Sentencing Law and Policy

"Child Pornography and Criminal Justice Reform"

The title of this post is the title of this notable new article now available via SSRN and authored by Dawinder Sidhu and Kelsey Robinson. Here is its abstract:

Drug offenses lie at the heart of the movement for criminal justice reform, and for good reason.  The defining attributes of prevailing drug policy — severe and disproportionate penalties owning to a retributive, factually flawed, and hurried congressional process — apply to the child pornography context as well.  In this Article, we identify the common issues with drug and child pornography sentencing and outline the doctrinal implications of this shared foundation, especially as to district court discretion to vary under Kimbrough v. United States.

Though drug sentencing is problematic enough, child pornography is arguably worse.  The U.S. Sentencing Commission has disavowed these guidelines and invited judges to vary from them.  Judges have done just that, varying in 63% of all cases, more than any other offense type.  Thus, in this Article, we also suggest how the improvements to this uniquely distressed area of law can inform criminal justice reform more generally, especially as to substantive reasonableness review under Gall v. United States, mandatory minimum sentences, and sunset provisions for penalty levels.

Child pornography is not part of the conversation for criminal justice reform.  We take on child pornography sentencing, and in doing so hope to ensure that the movement for criminal justice reform is both correct and complete.

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.

"More than a Formality: The Case for Meaningful Substantive Reasonableness Review"

The title of this post is the title of this astute new Note just published in the January 2014 issue of the Harvard Law Review. Here is the Note's introduction:

Appellate review of sentencing is under assault.  When the Supreme Court rendered the Federal Sentencing Guidelines nonbinding in United States v. Booker, it established appellate review of federal sentences for reasonableness to cabin sentencing judges’ newly acquired discretion.  The substantive component of this review — which authorizes appellate courts to vacate those sentences that reflect clear errors in judgment or that are excessively disproportionate — is a fundament of the post-Booker sentencing regime, but one that courts have struggled to implement.  Indeed, a troubling consensus is emerging that substantive reasonableness review is unworkable or even undesirable.  Such views neglect unwarranted disparities in sentences and threaten to disrupt the feedback loop between courts and the U.S. Sentencing Commission (the Commission) that appellate review was intended to serve.  If sentencing is to be fair, appellate courts must do better. This Note argues that they can.

This Note proceeds in five parts.  Part I surveys the history of appellate review of federal sentences.  Part II relies on case law and recent statements by a variety of stakeholders to examine the state of substantive reasonableness review in the circuit courts.  Part III defends meaningful substantive reasonableness review as essential to promoting fairness and uniformity in federal sentencing.  Part IV identifies ways in which the courts and the Commission can work toward a more effective and stable system of substantive review. Part V concludes.

District Judge Graham gets in a final word on child porn sentencing despite Sixth Circuit reversals

I am about to head off line for the bulk of the day in order to head down to the Queen City in order to watch the full en banc Sixth Circuit consider crack sentencing modification rules in Blewett. (I hope late tonight to report on what I see in the argument, perhaps with a prediction as to the outcome.)

For my last word before I go to watch the Sixth Circuit in action, I am pleased to post a recent opinion by US District Judge James Graham that provides its own kind of last word about the Sixth Circuit's recent sentencing work in a child pornography downloading case that the Sixth Circuit took out of Judge Graham's hands.  The opinion in US v. Childs (which can be downloaded below) is relatively brief, and it starts and winds down this way:

This is a disturbing case. Defendant is charged with one count of possession of child pornography. I am called upon to decide whether to accept a plea agreement which requires me to impose a sentence which is roughly only one sixth of the lowest sentence recommended by the United States Sentencing Guidelines (“the Guidelines” or “U.S.S.G.”). This is disturbing not because I disagree with the sentence, but because I am convinced that under the law of the Sixth Circuit announced in United States v. Bistline, 665 F.3d 758, 761-64 (6th Cir. 2012)(“Bistline I”), I would not have been free to select such a sentence without the government’s agreement....

The Sixth Circuit's decision in Bistline I blurs the distinction between mandatory and advisory by requiring more deference to congressionally created guidelines than that accorded to Sentencing Commission-created guidelines.  Just what implications this might have under Apprendi was not discussed by the Sixth Circuit.

There have been some very important developments since the Sixth Circuit's decision in Bistline I. In its Report to Congress: Federal Child Pornography Offenses (Dec. 2012), www.ussc.gov/Legislative_ and_ Public_ Affairs/ Congressional_ Testimony_ and_ Reports/ Sex_ Offense_ Topics/ 201212_ Federal_ Child_ Pornography_ Offenses/ (visited October 1, 2013), the Sentencing Commission publicly declared that the existing guidelines for child pornography offenses were flawed and in need of repair.  In a letter to Judge Patti B. Saris, Chair of the Commission, dated March 5, 2013, Anne Gannon, National Coordinator for Child Exploitation Prevention and Interdiction, responded to the Commission’s report on behalf of the Department of Justice.  See Letter from Anne Gannon, Nat’l Coordinator for Child Exploitation Prevention and Interdiction, Office of the Deputy Attorney General, U.S. Dep’t of Justice, to Honorable Patti B. Saris, Chair, U.S. Sentencing Comm’n (Mar. 5, 2013), available at http://sentencing.typepad.com/files/doj-letter-to-ussc-on-cpreport. pdf (visited Sept. 30, 2013). The Department expressed its agreement with many of the Commission’s conclusions, noting that the report “reflects a significant amount of detailed research and thoughtful analysis" and thanking the Commission for "undertaking the important task of laying the foundation for reforming sentencing practices involving non-production child pornography offenses." Id. at 1.

Nevertheless, on June 27, 2013, four months after the Commission’s report, the Sixth Circuit filed its opinion in United States v. Bistline, 720 F.3d 631 (6th Cir. 2013)(“Bistline II”) reaffirming it's holding in Bistline I, with no mention whatsoever of the Commission’s findings or the extent of the Department of Justice's concurrence.  As a judge who has regularly sat on the Sixth Circuit Court of Appeals by designation for more than two decades, I find this inexplicable.  Many of the Commission’s criticisms of the child pornography guidelines, including criticisms which the Justice Department concurred in, are identical to the ones I expressed in my sentencing colloquy in Mr. Bistline’s case.  The Sentencing Commission’s criticism of the crack cocaine guidelines was cited as a reason for diminished deference for those guidelines in Kimbrough, and that part of the Kimbrough decision was cited by the Sixth Circuit in Bistline I to explain why the Supreme Court decided that the crack cocaine guidelines were entitled to less deference. See Bistline I, 665 F.3d at 763. In light of the fact that, in the interim, the Commission had spoken on the child pornography guidelines, why would the court not revisit the applicability of Kimbrough when it decided Bistline II? It seems clear to me that under Kimbrough, the child pornography guidelines should be accorded less, not more, deference than others.

It is a tragic irony that sentencing judges in the Sixth Circuit are required to give enhanced deference to guidelines which the independent Commission, relied upon so heavily by the Supreme Court in upholding the Guidelines, has now declared flawed and in need of reform. It is even more tragic that offenders in this circuit will have to rely on prosecutorial discretion, not judicial discretion, in order to receive a just and fair sentence in these cases.

Download Childs Sentencing Opinion and Order

"Doing Kimbrough Justice: Implementing Policy Disagreements with the Federal Sentencing Guidelines"

The title of this post is the title of this newly available piece via SSRN authored by Scott Michelman and Jay Rorty. Here is the abstract:

Federal sentencing law is in the midst of a period of profound change.  In 1984, responding to concerns about excessive judicial discretion in sentencing, Congress created the United States Sentencing Commission to promulgate the United States Sentencing Guidelines (Guidelines), a complex and mandatory schedule of federal criminal sentences based on a multitude of offense- and offender-specific factors.  The Guidelines were introduced in 1987 and governed federal sentencing for nearly twenty years.  But in 2005, the Supreme Court held that the Guidelines, by requiring judges instead of juries to find facts that could increase a defendant's sentence, violated the Sixth Amendment.  The Court's remedy was to render the Guidelines advisory only -- a starting point but not necessarily the endpoint for sentencing decisions.

Over the past several years, the Supreme Court and the lower federal courts have had to answer a range of questions about how the new advisory Guideline system would work in practice.  Among the most consequential were the procedural question of how a district court should apply the now-advisory Guidelines, and the substantive question of whether a court could vary from the Guidelines on the basis of a policy disagreement with the Guidelines themselves rather than the circumstances of an individual defendant.

The Supreme Court answered these two crucial questions in the Gall and Kimbrough cases in December 2007, yet these two decisions seemed to talk past each other in terms of sentencing procedure.  Kimbrough authorized policy-based variances.  Gall instructed courts how to apply the advisory Guidelines in individual cases.  But neither case explained how or when in the sentencing process courts should apply the policy-based variances the Court had just authorized.  The result has been a lack of procedural uniformity among district courts applying policy-based variances, with most courts mingling policy and individualized considerations without specifying the role of each factor in determining sentences.  Most courts have not even acknowledged, much less attempted to bridge, the gap between the substantive sentencing considerations authorized in Kimbrough and the procedural roadmap laid out in Gall.  Academic discourse has likewise left this issue unaddressed.

This Article urges courts to reconcile Kimbrough and Gall by adding an analytical step to the sentencing process through which courts can explicitly apply policy considerations separately from, and prior to, individualized considerations.  The blending of policy- and individual-based factors in sentencing adversely affects both the fairness of individual sentences and the development of the Sentencing Guidelines themselves.  When courts blend different types of variances together, it is more difficult for them to exercise fully each type of discretion available under the advisory Guideline regime.  Additionally, the Sentencing Commission relies on a continuing dialogue with district courts to fulfill its perpetual responsibility of refining the Guidelines based on empirical data and national experience; a clear articulation of courts' grounds for variance, therefore, provides vital information about how the Guidelines can be improved.  The creation of an independent analytical step will ensure faithfulness to Kimbrough and due consideration of each facet of the sentencing court's discretion.  The result will be a sentencing process that is more precise, more transparent, and ultimately fairer.

Seventh Circuit rejects claims that district judge should reject new 18:1 guideline crack ratio

The Seventh Circuit handed down an interesting decision today in US v. Matthews, No. 11-3121 (7th Cir. Dec. 4, 2012) (available here), in response to a defendant's claim that he should be sentenced based on a 1:1 powder/crack cocaine ratio rather than the 18:1 ratio now reflected in the revised sentencing guidelined. Here is a key section of the start of the panel's discussion in Matthews:

On appeal Matthews challenges two aspects of his sentence. First, he argues that the district court committed procedural error by treating the 18:1 crack-topowder sentencing ratio in the guidelines as binding. Second, he claims that the court’s decision to adhere to that ratio created unwarranted sentence disparities because other judges in the same district used a 1:1 ratio in like cases. See 18 U.S.C. § 3553(a)(6) (instructing district courts to consider whether a sentence results in “unwarranted sentence disparities”).

We reject these arguments and affirm. The district court commented on the drug-quantity ratio in direct response to Matthews’s argument that the court should follow the lead of other judges in the district and impose a belowguidelines sentence based on a 1:1 crack-to-powder ratio. The judge declined to do so, deferring instead to the 18:1 policy adopted in the Fair Sentencing Act of 2010 and the corresponding amendments to the guidelines. Although the judge adopted a highly deferential stance toward the judgment of Congress and the Sentencing Commission, there is no indication that he misunderstood his discretion to use a different ratio. Matthews’s argument to the contrary is implausible this far removed from United States v. Booker, 543 U.S. 220 (2005), Kimbrough v. United States, 552 U.S. 85, 109 (2007), and Spears v. United States, 555 U.S. 261 (2009). Moreover, the judge’s decision to adhere to the ratio endorsed by Congress and the Commission does not make the resulting withinguidelines sentence unreasonable merely because other judges in the district exercised their discretion to use a different ratio. A sentence disparity that results from another judge’s policy disagreement with the guidelines is not “unwarranted” under § 3553(a)(6).

Sixth Circuit panel reverses drug sentence on "the admittedly unfair ground of insufficient clairvoyance"

The title of this post makes more sense if and when one reads today's ruling by the Sixth Circuit in US v. Priester, No. 08-2391 (6th Cir. July 22, 2011) (available here).  Here is how the decision starts:

In some cases we hold the district court to a standard we would dislike imposing on ourselves.  This is such a case.  Xavier Priester pled guilty to conspiring to distribute crack cocaine, powder cocaine, and marijuana.  The district court sentenced him to a within-Guidelines 180 months’ imprisonment.  The court’s explanation as to why it chose that sentence was exemplary — with one exception.  The exception is what Priester targets here.  He argues, specifically, that the district court failed to recognize that it had the authority to “vary categorically” from the crackcocaine guidelines in choosing Priester’s sentence.  The existence of that authority was made clear in a Supreme Court case — Spears v. United States, 555 U.S. 261, 265–66 (2009) (per curiam) — that was itself decided after the district court sentenced Priester. S o we have the benefit of that decision, whereas the district court did not.  Having parsed the sentencing transcript, we agree with Priester that the district court appeared unaware of the authority that the Supreme Court expressly announced months later.  And thus — on the admittedly unfair ground of insufficient clairvoyance — we vacate Priester’s sentence and remand the case for resentencing.

Judge Boggs dissents from the panel's disposition, and his opinion begins this way:

While the majority opinion acknowledges the problematic nature of reversing a district judge because of a Supreme Court decision issued after the judge ruled, (Maj. Op. at 2), that is a problem inherent in our system.  What the majority opinion calls “the admittedly unfair ground of insufficient clairvoyance,” ibid., does occur with some frequency, and is not a basis for dissent.  However, I think there is a more fundamental problem here.  The perceived flaw in the district judge’s conduct was not in following a legal principle that the Supreme Court later rejected.  Instead, it was (apparently) in not realizing that he needed to articulate on the record his recognition of a power that had not been explicitly sanctioned by the Supreme Court.  See Spears v. United States, 129 S. Ct. 840, 843-44 (2009) (per curiam).  To make matters worse, this failure occurred in a context where no one clearly asked him to assert such a power.

Notable recent resentencing opinion on career offenders and Kimbrough discretion

I recently received a copy of a notable resentencing opinion from US District Judge Gregory Presnell, who long ago already secured a place in my Sentencing Hall of Fame.  The opinion in US v. Vazquez, No. 6:04-cr-212-Orl-31 (M.D. Fla. June 28, 2011) (available for download below), covers a number of modern federal sentencing issues and reviews a remarkable procedural history for a single low-level drug defendant.

Specifically, way back in 2005 just six months after the Booker ruling, Judge Presnell originally imposed a sentence of just over nine years in prison after refusing to essentially double the defendant's sentence, as the guidelines' career-offender provisions urged, based on two old convictions.  On the government's appeal, this sentence was vacated, with the Eleventh Circuit holding that policy-based criticism of the career-offender guidelines was not permitted.  Judge Presnell then imposed a substantially higher sentence (15 years in prison), a sentence which was upheld by the Eleventh Circuit.  But upon further appeal, the Solicitor General switched positions and argued that the Eleventh Circuit had misinterpreted Kimbrough, and the case was ultimately returned to Judge Presnell for another resentencing.

In this latest opinion, Judge Presnell explains all this history and accounts for the current state of the law within the Eleventh Circuit.  He then reimposes the original sentence, less another 20 months for post-sentencing rehabilitation under Pepper.  Notably, the opinion reports that "the parties agreed that a 20-month reduction would be appropriate to account for the Defendant’s post-sentencing rehabilitation."  Slip op. at 10 (emphasis added).  

There is now such great irony represented by this (finally!) final Vazquez sentence: by virtue of federal prosecutors fighting the original 110-month sentence so effectively from the outset, along with SCOTUS rulings along the way, the defendant here was able ultimately to secure an extra 20 months off his original below-guideline sentence, and federal prosecutors now apparently agree that a sentence even below that originally imposed is now just and proper.  And, assuming the defendant gets his 15% good-time credits for time already served, it would seem he is due to be released from prison not long after his sentence was finally resolved.

Download Vazquez_resentencing_order_from_Judge Presnell 

Judge Bright laments post-Booker crack sentencing realities in Iowa

Concurring in part and dissenting in part in an Eighth Circuit opinion in US v. Brewer, No. 09-3909 (8th Cir. Oct. 21, 2010) (available here), that is not otherwise that notable, Judge Myron Bright has a lot to say about disparties in crack sentencing approaches in the Northern District of Iowa. Here is part of his opinion:

Who could have guessed that President Eisenhower’s decision nearly sixty years ago to create a national system of interstate highways would have an effect on sentencing in Iowa today?  Well, it has.  In the Northern District of Iowa, cases arising on one side of the interstate go to one district court judge while cases arising on the other go to a second judge. And one active judge uses a 1:1 ratio between crack and powder cocaine when sentencing violators of crack cocaine laws while the other follows the sentencing guidelines -– which here applied a 33:1 ratio.  So in the Northern District of Iowa, the location of the crime relative to the interstate is a significant factor in crack cocaine sentencing. In my view, the difference in sentences between similar offenders should not depend on which side of the interstate a crime was committed or where the offender was arrested. See United States v. Ayala, 610 F.3d 1035, 1037-38 (8th Cir. 2010) (Bright, J., concurring) (discussing the need to reduce sentencing disparity in the post-Booker era).

For Brewer’s crime of possessing, conspiring, and delivering approximately 150 grams of crack cocaine, the guidelines recommended a sentence of 30 years to life.  That’s the same recommendation as if Brewer had committed second-degree murder. Unfortunately, equating crack cocaine with murder is not uncommon. See Robert Perkinson, Texas Tough: The Rise of America’s Prison Empire 336 (Metropolitan Books 2010) (Texas Tough) (“In 1995, the average federal prison term for a crack offense surpassed that of murder.”).  Brewer requested a variance from the harsh crack cocaine guidelines on the basis of the disparity with powder cocaine and he cited a decision by Judge Bennett of the Northern District of Iowa who utilizes a 1:1 crack/powder ratio.

The court imposed a 370-month sentence.  That’s 30 years and 10 months. The district court denied Brewer’s request for a variance, stating “I did consider and reject the request for a variance based on the disparity in punishment between crack cocaine and cocaine.  As I looked at the statutory factors under 18 U.S.C. 3553(a), I determined that, on balance, this sentence was not out of the range of reasonableness and is fully supported by the evidence.”

The majority affirms, concluding that the district court was not required to vary downward on the basis of the crack/powder disparity.  But I believe the district court’s decision does not reflect a reasoned and informed exercise of discretion.  The district court cavalierly applied a guideline which often does not comply with § 3553(a) in the mine-run case, treats Brewer like a murderer, and results in unwarranted intra-district disparity.  Sadly, the interstate and corresponding judicial assignment made a substantial difference at Brewer’s sentencing.

"Fast-Track Sentencing Disparity: Rereading Congressional Intent to Resolve the Circuit Split"

The title of this post is the title of an important new Comment by Thomas Gorman that now appears in the University of Chicago Law Review (and is available here via SSRN).  This Comment throughtfully engages with what I view to be one of the most interesting and dynamic (and consequential) post-Booker issues. Here is the abstract:

Early Disposition Programs -- commonly referred to as "fast-track" sentencing - allow a federal prosecutor to offer a below-Guidelines sentence in exchange for a defendant's prompt guilty plea and waiver of certain pre-trial and post-conviction rights.  Typically, fast-track sentencing is used to quickly process an overwhelming caseload of immigration offenses. Fast-track programs received official sanction when Congress, in the PROTECT Act, directed the Sentencing Commission to authorize them.  This authorization requires both the local US Attorney and the Attorney General to approve the implementation of each program. As a result, fast-track sentencing is presently approved in just a fraction of judicial districts. Therefore, not all defendants are eligible for a reduced fast-track sentence, and eligibility is dependent on where they are found and prosecuted.

Defendants in non-fast-track districts argue that this geographic disparity triggers 18 USC § 3553(a)(6), which states that sentencing courts must consider "the need to avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct."  These defendants argue that sentencing courts in non-fast-track districts have the discretion to grant below-Guidelines sentences to mitigate the disparity.

The circuit courts uniformly agreed that sentencing courts could not mitigate the fast-track disparity prior to the Supreme Court’s decision in United States v Kimbrough.  In Kimbrough, the Court noted that the Sentencing Guidelines are advisory, and that sentencing courts have broad discretion to impose a below-Guidelines sentence if it is necessary to ensure that the sentence is “sufficient, but not greater than necessary.”  Congress, if it wants to limit this discretion, must do so explicitly. In light of this decision, the circuits have begun to reconsider their precedent on fast-track sentencing and a split has developed.  The First and Third Circuits now hold that "sentencing courts can consider items such as fast-track disparity" when deciding whether to grant a below-Guidelines sentence.  The Fifth, Ninth and Eleventh Circuits continue to hold that sentencing courts may not mitigate the fast-track disparity.

This Comment attempts to resolve the split by arguing that circuit courts have erred by focusing on the one-sentence authorization of fast-track in the PROTECT Act.  The statutory language is ambiguous, so it is not helpful in resolving the debate. Therefore, this Comment argues for an investigation of legislative intent.

An intent analysis requires a thorough examination of congressional efforts to reform sentencing, rather than a limited inquiry into the PROTECT Act’s one-sentence authorization of fast-track.  The purpose of the fast-track authorization is clearer when the statute is considered in the context of Congress’ long campaign to reform sentencing.  For the last 30 years, Congress has consistently prioritized two goals: promoting harsh sentences and reducing unwarranted sentencing disparities.  These goals are also what drove Congress to authorize a limited form of fast-track sentencing.

This Comment argues that granting sentencing courts the discretion to mitigate the fast-track disparity is more supportive of Congress’ goals than any alternative.  It is also more consistent with the Supreme Court’s recent rulings defending judicial discretion.

New scholarship complaining that reasonableness review is now quite unreasonable

Now appearing on SSRN is this notable forthcoming article discussing the mess that is reasonableness review of federal sentences in the circuits.  The piece is titled "When ‘Reasonableness’ is Not so Reasonable: The Need to Restore Clarity to the Appellate Review of Federal Sentencing Decisions after Rita, Gall, and Kimbrough," and here is the abstract:

Judges, like anyone else who works for a living, need standards.  Judges need to know what rules to apply, when to apply them, and who to apply them to.  And judges, just like you or I, want to know how their work will be reviewed.  Unfortunately, in many circuits, federal district court judges do not know how, or even if, their work will be reviewed by appellate courts in the context of criminal sentencing decisions.

Booker completely changed the sentencing landscape in the federal court system, but it left many questions as to what standards appellate courts would apply in reviewing sentencing decisions.  The Supreme Court issued three opinions in 2007, Rita, Gall, and Kimbrough, in an attempt to resolve several of the circuit splits that resulted when the Supreme Court repealed the mandatory sentencing guidelines in Booker.  Practically speaking, these decisions failed to clarify what authority appellate courts wield in the sentencing process, and how appellate judges should exercise that authority.

This Article examines how the contradictory language from Rita, Gall, and Kimbrough not only failed to provide clarity, but created new inter- and even intra-circuit splits.  This Article argues that these problems can only be resolved by articulating clear and practicable standards that prioritize the sentencing factors contained in 18 U.S.C. § 3553(a), rather than continuing to weigh them all equally.  Specifically, the Supreme Court could require district court judges to take advantage of the wealth of sentencing data being collected by the U.S. Sentencing Commission to justify particular sentences for defendants by reference to those given to similarly situated defendants across the nation.  This solution has the potential to achieve the balance that has thus far eluded the Court between both Congress’ legislative intent behind the original enactment of the mandatory sentencing guidelines, and the Court’s Sixth Amendment concerns raised in Booker.

Seventh Circuit judges debating reach of Kimbrough to career offenders

The Seventh Circuit today has an interesting panel opinion in US v. Welton, No. 08-3799 (7th Cir. Oct. 2, 2009) (available here), which in turn triggers an interesting dissent from judges not actually on the panel deciding the case.  First, here is the heart of the ruling in Welton:

Welton contends that Kimbrough’s holding should be extended to include defendants sentenced as career offenders. But applying the reasoning above, Welton’s argument must fail. Unlike the crack/powder disparity, the career offender Guideline range is the product of a Congressional mandate. As Kimbrough noted, Congress “specifically required the Sentencing Commission to set Guidelines sentences for serious recidivist offenders ‘at or near’ the statutory maximum.” Id. at 571 (citing 28 U.S.C. § 994(h)). Deviating from the career offender Guideline range based on a policy disagreement necessitates that a sentencing court disregard those statutory maximums.

Because this ruling required the Seventh Circuit panel to overrule a prior decision, this opinion was circulated to all member of the Circuit.  That, in turn prompted a dissent from three judges not on this panel, which starts this way: 

The Supreme Court has held unequivocally that all guidelines are advisory and that courts may issue below-guideline sentences based on policy disagreements with the crack/powder disparity.  Nonetheless, the panel believes there are some exceptions to these rules. Because the panel opinion imposes impermissible limits on a judge’s discretion in applying the Sentencing Guidelines, I believe it is out of step with the Supreme Court’s decisions in Booker and Kimbrough.

Little Sixth Circuit ruling flags enduring question over Kimbrough's reach

The Sixth Circuit today has a seemingly minor ruling today in US v. Vandewege, No. 07-2250 (6th Cir. April 8, 2009) (available here), in which the court remands for resentencing in a crack case. The case is blog-worthy, howevere, because a concurrence by Judge Gibbons spotlights an enduring question about the Supreme Court's work in Kimbrough.  Here are snippets from her opinion: 

Succinctly stated, Kimbrough held that “district courts are entitled to reject and vary categorically from the crack-cocaine Guidelines based on a policy disagreement with those Guidelines.” Spears, 128 S. Ct. at 843-44.  Neither Kimbrough nor Spears authorized district courts to categorically reject the policy judgments of the Sentencing Commission in areas outside of crack-cocaine offenses, as the majority suggests.  See Maj. Op. at 3 (asserting that “[t]he Supreme Court has made it clear” that district judges may depart from the Guidelines based upon any policy disagreement and claiming that the Court has established a higher standard of review for such departures).  Kimbrough instead expressly reserved the question as to whether a district court could categorically vary from the Guideline range based solely upon a policy disagreement with the Commission in an area other than the crack-cocaine disparity.  Kimbrough, 128 S. Ct. at 575 (noting that the “crack cocaine Guidelines . . . present no occasion for elaborative discussion” of the larger question of district courts’ ability to categorically disagree with the Commission’s policy decisions).  This was because the crack-cocaine Guidelines did “not exemplify the Commission’s exercise of its characteristic institutional role” of gathering “empirical data and national experience” and adjusting the Guideline range accordingly.  Id. (internal quotation and citation omitted); see also Spears, 129 S. Ct. at 842-43 (noting that Kimbrough’s holding allowing for categorical departures based upon policy disagreements applied only as to sentences for crack or cocaine offenses).  The Supreme Court only hinted that if a district court could categorically depart from the Guidelines range in an area where the Commission has exercised its “characteristic institutional role,” closer scrutiny of such a variance may be required.  Kimbrough, 128 S. Ct. at 575 (“[C]loser review may be in order when the sentencing judge varies from the Guidelines based solely on the judge’s view that the Guidelines range fails to properly reflect § 3553(a) considerations even in a mine-run case.” (internal quotation and citation omitted)). Kimbrough has thus not “made it clear” that district courts may vary from the Guidelines based solely upon any policy disagreement.  Maj. Op. at 3.

Applied to the present case, this debate over Kimbrough and Spears’s portent is purely academic. Vandewege’s appeal presents us only with a defendant convicted of distributing cocaine, an area where the district courts’ authority to categorically depart from the Guidelines’ policy is clear.  We therefore have no occasion or authority to issue any holding bestowing upon district courts the carte blanche power to reject all policy decisions made by the Sentencing Commission, the dicta of the majority notwithstanding.  With these observations, I concur in the judgment of the court.

Sixth Circuit issues first Spears remand

The per curiam ruling by the Supreme Court last week in Spears (basics here) stressed that it acted via summary reversal because of the need to "promptly remove from the [jurisprudential] menu the Eighth Circuit’s offering, a smuggled-in dish that is indigestible" in light of the teachings of Kimbrough.  Today, the Sixth Circuit has the distinct honor of being the first lower court to serve up a Spears remand through US v. Johnson, No. 07-2447 (6th Cir. Jan. 26, 2009) (available here):

In light of the Supreme Court’s recent decision in Spears v. United States, — S. Ct. —, No. 08-5721, 2009 WL 129044 (Jan. 21, 2009), we VACATE Johnson’s sentence and REMAND for resentencing. Spears held that district courts have the power to categorically reject and vary from the crack-cocaine sentencing guidelines based on a policy disagreement with the guidelines, even in a mine-run case such as this.  Because the district court sentenced Johnson without the benefit of Spears, we remand for resentencing to give the district court an opportunity to impose a sentence with full recognition of its authority to reject and vary from the crack-cocaine Guidelines based solely on a policy disagreement with those Guidelines.

Disappointingly, Sixth Circuit Judge Cook was not on the panel, so I can take the culinary metaphors just so far with this first ruling.  Mangia!

Recent related posts:

• Lots of criminal justice action from SCOTUS, including a sentencing per curiam
• Dueling with Spears (aka digesting Spears)
• An insider's reaction to the SCOTUS summary reversal in Spears
• Effective review of Spears ruling

Effective review of Spears ruling

Though it has been an historic week, I am pleased to be able today to remind sentencing fans of perhaps the most surprising event in the last few days: the summary reversal victory by a federal sentencing defendant in Spears.  Helpfully, local coverage here and here of the role played by Baylor Law Professor Mark Osler ensures that this important sentence story does not get completely lost in all the week's other exciting happenings.

Recent related posts:

• Lots of criminal justice action from SCOTUS, including a sentencing per curiam
• Dueling with Spears (aka digesting Spears)
• An insider's reaction to the SCOTUS summary reversal in Spears

An insider's reaction to the SCOTUS summary reversal in Spears

I asked Professor Mark Osler, who was counsel of record for the defendant who secured a surprise summary reversal win from the Supreme Court today in Spears, to write up his immediate reaction to the decision for posting.  Here was his thoughtful reply:

While today’s Spearsopinion at times reads like a WWE Sentencing Smack-down hosted on the Food Network, with the majority’s description of the Eighth Circuit’s opinion as “a smuggled-in dish that is indigestible” and the dissent’s reference to the “bitter medicine” of summary reversal, the Court’s clarification of Kimbrough may end up having real significance.

Fundamentally, the Court’s opinion makes very clear that Booker requires that judges be allowed to categorically reject sentencing guidelines with which they disagree on policy grounds. In so doing, the Spears majority encourages judges to articulate personal sentencing guidelines in a sense, by concretely defining the alternatives they are choosing. The Court properly and succinctly recognized that unless sentencing judges are allowed to define their alternative scorings categorically and honestly, there are only two possible outcomes: Either the guidelines are essentially mandatory, or judges lie about their reasoning, which is “institutional subterfuge.”  As the Court asserted, “Neither is an acceptable sentencing practice.”

This newly clarified principle may have a few very immediate uses.  First, this principle will quickly be tested outside crack cases.  For those of us in Texas, for example, Spears invites strong challenges to the 16-point enhancement for an aggravated felony in an illegal re-entry case, since that enhancement is no more “scientific” than the 100-1 powder/crack ratio.  Judges can, and perhaps should, develop categorical alternatives to this enhancement.

Second, and just as importantly, Spearsshould encourage the Obama administration to pro-actively use its power of commutation to lessen the sentences of those who are serving unduly harsh crack sentences.  This would especially include those who were sentenced under the wrong interpretation of Kimbroughembraced by three circuits, which was rejected today. It is not flaming liberals who would provide the moral impetus to these commutations.  Rather, it would be Justice Scalia, who likely authored Spears and at the least joined in the majority.  Through Spears, Scalia urged not only that categorical alternatives be allowed, but that this be made known “at once,” and that the Eighth Circuit’s interpretation needed to be removed from the debate “promptly.”  Seemingly, this urgency was one reason the case was decided per curiam.  If Justice Scalia feels that justice must be done in this area with alacrity, certainly President Obama should agree and warm up the essential executive commutation power President Bush had left out in the cold.

Recent related posts:

• Lots of criminal justice action from SCOTUS, including a sentencing per curiam
• Dueling with Spears (aka digesting Spears)
• Is it too early to start demanding President Obama use his clemency power?

Dueling with Spears (aka digesting Spears)

I remain surprised and excited that a majority of the Supreme Court thought it appropriate to use, as the Chief put it, "the bitter medicine of summary reversal" in Spears (opinion here) to reiterate for all circuit courts that they should not --- indeed, must not --- second-guess the work of sentencing courts if and when a district judge has provided a thoughtful explanation for her or his sentencing choices.  I am also pleased and excited that the Justices used such engaging words to talk up their differing assessments of whether a summary reversal was appropriate in this case.

Specifically, Chief Justice Roberts ends his dissent in Spears with these fascinating assertions: 

We should not rush to answer a novel question about the application of a one-year-old decision in the absence of a pronounced conflict among the circuits.

Apprendi, Booker, Rita, Gall, and Kimbrough have given the lower courts a good deal to digest over a relatively short period.  We should give them some time to addressthe nuances of these precedents before adding new ones.  As has been said, a plant cannot grow if you constantly yank it out of the ground to see if the roots are healthy.

But, in direct response the per curiam opinion for the Court (which certainly has the ring of an opinion from the pen of Justice Scalia) gives as good as it gets:

The dissent says that “Apprendi, Booker, Rita, Gall, and Kimbrough have given the lower courts a good deal to digest over a relatively short period.”  Post, at 3.  True enough — and we should therefore promptly remove from the menu the Eighth Circuit’s offering, a smuggled-in dish that is indigestible.

Any profound thoughts on the state of federal sentencing a year after Gall and Kimbrough?

It just dawned on me this morning that yesterday marked the one-year anniversary of the Supreme Court's decisions in Gall and Kimbrough, the two cases in which the Justices made extra clear that Booker really meant that the guidelines were to be treated as truly advisory.  Though the US Sentencing Commission seems unlikely to produce a "one-year-later" report on the impact of Gall and Kimbrough, it seems fair to suggest that these cases have had an important and consequential effect on federal sentencing outcomes and atmospherics. 

I could opine at length about my own impressions of the tangible and intangible impact of Gall and Kimbrough, but this post is mostly designed to encourage reader input.  Specifically, I am eager to hear from commentors concerning whether and how Gall and Kimbrough should be celebrated or cursed one year later.  I would also love to hear suggestions about what institutions like the US Sentencing Commission, the Justice Department and Congress should be thinking about as we start year two of the post-Gall/Kimbrough world (and approach year five(!) of the post-Booker world).

Eleventh Circuit's Judge Carnes notes interest in fast-track disparity issue

Today in a thoughtful separate opinion concurring in the denial of en banc review in US v. Vega-Castillo, Judge Carnes of the Eleventh Circuit adds some terrific juice to an important post-Kimbrough federal sentencing issue.  Here are notable snippets from the notable opinion:

I concur in the denial of rehearing en banc but might vote to carry en banc a case that more clearly presents the issue of whether sentencing disparities arising from the location of fast track or early disposition programs may justify a 18 U.S.C. § 3553(a) variance....

The argument in favor of permitting a variance is that defendants in thirteen or so of the federal districts around the country are earning early disposition sentencing departures, up to four levels, that defendants in the other eighty-one districts are not eligible to receive.  See generally U.S.S.G. § 5K3.1. The argument derives its force from the notion that two defendants with essentially the same sentencing profile and post-charge conduct should not be treated differently merely because of the part of the country where they committed their crime.  If a defendant in New Mexico gets a lower sentence because he meets the early disposition criteria, then a materially identical defendant in Florida who meets those same criteria (except for where he is located) ought to get one, too.  Or, at least, the sentencing judge in Florida ought to be allowed to vary downward in calculating the sentence in order to even things up.  That is the argument; that is the issue.  Our Castro and Llanos-Agostadero decisions rejected that argument but then came Kimbrough.  If Kimbrough has not revived the issue, it has at least put a few post-mortem twitches in it that might justify a fresh look en banc....

Because of Vega-Castillo’s criminal record, his failure to offer to waive his right to attack his conviction in a § 2255 proceeding, and his failure to offer to waive his right to appeal his sentence except for the issue at hand, his case does not adequately present the issue of whether a district court may, in an appropriate case, vary downward under § 3553(a) to eliminate disparities caused by the location of fast-track or early disposition programs.

Circuits continue to remand Kimbrough-impacted crack cases

While district courts are sorting through issues surrounding retroactive application of the Sentencing Commission reduced crack sentencing guidelines (background here), the circuit courts continue to sorting through crack sentencing cases impacted by the Supreme Court's decision in Kimbrough.  Coincidentally, two circuits have published rulings today that order remands for resentencing based on Kimbrough:

• From the Second Circuit, US v. Keller, No. 07-3330 (2d Cir. Aug. 14, 2008) (available here)
• From the Eighth Circuit, US v. Davis, No. 07-3650 (8th Cir. Aug. 14, 2008) (available here)

The Seventh Circuit also deals with these issues today in US v. Clanton, No. 07-1773 (7th Cir. Aug. 14, 2008) (available here), but it only remands two of the three cases considered in a consolidated appeal.  Then again, as all Meat Loaf fans know, two out of three ain't bad.

Any lawyer with a crack sentence appeal, in these circuits or in others, will want to check out all these rulings.

Eighth Circuit tries to unpack Kimbrough in en banc ruling

Resolving a post-Booker case that's been keeping the Circuit busy for years, the Eighth Circuit today issues another opinion in US v. Spears, No. 05-4468 (8th Cir. June 23, 2008) (en banc) (available here). Here is the unofficial summary from the Eighth Circuit's terrific opinion page:

On remand from the Supreme Court for reconsideration in light of Kimbrough v. United States, 128 S.Ct. 558 (2007). For the court's earlier opinion in the case see United States v. Spears, 469 F.3d 1166 (8th Cir. 2006) (en banc).  In light of Kimbrough, the court adopts the determination that, under Booker, the cocaine Guidelines, like all other Guidelines, are advisory only; district court erred by categorically rejecting the ratio set out in the Guidelines, by substituting its own crack to cocaine ratio and by failing to conduct any additional analysis of the factors set out in 18 U.S.C. Sec. 3553(a); case remanded for further proceedings.  Judge Murphy, concurring.  Judge Colloton, dissenting, joined by Wollman, Bye, Melloy and Smith.

UPDATE:  A helpful commentor notes that the Third Circuit's post-Kimbrough insights in the Gunter case were handed down this month and can be accessed here.  The story of crack sentencing in federal court has so many chapters, it is hard to keep them all straight.

Notable Kimbrough remand from the Eleventh Circuit

Anyone trying to track the aftermath of the Supreme Court's ruling in Kimbrough will want to give a close look to the Eleventh Circuit's work today in US v. Stratton, No. 06-10080 (11th Cir. Mar. 13, 2008) (available here).  Here are excerpts:

[W]e reconsider our previous opinion to the extent it rejected Stratton’s claim that the crack/powder sentencing disparity may be a factor in determining a reasonable sentence....  [We do so in part because] this is a case where the district court rejected Stratton’s claim that the court had authority to consider the crack/powder disparity as a sentencing factor and a basis for a sentence reduction. And this is not a case where the district court indicated that it would enter the same sentence even if the court had authority to consider the crack/powder disparity as a sentencing factor....

Therefore, we remand this case to the district court for the limited purpose of resentencing Stratton in light of Kimbrough.  We do not suggest on remand that the district court must impose any particular sentence or that the district court is not free to impose the same sentence after considering the § 3553(a) factors.  Furthermore, as this is a limited remand to permit the district court to reconsider the § 3553(a) factors in light of the Supreme Court’s holding in Kimbrough, Stratton may not re-argue other issues already decided or necessarily decided during his two prior sentencings that either were affirmed on direct appeal or could have been, but were not, raised by him during his direct appeals.... However, the district court may, if it wishes to do so, combine this resentencing proceeding on remand with any additional proceeding the district court may determine is appropriate in light of the retroactive application of Amendment 706 to the crack-cocaine guidelines effective March 3, 2008.

Extended Third Circuit discussion of Kimbrough

Though it does not appear to break any significant ground, the Third Circuit has a notably lengthy opinion today in US v. Wise, No. 06-4926 (3d Cir. Feb. 12, 2008) (available here).  This sentence from the opinion's first paragraph highlights the opinion's import: "Beyond the obvious significance of these appeals to the appellants themselves, these appeals are of particular note because they represent the first cases in this Circuit to address the differential in the powder cocaine and crack cocaine Sentencing Guidelines since the Supreme Court’s recent decision in Kimbrough v. United States, 128 S. Ct. 558 (2007) and the United States Sentencing Commission’s recent amendment to the Guidelines ranges for crack cocaine offenses."

Eighth Circuit provides post-Kimbrough spin on crack sentences

The Eighth Circuit today in US v. Roberson, No. 06-3458 (8th Cir. Feb. 7, 2008) (available here) provides its spin on crack sentencing after Kimbrough. Here are some key excerpts (with cited omitted):

The district court ignored Roberson’s and Sturgis’s arguments for lighter sentences based on the 100:1 disparity between crack and powder cocaine under the guidelines.  Previously, we have expressly refused to authorize such a consideration. Kimbrough held that the sentencing court did not abuse its discretion by considering the disparity between crack and powder cocaine sentences. More specifically, a district court acts within its discretion if it considers the crack/powder disparity in finding that a within-guidelines sentence is “‘greater than necessary’ to serve the objectives of sentencing.” Id. at 564 (quoting 18 U.S.C. § 3553(a) (2007)).

We do not believe, though, that Kimbrough means that a district court now acts unreasonably, abuses its discretion, or otherwise commits error if it does not consider the crack/powder sentencing disparity. True, the Supreme Court took a dim view of the extent of the disparity and was supportive of the Commission’s efforts to reduce it, see Kimbrough, 128 S.Ct. at 564, 567-68, but it did not appear to mandate that district courts consider the disparity in all sentences for crimes involving crack cocaine. Accordingly, we decline to go beyond the facial holding in Kimbrough by requiring that district courts consider the crack/powder disparity.

Ninth Circuit issues (first?) Kimbrough circuit remand

Though perhaps other circuit have ruled similarly in other cases, the Ninth Circuit today in US v. Casteneda, No. 05-10372 (9th Cir. Jan. 15, 2008) (available here), issues a notable Kimbrough remand. Here is the key text of the ruling:

These statements [from the court at initial sentencing] demonstrate that the district court did not foresee the extension of its Booker discretion that would be announced two years later by the Supreme Court in Kimbrough.  Thus, the district court did not feel free to consider whether “any unwarranted disparity created by the crack/ powder ratio” produced a sentence “ ‘greater than necessary’ to achieve § 3553(a)’s purposes.” Id. at 574-75.

We vacate the sentence and remand to the district court to reconsider the sentence in light of the Kimbrough decision and to determine whether the disparity between crack and powder cocaine produced a sentence “greater than necessary” under § 3553(a).  As noted above, this issue comes before the panel as a Petition for Rehearing.  We grant the Petition for Rehearing with respect to the foregoing issue....

Though I might dispute characterizing the Kimbrough ruling as "extension" of  Booker, it is encouraging to see the Ninth Circuit correct its prior ruling here.

Effective review of Gall and Kimbrough basics

I was pleased to receive and now post en effective basic summary of the Supreme Court's work in Gall and Kimbrough. Here is the e-mail I received describing the effort:

Attached is a Summary by David Debold from Gibson, Dunn & Crutcher LLP Entitled: “Two Supreme Court Decisions in December 2007 Highlight the Advisory Nature of the Federal Sentencing Guidelines”.  David Debold is the Editor of the Criminal Justice Section Publication Practice Under the Federal Sentencing Guidelines, click Practice Under the Federal Sentencing Guidelines for information on the publication.

Download aba_treatise_gall_and_kimbrough_supp.doc

Lots of Gall and Kimbrough GVRs this morning from SCOTUS

The first 17 pages of this new order list released by the Supreme Court this morning are taken up a whole big bunch of Gall and Kimbrough GVRs — which means the Supreme Court Granted the petition for review, and then Vacated the circuit court's decision below, and then Remanded the case for further consideration by lower courts in light of the decisions in Gall and Kimbrough.

I quickly counted about 75 GVRs in those pages and same the names of many of the defendants in some of the better-known crack/powder circuit cases — e.g., Pho from the First Circuit, Eura from the Fourth Circuit, Jointer from the Seventh Circuit, Spears from the Eighth Circuit.  These GVRs are not that surprising, but how the circuit courts deal with all these cases they got wrong the first time will be interesting to watch.

Relatedly, I would be grateful if readers could spotlight in the comments any other notable cases appearing on — or missing from — this long GVR list.

Drugged commentary on the sentencing week that was

Over at FindLaw, Mark Allenbaugh has this new piece titled "A Positive Development in All the Sentencing Insanity: How The Supreme Court and the U.S. Sentencing Commission Have Begun to Correct the Damage Done by the War on Drugs." Here is how it starts:

Since the Nixon Administration, our nation has been engaging in a relentless, yet futile War on Drugs — not on crime, but specifically on drugs.  This war has not only been costly, but also done virtually nothing to stem the influx of drugs into our nation or Americans' drug use.  In fact, some have argued that the War on Drugs has actually created incentives for illicit drug manufacturers to develop new products such as methamphetamine and Ecstasy, as well as to develop better and more efficient distribution channels through Mexico, and perhaps even China.

And yet, despite clear indications that we long ago lost this war (at least as defined by the ways we are fighting it and the rhetoric we use), we mindlessly continue along the same path.

But despite all this despairing history, there now is a glimmer of hope for more sane drug sentencing — in the form of two December 10 decisions from the Supreme Court.

I do not view last week's amazing federal sentencing events as anything close to a referendum or even a significant turning point on the "war on drugs."  That said, I do not think it is coincidental or inconsequential that Gall and Kimbrough involved drug offenses.  And, as Mark's commentary notes at the end on this commentary, the critical question going forward is "What Will Congress Do?".

AFDA webcast on lastest federal sentencing developments

As detailed on this page, Gregory Nicolaysen, the founder of the Association of Federal Defense Attorneys (AFDA), has organized another of his great audio webcast for this Wednesday (December 19) at 12noon ET to allow me to discuss Kimbrough, Gall, the new crack guidelines and related federal sentencing happenings  and its possible aftermath. 

Unlike other groups seeking big bucks for webcasts, the AFDA usually only charges a nominal fee and the Greg has made this webcast free for everyone.  The webcast will be an informal interview conducted over live streaming audio, with accompanying text posted to a viewing screen and links to PDF files containing materials relevant to the topics discussed. To attend this webcast, simply:

• Go to the AFDA home page and put your cursor on the Audio Webcast bar, then...
• In the drop-down menu that appears, select "Attend A Webcast," then...
• Enter the following: Username: AFDA (all caps; case-sensitive); Password: 121907

Though I plan primarily to recap and expand upon some commentary already appearing here, I'd be grateful if readers might use the comments to note any issues that seem particular important for me to cover during this webcast.

Is Kimbrough as big as Brown v. Board of Ed?

I am usually the first one to suggest that Supreme Court sentencing decisions are hugely important. (Recall that I have described Blakely as perhaps the biggest SCOTUS criminal justice decision ever.)  But even I have to take pause when seeing a comparison of Kimbough to Brown v. Board of Ed in this new Newsweek article.  Here are excerpts:

For two decades, the United States has pursued, prosecuted and sentenced cocaine offenders in a way that borders on insanity -- targeting petty criminals over serious drug dealers -- while fostering contempt, instead of respect, for the policies that have sent tens of thousands to jail. On Monday, the Supreme Court said enough was enough and empowered federal judges to reject sentencing guidelines rooted in hysteria and ignorance. The move has considerable support on the federal bench. It allows judges "who actually see the people and understand the local community," to better consider their communities' best interests, said Jack B. Weinstein, a federal district judge in New York....

The court's two 7-2 decisions -- authored by Ruth Bader Ginsburg and John Paul Stevens, respectively--contained no rousing rhetoric; they methodically built on the logic of two prior opinions.  But Ginsburg's ruling catalogued, at length, criticisms of federal cocaine policy. "This may be the first sentencing decision since the mid 1980s that actually talks about justice, that seems to have some blood in it," said Graham Boyd, director of the ACLU's drug law reform project. Boyd compared the potential impact of Ginsburg's decision to the famous Brown v. Board of Education desegregation ruling.  "When the Supreme Court says that something is wrong, the other institutions of government pay attention," said Boyd.

Judicial reactions, formal and informal, to Gall and Kimbrough

As detailed in this Los Angeles Times piece, headlined "To some jurists, high court ruling brings vindication," federal sentencing judges long troubled by the rigidity and severity of the federal guidelines are sure to celebrate the Supreme Court's work yesterday in Gall and Kimbrough.  Here is the start of the article:

To judges and others who long battled strict federal sentencing rules for crack cocaine offenders -- considered draconian and racist by longtime opponents -- Monday's Supreme Court decision brought vindication.  "I am delighted," said veteran Los Angeles federal Judge Terry J. Hatter Jr., who for more than 20 years has publicly assailed federal sentencing laws as ill-conceived and unfairly targeted toward minorities. "This brings some justice back to our justice system," the 74-year-old jurist added.

The article also reminded me that some circuits have still pending some major en banc cases dealing with various post-Booker issues that now may look different after Gall and Kimbrough (e.g., the Sixth Circuit has yet to decide Vonner and the Ninth Circuit still has Zavala and Carty to resolve). 

More generally, as Michael O'Hear and Carissa Hessick have rightly stressed in posts at SCOTUSblog, there is plenty of dicta in Gall and Kimbrough to allow, in Hessick's words, "those appellate courts that have clung to the Guidelines in the wake of the Court's decision in Booker to continue to do so."

In sum, then, as was true after Booker and Rita, how lower courts formally and informally react and construct an understanding of Gall and Kimbrough will determine whether the decision marks a significant turning point, or just a relatively minor tweak, in the post-Booker federal sentencing universe.

All the sentencing discretion that's fit to analyze

Effectively covering the Supreme Court's work in Gall and Kimbrough, the New York Times has these two strong pieces:

• From Linda Greenhouse here, "Court Restores Sentencing Powers of Federal Judges"

• From Adam Liptak here, "Given the Latitude to Show Leniency, Judges May Not"

Both article astutely note that another big federal sentencing story may break Tuesday afternoon.  As Liptak's piece explains:

Indeed, this week's sentencing decision most likely to have the broadest short-term impact is not on the Supreme Court’s docket.  On Tuesday, the United States Sentencing Commission is set to decide whether more than 19,000 federal prisoners convicted on charges involving crack cocaine should be eligible for re-sentencing based on amendments to the guidelines that became effective last month. The amendments reduced the disparity between sentences for crack and powder cocaine.

A manic Monday recap, and a dinner break

I predicted over the weekend that this could be quite the sentencing day, and it sure has not disappointed.  Of course, the strong statements by a strong majority of the Supreme Court in Gall and Kimbrough is the most consequential news (and How Appealing collects early media coverage here).  But I suspect non-lawyers will ultimately end up spending more time talking about the federal sentences given today to Michael Vick and Conrad Black.  Whatever your interest, as I head out to a needed dinner break, here is a review of my posts covering manic Monday (many of which have great reader comments):

SCOTUS RULINGS IN GALL AND KIMBROUGH

• SCOTUS rules for the defendants in Gall and Kimbrough!!
• The start of the majority opinion in Gall
• The start of the majority opinion in Kimbrough
• A quick take on winners and losers in Gall and Kimbrough
• A quick Justice-by-Justice review of Gall and Kimbrough
• FSG are truly advisory (even in crack cases), but what about....

OTHER NOTABLE SENTENCING NEWS

• Michael Vick gets 23 months in prison
• Conrad Black gets 78 months (after a favorable guideline ruling)
• Scooter Libby drops appeal ... is a holiday pardon on the way?
• SCOTUS also rules for the defendant in Watson

As we reflect on all these developments, it is worth spotlighting that both Michael Vick and Conrad Black ended up getting within-guideline sentences.  This is a useful reminder that, even now after the Supreme Court has clarified in Gall and Kimbrough that the federal guidelines are really, truly, yes-we-really-mean-it advisory, lots of sentencing judges are still going to be following the guidelines advice.

A quick Justice-by-Justice review in Gall and Kimbrough

There is so much to say about the substance of the rulings in Gall and Kimbrough (basics here), and I will likely need a few days to unpack all the important particulars.  Here I want to do a quick Justice-by-Justice review what we see in Gall and Kimbrough, in part because I think it could foreshadow the Court's work on any number of future sentencing issues.  So here goes:

Justice Ginsburg, the author of Kimbrough, reveals yet again that she only agreed to the Breyerian Booker remedy on the theory that the guidelines would be truly advisory.  Throughout her opinion she emphasizes a number of key facets of a truly advisory guideline system that should help ensure district courts appreciate how much discretionary sentencing authority they now have.

Justice Stevens, the author of Gall, reveals yet again that he can give the defense bar lots of great dicta.  His Rita concurrence was full of potent dicta, and many aspects of the Gall ruling support arguments of stressed by defense attorneys (e.g., the seriousness of supervised release and probation terms; the importance of co-defendant disparity under 3553(a)(6)).

Chief Justice Roberts and Justices Breyer and Kennedy, the three Justices who do not bark at all but join both majority opinions, reveal general disinterest and/or general exhaustion.  As was true with his vote in Cunningham, CJ Roberts seems more interested in harmony and stare decisis than in grinding and particular sentencing ax.  As shown by their opinions in Rita and Cunningham, Justices Breyer and Kennedy seem most concerned that guidelines, the Commission, and judicial power remain vibrant even in Apprendi-land, and Justice Breyer likely got both Justices Stevens and Ginsburg to add a bit of dicta to that end in Gall and Kimbrough.

Justice Scalia, the author of brief concurrences in both Gall and Kimbrough, continues to emphasize his concern with sentencing procedures and the Sixth Amendment.  Especially for issues like acquitted conduct enhancements, it is nice to see Justice Scalia continue to stress the viability of "as-applied constitutional challneges to sentences."

Justices Souter and Thomas, both of whom write separately to show they are still mad at Ginsburg for following the Breyer pied piper down the road of advisory guidelines, express their aggravation for the tangled web that the Booker remedy has weaved.  Ever the genteel New Englander, Justice Souter makes a simple call to Congress to get back to mandatory guidelines that respect the Sixth Amendment; ever the grumpy Gus, Justice Thomas makes an impassioned statement that, because the post-Booker jurisprudence has become so lawless, he's just not going to take it anymore.

Justices Alito, who authors the only real substantive dissent in either case, shows that his pro-prosecution instincts are stronger than his allegiance to statutory text.  Nowhere is his dissent does he address the parsimony mandate of 3553(a), even though he concedes that a reasonable jurist "could conclude that a sentence of probation [for Brian Gall] was sufficient in this case to serve the purposes of punishment set out" in 3553(a)(2).   

A quick take on winners and losers in Gall and Kimbrough

I have now had a chance to read both Gall and Kimbrough, and I am really intrigued and impressed by how much good stuff is packed into two relatively short opinions.  (Perhaps it helps that, for the first time in a major Apprendi, Blakely, Booker case, Justice Breyer does not have anything to say.  In a future post, I plan to do a Justice-by-Justice take on what these two rulings show us about the Justices.)  Let me provide a much-too-quick review of my sense of winners and losers:

Big Winners

• All District Courts, which now should feel even more comfortable coming to their own independent judgments about the application of 3553(a) to reach what they consider to be just sentencing outcomes.
• The US Sentencing Commission, which gets some dicta love in both opinions and now has even more cover for its likely decision to make its new crack guidelines retroactive.
• Federal Defense lawyers, who now have many new and renewed arguments for arguing for below-guideline sentences.

Big Losers

• Most Circuit Courts, which were chided in both opinions for not giving enough respect to either the Supreme Court's decision in Booker to make the guidelines advisory or to district court efforts to take seriously the idea that the guidelines are truly just advisory.
• Some crack defendants sentenced within the old guidelines, who may have failed to preserve the argument that the crack/powder disparity alone provided a valid basis for a below-guideline sentence.

Win some, Lose some

• The Department of Justice, which technically lost both of these cases, but likely can find enough helpful dicta to continue to urge most district courts to continue to impose within-guideline sentences.
• Most Federal Defendants, who are not like Brian Gall and cannot always be confident that a sentencing judge won't use her discretion to impose a sentence above the guidelines.
• Congress and the 2008 Campaigns, which could reasonably decide to make much, or to completely ignore, these rulings.

UPDATE:  I am pleased to see my friend Mark Osler has this post at SCOTUSblog with his own sense of winners and losers.  Here are headings from his post:

• Winner: Parsimony Provision
• Loser: Judicial Transparency
• On the Horizon: Booker, Part 2?

The start of the majority opinion in Kimbrough

Here is how the Kimbrough decision's majority opinion authored by Justice Ginsburg gets started:

We hold that, under Booker, the cocaine Guidelines, like all other Guidelines, are advisory only, and that the Court of Appeals erred in holding the crack/powder disparity effectively mandatory. A district judge must include the Guidelines range in the array of factors warranting consideration.  The judge may determine, however, that, in the particular case, a within- Guidelines sentence is “greater than necessary” to serve the objectives of sentencing. 18 U. S. C. §3553(a) (2000 ed. and Supp. V).  In making that determination, the judge may consider the disparity between the Guidelines’ treatment of crack and powder cocaine offenses.

Discuss.

Is there any principled basis for DOJ opposition to the crack amendment being retroactive?

Writing in the National Law Journal, Marcia Coyle has this effective article detailing the state of the debate over whether the US Sentencing Commission will make its new reduced crack guidelines retroactive.  The piece is entitled, "Retroactivity for Crack Sentence Cuts Debated: More than 20,000 crack offenders could have their sentences reduced," and here are key snippets:

As the Nov. 1 effective date approaches for new and lower crack cocaine sentencing guidelines, the U.S. Sentencing Commission has received more than 1,000 public comments on a related proposal -- making those lower sentencing levels retroactive.  The commission has extended the public comment period on the retroactivity issue and has scheduled a Nov. 13 public hearing.

The commission staff recently released an analysis of the impact of making the so-called "crack minus two" guideline amendment retroactive: Nearly 20,000 crack offenders could have their sentences reduced an average of two years or more.

The more than 1,000 public comments on the retroactivity issue heavily favor retroactivity, according to sources close to the commission's work.  The outpouring of comments is unusual for most of the commission's work, but not for the crack cocaine issue, they say. This time the comments appear to be the result of intensive efforts by organizations that have long supported the commission's position that the 100-to-1 crack-powder cocaine sentencing disparity disproportionately affects minorities and low-level offenders and undermines the objectives of the nation's sentencing reform laws.

"We've launched a campaign to ask all of our members to explain to the commission that this is the right thing and the judicially efficient thing to do," said Mary Price, vice president and general counsel of Families Against Mandatory Minimums (FAMM).  Besides FAMM, the commission also has heard from the American Bar Association, the American Civil Liberties Union, Federal Public and Community Defenders, the National Association of Criminal Defense Lawyers, their members and other organizations.

Yet to weigh in on the retroactivity issue is the U.S. Department of Justice.  But spokesman Erik Ablin said, "We have not yet filed a comment, but we plan to do so by the Nov. 1 deadline.  I can tell you that our comment will reflect our opposition to retroactive application."

I will be eager to see what DOJ has to say, because I have a hard time identifying a truly principled basis for resisting retroactive application of an amendment that the USSC has said is long overdue and that is supported by mountains of sound research and advocacy. 

Of course, because so many offenders have been subject to unduly harsh crack guidelines, the practical consequences of making the new guidelines retroactive would be significant.  But so would be the practical consequences of non-retroactivity — which might spark prison riots and surely would engender lots of litigation.  Moreover, it would be particularly sad if our national "Department of Justice" fear or resist too much justice for certain defendants simply because it may require a lot of extra paperwork.

Some related posts:

• The Sentencing Project urges retroactivity of USSC crack amendment
• USSC schedules public hearing on crack amendment retroactivity
• USSC analysis on potential crack amendment retroactivity impact
• Crack wackiness brewing over impact of crack amendments
• Latest FSR issue covers crack sentencing
• ABA makes pitch for USSC crack amendments to be made retroactive

Notable dissent from a denial of crack rehearing

Today the Third Circuit released its decision (available here) to deny rehearing in US v. Ricks which concerned whether judges can disagree with the guidelines crack/powder ratio.  Judge Ambro's adds a thoughtful dissent, which has this passage among a number of sound insights:

The panel’s opinion conflicts with the Supreme Court’s remedial opinion in Booker, which makes the Guidelines “effectively advisory” and requires district courts to consider all the factors of § 3553(a). In Ricks, the District Court considered the Guidelines’ sentencing range—which applied a 100:1 ratio—and rejected that range for what it considered to be a more reasonable punishment.  I cannot see why “meaningful consideration” cannot lead to carefully considered rejection of an advisory policy.

It is no answer to say that sentencing judges cannot reject the policy decision of Congress.  The whole Guidelines manual represents a policy decision of Congress.  In order to remedy a constitutional defect, Booker excised the provisions that previously made the Guidelines mandatory.  This made advisory Congress’s policy decisions as expressed in the Guidelines.

Possible ineffective assistance in an Eighth Circuit crack appeal that nobody sees

Though perhaps I am trying to turn this into a "dogs not barking" story, I am very troubled to see that Eighth Circuit today apparently affirms a within-the-old-crack guidelines sentence in an unpublished Anders case in US v. Wanton, No. 06-3502 (8th Cir. Oct. 18, 2007) (available here).  The facts are scarce in this unpublished disposition, but it appears that the defendant in Wanton pleaded guilty to distributing more than 50 grams of crack and received a bottom-of-the-range sentence of 135 months in prison.  Since the Eighth Circuit has adopted a presumption of reasonableness for within-guideline sentences, perhaps it seemed obvious to the defense counsel that a sentencing appeal was friviolous.

But, with the US Sentencing Commission saying in powerful terms in May that the crack guideline are too harsh, and with the USSC's reduction in crack guildeines sentences becoming effective in a matter of weeks, and with the Supreme Court having just hear a crack sentencing case in Kimbrough, there ought to be a lot more to the story in Wanton.  Indeed, unless the district court record demonstrates that the district judge was aware at sentencing of all these developments, I think it is a form of ineffective assistance for a defense attorney to assert that any appeal of a within-the-old-crack guidelines sentence is frivolous.

Some related posts:

• Conclusive proof old crack guidelines unreasonable
• USSC schedules public hearing on crack
• USSC analysis on potential crack amendment retroactivity impact
• Crack wackiness brewing over impact of crack amendments
• Latest FSR issue covers crack sentencing
• USSC provides (yummy?) half-a-loaf crack amendment
• Why the USSC's new crack work is soooooo significant

A reasonable analysis of the challenges of reasonableness review

Over at FindLaw is this new essay by Mark Allenbaugh and Donald Purdy discussing the Gall and Kimbrough cases. The piece is entitled "Drugs, Disparity, and Judicial Sentencing Discretion: Two Cases Invite the Roberts Court To Finally Clarify What Constitutes A Reasonable Sentence Under the Now-Advisory U.S. Sentencing Guidelines."  Here are snippets:

During oral argument, the Court clearly was concerned about the lack of a clear substantive definition on appeal for "reasonableness" in this context.  The Court seems caught between a rock and a hard place.  A forgiving "reasonableness" standard would essentially take federal sentencing back to the pre-Guidelines era, where similarly-situated defendants could and did receive grossly disparate sentences. Yet a strict and closely-Guidelines-based reasonableness standard, conversely, would seem to simply effectively make the Guidelines mandatory once again....

Without clarification from the Court regarding both appellate "reasonableness" review and the specific meaning of the Court's declaration that the Guidelines are now advisory, federal sentencing will become increasingly chaotic, and we will indeed see the strange "Wonderland" of sentencing Justice Scalia predicted in his dissent in Booker two years ago.

Gall and Kimbrough SCOTUS argument wrap-up

Thanks to this post at How Appealing, everyone can quickly catch up with major newspaper coverage of yesterday's oral arguments in the two Booker reasonableness cases.  This editorial from the Washington Post puts an interesting spin on what the take-away should be from the Kimbrough case:

By the end of yesterday's Supreme Court argument in Kimbrough v. U.S., two things seemed clear.  First, thousands of defendants charged with crack cocaine offenses will continue to face irrationally long sentences.  Second, the justices probably will move further down a path that will lead to the slow, painful death of the federal sentencing guidelines.

Also, this law.com coverage rightly highlights that Justice Scalia had the line of the day during the Kimbrough argument: "Indeed, it might be quite impossible to achieve uniformity through advisory guidelines, which is why Congress made them mandatory."

Wrap-up of recent blog coverage of Gall and Kimbrough:

• Debating discretion: time for oral argument in Gall and Kimbrough
• First-cut reactions to the Gall transcript
• First-cut reactions to the Kimbrough transcript
• A fitting take on SCOTUS sentencing cases fit to be tied
• Is Gall the most important SCOTUS sentencing case?
• Should Kimbrough be vacated and remanded given USSC amendments and SG concessions?
• Am I foolish to dream about consensus in Gall and Kimbrough?

First-cut reactions to the Kimbrough transcript

Upon first read, the SCOTUS oral argument transcript in Kimbrough is a bit less frustrating because Kimbrough's lawyer did a nice job stressing that Derrick Kimbrough's 15-year sentence seems in harmony with the sentencing purposes Congress set forth in 3553(a)(2).  However, it is still aggravating to me that the Justices seem to approach these cases as if both district judges and circuit judges are always making broad systemic judgments about valid and invalid sentencing considerations.  But that's not what Congress in 3553(a) to do at sentencing. 

Instead, as a quick review of Congress's express commands in section 3553(a) of the Sentencing Reform Act makes clear, Congress told judges to "impose a sentence sufficient, but not greater than necessary, to comply with" the traditional purposes of sentencing (while also considering various relevant facts and factors including the guidelines).  By my lights, that is exactly what Judge Jackson did when sentencing Derrick Kimbrough (and also what Judge Pratt did when sentencing Brian Gall).  Tellingly, in the Kimbrough argument, the government never seriously asserts that 15 years' imprisonment was insufficient punishment for Derrick Kimbrough.

Another aggravating aspect of Kimbrough is the constant refrain about the potential harms of having different sentencing judges apply different cocaine sentencing ratios.  I understand this disparity worry, but I do not understand why it is a bigger problem than different prosecutors rewarding cooperation differently.  There is extensive evidence of profound disparity in how different prosecutors "reward" cooperation, and yet everyone accepts this as the price of giving prosecutors largely unregulated discretion to strike cooperation deals.  In the end, I think the Supreme Court must come to terms with the reality that some relatively minor disparity in crack sentencing outcomes is the price of allowing the guidelines to be advisory and avoiding the procedural requirements of Blakely.

Read all about it: Gall and Kimbrough transcripts

Now available at this SCOTUS webpage are the transcripts from this morning's oral argument in Gall and Kimbrough.  Based on brief reports from folks in attendance, the arguments we nuanced and I will have lots of comments once I get to consume these transcripts.  I think I'll read the Gall transcript first, since that case was argued first, and then the Kimbrough transcript.

Fellow readers (and/or argument attendees) are welcome to use the comments to share their thoughts and insights.  Lyle Denniston has shared his views at SCOTUSblog with this post entitled "Analysis: More trouble for Guidelines."

UPDATE:  Though I am finding the transcripts a bit more frustrating than enlightening, but I did very much enjoy seeing Jeff Green in the Gall argument talk about the reasonableness of a sentencing judge looking to a "legal database, for example, or even a blog or something like that."

Am I foolish to dream about consensus in Gall and Kimbrough?

As I eagerly await the transcripts of the Gall and Kimbrough arguments to be available here this afternoon, I cannot help but dream about the Justices finding their way in these cases to some consensus on post-Booker sentencing standards.  I am driven to dream in part by this spot-on commentary by Benjamin Wittes at the New Republic lamenting the Court's recent divisiveness.  Here are snippets:

Chief Justice John G. Roberts Jr. has spoken eloquently about the importance of unanimity and the corrosive effect of separate opinion-writing on the court's institutional capital.... But it's hard to identify important areas in which the court [last term] spoke with a strong voice that rose above the polarized views of its members.  The court, rather, performed exactly as believers that it is nothing more than a political institution would have predicted.  And it made fools of those of us who believe in it as something more elevated: an institution that aspires to rule based on principle....

[N]ow it's a new day and a chance to start over.  And who knows?  A few months from now, last term may seem far away; the brethren may seem once more fraternal; and the institution may look a little more like a court ruling on law than a fractious bunch of politicians striking exactly the poses their constituencies expect of them.  But I'm not holding my breath.  And I'm not excited about watching them try.

Of course, when addressing Sixth Amendment issues, the Court has been deeply divided for a decade now, and the new Justices have not yet been able to quell to squalling.  However, Gall and Kimbrough ultimately have more to do with judicial discretion and appellate review than with the Sixth Amendment, and back in 1996 the Court came together in Koon to deliver a unanimous ruling (per Justice Kennedy) that embraced broader district court sentencing discretion and light appellate review.  I think there is a real chance that the Court might find consensus in these principles again.  (But, then again, a few weeks ago I also thought there was real chance the Mets and Padres would be gearing up for the MLB playoffs right now.)

Debating discretion: time for oral argument in Gall and Kimbrough

It is sentencing two-for-Tuesday in the Supreme Court later this morning: the Gall and Kimbrough reasonableness cases are due to be argued starting at 10am (and transcripts of the arguments ought to be available here by this afternoon).  Warren Richey has this article in the Christian Science Monitor previewing both cases, and the AP has this new report focused on Kimbrough and crack sentencing.

I have, of course, lots and lots of posts on these cases, most of which can be accessed through the Gall case index and the Kimbrough case index (the briefs are there, too).  In addition, the posts spotlighted below have some of my focused commentary on these cases.

• SCOTUS scratches my sentencing itch, but also has me scratching my head
• Read all about Rita (and get ready for Gall and Kimbrough)
• A few of my scholarly thoughts on Rita

On Gall:

• Talk about having Gall
• Is Gall the most important SCOTUS sentencing case?
• Detailing sound "policy disagreements with the Guidelines" to justify variances

On Kimbrough:

• Thinking through Kimbrough and the state of crack sentencing
• Latest FSR issue covers crack sentencing
• Should Kimbrough be vacated and remanded given USSC amendments and SG concessions?

UPDATE:  NPR has this nice overview piece by Nina Totenberg , and SCOTUSblog has basics and links to its wiki here.

Is Gall the most important SCOTUS sentencing case?

The long-standing debate over crack sentencing policy ensures that the Kimbrough case gets lots of media attention (see here and here), and national fixation with the death penalty ensures that Baze will always be an above-the-fold story (see here and here).  Nevertheless, as we gear up for a major SCOTUS sentencing term, I think Gall may end up being the case and ruling with the greatest long-term significance and impact. 

Whether the Supreme Court uses Gall to broaden or restrict the scope of post-Booker discretion, the decision in Gall is likely to impact greatly how all district courts sentence after Booker.  The decision will also likely frame future debates over Booker as a new Attorney General (and eventually a new administration) takes stock of federal sentencing realities. 

For more on the Gall case and related issues, the Des Moines Register has this helpful article and this effective editorial.  The article notes that the Gall case "could affect criminal sentences in every federal courtroom in America," and the editorial calls for "Congress [to] eliminate the garden-variety drug prosecutions and return the federal courts to their original purpose of hearing major criminal cases that cut across state lines and exceed local authority and resources."

Some related SCOTUS new Term posts:

• A big SCOTUS sentencing Term in the works?
• Serious SCOTUS sentencing fun soon to begin
• Baze lethal injection case index
• Gall reasonableness case index
• Kimbrough reasonableness case index

UPDATE:  This CNN piece about the new SCOTUS Term is headlined "Law-and-order issues top Supreme Court docket."

Kimbrough case bringing attention to crack sentencing

Among many virtues of SCOTUS attention to post-Booker issues is the spotlight it can bring on particularly ugly features of the federal sentencing system.  This is most apparently, of course, in the context of the Kimbrough case's focus on crack cocaine sentencing realities.  And today there are notable pieces in two major newspapers:

• The Houston Chronicle has this effective article entitled "Sentencing disparity for cocaine under attack"

• The Philadelphia Inquirer has this potent commentary from Marc Mauer entitled "The selective and unfair penalty for crack"

Especially in the wake of the Jena 6 march last week, I am hopeful (but not optimistic) that the attention Kimbrough generates could possibly bring the crack/powder discussion back into congressional view.

Read all about Rita (and get ready for Gall and Kimbrough)

I am pleased to see that the Denver University Law Review now has all the papers in its special symposium on Rita now available at this link.  A list of the titles and contributors shows why anyone interested in federal sentencing after Booker has to cruise over and check out all the paper in the symposium:

• Rerouted on the Way to Apprendi-land: Booker, Rita, and the Future of Sentencing in the Federal Courts: An Introduction
  Sam Kamin 

• Rita, Reasoned Sentencing, and Resistance to Change
  Douglas A. Berman 

• Empirical Questions and Evidence in Rita v. United States
  Paul J. Hofer 

• Rita, District Court Discretion, and Fairness in Federal Sentencing   
  Hon. Lynn Adelman & Jon Deitrich

• Rita Needs Gall—How to Make the Guidelines Advisory
  Hon. Nancy Gertner

• An Appellate Perspective On Federal Sentencing After Booker and Rita
  Hon. Jeffrey S. Sutton

Reply briefs in Gall and Kimbrough

Though I am still in a haze over Baze (details here), sentencing fans should be sure not to forget that we are but a week away from oral argument in the Booker reasonableness cases of Gall and Kimbrough.  Helping to get my mind back on these federal sentencing cases — which are, realistically, a lot more important to a lot more defendants than Baze — are the just-filed reply briefs from the petitioners.

Based on a quick review, both briefs look like great reads, and they can be downloaded here:

Download 066330_kimbrough_reply.pdf

Download gall_reply_brief.pdf

Should Kimbrough be vacated and remanded given USSC amendments and SG concessions?

This weekend I read closely the Government's brief in Kimbrough (available here).  The brief is effective, but it largely dodges discussion of the import of the Sentencing Commission's proposed crack guideline amendment (archive here), and it also makes a number of significant concessions.  These concessions late in the Kimbrough brief especially caught my attention:

[A] court could disagree with the Guidelines’ treatment of a crack offender’s role in the offense, or (as was seemingly the case here) with the Guidelines’ treatment of the offender’s prior military service....

While courts could not rely on [US Sentencing Commission] reports as a basis for categorically disagreeing with the 100:1 ratio, courts could properly consider those reports in determining whether a particular defendant’s commission of a crack-cocaine offense implicates the policy reasons underlying Congress’s harsher treatment of crack offenses.  See United States v. Ricks, No. 05-4832, 2007 WL 2068098, at *6 (3d Cir. July 20, 2007); United States v. Jointer, 457 F.3d 682, 687 (7th Cir. 2006), petition for cert. pending, No. 06-7600 (filed Oct. 27, 2006); Williams, 456 F.3d at 1369.  For example, one of the justifications for the 100:1 ratio was that crack cocaine is more closely correlated with the commission of other serious crimes (based on the greater propensity of individuals trafficking in crack to carry weapons).  See, e.g., United States Sentencing Commission, Special Report to the Congress: Cocaine and Federal Sentencing Policy 184-185 (1995).  Accordingly, it would not be inconsistent with congressional policy for a court to conclude that, based on the individualized circumstance that a crack offender did not carry a weapon or otherwise threaten violence in connection with the offense, a downward variance would be appropriate.

In other words, in Kimbrough, the Government is conceding that almost any reasoned factual or policy basis for not following the crack guidelines in an individual case could justify a below-guideline crack sentence.  (And, though not saying so explicitly, the Government seems to hint that Derrick Kimbrough's below-guideline sentence might well have been justified on such grounds.)  Throw in the fact that the USSC's proposed crack amendments might be made retroactive (and thus applicable to Derrick Kimbrough) before the Supreme Court has a chance to render an opinion, and I am now thinking the Court's best move might be to just kick Kimbrough — and all other crack cases in which cert. petitions are pending — back to the circuit courts for reconsideration.

Some related posts:

• The Government's merits brief in Kimbrough
• ABA makes pitch for USSC crack amendments to be made retroactive
• Why the USSC's new crack work is soooooo significant
• How will the new USSC crack work impact present (and past) cases?
• Conclusive proof old crack guidelines unreasonable
• Previewing the (quite unpredictable) new federal politics of crack sentencing