Sentencing Law and Policy

"Plea Agreements and Suspending Disbelief"

The title of this post is the title of this new essay authored by Sam Merchant and available via SSRN. Here is its abstract:

This Essay explores the traditional view that judges exercise broad discretion at sentencing after Booker.  Around 98% of cases are resolved through guilty pleas, and at least 71% of those cases involve binding or nonbinding plea agreements, many of which stipulate to an exact sentence, guideline, or range. Parties sometimes collaborate to ensure that sentences fit within confabulated guideline ranges, and when a sentence falls within a guideline range, the U.S. Sentencing Commission never systematically collects data on the judge's reasons for the sentence.  The absence of meaningful data on judges' reasons for two-thirds of federal sentences prevents thorough analysis of whether those sentences fulfill the intended purposes of punishment.

This Essay contributes new data on plea agreements for sentences within guideline ranges and suggests that parties drive more of federal sentencing than previously acknowledged.  Judges' apparent complicity, particularly post-Booker, gives those sentences the cathartic gloss of Article III, maintaining a peculiar but potentially necessary framework of fictions in federal sentencing.

A last call for papers: Federal Sentencing Reporter issue on "Booker at 20"

In this prior post a couple of months ago, I set out the full call for papers for a forthcoming (early 2025) issue of the Federal Sentencing Reporter in which we will note (and celebrate? criticize?) the federal sentencing system's 20 years of functioning under the rules created by the Supreme Court's ruling in Booker.  As noted there and in subsequent posts, the "soft" deadline for receiving drafts for this FSR issue is this week (though we may have a bit of flexibility).  For full effect, here is a full reprint of the original call:

The US Supreme Court's January 2005 decision in United States v. Booker ushered in a new era for federal sentencing.  Through a dual set of dueling 5-4 opinions, Booker made the guidelines “effectively advisory,” rather than “mandatory,”  after the Court concluded that judicial fact-finding to increase mandatory guideline ranges violated the Fifth and Sixth Amendments.   The Court’s opinion essentially invited Congress to rework the federal sentencing system in the wake of this ruling, but the Booker advisory guideline system has proved remarkably durable: the mandatory guideline system was operational for 16 years, but we are now approaching the 20th anniversary of Booker and the advisory guideline system it created.

Though constitutionally and functionally a sea change, the Booker ruling has seemingly had a relatively limited effect on sentence severity and reliance on imprisonment in the federal system.  Data from the US Sentencing Commission reveal that in fiscal year 2003, the last full year of data before the disruptions of Booker and its predecessor ruling in Blakely v. Washington, just over 69,000 persons were sentenced in federal courts, with nearly 87% receiving a prison term and with the average prison term being 48 months.  Data from fiscal year 2023, the latest full year of federal sentencing data assembled by the Commission, indicate that just over 64,000 persons were sentenced in federal courts with nearly 93% receiving a prison term and with the average prison term being 52 months.  The relative consistency of federal sentencing outcomes in the Booker era is striking, especially given that Congress enacted two notable sentence-reducing statutes in this period through the Fair Sentencing Act of 2010 and the First Step Act of 2018.

Still, sentencing below guideline ranges has increased significantly in the Booker era, and lawyers and sentencing judges now place greater emphasis on the statutory sentencing factors of 18 USC § 3553(a) and relatively less emphasis on guideline particulars.  Data from FY 2023 indicate that only 42% of sentences are imposed within the guideline range, though the same Commission data reveal that the guidelines continue to exert a kind of gravitational pull on sentence lengths even though not regularly followed.  And, of course, Booker did not directly impact the force of statutory mandatory minimums, which still shape and cast shadows on plea bargaining and other aspects of the federal sentencing process. 

Nearly 20 years have passed since Booker, and the editors of the Federal Sentencing Reporter are eager to invite judges, lawyers, other sentencing practitioners, legal academics, and sentencing researchers, to share thoughts on “Booker at 20” for publication in an early 2025 FSR issue.  FSR commentaries for this issue could tackle foundational issues (such as the Court’s ruling in Booker and follow-up cases), discrete application issues (such as why certain advisory guidelines are more likely to be followed or ignored), institutional concerns (such as how Congress and the Commission and the Justice Department have responded to Booker), or any other topic of interest or concern to modern federal sentencing policy and practice.  FSR welcomes commentaries from all perspectives, including insights from sentencing experiences (with or without guidelines) in the states and other countries.  Everyone with an informed interest in sentencing law and practice is encouraged to submit a commentary.

FSR articles are typically brief — 2000 to 5000 words, though they can run longer — with relatively light use of citations.  The pieces are designed to be read by busy stakeholders, including lawyers, judges, scholars, and legislators (as well as, of course, members and staff of the US Sentencing Commission).  Priority will be given to drafts submitted by May 28, 2024, and later submissions will be considered as space permits.  Submissions should be sent electronically to [email protected] with a clear indication of the author and the author’s professional affiliation.

Not-quite-last call for papers: Federal Sentencing Reporter issue on "Booker at 20"

In this prior post, I set out the full call for papers for a forthcoming issue of the Federal Sentencing Reporter in which we plans to note (and celebrate? criticize?) the federal sentencing system's 20 years of functioning under the rules created by the Supreme Court's ruling in Booker.  As detailed below, the "soft" deadline for receiving drafts for this FSR issue is next week (though we may have a bit of flexibility depending on the number of submissions).  So, though I expect the true last call for submissions will be next week, anyone planning to submit a draft that migth need a little extra time should eb sure to let me know of their plans.  And, for full effect, here are some of the specifics of the call:

Nearly 20 years have passed since Booker, and the editors of the Federal Sentencing Reporter are eager to invite judges, lawyers, other sentencing practitioners, legal academics, and sentencing researchers, to share thoughts on “Booker at 20” for publication in an early 2025 FSR issue.  FSR commentaries for this issue could tackle foundational issues (such as the Court’s ruling in Booker and follow-up cases), discrete application issues (such as why certain advisory guidelines are more likely to be followed or ignored), institutional concerns (such as how Congress and the Commission and the Justice Department have responded to Booker), or any other topic of interest or concern to modern federal sentencing policy and practice.  FSR welcomes commentaries from all perspectives, including insights from sentencing experiences (with or without guidelines) in the states and other countries.  Everyone with an informed interest in sentencing law and practice is encouraged to submit a commentary.

FSR articles are typically brief — 2000 to 5000 words, though they can run longer — with relatively light use of citations.  The pieces are designed to be read by busy stakeholders, including lawyers, judges, scholars, and legislators (as well as, of course, members and staff of the US Sentencing Commission).  Priority will be given to drafts submitted by May 28, 2024, and later submissions will be considered as space permits.  Submissions should be sent electronically to [email protected] with a clear indication of the author and the author’s professional affiliation.

Calling once more for papers: Federal Sentencing Reporter issue on "Booker at 20"

In this prior post, I set out the full call for papers for a forthcoming issue of the Federal Sentencing Reporter in which we plans to note (and celebrate? criticize?) the federal sentencing system's 20 years of functioning under the rules created by the Supreme Court's ruling in Booker.  I previously threatened to repost this call every few weeks until the deadline tard the near end of May, so a mid-May re-post on a Monday seems like good timing.  I will forego all the background about Booker in this reminder call and be content with these shortened specifics:

Nearly 20 years have passed since Booker, and the editors of the Federal Sentencing Reporter are eager to invite judges, lawyers, other sentencing practitioners, legal academics, and sentencing researchers, to share thoughts on “Booker at 20” for publication in an early 2025 FSR issue.  FSR commentaries for this issue could tackle foundational issues (such as the Court’s ruling in Booker and follow-up cases), discrete application issues (such as why certain advisory guidelines are more likely to be followed or ignored), institutional concerns (such as how Congress and the Commission and the Justice Department have responded to Booker), or any other topic of interest or concern to modern federal sentencing policy and practice.  FSR welcomes commentaries from all perspectives, including insights from sentencing experiences (with or without guidelines) in the states and other countries.  Everyone with an informed interest in sentencing law and practice is encouraged to submit a commentary.

FSR articles are typically brief — 2000 to 5000 words, though they can run longer — with relatively light use of citations.  The pieces are designed to be read by busy stakeholders, including lawyers, judges, scholars, and legislators (as well as, of course, members and staff of the US Sentencing Commission).  Priority will be given to drafts submitted by May 28, 2024, and later submissions will be considered as space permits.  Submissions should be sent electronically to [email protected] with a clear indication of the author and the author’s professional affiliation.

Call (again) for papers: Federal Sentencing Reporter issue on "Booker at 20"

In this prior post a couple of weeks ago, I set out a call for papers for a forthcoming issue of the Federal Sentencing Reporter to note (and celebrate? criticize?) the federal sentencing system's 20 years of functioning under the rules created in Booker.  I plan to repost this call every few weeks until the deadline thoward the end of May.  So:

The US Supreme Court's January 2005 decision in United States v. Booker ushered in a new era for federal sentencing.  Through a dual set of dueling 5-4 opinions, Booker made the guidelines “effectively advisory,” rather than “mandatory,”  after the Court concluded that judicial fact-finding to increase mandatory guideline ranges violated the Fifth and Sixth Amendments.  The Court’s opinion essentially invited Congress to rework the federal sentencing system in the wake of this ruling, but the Booker advisory guideline system has proved remarkably durable: the mandatory guideline system was operational for 16 years, but we are now approaching the 20th anniversary of Booker and the advisory guideline system it created.

Though constitutionally and functionally a sea change, the Booker ruling has seemingly had a relatively limited effect on sentence severity and reliance on imprisonment in the federal system.  Data from the US Sentencing Commission reveal that in fiscal year 2003, the last full year of data before the disruptions of Booker and its predecessor ruling in Blakely v. Washington, just over 69,000 persons were sentenced in federal courts, with nearly 87% receiving a prison term and with the average prison term being 48 months.  Data from fiscal year 2023, the latest full year of federal sentencing data assembled by the Commission, indicate that just over 64,000 persons were sentenced in federal courts with nearly 93% receiving a prison term and with the average prison term being 52 months.  The relative consistency of federal sentencing outcomes in the Booker era is striking, especially given that Congress enacted two notable sentence-reducing statutes in this period through the Fair Sentencing Act of 2010 and the First Step Act of 2018.

Still, sentencing below guideline ranges has increased significantly in the Booker era, and lawyers and sentencing judges now place greater emphasis on the statutory sentencing factors of 18 USC § 3553(a) and relatively less emphasis on guideline particulars.  Data from FY 2023 indicate that only 42% of sentences are imposed within the guideline range, though the same Commission data reveal that the guidelines continue to exert a kind of gravitational pull on sentence lengths even though not regularly followed.  And, of course, Booker did not directly impact the force of statutory mandatory minimums, which still shape and cast shadows on plea bargaining and other aspects of the federal sentencing process.  

Nearly 20 years have passed since Booker, and the editors of the Federal Sentencing Reporter are eager to invite judges, lawyers, other sentencing practitioners, legal academics, and sentencing researchers, to share thoughts on “Booker at 20” for publication in an early 2025 FSR issue.  FSR commentaries for this issue could tackle foundational issues (such as the Court’s ruling in Booker and follow-up cases), discrete application issues (such as why certain advisory guidelines are more likely to be followed or ignored), institutional concerns (such as how Congress and the Commission and the Justice Department have responded to Booker), or any other topic of interest or concern to modern federal sentencing policy and practice.  FSR welcomes commentaries from all perspectives, including insights from sentencing experiences (with or without guidelines) in the states and other countries.  Everyone with an informed interest in sentencing law and practice is encouraged to submit a commentary.

FSR articles are typically brief — 2000 to 5000 words, though they can run longer — with light use of citations in the form of endnotes.  The pieces are designed to be read by busy stakeholders, including lawyers, judges, scholars, and legislators (as well as, of course, members and staff of the US Sentencing Commission).  Priority will be given to drafts submitted by May 28, 2024, and later submissions will be considered as space permits.  Submissions should be sent electronically to [email protected] with a clear indication of the author and the author’s professional affiliation.

Call for Papers: Federal Sentencing Reporter issue on "Booker at 20"

The US Supreme Court's January 2005 decision in United States v. Booker ushered in a new era for federal sentencing.  Through a dual set of dueling 5-4 opinions, Booker made the guidelines “effectively advisory,” rather than “mandatory,”  after the Court concluded that judicial fact-finding to increase mandatory guideline ranges violated the Fifth and Sixth Amendments.   The Court’s opinion essentially invited Congress to rework the federal sentencing system in the wake of this ruling, but the Booker advisory guideline system has proved remarkably durable: the mandatory guideline system was operational for 16 years, but we are now approaching the 20th anniversary of Booker and the advisory guideline system it created.

Though constitutionally and functionally a sea change, the Booker ruling has seemingly had a relatively limited effect on sentence severity and reliance on imprisonment in the federal system.  Data from the US Sentencing Commission reveal that in fiscal year 2003, the last full year of data before the disruptions of Booker and its predecessor ruling in Blakely v. Washington, just over 69,000 persons were sentenced in federal courts, with nearly 87% receiving a prison term and with the average prison term being 48 months.  Data from fiscal year 2023, the latest full year of federal sentencing data assembled by the Commission, indicate that just over 64,000 persons were sentenced in federal courts with nearly 93% receiving a prison term and with the average prison term being 52 months.  The relative consistency of federal sentencing outcomes in the Booker era is striking, especially given that Congress enacted two notable sentence-reducing statutes in this period through the Fair Sentencing Act of 2010 and the First Step Act of 2018.

Still, sentencing below guideline ranges has increased significantly in the Booker era, and lawyers and sentencing judges now place greater emphasis on the statutory sentencing factors of 18 USC § 3553(a) and relatively less emphasis on guideline particulars.  Data from FY 2023 indicate that only 42% of sentences are imposed within the guideline range, though the same Commission data reveal that the guidelines continue to exert a kind of gravitational pull on sentence lengths even though not regularly followed.  And, of course, Booker did not directly impact the force of statutory mandatory minimums, which still shape and cast shadows on plea bargaining and other aspects of the federal sentencing process.  

Nearly 20 years have passed since Booker, and the editors of the Federal Sentencing Reporter are eager to invite judges, lawyers, other sentencing practitioners, legal academics, and sentencing researchers, to share thoughts on “Booker at 20” for publication in an early 2025 FSR issue.  FSR commentaries for this issue could tackle foundational issues (such as the Court’s ruling in Booker and follow-up cases), discrete application issues (such as why certain advisory guidelines are more likely to be followed or ignored), institutional concerns (such as how Congress and the Commission and the Justice Department have responded to Booker), or any other topic of interest or concern to modern federal sentencing policy and practice.  FSR welcomes commentaries from all perspectives, including insights from sentencing experiences (with or without guidelines) in the states and other countries.  Everyone with an informed interest in sentencing law and practice is encouraged to submit a commentary.

FSR articles are typically brief — 2000 to 5000 words, though they can run longer — with light use of citations in the form of endnotes.  The pieces are designed to be read by busy stakeholders, including lawyers, judges, scholars, and legislators (as well as, of course, members and staff of the US Sentencing Commission).  Priority will be given to drafts submitted by May 28, 2024, and later submissions will be considered as space permits.  Submissions should be sent electronically to [email protected] with a clear indication of the author and the author’s professional affiliation.

Noting how carceral craziness and foolhardy finality fixations result in cases like Tarahrick Terry's

As highlighted in this post following this past week's SCOTUS oral argument, the questions from the Justices strongly suggest that the Supreme Court will soon rule that Tarahrick Terry is not entitled to seek a resentencing under the FIRST STEP Act provision making the Fair Sentencing Act retroactive.  Over at SCOTUSblog, Ekow Yankah has this effective review of the Terry argument which spotlights a portion I found especially notable toward the end:

One dissonant note came late in the morning, when Justice Brett Kavanaugh embarked on an extended exchange with Mortara.  Rather than a sharp set of questions, Kavanaugh ruminated on, among other things, the history that led to the sentencing regime Congress sought to fix.  He recalled the 1986 death of college-basketball star Len Bias from a cocaine overdose that shocked the nation and brought cocaine use squarely into the spotlight.  Recalling that Bias was only a year older than him and that he looked up to him, Kavanaugh (himself an avid basketball player and coach) mused that Bias’ death had motivated congressional action to impose harsher penalties on cocaine use, noting only casually that Bias died after using powdered cocaine.  It was, to this observer, a cringe-worthy moment of naivete; to draw a clear path from the traumatizing death of Bias to harsher punishment of crack cocaine is to ignore a sea of racial politics.  Len Bias’s death did not lead Congress to hammer down on Wall Street bankers doing coke.

Yankaw is right to spotlight generally how ugly racial realities were largely ignored throughout the Terry argument.  But even more "cringe-worthy" has been the way Congress, the US Sentencing Commission, the Department of Justice and the courts have created and sustained crazy carceral approaches to drug offenses for many decades even as the illogic, inefficacy and injustice of lengthy federal prison sentences in response to drug issues have been so plainly evident.  Apologies for a bit of a rant, but what follows is actually a reserved accounting of what strikes me a stunningly ugly (and still continuing) example of systemic injustice. 

For starters, what basis did Congress have back in 1986 to think that harsh mandatory minimum prison sentences for any drugs (let alone for crack) would be a sound and sensible way to respond to either the overdose death of a basketball superstar or societal concerns about a new drug problem?  The history of alcohol Prohibition certainly is not a rousing tale of the efficacy of criminal justice responses to substance use, and racial disparities in other drug panics have marked US policies and practices for eons.  Moreover, not long before in 1970, as noted in this article, Congress repealed most drug mandatories with then-Texas Rep. GHW Bush saying doing so would result in "better justice and more appropriate sentences."  

Critically, the carceral craziness of the Anti-Drug Abuse Act of 1986 goes even further than Congress deciding to re-embrace federal mandatory minimum provision for drug offenses.  Congress in 1986 had the even crazier idea to tether its harsh prison mandatory minimums to precise drug quantities rather than to offense role or violent acts or any other sounder sentencing factors.  And Congress further decided that just five grams of crack cocaine — the weight of a single nickel — would be enough to trigger five mandatory years in federal prison (while a full pound of the same stuff in powder form would not).       

As I highlighted in this recent post, in 1991 the US Sentencing Commission wrote a lengthy report to Congress detailing how misguided and racially disparate all mandatory minimum provisions were in operation; in 1995, the USSC wrote another report documenting the extreme racial disparities resulting from the 100-1 crack/powder ratio.  I had the honor in 1995 to still be clerking for Second Circuit Judge Guido Calabresi who wrote at that time in United States v. Then, 56 F.3d 464 (2d Cir. 1995), that, if Congress failed to respond to the USSC's expert analysis, "equal protection challenges based on claims of discriminatory purpose might well lie" or the USSC's reports "might nonetheless serve to support a claim of irrationality." Id. at 468 (Calabresi, J., concurring).

Aggravatingly, Congress did not do anything to address the 100-1 ratio for 15 more years until the Fair Sentencing Act of 2010, during which time tens of thousands of disproportionately black persons received disproportionately severe statutory and guideline sentences for crack offenses.  Critically, the USSC, the DOJ, and the courts ought also be faulted for carceral craziness in this period: the USSC refused for over a decade to even try to change the crack guidelines while awaiting congressional action, the DOJ (under both Prez Clinton and Prez Bush) was generally opposition to any major sentencing reforms, and courts consistently rejected any and all challenges to this racially disparate and irrational sentencing structure. 

Interestingly, the Booker case merits mention in this history not because it happened to be a crack case, but because some federal judges started using their new post-Booker discretion to do better in crack cases and the USSC advanced some modest (but still meaningful) crack guideline amendments as a result.  But, tellingly, DOJ still largely opposed district judges going below the crack guidelines after Booker (which required SCOTUS to issue the important Kimbrough decision), and many district judges still readily and regularly sentenced within the severe 100-1 crack guidelines even after Booker and Kimbrough made clear that they had broad authority to effectuate the USSC's expert analysis that the crack guidelines produced racial disparities and generally recommended prison terms that were much "greater than necessary." 

Of course, in August 2010, we finally get the Fair Sentencing Act from Congress.  Notably, the FSA did not unwind the key carceral craziness of tethering harsh mandatory prison minimums to precise drug quantities, nor did it provide for treating crack and powder offenses similarly.  Rather the FSA simply says it now takes 28 grams grams of crack — the weight of five quarters — to trigger five mandatory years in federal prison (though a full pound of the same stuff in powder form sill will not).  The US Sentencing Commission amends the crack guidelines downward accordingly as instructed by the FSA, and thankfully the federal sentencing world gets just a little bit less carceral crazy going forward for some crack cases. 

But even as the carceral craziness recedes a bit after the FSA of 2010, foolhardy finality fixations kick into high gear.  Notably, as noted in this post, international human rights law generally provides that, when legislators pass a new law to lighten sentences, offenders have a right to benefit from it retroactively.  But the Obama Justice Department argues in 2010 that federal law required that even crack defendants who had not yet been sentencing when the FSA was enacted still had to be subject to the 100-1 ratio for pre-FSA conduct even through everyone agreed that pre-FSA sentences for crack were unfair, excessive, ineffectual and produced extreme racial disparities.  The Supreme Court in the 2012 Dorsey case — by only a 5-4 margin — decides sentencing courts did not have to keep applying a misguided and suspect sentencing scheme in these pipeline cases.  But all the while the USSC, the DOJ and the courts all readily accept that nobody should get any retroactive benefit from the FSA statutory change simply because Congress did not say expressly that it wanted people still in prison still enduring the 100-1 ratio's carceral knee on their necks to have a chance to argue they should get to sooner breathe the air outside prison walls.           

Critically, as just suggested, retroactivity of lower crack sentences (or any other sentencing changes) in the federal system has never been automatic.  Persons in prison, even if permitted under applicable laws to get to court for resentencing, generally have to prove to a judge that public safety concerns and other equities weigh in favor of a lower sentence.  That is, for Tarahrick Terry and so many others, they are not actually arguing for resentencing, they are arguing that they should just have a chance to argue for discretionary resentencing.  In a law review article some years ago, "Re-Balancing Fitness, Fairness, and Finality for Sentences," I contend it ought to be a lot easier for a defendant to get access to court seeking resentencing because "the conceptual, policy, and practical reasons [that may justify] limiting review and reconsideration of final convictions are not nearly as compelling when only sentences are at issue."  I find it so frustrating discretionary resentencing for crack offenders remains so contested even when each and every federal policy-maker in the three branches of the federal government — Congress, the Prez and his Justice Department, and the US Sentencing Commission — have all expressly and formally declared that all 100-1 ratio pre-FSA crack prison sentences were unfair, excessive, ineffectual and produced extreme racial disparities.

Of course, Congress voted almost unanimously for the FIRST STEP Act, which is a huge bill designed to help reduce a lot of federal sentences and which included a provision making the Fair Sentencing Act retroactive.  But, given the SCOTUS argument in Terry, it appears that because Congress did not use just the precise kind of magic words in that statutory provision, the lowest level of all crack offenders are to be categorically excluded from securing even a chance to argue for resentencing.  Sigh.  Injustice must sometimes be one of those turtles going all the way down as carceral craziness and foolhardy finality fixations persist circa 2021.  There are some heartening indications that we all know we can and should be doing a lot better in federal sentencing and elsewhere, but Terry is perhaps a useful reminder that the myriad sentencing and racial injustices of the past are never dead, and they are not even past.

Prior recent related posts on Terry:

• Federal defendant in Terry with many notable friends urging broad application of crack retroactivity provision of FIRST STEP Act
• Acting SG tells SCOTUS that new administration now supports broad application of crack retroactivity provision of FIRST STEP Act in Terry
• Terry v. US, the final SCOTUS argument of Term, provides yet another reminder of the persistent trauma and drama created by the 100-1 crack ratio
• SCOTUS argument in Terry suggests low-level crack defendant unlikely to secure resentencing based on FSA retroactivity 

"The Federal Sentencing Guidelines: Some Valedictory Reflections Twenty Years After Apprendi"

The title of this post is the title of this notable new paper authored by Frank O. Bowman III now available via SSRN. Here is its abstract:

In this contribution to the North Carolina Law Review's symposium on the twentieth anniversary of the Supreme Court's decision in Apprendi v. New Jersey, I offer a valedictory reflection on my own intellectual journey with sentencing reform and in particular with the Federal Sentencing Guidelines.

The account begins with my first encounters with the Guidelines when I was a zealous Assistant U.S Attorney, continues through my transition to teacher, scholar, policy advocate, and occasional sentencing consultant, and foreshadows a conclusion with me in the role of disillusioned curmudgeon muttering about might-have-beens as I shuffle towards my dotage.

The utility, if any, of these musings will lie partly in the fact that I have been up to my neck in Guidelines minutia for thirty years, but mostly in the fact that I have felt obliged to change my mind as events and experience challenged my previous convictions.  Some reconstruction of the evolution of my thinking as the Guidelines arose, failed, and died, but then achieved an enduring afterlife as law that is not really law at all, may be of modest use when the time finally comes to build something truly new.

"The Sixth Amendment Sentencing Right and Its Remedy"

The title of this post is the title of this notable new paper authored by Carissa Byrne Hessick and now available via SSRN.  Here is its abstract:

The Sixth Amendment sentencing doctrine recognizes the right to a jury trial of facts that increase criminal sentences.  The doctrine has had only a minimal effect on sentencing because subsequent cases crafting a remedy largely undermined the right.  The remedial cases have undermined the Sixth Amendment sentencing right in three notable ways: (1) by repeatedly refusing to recognize that district courts possess an unfettered power to sentence based on nothing more than a policy disagreement; (2) by encouraging appellate court judges to review sentences in a manner that is designed to curtail district court discretion; and (3) by refusing to require district court judges to engage in any independent sentencing analysis.  Although the Supreme Court has justified its remedy by reference to historical sentencing practices, these three choices in its remedial cases represent significant departures from historical practice.  What is more, the current remedy fails to vindicate the interests protected by the Sixth Amendment — the liberty interests of criminal defendants and democratic input into individual criminal cases.  Until and unless the Court revisits its remedial decisions, the Sixth Amendment sentencing right will continue to be little more than a meaningless formalism.

US Sentencing Commission issues big new report on "The Influence of the Guidelines on Federal Sentencing: Federal Sentencing Outcomes, 2005–2017"

I am pleased to see that the United States Sentencing Commission is continuing to release notable data reports despite being an incomplete agency due to the absence of confirmed commissioners for years.  Today brings this notable new publication, clocking in at nearly 100 pages, titled "The Influence of the Guidelines on Federal Sentencing: Federal Sentencing Outcomes, 2005–2017."  Here is this reports "Key Findings": 

In this report, the Commission analyzes the difference between average guideline minimums and average sentences imposed.  These differences, measured in a raw number of months and average percentage difference, are analyzed for all cases in the aggregate and selected individual guidelines across three time periods between 2005 and 2017: the Booker, Gall, and Post-Report Periods.  While the extent of those differences vary depending on the individual guideline, the Commission found several overarching trends indicating that the guidelines generally continue to have a substantial influence on sentences imposed after Booker.

• In the wake of Booker and Gall and continuing into the Post-Report Period, the difference between the average guideline minimum and average sentence imposed widened for the federal caseload overall, indicating that the influence of the guidelines generally decreased after Booker rendered them advisory.  However, this trend has not continued in the most recent years of the Post-Report Period, suggesting that the influence of the guidelines may have stabilized.

• The influence of the guidelines continued to vary substantially depending on the type of offense throughout the Post-Report Period.  As indicated by the difference between the average guideline minimum and average sentence imposed, the guidelines continued to exert a strong influence on sentences imposed in firearms and illegal reentry offenses, a more moderate influence on sentences imposed in fraud and drug offenses, and a weakening influence in non-production child pornography offenses and career offender cases.

• Major amendments by the Commission to the drug trafficking and illegal reentry guidelines appear to have strengthened their influence during the most recent years of the Post-Report Period.  The difference between the average guideline minimum and average sentence imposed for these two guidelines narrowed after the Commission reduced the Drug Quantity Table by two offense levels in 2014 and comprehensively revised the illegal reentry guideline in 2016.

• The guidelines generally exert a greater influence on sentences imposed in cases in which judicial discretion could be meaningfully assessed.  Excluding cases in which judicial discretion could not be meaningfully assessed narrowed the difference between the average guideline minimum and the average sentence imposed for the federal caseload overall, and for all but one individual offense type studied, across every time period studied.  This narrowing was largely attributable to the exclusion of cases with substantial assistance departures, which resulted in an average sentence reduction of 51.8 percent.  Sentence reductions for substantial assistance require a government motion and afford substantial weight to the government’s evaluation.

In short form, and at the risk of being too flip or summary about these findings, I take this all to mean that the USSC has through its data analysis found: (a) federal judges generally follow the less-crazy-severe guidelines somewhat more than the more-crazy-severe guidelines, AND (b) when the USSC finally gets around to amending the guidelines to make some of the more-crazy-severe guidelines a bit less crazy-severe, judges are inclined to follow those guidelines a bit more.  Oh, and (c) we really have no clear idea what the heck may be going on when prosecutors exercise their discretionary sentencing powers through substantial assistance departures (since, I assume, the DOJ shares no information with the USSC about the decision-making of federal prosecutors).

Another notable cert petition providing the new Justices (and older ones) another chance to look at reasonableness review of federal sentences

In this post a few years ago, I flagged an interesting cert petition while asking in my post title "Now a full decade after Rita, Gall and Kimbrough, do any Justices still care about reasonableness review?".  That post from April 2018 stemmed from my frustration with the US Supreme Court's seeming disinterest in examining how reasonableness review of federal sentences was functioning in the circuits.  For years and years, judges, scholars and 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. 

As long-time readers likely know, I have long been particularly troubled by the so-called "presumption" of reasonableness permitted by Rita v. US, 551 U.S. 338 (2007), which has largely functioned as a problematic, un-rebuttable, safe-harbor for within-guideline sentences even in settings where the US Sentencing Commission's data and analysis demonstrate the obvious unreasonableness of certain guideline provisions.  But, over these oh-so-many-years of excessive federal sentences, my grumpiness over the failure of SCOTUS to take up reasonableness review anew has largely turned to resignation and acceptance of the fact that the Justices were just not that into the issue.

But perhaps hope should spring eternal, especially with Carissa Hessick flagging a new cert petition in this extended PrawfsBlawg post titled "Supreme Court Weighs Whether to Hear Possible Sentencing Law Blockbuster."  Here are excerpts (and links) from Carissa's post:

This Friday, the Supreme Court will decide whether to grant certiorari in Demma v. United States.  Demma raises two questions under the Supreme Court’s Sixth Amendment sentencing doctrine: (1) the extent to which judges can sentence outside of the Federal Sentencing Guidelines based only on a policy disagreement with the Guidelines, and (2) how much appellate courts must defer to the substantive sentencing decisions of district court judges....

Both of the legal questions raised by the Demma petition are important.  And frankly, I am surprised that the Supreme Court has yet to resolve them in favor of district court discretion to sentence outside of the Guidelines.  I suspect that the Court hasn’t clarified these issues because it wants judges to impose Guidelines sentences in most cases.  And while the Court’s Sixth Amendment sentencing doctrine doesn’t allow the Court to accomplish that directly, it has tried to do so indirectly through allowing the courts of appeals to take different approaches on these questions.

But I find that decision — the decision to allow different legal standards for sentencing — troubling.  The Supreme Court ordinarily prides itself on resolving legal disagreements between the circuits.  And it seems especially ironic to allow different courts of appeals to have different legal standards when it comes to sentencing.  After all, the remedial majority in Booker said that it was creating an advisory Guidelines system because it wanted to promote uniformity in sentencing.  Different legal standards in different circuits is hardly likely to lead to uniformity.

And we don’t have sentencing uniformity right now.  Instead we have sentencing practices that vary wildly depending on the circuit.  Because different circuits have different sentencing case law, judges in some circuits are far more likely to sentence outside of the Guidelines than judges in other circuits.... 

The chances that the Court will grant cert in Demma look pretty good.  The Court called for a response from the Solicitor General (who had initially waived response).  The Court also relisted the petition after an earlier conference.

I really hope that the Justice vote to grant cert in this case.  And I hope that they resolve these questions in a way that vindicates the Sixth Amendment right that they first acknowledged in Apprendi.

Give the Supreme Court's long history of dodging many reasonableness review issues for now more than a dozen years, I am a bit fearful of the statement that the "chances that the Court will grant cert in Demma look pretty good."  But as the title of this post hints, I am hopeful that the newer members of the Court, Justices Gorsuch and Kavanaugh, who had to grapple with reasonableness review issues during long tenures as circuit judges, might now be eager to help further define the contours of reasonableness review. 

In the end, though, I suspect Justice Breyer is always a critical Justice on this front, as he both created reasonableness review with his remedial opinion in Booker and defined its essential form in Rita.  If Justice Breyer's voice and vote on these matters carry some extra weight, those of us eager to see the full Court take up reasonableness review might need to root for him to be eager to tackle these issues yet again. 

Some (of many, many) older related posts about reasonableness review:

• Another reminder that substantive reasonableness review has very little bite (from Feb 2019)
• As Booker enters its adolescence, do we really know much of substance about substantive reasonableness review? (from Sept 2018)
• Now a full decade after Rita, Gall and Kimbrough, do any Justices still care about reasonableness review? (from April 2018)
• Is there much to — or much to say about — reasonableness review a decade after Rita, Gall, and Kimbrough? (from July 2017)
• Has anyone formally calculated exactly how very few federal sentences are found unreasonable? (from March 2014)
• "More than a Formality: The Case for Meaningful Substantive Reasonableness Review" (from Jan 2014)
• "Doing Kimbrough Justice: Implementing Policy Disagreements with the Federal Sentencing Guidelines" (from Feb 2013)
• Making a full-throated pitch for SCOTUS to again address reasonableness review (from May 2012)
• New scholarship complaining that reasonableness review is now quite unreasonable (from March 2010)

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.

SCOTUS unanimously clarifies (in narrow way) that no special words are needed to preserve substantive reasonableness review

In this post when cert was granted in Holguin-Hernandez last June, I rejoiced because it has been nearly a decade since SCOTUS has said anything significant about reasonableness review.  But, recognizing that the case concerned only an appellate procedural issue, I was prepared for the ultimate ruling to be a narrow one.  And this morning in Holguin-Hernandez v. United States, No. 18–7739 (S. Ct. Feb. 26, 2020) (available here), the Justices through a unanimous opinion said about as little as possible while ruling for the defendant.  Here are some key excerpts from Justice Breyer's opinion for the Court, with my favorite and least favorite passages bolded (and lots of cites removed):

Congress has instructed sentencing courts to impose sentences that are “‘sufficient, but not greater than necessary, to comply with’” (among other things) certain basic objectives, including the need for “just punishment, deterrence, protection of the public, and rehabilitation.” Dean v. United States, 581 U.S. ___, ___ (2017)... If the trial court follows proper procedures and gives adequate consideration to these and the other listed factors, then the question for an appellate court is simply, as here, whether the trial court’s chosen sentence was “reasonable” or whether the judge instead “abused his discretion in determining that the §3553(a) factors supported” the sentence imposed....

Judges, having in mind their “overarching duty” under §3553(a), would ordinarily understand that a defendant [advocating for a shorter sentence] was making the argument (to put it in statutory terms) that the shorter sentence would be “‘sufficient’” and a longer sentence “‘greater than necessary’” to achieve the purposes of sentencing. Nothing more is needed to preserve the claim that a longer sentence is unreasonable.

We do not agree with the Court of Appeals’ suggestion that defendants are required to refer to the “reasonableness” of a sentence to preserve such claims for appeal.  The rulemakers, in promulgating Rule 51, intended to dispense with the need for formal “exceptions” to a trial court’s rulings....  The question is simply whether the claimed error was “brought to the court’s attention.” Rule 52(b).  Here, it was.

The Court of Appeals properly noted that, to win on appeal, a defendant making such a claim must show that the trial court’s decision was not “reasonable.” Gall, 552 U.S., at 56.  But that fact is not relevant to the issue here.  Our decisions make plain that reasonableness is the label we have given to “the familiar abuse-of-discretion standard” that “applies to appellate review” of the trial court’s sentencing decision. Id., at 46 (emphasis added); ... The substantive standard that Congress has prescribed for trial courts is the “parsimony principle” enshrined in §3553(a).  Dean, 581 U.S., at ___ (slip op., at 4).  A defendant who, by advocating for a particular sentence, communicates to the trial judge his view that a longer sentence is “greater than necessary” has thereby informed the court of the legal error at issue in an appellate challenge to the substantive reasonableness of the sentence.  He need not also refer to the standard of review.

The Government and amicus raise other issues.  They ask us to decide what is sufficient to preserve a claim that a trial court used improper procedures in arriving at its chosen sentence.  And they ask us to decide when a party has properly preserved the right to make particular arguments supporting its claim that a sentence is unreasonably long.  We shall not consider these matters, however, for the Court of Appeals has not considered them.  We hold only that the defendant here properly preserved the claim that his 12-month sentence was unreasonably long by advocating for a shorter sentence and thereby arguing, in effect, that this shorter sentence would have proved “sufficient,” while a sentence of 12 months or longer would be “greater than necessary” to “comply with” the statutory purposes of punishment. 18 U.S.C. §3553(a).

I am pleased to see that this decision clarifies, yet again, that district judges under Booker are duty-bound to impose sentences that are "sufficient, but not greater than necessary, to comply with" statutory requirements.  A full 15 years after Booker, more than a few courts still talk about their obligation to impose a "reasonable" sentence even though this is an appellate standard of review.  Kudos to SCOTUS for stressing in this case that "the substantive standard that Congress has prescribed for trial courts is the 'parsimony principle' enshrined in §3553(a)."

But I am displeased to see that this decision refuses to address any other reasonableness review issues.  I respect the Court's decision to be circumspect in a case only raising a small issue, but there are thousands of sentence appeals each year that could benefit from additional clarity about how reasonableness review should proceed and how various issues are properly (or improperly) preserved.

Interestingly, and perhaps not surprisingly, Justice Alito (joined by Justice Gorsuch), feels compelled to write a short concurring opinion in order "to emphasize what we are not deciding."  His opinion asserts that "the plain-error rule serves many interests" and he suggests that there are many ways even after Holguin-Hernandez to apply this limited review standard to various sentencing claims on appeal.

Oregon discovering it might have Apprendi problems with its new first-degree murder sentencing provisions

A helpful reader alerted me to this interesting article from Oregon, headlined "New law throws true life sentence in doubt for MAX train killer Jeremy Christian, other murderers, experts say," which highlights that states are still struggling with the modern meaning of the Sixth Amendment a full two decades since Apprendi v. New Jersey.  Here are the details:

Now that a Portland jury has found Jeremy Christian guilty of the first-degree murders of two men on a MAX train, many people might assume that -- given the horrific nature of his crimes -- he’ll end up serving the rest of his life with the possibility of never being released.  Think again.

A growing chorus of legal experts say they believe there’s a glaring flaw in Oregon’s new first-degree murder law that effectively eliminates the possibility that Christian and other convicted murderers in the future will end up serving “true life” prison terms.

Critics say the new law, passed last summer as Senate Bill 1013, is unconstitutional and vague.  They say it disregards two landmark U.S. Supreme Court decisions that invalidate the procedure laid out in the law for handing down true life sentences.  In a flurry of paperwork filed Monday, Christian’s lawyers told Multnomah County Circuit Judge Cheryl Albrecht that given the law’s constitutional problems, her only remaining option under the law is to sentence Christian to life in prison with the possibility of release after 30 years.

Other lawyers representing first-degree murder defendants across Oregon are beginning to make similar arguments, as the first batch of accused killers head toward trials since the law took effect Sept. 29.  Defense attorneys aren’t the only ones pointing to a problem. “In the prosecution community, there’s considerable concern,” said former prosecutor Josh Marquis. “It’d be naive to say this is some idle speculation.”...

He said few lawyers are aware of the impact that the Supreme Court cases -- Apprendi v. New Jersey in 2000 and Blakely v. Washington in 2004 -- have on true life in Oregon....  The Supreme Court rulings require a jury, not a judge, to decide on an elevated prison sentence, such as true life, critics of SB 1013 say.  And criteria -- or specific questions asked of jurors -- must be laid out by the law before the jury can hand down the harsher sentence, they say.

The problem with Oregon’s law is that it grants sentencing powers solely to a judge and doesn’t include sentencing criteria.  As a result, retired Multnomah County prosecutor Norm Frink believes there’s “a high degree of probability” that the Oregon Supreme Court will overturn true life sentences for defendants convicted of first-degree murder....

The uncertainty over how the law will affect the first batch of defendants found guilty of first-degree murder is beginning to play out in courtrooms across the state.  In Christian’s case, Albrecht could go along with the law as stated and decide to sentence him to true life by simply giving what the law calls “the reasons” she thinks he deserves that sentence.

But Albrecht appears to recognize a problem with this because, after jurors found Christian guilty last week, she asked them to return to court Tuesday and Wednesday.  She plans to ask them questions about Christian that will help her decide his sentence.

In court filings Monday, prosecutors came up with their own suggestions for what she should ask, including: Is there a high probability that Christian can’t be rehabilitated? Were his crimes fueled by “unreasonable racial and religious bias”? Has Christian shown remorse for plunging the knife into the necks of the three men?

Tuesday, defense attorney Greg Scholl cautioned the judge that she is stepping onto shaky ground. “There’s nothing in the statute that says this is how they (jurors) are supposed to do it," Scholl said. “We’re operating in a new and somewhat gray area," prosecutor Jeff Howes responded.  Howes said just because SB 1013 doesn’t lay out a process for the judge and jury, that doesn’t mean the judge can’t create a process that is constitutional.  Regardless of how Albrecht handles this, Christian’s attorneys are likely to appeal whatever process she devises....

Outside Portland, other Oregon judges also have been grappling with what to do.  In November, a Hillsboro jury found Martin Allen Johnson guilty of first-degree murder in the killing of a 15-year-old girl whose body washed up on the banks of the Columbia River more than 20 years ago.

Using suggestions from prosecutors, Washington County Circuit Judge Eric Butterfield also came up with a list of questions for jurors.  Among them was whether the defendant knew he was preying on a particularly vulnerable person and if prior punishment in the criminal justice system had deterred him from reoffending.  Butterfield then sentenced Johnson to true life.  Johnson is appealing.

In Linn County, Brenton Wade Richmond faces a double murder trial in the shooting deaths of his ex-girlfriend and her new boyfriend in her home in 2019.  Wade’s defense attorney asked Circuit Judge David Delsman to prevent the prosecution from seeking true life because of what they see as the first-degree murder law’s many constitutional issues.

Lawyers for the Oregon Department of Justice, however, have weighed in, saying in court filings that the true life option is legal and valid.  Sen. Floyd Prozanski, the Eugene Democrat who chairs the Senate Judiciary Committee, said he wasn’t aware of the deep concerns some critics have over the validity of the law’s true life option for first-degree murder. His committee backed the bill.  “Well, that’s their opinion, their interpretation,” said Prozanski, who is a municipal prosecutor and handles misdemeanor cases.  “I had not heard that.  And I will say that the law is pretty clear... The intent was not to do away with what’s called true life.”

The new law causing all this trouble appears in bold here, and it says in one section that the "court shall" impose a 30-to-life term and in the next section that "the court may sentence the person to life imprisonment without the possibility of parole."  That next section then provides that the "court shall state on the record the reasons for imposing the sentence." 

I understand the Sixth Amendment worry with this statutory scheme which seems to require that "reasons" be given for an elevated "true life" sentence.  But, ironically, because the statute does not specify what "reasons" are required for the elevated "true life" sentence, I think an argument might be made that the Oregon statute requires only reasoned judgment, not discreet fact-finding, to justify the higher sentence and thus does not create Sixth Amendment problems.  (In a 2006 article titled, "Conceptualizing Booker," I developed the argument that broad judicial power at sentencing can be justified if and only when judges are exercising reasoned judgment.)

US Sentencing Commission releases new report on "Inter-District Differences in Federal Sentencing Practices"

As reported via this USSC webpage, the US Sentencing Commission has this morning released this big new report under the full title "Inter-District Differences in Federal Sentencing Practices: Sentencing Practices Across Districts from 2005 - 2017." Here is a summary and key finding from the USSC's webpage:

This report is the third in a series of reports. It examines variations in sentencing practices—and corresponding variations in sentencing outcomes—across federal districts since the Supreme Court’s 2005 decision in United States v. Booker.

The Commission’s ongoing analysis in this area directly relates to a key goal of the Sentencing Reform Act of 1984: reducing unwarranted sentencing disparities that existed in the federal judicial system. In particular, the Act was the result of a widespread bipartisan concern that such disparities existed both regionally (e.g., differences among the districts) and within the same courthouse. Having analyzed the differences within the same courthouse in its Intra-City Report, the Commission now turns in this report to examining regional differences since Booker....

Key Findings

While the extent of differences in sentencing practices vary depending on the specific primary guideline, the overarching trends indicate that, consistent with the findings of the Commission’s 2012 Booker Report, sentencing outcomes continue to depend at least in part upon the district in which the defendant is sentenced. In particular, the Commission finds that:

• Variations in sentencing practices across districts increased in the wake of the Supreme Court’s 2005 decision in Booker.  These inter-district sentencing differences have persisted in the 13 years after Booker and six years after the Commission’s 2012 analysis.

• Sentencing differences increased for each of the four major offense types analyzed (fraud, drug trafficking, firearms related offenses, and illegal reentry) during the Gall Period.  This trend continued for some, but not all, of the four offense types in the six years following the last period analyzed in the Commission’s 2012 Booker Report.

• Guideline amendments intended to promote uniformity by addressing judicial concerns regarding severity have had an inconsistent impact on inter-district disparity.  Specifically, despite multiple significant revisions to the drug trafficking guideline, including the two-level reduction of the base offense level for all drugs, districts increasingly diverged in their sentencing practices for drug trafficking offenders.  However, the comprehensive amendment to the illegal reentry guideline contributed to increasing uniformity in sentencing practices in the Post-Report Period.

• Certain districts have consistently sentenced more — or less — severely in relation to the guideline minimums than other districts, both over time and across offense type.

I am already looking forward to finding time to review and assess this latest big report from the USSC. But I cannot help but note at the outset that detailed data work which focuses almost exclusively on sentencing differences without any detailed discussions of sentencing severity or sentencing efficacy seems largely out of sync with the current political and policy criminal justice concerns expressed by both public officials and advocates.

Prior related post:

• Seeking guest postings for "Reflections on Booker at 15" 
• Recalling on-going work of the US Sentencing Commission as I continue to troll for "Reflections on Booker at 15"

Recalling on-going work of the US Sentencing Commission as I continue to troll for "Reflections on Booker at 15"

In this post last weekend, I noted (1) that it is now a full 15 years since the Supreme Court (not-so-)radically transformed the federal sentencing system through its ruling in Booker v. United States, and (2) that it seems I may be one of the few to now note (or even realize) that we have passed another big milestone in the history of the federal sentencing system.  Though I have not yet received any "Reflections on Booker at 15" in response to my prior post, a reliable source reminded me that the US Sentencing Commission has an on-going series of reports that serve to update the system-wide Booker analysis that the USSC completed in its reports to Congress in 2006 and 2012.

To aid review and reflections, here are links to the USSC's 2006 and 2012 Booker reports and to its notable follow-up work from the last few years:

1. Report on the Impact of United States v. Booker on Federal Sentencing (March 2006).

2. Report on the Continuing Impact of United States v. Booker on Federal Sentencing (December 2012)

3. Demographic Differences in Sentencing: An Update of the 2012 Booker Report  (November 2017)

4. Intra-City Differences in Federal Sentencing Practices (January 2019)

The same reliable source told me that the Commission is nearing completion on another post-Booker report to be released shortly (and this report will also outline other on-going USSC work in this arena).  If this new Commission report ends up having some provocative findings, perhaps there will be some notable "Booker at 15" talk in the offing.

Prior related post:

• Seeking guest postings for "Reflections on Booker at 15" 

Seeking guest postings for "Reflections on Booker at 15"

On this day 15 years ago, January 12, 2005, the Supreme Court (not-so-) radically transformed the federal sentencing system through its ruling in Booker v. United States.  I noted in this post exactly five years ago that Booker received very fanfare when it turned 10 in January 2015, so I suppose I am not surprised that it seems I may be one of the few to now highlight (or even realize) that today marks another big milestone in the history of the federal sentencing system.

I am inclined to call year 15 the biggest birthday for Booker because, prior to the ruling, the federal sentencing guidelines operated  as a "mandatory" or "presumptive" sentencing system for roughly 15 years from 1989 to 2004.  Then along came Blakely v. Washington and Booker finding this mandatory system constitutionally flawed and "fixing" the problem by making the guidelines "effectively advisory."  Notably, the US Sentencing Commission in November 2004, right between the Blakely and Booker rulings, released this 250-page report titled "Fifteen Years of Guidelines Sentencing: An Assessment of How Well the Federal Criminal Justice System is Achieving the Goals of Sentencing Reform."  I am not aware of any big forthcoming report from the USSC with any assessment of fifteen years of advisory guideline sentencing, though I think it could be very valuable for the USSC and others to reflect at length (and with lots of data) on what fifteen years of advisory guidelines have wrought.

So, in an effort to fill this 15 year Booker birthday void, I am eager to here solicit guest postings from anyone and everyone eager to reflect on the Booker world that has now proven to be so enduring.  In other words, if you follow or participating in the federal sentencing system, send me thoughts via email that I can repost in this space.

In some coming posts, I may do some of my own commentary under the headlined "Reflections on Booker at 15," but I am especially eager to hear other perspectives on the state of the federal sentencing world 15 years after Booker.  I will start the commentary here (and finish this post) with the notable paragraph from Justice Breyer after his embrace of an advisory guideline remedy:

Ours, of course, is not the last word: The ball now lies in Congress’ court. The National Legislature is equipped to devise and install, long-term, the sentencing system, compatible with the Constitution, that Congress judges best for the federal system of justice.

Based on the passage of 15 years without even the introduction of a major bill that makes any serious effort to change the advisory guideline sentencing system, it seems that Congress has ultimately judged the Booker-created sentencing system to be best for the federal system of justice (or at least good enough for government work).

Intriguing (mostly procedural) criminal justice issues up for SCOTUS arguments as 2019 winds down

The US Supreme Court begins its December sitting on Monday morning, and a handful of cases scheduled for oral arguments over the next two weeks ought to be of interest to criminal justice fans.  Here are the ones that I will be watching (with links and descriptions via SCOTUSblog):

New York State Rifle & Pistol Association Inc. v. City of New York, New York, No. 18-280 [Arg: 12.2.2019]

Issue(s): Whether New York City’s ban on transporting a licensed, locked and unloaded handgun to a home or shooting range outside city limits is consistent with the Second Amendment, the commerce clause and the constitutional right to travel.

Banister v. Davis, No. 18-6943 [Arg: 12.4.2019]

Issue(s): Whether and under what circumstances a timely Rule 59(e) motion should be recharacterized as a second or successive habeas petition under Gonzalez v. Crosby.

Guerrero-Lasprilla v. Barr, No. 18-776 [Arg: 12.9.2019]

Issue(s): Whether a request for equitable tolling, as it applies to statutory motions to reopen, is judicially reviewable as a “question of law.”

Holguin-Hernandez v. U.S., No. 18-7739 [Arg: 12.10.2019]

Issue(s): Whether a formal objection after pronouncement of sentence is necessary to invoke appellate reasonableness review of the length of a defendant’s sentence.

McKinney v. Arizona, No. 18-1109 [Arg: 12.11.2019]

Issue(s): (1) Whether the Arizona Supreme Court was required to apply current law when weighing mitigating and aggravating evidence to determine whether a death sentence is warranted; and (2) whether the correction of error under Eddings v. Oklahoma requires resentencing.

For the usual reasons, the Second Amendment/gun control case out of New York and the Eighth Amendment/death penalty case out of Arizona seem likely to get the most attention among this bunch.  But, ever the federal sentencing nerd, I am especially interested to see if the Holguin-Hernandez argument might hint at the case being a possible sleeper.  Remarkably, the Justices have not said much of anything about reasonableness review of sentences in over eight years(!) since its March 2011 ruling in Pepper v. US.  And the Justices have not really said anything really important about reasonableness review in a dozen years since the 2007 trio of opinions in Rita, Gall and Kimbrough.  I am not really expecting much from Holguin-Hernandez, but even a the prospect of a thimble of jurisprudential water can be exciting in a reasonableness desert.

Sixth Circuit finds 30-day sentence given to Senator Rand Paul's attacker "substantively unreasonable"

To my knowledge, a full 15 years after Booker created the reasonableness standard of appellate review for federal sentencing, I believe there are still only a handful of cases in which circuit courts have declared a sentence to be "substantively unreasonable" upon a defendant's appeal claiming it included a prison term that was too long.  But today a Sixth Circuit panel manages to declare yet again, upon an appeal by the government, that a sentence is "substantively unreasonable" because the term of incarceration was too short.  And this ruling in US v. Boucher, No. 18-5683 (6th Cir. Sept. 9, 2019) (available here), comes in quite the high-profile setting.  Here is how it begins:

Senator Rand Paul was mowing his lawn when he stopped to gather a few limbs in his path.  Without warning, Rene Boucher — Paul’s next-door neighbor, whom he had not spoken with in years — raced toward Paul and attacked him from behind.  The impact broke six of Paul’s ribs, caused long-lasting damage to his lung, and led to several bouts of pneumonia.  Boucher later pleaded guilty to assaulting a member of Congress in violation of 18 U.S.C. § 351(e). Although his Guidelines sentencing range was 21 to 27 months in prison, the district court sentenced him to 30 days’ imprisonment.  On appeal, the Government argues that Boucher’s sentence was substantively unreasonable.  We agree and therefore VACATE his sentence and REMAND for resentencing.

I have largely stopped following circuit reasonableness rulings because they so often seemed void of real content or character.  This Boucher ruling has some considerable content and character, as it runs a full 16 pages and concludes this way:

In a mine-run case like this one, we apply “closer review” to any variance from the Guidelines. Kimbrough, 552 U.S. at 109 (quoting Rita, 551 U.S. at 351).  And our review here reveals no compelling justification for Boucher’s well-below-Guidelines sentence.  Gall, 552 U.S. at 50.  Boucher may or may not be entitled to a downward variance after the district court reweighs the relevant § 3553(a) factors, and it is the district court’s right to make that decision in the first instance.  See United States v. Johnson, 239 F. App’x 986, 993 (6th Cir. 2007) (“This Court takes no position on what an appropriate sentence in this case might be and notes that on remand the district court still retains ample discretion to grant a variance. . . . The narrow reason for remand here is that the extreme nature of the deviation, without a correspondingly compelling justification, resulted in a substantively unreasonable sentence.”).  We therefore VACATE Boucher’s sentence and REMAND for resentencing.

I have long hoped for a mre robust and searching form of reasonableness review, but I continue to find that courts are much more interested in seriously questioning 30-day sentences when prosecutors appeal than in questioning 30-year sentences when defendants appeal.  And so it goes in incarceration nation.

Fourteen+ years after inventing reasonableness review in Booker, SCOTUS finally grants cert to address how it works procedurally

The Supreme Court's new order list this morning includes an exciting blast (from the past?) for federal sentencing fans in the form of a cert grant in Holguin-Hernandez v. US, No. 18-7739. The petition for certiorari in this case sets forth this simple question presented: "Whether a formal objection after pronouncement of sentence is necessary to invoke appellate reasonableness review of the length of a defendant’s sentence."   

Notably, the government has this slightly different accounting of what's at issue in this case in its cert opposition brief: "Whether the court of appeals correctly reviewed for plain error petitioner’s claim that the district court imposed a substantively unreasonable term of imprisonment for petitioner’s violation of the terms of his supervised release, when petitioner failed to object in the district court to that term of imprisonment."  (The two-page Fifth Circuit panel ruling in this case is here; SCOTUSblog has the briefing and other documents in this case at this link.)

There is a circuit split on this issue of just how reasonableness review is to operate procedurally, but that split has been pretty well established and entrenched for the better part of a decade.  I suspect that the recent new arrivals to the Supreme Court, particularly Justice Kavanaugh but maybe also Justice Gorsuch, may explain why this long-ignored issue has now gotten taken up by the Justices.

Sadly, it seems the cert grant in this case concerns only a procedural issues surrounding the standards of review rather than the substantive particulars of how circuit courts should judge the reasonableness of a sentence.  But, given that it has been nearly a decade since SCOTUS has said anything significant about reasonableness review (I think of the 2011 Pepper case as the last big ruling in this space), even this Holguin-Hernandez glass of reasonableness water looks like an oasis in the desert of post-Booker SCOTUS jurisprudence.

"Booker Circumvention? Adjudication Strategies in the Advisory Sentencing Guidelines Era"

The title of this post is the title of this notable new paper authored by Mona Lynch and now available via SSRN.  Here is its abstract:

This article addresses the question of policy circumvention in federal courts by examining how legal actors have differentially adapted their adjudicatory practices after U.S. v. Booker (2005) rendered the federal sentencing guidelines advisory rather than mandatory.  By linking two distinct bodies of scholarship — the courts-as-communities scholarship that assesses and explains locale-based variations in criminal court operations and the socio-legal “law and organizations” scholarship that addresses how organizational actors translate and implement top-down legal policy reforms — this article argues that law-as-practiced is always temporally and spatially contingent.

Expanding on prior quantitative research that addresses district-specific adaptations to Booker, this article reports on findings from a qualitative study recently conducted by the author of four federal districts.  Based on these findings, this article examines within-district changes and between-district variations in: (1) legal actors’ perceptions of whether the Booker policy change impacted local practices and outcomes, and if so, the extent of its impact; (2) how legal strategies and practices have changed at three stages of the criminal process: charging, pre-conviction plea negotiations, and formal sentencing; and (3) interviewees’ perceptions about whether Booker contributed to greater racial or other disparities in case out-comes.

Findings indicate that a dynamic, proactive adaptation process is taking place, conditioned by local norms but not fully dictated by those norms.  They also make clear that changes in sentencing outcomes in the post-Booker period are not simply the result of liberated judges exercising their discretion, but rather are jointly produced by courtroom workgroup members through both contestation and cooperation.  This inquiry is especially timely given both ongoing and proposed changes in federal sentencing policy that aim to maintain severity in punishment, re-impose constraints on legal actors, and threaten to exacerbate racial and ethnic inequalities in the federal criminal system.

Student SCOTUS preview part three: mapping out likely votes after oral argument in US v. Haymond

I noted here back in 2017 an interesting opinion in US v. Haymond where a Tenth Circuit panel declared unconstitutional the procedures used for revocation of a sex offender's supervised release.  The Supreme Court also found the case interesting because, as reported here, the Justices in 2018 accepted the petition for certiorari filed by the federal government.  The SCOTUSblog page on Haymond has links to all the briefing.

As reported in this prior post, I have a great student, Jim McGibbon, who is drafting a series of posts on the Haymond case.  Oral argument took place last month, and Jim was there for all the action.  Following up on his introductory post, and his second post inspired by the briefing in the case, he is working on a few posts on the Justices' likely votes informed by the argument.  Here is the start of his efforts:

Oral argument for United States v. Haymond is completed and the case has been submitted.  Amy Howe at SCOTUSblog observed after oral argument that the Court seems “poised to rule for [Haymond] in dispute over constitutionality of sex-offender law."  I predict that United States v. Haymond will be decided 6-3 in favor of Mr. Haymond.  This post will analyze the predicted majority and the next post will give a breakdown of the predicted dissent.

Locks

Justice Sotomayor

Justice Sotomayor may have more than tipped her hand when she opined during oral argument that to compare supervised release with parole is “to compare apples and oranges.”  If still not convinced, consider that she has stated in Alleyne v. United States, 570 U.S. 99 (2013), that “Apprendi [is] firmly rooted in our jurisprudence.”   Not so subtly did Justice Sotomayor lay the cards on the table, when she averred during oral argument that she had a “due process concern as well as a Sixth Amendment concern” with the procedures applicable in Haymond.  The government did little to propitiate Sotomayor at oral argument, and it appears safe to say that Sotomayor will not break rank from her past holdings.

Justice Thomas

Justice Thomas wrote the concurring opinion in Apprendi v. New Jersey.  He asserted that “if the legislature defines some core crime and then provides for increasing the punishment of that crime upon a finding of some aggravating fact of whatever sort, including the fact of a prior conviction — the core crime and the aggravating fact together constitute an aggravated crime.”  Here, the 10th Circuit convicted Haymond of a violation of 3583(k) and as a result, he was subsequently exposed to “greater and additional punishment” without a jury.  Even though Justice Thomas may not believe in stare decisis and even though he did not speak during oral argument, it would seem reasonable to assume that he believes that 3583(k) is a sentencing enhancement of a sort that is based on facts that need to be submitted to a jury and proved beyond a reasonable doubt. To boot, Justice Thomas was in the majority in Blakely v. Washington, 542 U.S. 296 (2004), and Alleyne v. United States, 133 S. Ct. 2151 (2013) both cases extending the reach of the procedural rights recognized in Apprendi.

Likely

Justice Ginsburg

Justice Ginsburg is a soldier of criminal procedural rights as she joined the ranks of the majority in Apprendi, Blakely, and Alleyne, which all affirmed Sixth Amendment and related procedural due process rights for the criminal defendant.  And in the Haymond oral argument, Justice Ginsburg may have revealed her vote when she intimated that the imposition of 3583(k) requires a “factual finding.”  She also voiced more concern over the remedy that the defendant was seeking than the merits of the argument, which although is not conclusive, is suggestive.  But, of course, Justice Ginsburg was the key swing vote that created the advisory guideline remedy in Booker, and see authored the Court opinion limiting the reach of the Sixth Amendment in Oregon v. Ice, 555 U.S. 160 (2009).

Justice Kagan

Justice Kagan seems quite likely to hold for the defendant.  She was among the majority in Alleyne, and during oral argument in Haymond she also resisted the government's efforts to compare supervised release to parole.  More generally, in a variety of setting for a variety of criminal defendants, Justice Kagan has been a fairly consistent voice and vote for expanding procedural rights.  It is hard to think of too many cases in which Justice Kagan has been less willing to recognize expanded constitutional rights than her colleagues. 

On the Bubble

Justice Gorsuch and Justice Kavanaugh

Justice Kavanaugh and Justice Gorsuch do not have extensive enough records as Supreme Court Justices regarding Sixth Amendment or other procedural due process rights to predict with any confidence how they will vote, which is why I have them as on the bubble.  Notably, last year Justice Gorsuch was a key swing vote siding with the more liberal justices in a case where the Court held that a federal statute defining a "crime of violence" was unconstitutionally vague. See Sessions v. Dimaya, 138 S. Ct. 1204 (2018). This case seems to suggest that Justice Gorsuch is not disinclined to strike down federal statutes even to benefit criminal offenders.  Notably, during oral argument, Justice Gorsuch also resisted the government’s contention that supervised release and parole were similar, and he did not question the defendant’s counsel at all during oral argument.

Justice Kavanaugh questioned both sides during the argument in Haymond, and he focused on the intricacies of the applicable statutes and a possible remedy.  Notably, while serving on the DC Circuit, in 2015 then-Judge Kavanuagh issued a notable statement in case involving a sentence enhanced on the basis of "acquitted conduct" (available here) that included the assertion that "[a]llowing judges to rely on acquitted or uncharged conduct to impose higher sentences than they otherwise would impose seems a dubious infringement of the rights to due process and a jury trial."   Given that statement, though Justice Kavanaugh could be a wild card here, I predict that he sides with the defendant.

Up next, the breakdown of the predicted dissenters.

Prior related posts:

• Student SCOTUS preview: starting a series of posts on United States v. Haymond 
• Student SCOTUS preview part two: noticing the parole push in United States v. Haymond 
• Will Haymond argument generate any haymaker questions as SCOTUS takes up supervised release?
• Haymond seemingly to become major Apprendi progeny altering federal supervised release revocations 
• Split Tenth Circuit panel finds mandatory five-year prison term for violation of supervised release itself violates Fifth and Sixth Amendments
• Supreme Court grants cert on Haymond from Tenth Circuit to address when Apprendi and Alleyne meet supervised release!! 

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

US Sentencing Commission published proposed amendment, including a big change to determining a "crime of violence"

As reported in this press release, the "United States Sentencing Commission voted today to publish for comment proposed amendments to the federal sentencing guidelines, including a proposal concerning how sentencing courts determine if a prior conviction is a “crime of violence” under the guidelines."  Here is more:

At a public meeting, Circuit Judge William H. Pryor Jr., the Acting Chair of the Commission remarked, “The ‘crime of violence’ definition continues to cause extensive litigation with inconsistent sentencing outcomes, often resulting in offenders whose conduct is obviously violent in nature failing to qualify for sentencing enhancements. These results are particularly troublesome given the risk to public safety posed by violent offenders.”

The sentencing guidelines provide increased penalties for offenders with a prior conviction that is a “crime of violence” or “controlled substance offense” (e.g., the career offender guideline). Under the guidelines, the sentencing court must determine whether a prior conviction falls into either of those categories. Circuit caselaw currently limits the sentencing court’s analysis of the prior conviction to the elements of the statute of conviction (referred to as the “categorical approach”), without any consideration of the defendant’s actual conduct in the offense. Today’s proposed amendment would enable the sentencing courts to consider the conduct that formed the basis of the offense of conviction as well as the elements of the statute of conviction. The Commission is requesting input on this proposal and the appropriate sources of information the courts might use to ensure that clear and reliable evidence of prior violent conduct is accounted for at sentencing.

The Commission also published a proposal to clarify the definition of certain enumerated offenses and provide clearer guidance how to treat inchoate offenses in determining whether an offense is a crime of violence.  The proposed amendment addresses specific application issues and general concerns raised by the Department of Justice in their August 2018 annual letter to the Commission.

The Commission is finalizing a study in which it found that violent federal offenders recidivate much more often, more quickly, and commit more serious offenses than non-violent federal offenders.  The Commission expects to publish its full findings and other reports on revocations and mandatory minimum penalties in early 2019 (view related studies).

Acting Chair Pryor also provided an update at the meeting on the Commission’s top priority this amendment cycle — examining the current federal sentencing system and operation of .... the guidelines.  In the coming weeks, the Commission will release a report comparing federal judges’ sentencing practices within 30 major metropolitan U.S. cities.  “These findings raise important questions about the advisory guidelines system. We need to study and consider new approaches that more adequately achieve the goals of the Sentencing Reform Act—including the goal of avoiding unwarranted sentencing disparity — within the constitutional parameters set forth by the Supreme Court in Booker,” stated Acting Chair Pryor.

In light of the Supreme Court’s decision in Koons v. United States and recent circuit conflicts, the Commission also proposed revisions to how retroactive sentence reductions are determined when mandatory minimum penalties are present in the case. The Commission also published several proposed amendments responding to recently enacted legislation.

These proposed amendment could prove to be quite consequential if they become actual amendments, but the press release further explains why the USSC may not have a quorum to start the new year and will need to have new confirmed members quickly to be able to complete  official business (my emphasis added):

Today’s public meeting gave the current commissioners the opportunity to work together for the last time, as the terms of Acting Chair Pryor and Commissioner Rachel E. Barkow expire at the end of the 115th Congress.  “I have had the privilege of working alongside Commissioner Barkow since she was confirmed by the Senate five years ago. Her steadfast commitment to fair sentencing and quick ability to process sentencing data served the Commission and the public well,” said Acting Chair Pryor.  “She has made substantial contributions to the work of the Commission.  I will miss her.”

Acting Chair Pryor also thanked the advisory group members whose terms are expiring, including Ronald Levine, Chair of the Practitioners Advisory Group and T. Michael Andrews, Chair of the Victims Advisory Group.

As the terms of Acting Chair Pryor and Commissioner Barkow expire, two voting commissioners will continue to serve terms (Senior District Judge Charles R. Breyer and District Judge Danny C. Reeves).  The Commission must have at least four voting commissioners for a quorum. At least three of the commissioners must be federal judges and no more than four may belong to the same political party.  Commissioner Patricia K. Cushwa (ex officio, U.S. Parole Commission), and Commissioner David Rybicki (ex officio, U.S. Department of Justice) serve as non-voting members.

As Booker enters its adolescence, do we really know much of substance about substantive reasonableness review?

The question in the title of this post is prompted in part by a couple of recent reasonableness rulings from the Sixth and Tenth Circuits that seemed noteworthy: in US v. Heard, No. 17-3062 (6th Cir. Sept. 11, 2018) (available here), a split Sixth Circuit panel upholds an above-guideline sentences over a spirited dissent in firearm cases; in US v. Staples, No. 17-2068 (10th Cir. Aug 27, 2018)  (available here), a unanimous Tenth Circuit panel reverses a below-guideline sentences in a fraud case.  These decisions reflect one feature of nearly all criminal appeals, namely that the government wins and the defendant loses.  But I was inspired to pose the question in the title of this post because these these decisions also reinforce my sense that, even 13 years into the post-Booker world, there is still very little jurisprudential substance to substantive reasonableness review.  These decisions represent data points, but not much more.

In this post some months ago, I provided a string cite of commentary  documenting the mess that reasonableness review has become in the circuits.   I will provide this list again in part because it support my belief that federal sentencing law and practice would benefit significantly from the Supreme Court's further engagement with reasonableness review.  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”).

As long-time readers know, I used to regularly report on circuit reasonableness rulings in the years after Booker and the follow up cases of Rita, Gall and Kimbrough.  But now I barely notice these cases and rarely report on them, because there seems to me little significance in individual data points absent broader jurisprudential developments.  But maybe I am missing something, and thus the question here posed.

After 40+ years as a senator, Orrin Hatch now expresses concerns about acquitted conduct to promote Judge Kavanaugh's elevation

I am always pleased when politicians show a willingness to "evolve" on various issues, especially when they evolve toward a position that I embrace.  So I am quite pleased to see this lengthy new SCOTUSblog commentary by Senator Orrin Hatch under the headline "Judge Kavanaugh’s fight for stronger jury rights," which assails "basing prison sentences on conduct for which a defendant has been acquitted by a jury." I recommend the piece in full, and these particular passages justify both praise and follow-up questions:

Kavanaugh’s decisions have spanned the full spectrum of cases and controversies, including those that impinge on the liberty of some of the most overlooked individuals in America — criminal defendants.  One example, especially important to me, is his objection to basing prison sentences on conduct for which a defendant has been acquitted by a jury.  It’s a practice as outrageous as it sounds....

Every single circuit court has found it “reasonable” for a judge to enhance a sentence based on acquitted conduct. This follows the Supreme Court’s 1997 decision in United States v. Watts, which upheld the use of acquitted conduct against a double jeopardy challenge because “a jury’s verdict of acquittal does not prevent the sentencing court from considering conduct underlying the acquitted charge, so long as that conduct has been proved by a preponderance of the evidence.”  The court thought that statutory sentencing ranges would keep sentences proportional to the convicted offenses. But the broad ranges embraced by our criminal code make it easy to separate crime from its punishment....

In the current system, a judge can inflate a defendant’s sentence for a convicted crime to make up for the jury’s decision to acquit him of a separate charge.  Judges should not wield that kind of veto.

​I’m troubled by the consequences this has on the venerated role of juries in criminal justice.  Beyond these policy problems, which are in my purview as a legislator, are constitutional concerns, which have rankled Kavanaugh’s judicial sensibilities. His understanding of the Fifth and Sixth Amendments has caused him to question why “many key facts used to calculate the sentence are still being determined by a judge under a preponderance of the evidence standard, not by a jury beyond a reasonable doubt.”...

I find it remarkable that Kavanaugh, despite his open campaign against the use of acquitted conduct at sentencing, has rebuffed the easy temptation of judicial activism. In the 2015 case United States v. Bell, he agreed that current precedent prevented the D.C. Circuit from reviewing the issue. The only appropriate action, he said, was for sentencing judges to think twice before choosing to consider acquitted conduct.  Only a few months ago, he again wrote separately in an acquitted-conduct case to reaffirm that precedent tied his hands, dissenting in part in United States v. Brown. But he didn’t abandon his drumbeat for change through the proper channels. He concluded, “If th[e] system seems unsound — and there are good reasons to be concerned about the use of acquitted conduct at sentencing, both as a matter of appearance and as a matter of fairness — Congress and the Supreme Court may fix it, as may individual district judges in individual cases.”...

​The Supreme Court’s evolving jurisprudence on the appropriate roles of judge and jury as factfinders for the purpose of sentencing has dovetailed with my own reconsideration of the use of acquitted conduct at sentencing. In the past, I have been supportive of considering all relevant conduct at sentencing, including acquitted conduct.  But Kavanaugh and others have convinced me that this practice must end — as a matter of fundamental fairness if not of constitutional law.  I plan to soon introduce the Acquitted Conduct Sentencing Reform Act, which will stop judges from punishing defendants for crimes for which a jury found them “not guilty.”  The contours of civilization require fairness in our criminal justice system, and the Constitution demands that American men and women hold prosecutors and judges accountable. The role of the jury is central to the Constitution’s protection of individual rights, and it is time for Congress to restore power to the people.

​Sure, it would be much easier to let circuit judges reverse sentences that were based on acquitted conduct. Introducing a bill, as I plan to do, can be tedious and hard work. I’m happy to take on the task for an important issue like this, but meanwhile, defendants are serving time for crimes they didn’t do.  It’s frustrating to me, and it’s frustrating to Kavanaugh. But he has prudently declined to step outside of his constitutional role. Time and time again, he has respected precedent and affirmed the repugnant power of sentencing judges to consider acquitted conduct.  However, Kavanaugh has wisely used his judicial platform to shed light on troubling law that shackles the rights of criminal defendants. His legal acumen, compassion, and respect for the judicial role assure me, and should assure you, that he will be an excellent, fair, and faithful justice.

I could not be more thrilled to hear a prominent experienced Senator calling acquitted conduct sentencing "outrageous" and asserting that "this practice must end."  I am also over the moon to hear that Senator Hatch is soon to introduce the "Acquitted Conduct Sentencing Reform Act," and I sincerely hope some folks have the sense to try to role it into the on-going federal prison and sentencing reform bills working their way through Congress. 

But I have to ask, as follow-up question number one for Senator Hatch, what took you so long?  The ugliness of acquitted conduct sentencing has been on full display since the 1997 Watts decision and your commentary here also references the 2014 dissent from certorari by Justice Antonin Scalia in an acquitted conduct case.  And Judge Kavanaugh has been calling for the barring of acquitted conduct guideline enhancements for nearly a decade.  Moreover, Senator Hatch, you served a chair of the Judiciary Committee at the time Watts was decided and also when Blakely was decided and Booker was before SCOTUS.  For those of use who have long railed against acquitted conduct sentencing, it sure would have been nice to have an ally like you, Senator Hatch, much sooner than a few months before your retirement after more than four decades in charge of helping to make the rules for the federal sentencing system.

That all said, my biggest follow-up question is for every other member of Congress: Are you willing to sign on ASAP to the "Acquitted Conduct Sentencing Reform Act" and commit to making its passage a fitting going-away present for Senator Hatch.  Because I agree with Senator Hatch that acquitted conduct sentencing is "outrageous" and is a practice that "must end," I hope all members of Congress join in on the Senator Hatch acquitted conduct (r)evolution.

A few prior posts with thoughts on sentencing jurisprudence in a post-Justice Kennedy Court:

• Justice Anthony Kennedy has announced his retirement ... which means a lot for the future of sentencing jurisprudence and so much more 
• With Justice Kennedy retiring, overturning Harmelin should become a focal point for criminal justice reformers
• Might Justice Kennedy's retirement lead to defendants having stronger Sixth Amendment rights under Apprendi and Blakely? 
• DC Circuit Judge Brett Kavanaugh nominated by Prez Trump to replace Justice Kennedy
• Quick and helpful look at some of Judge Brett Kavanaugh's criminal justice work
• Could Judge Brett Kavanaugh, as a SCOTUS Justice, encourage his colleagues to take up acquitted conduct sentencing? 
• An (overly) optimistic account of how new Justices could disrupt federal sentencing based on uncharged and acquitted conduct
• Judge Kavanaugh in 2009: "I think acquitted conduct should be barred from the guidelines calculation." 

Previous related posts on the acquitted conduct stressed by Senator Hatch:

• 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
• 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
• Three Justices dissent from denial of certiorari in Jones/Ball acquitted conduct case
• Refusing to take up acquitted punishment, passive virtues, SCOTUS reputation, and cert-denial-deal speculation

An (overly) optimistic account of how new Justices could disrupt federal sentencing based on uncharged and acquitted conduct

In this post earlier this month, I suggested that Justice Kennedy might be replaced by a new Justice more inclined to afford criminal defendants stronger Sixth Amendment rights under Apprendi and Blakely.  And this subsequent post highlighted that new SCOTUS-nominee Judge Brett Kavanaugh authored an interesting opinion a few years ago that expressed concern about the use acquitted conduct to increase sentences.  Against that backdrop, I was interested to see this new Law360 commentary authored by Alan Ellis and Mark Allenbaugh headlined "Sentencing May Change With 2 Kennedy Clerks On High Court." Here are excerpts from the start and end of the commentary:

Shortly before his confirmation just over a year ago, we wrote about what a now-Justice Neil Gorsuch could mean for federal sentencing.  In particular, we reviewed his Tenth Circuit opinion in United States v. Sabillon-Umana, wherein then-Judge Gorsuch, a former clerk for now-retiring Justice Anthony Kennedy, questioned the constitutionality of judicial fact-finding at federal sentencing, as opposed to fact-finding by a jury.  Known as “relevant conduct,” judge-found facts — which often include uncharged and even acquitted conduct — drive federal sentencings, often increasing terms of imprisonment by years and even decades.  As it turns out, another former Kennedy clerk, Judge Brett Kavanaugh of the U.S. Court of Appeals for the District of Columbia Circuit — who recently was nominated by President Donald Trump to take the retiring justice’s seat on the court — also shares Justice Gorsuch’s concern.  Accordingly, for the reasons discussed below, should Judge Kavanaugh be confirmed, we believe the “Kennedy clerks” will likely lead the court to finally rein in relevant conduct by holding unconstitutional the use of uncharged and acquitted conduct to enhance federal sentences....

Should Judge Kavanaugh be confirmed, we believe it quite likely that, based on his prior jurisprudence, the current manner in which relevant conduct or at least acquitted conduct is used to enhance sentences will soon be determined to be unconstitutional.

Though I certainly hope that new Justices could usher in a big changes to the modern federal sentencing system, I do not share these authors' view that such changes are "quite likely." In particular, finding unconstitutional any use of "uncharged" conduct at sentencing would be a real sea-change for lots of sentencing systems and practice, and I think a number of Justices would be hesitant to take Sixth Amendment doctrines this far.  But I still like this constitutional optimism even if I do not fully share it.

A few prior related posts:

• Justice Anthony Kennedy has announced his retirement ... which means a lot for the future of sentencing jurisprudence and so much more 
• Might Justice Kennedy's retirement lead to defendants having stronger Sixth Amendment rights under Apprendi and Blakely? 
• Quick and helpful look at some of Judge Brett Kavanaugh's criminal justice work
• Could Judge Brett Kavanaugh, as a SCOTUS Justice, encourage his colleagues to take up acquitted conduct sentencing? 

Could Judge Brett Kavanaugh, as a SCOTUS Justice, encourage his colleagues to take up acquitted conduct sentencing?

The question in the title of this post is prompted by this new Marshall Project piece by Joseph Neff headlined "Punished for Crimes Not Proven: Brett Kavanaugh and the case of Gregory 'Boy Boy' Bell."  Here is how the piece starts and ends:

After a nine-month trial, a jury convicted Gregory "Boy Boy" Bell of selling crack cocaine, three sales totaling five grams and carrying a sentence in the five-year range. More importantly for Bell, the jury acquitted him of 10 serious charges, including a trafficking conspiracy and a racketeering conspiracy that would have meant decades in prison.

At sentencing, the judge ruled that Bell had engaged in the exact same crack cocaine conspiracies that the jury had rejected. The five grams of crack became 1,500 grams, and the judge sentenced Bell to 16 years, not the expected five.

Critics object that the use of “acquitted conduct” to justify longer sentences empowers prosecutors and judges to ignore the judgment of the jury, to base sentences on facts rebuffed by the citizens in the jury box.

Those critics include one of Bell’s jurors and Court of Appeals Judge Brett Kavanaugh, the current nominee to the U.S. Supreme Court. “Allowing judges to rely on acquitted or uncharged conduct to impose higher sentences than they otherwise would impose seems a dubious infringement of the rights to due process and a jury trial,” Kavanaugh wrote about Bell’s case in 2015 [available here].

Kavanaugh noted that he and his colleagues on the appeals court were powerless to overturn the sentence.  They are required to follow the rulings of the U.S. Supreme Court, which has allowed acquitted conduct to be a factor in sentencing.  In the meantime, Kavanaugh reminded trial judges that, when asked to use acquitted conduct to increase sentences, they can just say no....

Acquitted conduct and its legal siblings — dismissed conduct and uncharged conduct — are contentious subjects in the arcane world of federal sentencing law.  The tension arises from different standards of proof used at trial.  Juries convict after finding proof beyond a reasonable doubt.  At sentencing, judges use the preponderance of the evidence, a standard requiring more than 50 percent of the evidence to prove something, like the tip of a scale.

The standard makes sense in discretionary sentences, used in varying degrees in all state and federal courts.  Legislatures set ranges for criminal sentences: probation to 20 years in prison, for example, or, five years to life.  In fashioning a precise sentence within a wide range, a judge weighs aggravating and mitigating factors such as criminal record, education, victim testimony, family life, military service, abuse or neglect as a child and work history.

Dating back at least to 1949, the U.S. Supreme Court has allowed judges to use uncharged conduct to increase sentences. In later rulings, the Supreme Court explicitly allowed federal judges to make findings of fact that include acquitted conduct at sentencing. But the law is muddled. The Supreme Court began to limit the effect of uncharged and acquitted conduct in 2000, but more recent decisions have undercut those cases.  In Kavanaugh’s words, the Supreme Court lurched toward sentencing reform only to back away.

The court has since avoided the issue. In 2014, the Supreme Court declined to hear the cases of three Congress Park co-defendants: Joseph “JoJo” Jones, Desmond “Dazz” Thurston, and Antwuan “Big Ant” Ball.  Each had his sentence tripled or more based on allegations the jury found unpersuasive.  Justices Antonin Scalia, Clarence Thomas and Ruth Bader Ginsburg wanted to hear those cases.  In a dissent, they said the time had come to confront acquitted conduct: “This has gone on long enough.”  It takes four justices to accept a case.

If Kavanaugh tips the balance,it will be too late for Gregory “Boy Boy” Bell, who has been locked up since his arrest in 2005.  He is scheduled to be released on Sept. 4.

In this post earlier this month, I asked "Might Justice Kennedy's retirement lead to defendants having stronger Sixth Amendment rights under Apprendi and Blakely?".  In that post, I highlighted Justice Kennedy's historic hostility to Apprendi and its Sixth Amendment progeny.  The Bell case is properly considered exhibit A to support the possibility that a possible Justice Kavanaugh will have a more rights-protective approach to these issues.  (Then again, Judge Kavanaugh has been heard to compliment the late Chief Justice Rehnquist, who authored the Watts opinion blessing acquitted conduct guideline enhancement in the pre-Apprendi world.)

That all said, it is worth remembering that Chief Justice Roberts and Justices Kagan and Sotomayor also refused to vote to grant cert in the Ball case in 2014 (details here), even though all three had voted for extensions of Apprendi rights in prior cases like Southern Union.  Especially with Justice Kennedy gone and thus only Justices Breyer and Alito being on record as being eager to allow judges to enhance sentences without significant constitutional restraint, it is certainly possible to imagine the newer Justices (Gorsuch and Kavanaugh if conformed) convincing the likes of Roberts and Kagan and Sotomayor to be willing to take up this matter.  I sure hope so, but I will not be holding my breath.

A few prior posts with thoughts on a post-Justice Kennedy Court:

• Justice Anthony Kennedy has announced his retirement ... which means a lot for the future of sentencing jurisprudence and so much more 
• With Justice Kennedy retiring, overturning Harmelin should become a focal point for criminal justice reformers
• Might Justice Kennedy's retirement lead to defendants having stronger Sixth Amendment rights under Apprendi and Blakely? 
• DC Circuit Judge Brett Kavanaugh nominated by Prez Trump to replace Justice Kennedy
• Quick and helpful look at some of Judge Brett Kavanaugh's criminal justice work

Previous related posts on the DC cases discussed above:

• 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
• 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
• Three Justices dissent from denial of certiorari in Jones/Ball acquitted conduct case
• Refusing to take up acquitted punishment, passive virtues, SCOTUS reputation, and cert-denial-deal speculation

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?

"Disproportionate Impact: An Impetus to Raise the Standard of Proof at Sentencing"

The title of this post is the title of this student note authored by Anthony LoMonaco recently published in the October 2017 issue of the NYU Law Review.  Here is its abstract:

It is well-known that in a criminal trial, the prosecution must prove culpability beyond a reasonable doubt.  But during the subsequent sentencing phase, the standard of proof is much lower: a preponderance of the evidence.  This relatively low standard can lead to a problem known as “disproportionate impact.”  Disproportionate impact occurs when evidence of additional criminal activity is introduced during the sentencing phase and becomes more determinative of the defendant’s punishment than the actual crime of conviction.  Such evidence can subject criminal defendants to significantly more punishment without the safeguards available at a criminal trial, and it may include uncharged and acquitted crimes.

In response to this issue, some circuit courts fashioned an exception to the preponderance rule, raising the standard of proof to the clear and convincing standard to protect the due process rights of criminal defendants. However, use of this exception was curtailed in all circuits but the Ninth when the Supreme Court rendered the Sentencing Guidelines advisory in 2005.  This Note analyzes the lopsided circuit split surrounding the disproportionate impact exception and challenges the notion that the exception is no longer necessary because the Guidelines have become advisory.

"How Congress, the U.S. Sentencing Commission and Federal Judges Contribute to Mass Incarceration"

The title of this post is the title of this recently posted short article by US District Judge Lynn Adelman.  Here is its abstract:

This article argues that each of the major decision-makers in the federal sentencing process, Congress, the United States Sentencing Commission and the federal judiciary contribute substantially to mass incarceration.  The article first discusses how, beginning in the 1960s and continuing for the next three decades, Congress enacted a series of increasingly punitive anti-crime laws. Congress’s focus on crime was inextricably connected to the urban rebellion of the 1960s, and members of both political parties played important roles in passing the harsh legislation. 

Probably the worst of the laws that Congress enacted, and the one that contributed most to mass incarceration, was the mis-named Sentencing Reform Act of 1984 which abolished federal parole and established a commission to promulgate mandatory sentencing guidelines.  The commission proceeded to enact extremely harsh guidelines and virtually preclude sentences of probation.  The article laments how, even after the Supreme Court struck down the mandatory feature of the guidelines, federal judges continue to adhere closely to the guidelines when sentencing defendants.

Finally, the article argues that one of the fundamental problems plaguing federal sentencing is the widespread misconception that the most important indicator of an effective and credible sentencing system is the absence of inter-judge disparity rather than the exercise of informed discretion.

With notable advocates, former Gov Blagojevich bringing notable sentencing issue to SCOTUS

As reported in this local press article, headlined "Imprisoned Blagojevich again asks U.S. Supreme Court to hear his case," a high-profile defendant is bringing an interesting sentencing issue to the Supreme Court. Here are the basics:

Ex-Gov. Rod Blagojevich has again appealed his case to the U.S. Supreme Court, his lawyer confirmed Thursday. The former governor’s bid to the high court is among the very few options the imprisoned Democrat has left.

Blagojevich has tried to take his case to the Supreme Court once before. It refused to hear from him early last year, and his new petition is also considered a long-shot. Blagojevich is not due out of prison until May 2024.

The new 133-page filing presents the Supreme Court with two questions: Whether prosecutors in a case like Blagojevich’s must prove a public official made an “explicit promise or undertaking” in exchange for a campaign contribution, and whether more consideration should have been given to sentences handed down in similar cases.

This big cert petition is available at this link, where one can see that Thomas Goldstein and Kevin Russell of SCOTUSblog fame are listed as counsel of record.  And here is how these two astute SCOTUS litigators frame the sentencing issue they are bringing to the Justices in this case:

May a district court decline to address a defendant’s nonfrivolous argument that a shorter sentence is necessary to avoid “unwarranted sentence disparities,” 18 U.S.C. § 3553(a)(6), so long as it issues a sentence within the U.S. Sentencing Guidelines, as the Seventh and Tenth Circuits hold, in conflict with the law of the majority of circuits?

Long-time readers know that I see a whole host of post-Booker 18 U.S.C. § 3553(a) sentencing issues as cert-worthy, but the Justices themselves have not taken up many such cases over the last decade. It is great to see experienced SCOTUS litigators making the case for cert on these kinds of grounds in a high-profile setting, though I think the "long-shot" adjective remains fitting.

"The History of the Original United States Sentencing Commission, 1985–1987"

the title of this post is the title of this exciting new article about a (never really old) piece of sentencing legal history that I find fascinating. This lengthy article is authored by Brent Newton and Dawinder Sidhu, and here is the abstract:

An eighteen-month period from the fall of 1985 to the spring of 1987 witnessed the most significant change to the federal criminal justice system in American history.  In those eighteen months, the United States Sentencing Commission, a new and novel independent agency in the federal judicial branch, developed sentencing guidelines for all federal judges during the same period when Congress was enacting new mandatory minimum statutory penalties that dramatically increased existing penalties for drug trafficking and firearms offenses.

This Article describes this founding era of structured federal sentencing, beginning with the Commission’s first meeting and ending with the transmittal of the initial Guidelines Manual to Congress on April 13, 1987, for its 180-day review period.  As the guidelines remain the “lodestone” of federal sentencing thirty years later, and as improving the criminal justice system continues to be an important national bipartisan aspiration, a thorough exploration of the history of the original Commission is both timely and important.

Parts II and III of this Article discuss the historical context in which the Commission was created, the key players (Commissioners and staff) during the Commission’s first eighteen months, and the initial policy decisions of the original Commission that are reflected in the Guidelines Manual and that still largely govern federal sentencing today, albeit in an “advisory” rather than a “mandatory” guidelines system. Finally, Part V offers some conclusions about the work of the original Commission.

Split Tenth Circuit panel finds mandatory five-year prison term for violation of supervised release itself violates Fifth and Sixth Amendments

I just saw that an interesting and  important constitutional procedure opinion was handed down by the Tenth Circuit last week in US v. Haymond, No. 16-5156 (10th Cir. Aug 31, 2017) (available here).  Here is how the panel's majority opinion gets started and some of the opinion's substantive analysis:

The district court revoked Andre Ralph Haymond’s supervised release based in part on a finding that Haymond knowingly possessed thirteen images of child pornography. The district court imposed the mandatory minimum sentence required by 18 U.S.C. § 3583(k). Haymond appeals and argues that the evidence was insufficient to support a finding by a preponderance of the evidence that he possessed child pornography, and that 18 U.S.C. § 3583(k) is unconstitutional because it violates his right to due process.

We conclude that the evidence was sufficient to support the district court’s finding that Haymond violated the conditions of his supervised release, but we agree that 18 U.S.C. § 3583(k) is unconstitutional because it strips the sentencing judge of discretion to impose punishment within the statutorily prescribed range, and it imposes heightened punishment on sex offenders based, not on their original crimes of conviction, but on new conduct for which they have not been convicted by a jury beyond a reasonable doubt. Thus, we affirm the district court’s revocation of Haymond’s supervised release, but we vacate Haymond’s sentence and remand for resentencing....

We conclude that 18 U.S.C. § 3583(k) violates the Fifth and Sixth Amendments because (1) it strips the sentencing judge of discretion to impose punishment within the statutorily prescribed range, and (2) it imposes heightened punishment on sex offenders expressly based, not on their original crimes of conviction, but on new conduct for which they have not been convicted by a jury beyond a reasonable doubt and for which they may be separately charged, convicted, and punished....

By requiring a mandatory term of reimprisonment, 18 U.S.C. § 3583(k) increases the minimum sentence to which a defendant may be subjected. For example, when Haymond was originally convicted by a jury, the sentencing judge was authorized to impose a term of imprisonment between zero and ten years.  See 18 U.S.C. § 2252(b)(2). After the judge found, by a preponderance of the evidence, however, that Haymond had violated a particular condition of his supervised release, the mandatory provision in § 3583(k) required that Haymond be sentenced to a term of reincarceration of at least five years, up to a maximum term of life. This unquestionably increased the mandatory minimum sentence of incarceration to which he was exposed from no years to five years, yet the jury did not make the factual finding required to change his statutorily prescribed sentencing range. Instead, that finding was made by a judge by only a preponderance of the evidence. This violates the Sixth Amendment....

In Johnson v. United States, 529 U.S. 694 (2000)

, the Supreme Court made clear that, in order to avoid serious constitutional concerns, revocation of supervised release must be viewed as punishment for the original crime of conviction, not as punishment for the violation of the conditions of supervised release....

Regardless of the nature or severity of the defendant’s original crime of conviction, § 3583(k) imposes a mandatory minimum five-year term of imprisonment for only those specific offenses enumerated, while all other violations are subject to the maximum terms set in § 3583(e)(3). By separating these crimes from other violations, § 3583(k) imposes a heightened penalty that must be viewed, at least in part, as punishment for the subsequent conduct — conduct for which the defendant has not been tried by a jury or found guilty beyond a reasonable doubt.  This, the Court has said, is not permitted. 

To be sure, the sentencing judge can and, according to the Sentencing Guidelines, should consider the severity of the conduct by which a defendant violated the conditions of his or her supervised release.  A more serious violation might well recommend a longer term of reimprisonment.  But, if we wish to maintain the premise that revocation of supervised release is a punishment for the original crime of conviction, Congress must set the authorized term of reimprisonment based on the severity of that original crime.

Notably, Judge Kelly dissents in part because he is (reasonably) concerned that the majority's reasoning might impact any and all judicial fact-finding supporting the revocation of supervised release:

Were the court correct [in its constitutional analysis], the problem it identifies seems like it would be true of all revocation proceedings: if a defendant is sentenced to any term of supervised release, the fact that the release can then be revoked and the defendant be sent back to prison for an additional term means that “the penalty to which a defendant may be subjected” has been increased based on facts not found by a jury. Id. (emphasis added).

In other words, unless either (a) all revocation proceedings must empanel juries for fact-finding (which the Supreme Court, with good reason, has told us is not the case) or (b) the revocation proceeding is treated as a new criminal prosecution (which the Supreme Court also has told us is not the case), it is hard to understand why under current precedent Booker would apply but Apprendi and Alleyne would not. While postrevocation penalties might be considered attributable to the original conviction, the revocation proceeding is neither part of that criminal prosecution nor is it a new criminal prosecution. See Johnson, 529 U.S. at 700....

[According to the majority], the distinction, apparently, is that the terms of revocation differ based on what kind of new crime the defendant committed. But I see no reason why Congress cannot make that distinction. As the Sentencing Guidelines explain, under the “breach of trust” theory applicable to the revocation of supervised release, “the nature of the conduct leading to the revocation [can] be considered in measuring the extent of the breach of trust.” U.S. Sentencing Guidelines Manual § 7A3(b) (2016). In my view, Congress can determine that the commission of certain crimes constitutes a more serious breach of trust warranting a longer term of revocation. Doing so does not thereby make the revocation proceeding a new criminal prosecution....

Ultimately, we should not jump ahead of the Supreme Court when it has already spoken on this issue. Any tension between the supervised release scheme approved in Johnson and the rationale of the Apprendi / Booker line of cases is for the Supreme Court itself to resolve.

Ever since the Supreme Court got serious about applying its Apprendi doctrine to various sentencing determinations in cases like Blakely and Booker, I have thought the judicial fact-finding that takes place in federal supervised release proceedings were on constitutionally shaky grounds.  Or, to parrot Judge Kelly's final statment, I have long believed that there is significant tension between the supervised release scheme approved in Johnson and the rationale of the Apprendi / Booker line of cases.  But, in various settings, various lower federal courts have found various ways to uphold the judicial fact-finding involved in supervised release revocations — revocations that result in a significant number of federal defendants getting sent back to prison.  (This 2010 USSC report found that roughly 1/3 of all released federal prisoners get revoked and sent back to prison, and that 6% of the federal prison population are serving revocation terms.)

It will be very interest to watch if the Justice Department seeks en banc or SCOTUS review of this Tenth Circuit ruling.  I hope they will, in part because this case seems like it might just get SCOTUS to finally take a look at what its modern Fifth and Sixth Amendment doctrines should mean for supervised release revocation proceedings.

"Justice Thomas, Criminal Justice, and Originalism’s Legitimacy"

The title of this post is the title of this notable new essay authored by Judge William Pryor as part of a Yale Law Journal Forum collections of essays under the heading "Justice Thomas: Twenty-Five Years on the Supreme Court."  The essay covers lots of elements of Justice Thomas's criminal justice jurisprudence, and I recommend the piece in full.  And especially because Judge Pryor is the current Acting Chair of the US Sentencing Commission, I figure sentencing fans might find this passage from the essay interesting:

A second area where Justices Thomas and Scalia agreed on a legal rule but disagreed on how to apply it was in determining whether statutory mandatory minimum sentences violated the right to a jury trial. Both Justices agreed with the rule established in Apprendi v. New Jersey that any fact, other than a prior conviction, that increases the penalty for a crime beyond the statutory maximum must be proved to a jury beyond a reasonable doubt. And both voted to invalidate mandatory sentencing guidelines that required judges to find facts that would increase sentencing ranges. But the Justices disagreed about why mandatory sentencing guidelines were problematic. Justice Scalia saw the problem as permitting fact-finding to increase the ceiling of a judge’s discretion in a way that could disadvantage a defendant. Justice Thomas, on the other hand, saw the problem as changing the range of discretion, even if the sentencing ceiling remained unchanged.

This difference led the Justices to opposite positions in Alleyne, discussed above. Justice Thomas wrote for the majority that facts that trigger statutory mandatory minimum sentences must be proved to a jury because the facts “alter the prescribed range of sentences to which a defendant is exposed and do so in a manner that aggravates the punishment.” Justice Scalia joined a dissent written by Chief Justice Roberts that viewed the application of a statutory mandatory minimum as a limit on the discretion of the judge that in no way affected the role of the jury.

As an aside, I respectfully disagree with both Justices Scalia’s and Thomas’s decisions to join in the majority opinions in Blakely and Booker, the foundational decisions underlying Alleyne. The notion that mandatory guidelines that regulate judicial discretion within a statutory range of punishment to reduce sentencing disparities somehow violates a defendant’s right to a jury trial even though it is entirely permissible for judges, in an indeterminate system, to find sentencing facts and impose punishments anywhere within a broad statutory range has never made sense to me. I side with another Yalie, Justice Samuel Alito, on that one. But accepting the logic of Blakely and Booker that the Sixth Amendment requires a jury to find all facts essential to the potential penalty, only Justice Thomas’s position in Alleyne makes sense.

Is there much to — or much to say about — reasonableness review a decade after Rita, Gall, and Kimbrough?

The question in the title of this post was the one kicking around my head as I reviewed a DC Circuit sentencing opinion handed down last week in US v. Pyles, No. 14-3069 (DC Cir. July 7, 2017) (available here). A helpful reader made sure I did not miss this lengthy opinion (nearly 50 pages), in which the panel splits over the reasonableness of a (nearly-top-of-the-guideline-range) sentence of 132-months imprisonment for child pornography distribution.   In addition to finding generally reasonable the extended reasonableness discussion of both the majority and the dissent in Pyles, I was struck by how the discussion and debate over the nature and operation of reasonableness review has really not changed much at all in the 10 years since the Supreme Court gave us Rita, Gall, and Kimbrough.

I am not sure anyone should have expected many major jurisprudential developments in the circuit courts after Rita, Gall, and Kimbrough. But, on this summer Friday morning, I am struggling to really think of any major reasonableness review developments. Though there are some important specific rulings from specific circuits on specific issues (like the Dorvee ruling on child porn sentencings from the Second Circuit), I am not sure I could describe any defining characteristics  of reasonableness review circa 2017 that is distinct in any big way from the basic reasonableness review template set by Rita, Gall, and Kimbrough in 2007.

I would especially like to hear from federal practitioners about whether I might be missing something obvious or subtle when noting the seemingly staid nature of reasonableness review jurisprudence over the last decade.  What really strikes me in this context is the fact that debates over federal sentencing laws, polices and practices have been anything but staid over the last decade even as reasonableness jurisprudence has sailed forward ever so smoothly.

One last chance to RSVP for "Behind the Bench: The Past, Present, and Future of Federal Sentencing"

As mentioned in this prior post, I will be attending this exciting afternoon event, titled "Behind the Bench: The Past, Present, and Future of Federal Sentencing," which is taking place this Wednesday (5/17) in Washington DC.  I considered the event quite timely when I posted about it last week, but the discussions generated by Attorney General Jeff Sessions new charging memo for federal prosecutors only serves to add an extra-timely dimension to the topics to be discussed.

As mentioned before, this event emerges from a thoughtful and provocative federal sentencing reform proposal put forward by current Acting US Sentencing Commission Chair Judge William Pryor (in part because that he graciously allowed this proposal to published in the Federal Sentencing Reporter).  Through my work with FSR, I played a small  role in getting this event off the ground, and here is the event's description from this webpage where one can register to attend:

Thirty years ago, the U.S. Sentencing Commission established the first-ever set of federal sentencing guidelines. Those initial Guidelines received a chilly reception as more than 200 federal judges found them unconstitutional.  Although the Supreme Court’s United States v. Booker decision in 2005 upheld the basic structure of the Guidelines, it recast them as “effectively advisory” to allow judges to continue applying the Guidelines consistent with new Sixth Amendment jurisprudence.

The Booker ruling stated Congress was free to devise a different system moving forward.  More than a dozen years and nearly a million federal sentences later, Congress has yet to act despite diverse criticisms of the Supreme Court’s advisory sentencing scheme.  This spotlights an enduring question: What is the proper relationship between the legislative and judicial branches in determining sentencing policy?

On May 17, please join the Charles Koch Institute, the Federal Sentencing Reporter, and the Law & Economics Center at George Mason University Antonin Scalia Law School as we explore this question and discuss how we can learn from the past to improve present and future federal sentencing policy.

KEYNOTE SPEAKER: Judge William H. Pryor

MODERATED DISCUSSION: Judge Ricardo H. Hinojosa and Judge Patti B. Saris

MODERATOR: Vikrant P. Reddy

Date: May 17

Time: 12:00 pm - 2:45 pm

I have been told that there is still a little bit of the limited space available, so folks interested in attending what ought to be a very interesting afternoon of federal sentencing discussion should still be sure to register via this webpage ASAP.

"Behind the Bench: The Past, Present, and Future of Federal Sentencing"

The title of this post is the name of this exciting afternoon event taking place next week in Washington DC.  The event emerges from a thoughtful and provocative federal sentencing reform proposal put forward by current Acting US Sentencing Commission Chair Judge WIlliam Pryor (in part because that he graciously allowed this proposal to published in the Federal Sentencing Reporter).  Through my work with FSR, I played a small  role in getting this event off the ground, and here is the event's description from this webpage where one can register to attend:

Thirty years ago, the U.S. Sentencing Commission established the first-ever set of federal sentencing guidelines. Those initial Guidelines received a chilly reception as more than 200 federal judges found them unconstitutional.  Although the Supreme Court’s United States v. Booker decision in 2005 upheld the basic structure of the Guidelines, it recast them as “effectively advisory” to allow judges to continue applying the Guidelines consistent with new Sixth Amendment jurisprudence.

The Booker ruling stated Congress was free to devise a different system moving forward.  More than a dozen years and nearly a million federal sentences later, Congress has yet to act despite diverse criticisms of the Supreme Court’s advisory sentencing scheme.  This spotlights an enduring question: What is the proper relationship between the legislative and judicial branches in determining sentencing policy?

On May 17, please join the Charles Koch Institute, the Federal Sentencing Reporter, and the Law & Economics Center at George Mason University Antonin Scalia Law School as we explore this question and discuss how we can learn from the past to improve present and future federal sentencing policy.

KEYNOTE SPEAKER: Judge William H. Pryor

MODERATED DISCUSSION: Judge Ricardo H. Hinojosa and Judge Patti B. Saris

MODERATOR: Vikrant P. Reddy

Date: May 17

Time: 12:00 pm - 2:45 pm

I have been told that space is limited so folks interested in attending what ought to be a very interesting afternoon of federal sentencing discussion ought to be sure to register via this webpage ASAP.

Supreme Court unanimously rules for defendant and district court sentencing discretion in Dean

I am intrigued and surprised and ultimately pleased that a unanimous Supreme Court this morning emphasized the significance of federal district court sentencing discretion through its ruling in Dean v. United States, No. 15-9260 (April 3, 2017) (available here). The Chief Justice authored a relatively brief opinion for the Court in Dean that was obviously convincing enough to get even the most pro-prosecution Justices comfortable with ruling against the prosecution.  Here are some key parts of the opinion, starting with the first paragraph that signals where the rest is headed:

Congress has made it a separate offense to use or possess a firearm in connection with a violent or drug trafficking crime. 18 U. S. C. §924(c). That separate firearm offense carries a mandatory minimum sentence of five years for the first conviction and 25 years for a second. Those sentences must be in addition to and consecutive to the sentence for the underlying predicate offense. The question presented is whether, in calculating the sentence for the predicate offense, a judge must ignore the fact that the defendant will serve the mandatory minimums imposed under §924(c)....

The §3553(a) factors are used to set both the length of separate prison terms and an aggregate prison term comprising separate sentences for multiple counts of conviction. Under §3582 a court, “in determining whether to impose a term of imprisonment, and, if a term of imprisonment is to be imposed, in determining the length of the term, shall consider the factors set forth in section 3553(a).”...

As a general matter, the foregoing provisions permit a court imposing a sentence on one count of conviction to consider sentences imposed on other counts....

The Government speaks of Congress’s intent to prevent district courts from bottoming out sentences for predicate §924(c) offenses whenever they think a mandatory minimum under §924(c) is already punishment enough.  But no such intent finds expression in the language of §924(c).  That language simply requires any mandatory minimum under §924(c) to be imposed “in addition to” the sentence for the predicate offense, and to run consecutively to that sentence.  Nothing in those requirements prevents a sentencing court from considering a mandatory minimum under §924(c) when calculating an appropriate sentence for the predicate offense.

"Booker Disparity and Data-Driven Sentencing"

The title of this post is the title of this notable new article now available via SSRN authored by Joshua Divine. Here is the abstract:

Sentencing disparity among similar offenders has increased at a disconcerting rate over the last decade.  Some judges issue sentences twice as harsh as peer judges, meaning that a defendant’s sentence substantially depends on which judge is randomly assigned to a case.  The old mandatory sentencing guidelines repressed disparity but only by causing unwarranted uniformity.  The advisory guidelines swing the pendulum toward the opposite extreme, and this problem promises to grow worse as the lingering effect of the old regime continues to decrease.

This Article is the first to propose a system — data-driven appellate review — that curbs sentencing disparity without re-introducing unwarranted uniformity.  Congress should establish a rebuttable presumption that outlier sentences among similar offenders are unreasonable.  The U.S. Sentencing Commission collects data on over 70,000 criminal cases annually.  This data provides the tool for defining categories of similar offenders.  Culling outlier sentences through data-driven appellate review would increase judicial awareness of sentences issued by peer judges and would therefore curb the increase in inter-judge disparity without resorting to unwarranted uniformity.

Highlighting the notable absence of criminal trials in a high-profile federal district court ... thanks to the modern "trial penalty"

Yesterday's New York Times had this article on the modern reality of negotiated federal criminal justice headlined "Trial by Jury, a Hallowed American Right, Is Vanishing."  Here are excerpts:

The criminal trial ended more than two and a half years ago, but Judge Jesse M. Furman can still vividly recall the case.  It stands out, not because of the defendant or the subject matter, but because of its rarity: In his four-plus years on the bench in Federal District Court in Manhattan, it was his only criminal jury trial.

He is far from alone. Judge J. Paul Oetken, in half a decade on that bench, has had four criminal trials, including one that was repeated after a jury deadlocked.  For Judge Lewis A. Kaplan, who has handled some of the nation’s most important terrorism cases, it has been 18 months since his last criminal jury trial.  “It’s a loss,” Judge Kaplan said, “because when one thinks of the American system of justice, one thinks of justice being administered by juries of our peers. And to the extent that there’s a decline in criminal jury trials, that is happening less frequently.”

The national decline in trials, both criminal and civil, has been noted in law journal articles, bar association studies and judicial opinions.  But recently, in the two federal courthouses in Manhattan and a third in White Plains (known collectively as the Southern District of New York), the vanishing of criminal jury trials has never seemed so pronounced.  The Southern District held only 50 criminal jury trials last year, the lowest since 2004, according to data provided by the court.  The pace remains slow this year.

In 2005, records show, there were more than double the number of trials: 106. And decades ago, legal experts said, the numbers were much higher. “It’s hugely disappointing,” said Judge Jed S. Rakoff, a 20-year veteran of the Manhattan federal bench. “A trial is the one place where the system really gets tested.  Everything else is done behind closed doors.”

Legal experts attribute the decline primarily to the advent of the congressional sentencing guidelines and the increased use of mandatory minimum sentences, which transferred power to prosecutors, and discouraged defendants from going to trial, where, if convicted, they might face harsher sentences.  “This is what jury trials were supposed to be a check against — the potential abuse of the use of prosecutorial power,” said Frederick P. Hafetz, a defense lawyer and a former chief of the criminal division of the United States attorney’s office in Manhattan, who is researching the issue of declining trials.

Julia L. Gatto, a federal public defender, recalled the case of Oumar Issa, a Malian arrested in Africa in a 2009 sting operation on charges of narco-terrorism conspiracy, which carried a mandatory minimum 20-year sentence, and conspiring to support a terrorist organization, which had no minimum.  Although Ms. Gatto and her client believed that elements of the case were weak and that there were strongly mitigating circumstances, Mr. Issa concluded that the risk of going to trial was too high.  He pleaded guilty in 2012 to material support, with prosecutors dropping the other charge.  He received 57 months in prison. “It was the only thing he could do,” Ms. Gatto said. “His hands were tied.”

In 1997, according to federal courts data nationwide, 3,200 of 63,000 federal defendants were convicted in jury trials; in 2015, there were only 1,650 jury convictions, out of 81,000 defendants....

Judge P. Kevin Castel, who helped to organize the court’s 225th anniversary celebration in 2014, recalled taking a friend, Mary Noe, a legal studies professor at St. John’s University, to see an exhibit of courtroom illustrations documenting Southern District trial scenes of past decades.  But as they reached the end, Professor Noe observed that the sketches of more recent defendants, like Bernard L. Madoff and the would-be Times Square bomber Faisal Shahzad showed them pleading guilty.  “I was like, what happened to the trials?” she recalled.

Judge Analisa Torres said she had felt the difference ever since joining the federal bench in 2013.  Judge Torres, a former state court judge who handled about two dozen criminal trials a year in Manhattan and the Bronx, said she has since had just a few such trials. “It’s day and night,” she said. On the state bench, she said, she spent her entire day in the courtroom but for the lunch hour. “Now, I am in chambers all day long.”

This article rightfully suggests that the vanishing jury trial is a sentencing story related to the distinctive severity of federal statutes and guidelines and the impact of the modern "trial penalty" in federal courts. Competent defense attorneys have to tell their federal clients that the decision to test the government's evidence at trial will almost always risk adding years, if not decades, to any eventual federal sentence on any charge that produces a conviction.

It is ironic, but not really surprising, that this problem has only gotten worse since the Blakely and Booker SCOTUS rulings a decade ago made much of a defendant's Sixth Amendment right to a jury trial.  Had the Booker court adopted a "jury trial" remedy to "fix" federal guideline sentencing rather than the advisory remedy, we likely would have seen an increase in jury trials focused on specific guideline enhancements (especially in fraud and other kinds of high-profile cases more common in the Southern District of New York).  In addition, modern federal sentencing doctrines that diminish the need for and significance of jury determinations — like guideline anhancements based on "acquitted conduct" and "uncharged conduct" and "relevant conduct" — would be no more.

It is also disconcerting, but not surprising, that federal district judges are now so quick to lament the lack of jury trials, but are still so slow to explore their powers and opportunities to encourage more trials.  Though subject to some legal uncertainty (and sure to generate some federal prosecutorial pushback), federal judges still could today consider requiring limited jury trials to aid the resolution of any major factual disputes that have major guideline sentencing consequences.  Notably, in other high-profile settings, especially with respect to the death penalty and fraud sentencings and collateral consequences, SDNY federal district judges have been willing to test the reach and limits of thier judicial authority to move the law forward as they see fit.  If these judges really lament the vanishing criminal trial so much, they can and should be more aggressively exploring just what they might be able to do about this problem.

Making a friendly pitch for SCOTUS to consider constitutional limits on extreme judicial sentencing increase based on uncharged homicide

Regular readers know that I have long been troubled by significant sentence increases by judges based on so-called acquitted conduct, and that I have filed a number of federal appellate briefs articulating my concerns. Building on some of that prior work, I recently had a chance to work on an amicus brief in support of certiorari in Hebert v. US, a case out of the Fifth Circuit involving an extreme sentence increase based on uncharged conduct. The full amicus (which the fine folks at the Jones Day in DC made so fine) can be downloaded below, and here are excerpts from its start providing context and key arguments:

It is difficult to imagine a starker violation of the Sixth Amendment and due process than what transpired below. Mr. Hebert pleaded guilty to a $16,000 fraud that carried a guidelines range topping out at 5 years.  After persuading Mr. Hebert to admit responsibility for his fraud and accept punishment for that crime, the Government ambushed him at sentencing by asserting that he had committed an intentional murder along with the fraud to which he had confessed. The Government then asked the district court to find it was more likely than not that Mr. Hebert committed this un-charged, non-admitted, never-convicted, non-federal crime. Then, on the basis of that judicial determination, the district court gave Mr. Hebert a 92-year sentence — a sentence the Government has conceded and the Fifth Circuit recognized “would have been substantively unreasonable under the post-Booker sentencing regime absent a judicial finding of murder,” Pet.App.22a — again, a crime with which Mr. Hebert has never even been charged.

Because Mr. Hebert has never been charged with — much less convicted of — murder, he remains entirely innocent of that crime. If the Government wishes to convict Mr. Hebert of murder, it is welcome to try.  But what it cannot do is use Mr. Hebert’s confession to lesser crimes as the springboard for de facto convicting him of a far more serious crime in a judicial proceeding with no jury, the civil standard of proof, and none of the criminal justice system’s fundamental rules and procedures....

There are at least two constitutional provisions that, under this Court’s well-established jurisprudence, forbid this inverted regime.  First, this Court has made clear that a criminal defendant has a Sixth Amendment “right to have a jury find the facts behind his punishment.” Hurst v. Florida, 136 S. Ct. 616, 621 (2016).  That right reflects the vital role of the jury as the “circuitbreaker in the State’s machinery of justice” — a role that cannot be “relegated to making a determination that the defendant at some point did something wrong [as] a mere preliminary to a judicial inquisition into the facts of the crime the State actually seeks to punish.” Blakely v. Washington, 542 U.S. 296, 306–07 (2004).  The Sixth Amendment right to a jury trial is a constitutional protection of “surpassing importance,” Apprendi, 530 U.S. at 476, yet the decision below makes a mockery of it....

Second, this Court has long recognized that due process forbids grossly unfair procedures when a person’s liberty is at stake. Specifically, this Court has indicated that (1) judges are sometimes limited from imposing distinct new punishments based on “a new finding of fact that was not an ingredient of the offense charged,” Specht v. Patterson, 386 U.S. 605, 608 (1967) (citation omitted); (2) the “safeguards of due process” in criminal cases are “concerned with substance rather than [any] kind of formalism,” Mullaney v. Wilbur, 421 U.S. 684, 698–99 (1975); and (3) constitutional concerns are raised whenever sentencing findings become “a tail which wags the dog of the substantive offense,” or when the government restructures criminal prosecutions “to ‘evade’ the commands” of the Constitution. McMillan v. Pennsylvania, 477 U.S. 79, 88–89 (1986).

The simple principle that unifies these decisions is fatal to the legal rule embraced below: Due process forbids prosecutors from manipulating the criminal justice system to evade its core protections.  Applied here, that principle barred prosecutors from waylaying Mr. Hebert at sentencing with allegations of a far more serious crime for which he has never been indicted or convicted — allegations that depend, moreover, on evidence which the prosecutors were apparently unwilling to subject to the crucible of a criminal trial or test against the burden of proof they must carry there.  Due process demands more.

Download Berman Amicus in Support of Cert in Hebert

New speech by Justice John Paul Stevens reflects on Justice Antonin Scalia and the Court's constitutional work before and after Apprendi

A helpful reader alerted me to this notable new speech given today by Justice John Paul Stevens at the Washington University School of Law. The speech is titled "Some Thoughts about a Former Colleague," and much of the discussion is a review of the McMillan, Watts, Apprendi, Harris, Blakely, Alleyne and Hurst decisions from the Supreme Court over the last three decades.  The speech also notes disagreements between Justices Stevens and Scalia in the Second and Eighth Amendment contexts, and concludes with some comments about original intent as a mode of constitutional interpretations.

My quick review of the speech did not lead me to find any surprising revelations, but it did lead me to conclude that Justice Stevens is pleased that, in his words, a "consensus [] has developed around Apprendi's rule since it was first announced in a 5-4 decision 16 years ago."  I also found quite notable that the Booker decision did not get any mention in the discussion.

Lots of interesting post-Booker guideline talk as federal defendant gets another sentencing win from SCOTUS

The Supreme Court today handed down its opinon this morning in Molina-Martinez v. US, No. 14-8913 (S. Ct. April 20, 2016) (available here), a little case about the application of plain error review of guideline calculation errors.  Excitingly, because the majority opinion authored by Justice Kennedy has lots of dicta about post-Booker sentencing, and because a concurrence by Justice Alito complains about some of that dicta, Molina-Martinez is now a must-read for all sentencing practitioners.  

I will likely have some further commentary about Molina-Martinez after I get a chance to read it thoroughly.  In the meantime, here are a couple of key passages from the majority opinion:

This case involves the Federal Sentencing Guidelines. In sentencing petitioner, the District Court applied a Guidelines range higher than the applicable one. The error went unnoticed by the court and the parties, so no timely objection was entered. The error was first noted when, during briefing to the Court of Appeals for the Fifth Circuit, petitioner himself raised the mistake. The Court of Appeals refused to correct the error because, in its view, petitioner could not establish a reasonable probability that but for the error he would have received a different sentence. Under that court’s decisions, if a defendant’s ultimate sentence falls within what would have been the correct Guidelines range, the defendant, on appeal, must identify “additional evidence” to show that use of the incorrect Guidelines range did in fact affect his sentence. Absent that evidence, in the Court of Appeals’ view, a defendant who is sentenced under an incorrect range but whose sentence is also within what would have been the correct range cannot demonstrate he has been prejudiced by the error....

The Court of Appeals for the Fifth Circuit stands generally apart from other Courts of Appeals with respect to its consideration of unpreserved Guidelines errors. This Court now holds that its approach is incorrect.

Nothing in the text of Rule 52(b), its rationale, or the Court’s precedents supports a requirement that a defendant seeking appellate review of an unpreserved Guidelines error make some further showing of prejudice beyond the fact that the erroneous, and higher, Guidelines range set the wrong framework for the sentencing proceedings. This is so even if the ultimate sentence falls within both the correct and incorrect range. When a defendant is sentenced under an incorrect Guidelines range—whether or not the defendant’s ultimate sentence falls within the correct range—the error itself can, and most often will, be sufficient to show a reasonable probability of a different outcome absent the error....

In the ordinary case the Guidelines accomplish their purpose. They serve as the starting point for the district court’s decision and anchor the court’s discretion in selecting an appropriate sentence. It follows, then, that in most cases the Guidelines range will affect the sentence. When that is so, a defendant sentenced under an incorrect Guidelines range should be able to rely on that fact to show a reasonable probability that the district court would have imposed a different sentence under the correct range. That probability is all that is needed to establish an effect on substantial rights for purposes of obtaining relief under Rule 52(b).

And here is the start of the concurrence authored by Justice Alito:

I agree with the Court that the Fifth Circuit’s rigid approach to unpreserved Guidelines errors is incorrect. And I agree that petitioner has shown a reasonable probability that the District Court would have imposed a different sentence in his case if his recommended Guidelines sentence had been accurately calculated. Unlike the Court, however, I would not speculate about how often the reasonable probability test will be satisfied in future cases. The Court’s predictions in dicta about how plain-error review will play out are predicated on the view that sentencing judges will continue to rely very heavily on the Guidelines in the future, but that prediction may not turn out to be accurate. We should not make predictions about the future effects of Guidelines errors, particularly since some may misunderstand those predictions as veiled directives.

Has DOJ decided not to appeal Judge Weinstein's recent notable decision in US v. RV to give no prison time to child porn downloaded?

The question in the title of this post is a follow-up to my speculations here about the post-Booker challenges that face federal prosecutors when a district judge gives a very leinent sentence that they dislike.  Specifically, after blogging about US District Judge Jack Weinstein's decision in US v. RV to give a waaaaaaaay-below-guideline sentence in a child porn downloading case, I suggested the Justice Department would struggle with the decision whether to appeal this lenient sentencing ruling to the Second Circuit because of the Second Cicuit's significant 2010 Dorvee ruling which stressed the "irrationality" of the child porn guidelines.

When I posted about US v. RV, my pal Bill Otis seemed to think my appellate speculations here were waaaaaaaay off the mark.  Over in this lengthy post at Crime & Consequences, Bill Otis asserted that my speculation revealed that I know "almost nothing about the workings of US Attorneys' Offices."   Bill went further even in this post, stating repeatedly that he would eagerly "bet $500 here and now that Weirstein [sic] is again going to get reversed in the Second Circuit, again without garnering a single vote."

I did not take up Bill's bet for a number of reasons: (1) I wanted to read Judge Weinstein's 90+ page sentencing opinion in full before speculating on the fate of the decision in RV, (2) based on what Judge Weinstein wrote, I might be inclined to participate in an amicus effort in the Second Circuit if/when DOJ appealed, and (3) I find it a bit unsavory (and perhaps unethical) to make big cash bets on the fate of a real legal case, especially in an area of law I hope to infuence.  But now, as the title of this post hints, I think it may turn out that a lot of us should have taken Bill's bet because it seems, based on my limited research skills, that DOJ has decided not to appeal Judge Weinstein's sentencing decision in RV.

Because I am bad at researching appellate dockets, and also because the process for when and how the Justice Department makes appellate decisions is quite opaque in various ways, I do not yet want to crow about being right here that DOJ did not want to appeal this decision and risk its affirmance by the Second Circuit.  But I am hoping, perhaps with the help of readers, I can soon confirm that the Second Circuit will not be reversing RV because federal prosecutors have decided not to appeal the decision. (Needless to say, I am somewhat excited about the possibility of demonstrating that I now actually do know a lot more than Bill Otis "about the workings of US Attorneys' Offices" even though I have never worked in such an office and Bill spent most of his professional life in these offices.)  If it does turn out true that DOJ has decided not to appeal in US v. RV, I think this discretionary prosecutorial decision is itself a very interesting and important bit of evidence concerning how post-Booker reasonableness review works (and doesn't work) to iron out sentencing disparties in CP downloading cases and many others.

Prior related posts about recent notable CP cases from the EDNY:

• Judge Jack Weinstein disregards severe federal child porn guidelines again
• Notable report on another EDNY federal judge objecting to harsh provisions of federal child porn laws
• Another federal child porn downloader gets another non-prison sentence in the EDNY

Second Circuit panel laments the "Statement of Reasons" form used by sentencing judges

A helpful reader made sure I did not miss the interesting sentencing opinion handed down by the Second Circuit yesterday in US v. Pruitt, No. 14‐1921 (2d Cir. Feb. 1, 2016) (available here).  Authored by District Judge John Gleeson sitting by designation, here is how the Pruitt opinion gets started:

Kaylon Pruitt appeals from the May 29, 2014 judgment of conviction entered against him in the United States District Court for the Northern District of New York (Suddaby, J.).  Pruitt was sentenced principally to a 46‐month term of imprisonment on his plea of guilty to being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g).  He contends that the district court committed procedural error during his sentencing by failing to explain the reasons for the sentence, as required by 18 U.S.C. § 3553(c).

We affirm but write to suggest to the United States Sentencing Commission and the Judicial Conference of the United States that the Statement of Reasons form included within the statutorily‐required form for the entry of criminal judgments ‐‐ Form AO 245B ‐‐ be amended to bring it into conformity with § 3553(c) and Supreme Court precedent.  Specifically, a check‐a‐box section of the form, which was checked by the district court in this case, invites sentencing judges to impose a sentence within the applicable Guidelines range simply because the judge finds no reason to depart.   Because that both undermines the statutory obligation to state the reasons for every sentence and unlawfully presumes the reasonableness of the advisory Guidelines range, the form should be amended.

In a final notable footnote, the Pruitt opinion takes a notable shot at the US Sentencing Commission:

The form as a whole seems designed to encourage judges to sentence within the range.  A path of least resistance is clearly marked, and it is consistent with the Commission’s overall approach to sentencing in the post‐Booker era.  In United States v. Booker, 543 U.S. 220 (2005), the Supreme Court held that the mandatory guidelines system was incompatible with the Sixth Amendment right to trial by jury, and it accordingly severed the provision of the Act that made the Guidelines mandatory.  The Sentencing Commission has since repeatedly asked Congress to enact legislation requiring sentencing courts to give greater weight to the Guidelines range than Booker and its progeny permit.  The specific proposals include laws that would require sentencing judges give “substantial weight” to the advisory Guidelines range and require appellate courts to accord a presumption of reasonableness to within‐range sentences.  Thus, the objectionable part of Statement of Reasons form may reflect the law as the Commission wants it to be.

Is it reasonable to ask Santa Claus to bring a certiorari grant on acquitted conduct sentencing?

The silly question in the title of this post is prompted by the terrific Christmas-week opinions authored by DC Circuit Judges Kavanaugh and Millett in concurrences to the denial of en banc rehearing in US v. Bell, No. 08-3037 (DC Cir. Dec. 22, 2015) (available here). Regular readers know that I have long been troubled by the use of so-called acquitted conduct in the calculations of an applicable guideline range, both opinions in Bell spotlight well some of the reasons why.

Interestingly, Judge Kavanaugh suggests he thinks Congress or the Sentencing Commission may need to act in order now to address problems with acquitted conduct. But Judge Millett's opinion in Bell provides, in the space of eight pages, a thoughtful and thorough accounting of why the Supreme Court should consider anew the constitutional validity of sentences enhanced dramatically on the basis of allegations that a jury considered insufficient for a lawful conviction.  I will provide here an exceprt from the start and end of Judge Millett's opinion:

This case is one in an “unbroken string of cases” encroaching on the Sixth Amendment right to a trial by jury, Jones v. United States, 135 S. Ct. 8, 9 (2014) (Scalia, J., joined by Thomas & Ginsburg, JJ., dissenting from the denial of certiorari).  The government indicted Gregory Bell for a “mélange” of crimes, “including conspiracy and crack distribution.”  Panel Op. 2.  Bell exercised his constitutional right to a trial by jury on those charges, and the jury acquitted Bell of ten of the thirteen charges against him, “including all narcotics and racketeering conspiracy charges.”  Panel Op. 3.  The jury convicted Bell of only three crack cocaine distribution charges that together added up to just 5 grams.

Because Bell had no significant criminal history and the amount of cocaine was relatively small, Bell’s Sentencing Guidelines range for the offense of conviction would have been 51 to 63 months.  At sentencing, however, the district court found that Bell had engaged in the very cocaine conspiracy of which the jury had acquitted him, and sentenced Bell to 192 months in prison — a sentence that was over 300% above the top of the Guidelines range for the crimes of which he was actually convicted.

In a constitutional system that relies upon the jury as the “great bulwark of [our] civil and political liberties,” Apprendi v. New Jersey, 530 U.S. 466, 477 (2000) (quoting 2 J. Story, Commentaries on the Constitution of the United States 540– 541 (4th ed. 1873)), it is hard to describe Bell’s sentence as anything other than a “perverse result,” United States v. Watts, 519 U.S. 148, 164 (1997) (Stevens, J., dissenting).  The foundational role of the jury is to stand as a neutral arbiter between the defendant and a government bent on depriving him of his liberty.  But when the central justification the government offers for such an extraordinary increase in the length of imprisonment is the very conduct for which the jury acquitted the defendant, that liberty-protecting bulwark becomes little more than a speed bump at sentencing....

While I am deeply concerned about the use of acquitted conduct in this case, I concur in the denial of rehearing en banc.  That is because only the Supreme Court can resolve the contradictions in the current state of the law, by either “put[ting] an end to the unbroken string of cases disregarding the Sixth Amendment” or “eliminat[ing] the Sixth Amendment difficulty by acknowledging that all sentences below the statutory maximum are substantively reasonable.”  Jones, 135 S. Ct. at 9 (Scalia, J., joined by Thomas and Ginsburg, JJ., dissenting from denial of certiorari).  Though I am not certain Bell’s argument is directly foreclosed by Supreme Court precedent, my colleagues on the panel have done their best to navigate existing precedent, recognizing that the Supreme Court has thus far declined to address this issue.  Going en banc would only delay affording the Supreme Court another opportunity to take up this important, frequently recurring, and troubling contradiction in sentencing law.

Despite seemingly having a number of sound vehicles for reconsidering Watts in the wake of Apprendi, Blakely, Booker et al., the Supreme Court has persistently dodged this acquitted conduct issue for well over a decade. Thus, we may need some of the holiday magic of Old Saint Nick in order to finally get the Justices to give needed attention to "this important, frequently recurring, and troubling contradiction in sentencing law."

Great Hastings Law Journal coverage of federal sentencing circa 2015

Earlier this year, I had the honor of participating in a Hastings Law Journal symposium on federal sentencing reform a decade after Booker.  During the live event back in February, I thought that the written product of the symposium would be terrific if it captured even just a small piece of the many ideas developed during the live event. This current issue of Hastings Law Journal has these resulting articles, and they are all terrific:

Keynote Address: Federal Sentencing Reform Ten Years After United States v. Booker by Hon. Charles Breyer

Merit-Based Sentencing Reductions: Moving Forward on Specifics, and Some Critique of the New Model Penal Code by Rory Little

Incentivizing Excellence: A Suggestion for Merit-Based Reductions from a Twenty-Six-Year Federal Prison Insider by Michael Santos

Federal Sentencing in the States: Some Thoughts on Federal Grants and State Imprisonment by John Pfaff