appellate review for reasonableness and proportionality. Id. at 11 (emphasis added).

Obviously, though Al might be exactly right about the value of advisory guidelines, he was apparently wrong, thanks to Justice Breyer and the remedial majority, that his proposed solution could not be implemented witout Congressional action.