Sentencing Law and Policy

The Government's merits brief in Kimbrough

This Government just filed its merits brief in US v. Kimbrough, the crack-cocaine below-guidelines reasonableness case to be heard by the Supreme Court at the start of the new Term, and it is available for download below.  Here is the first paragraph of the summary of the argument:

Congress has the power to prescribe the appropriate level of punishment for criminal offenses.  It may not only set minimum and maximum penalties for an offense, but also restrict the courts’ exercise of discretion within the statutory sentencing range.  Where Congress imposes such restrictions, and where those restrictions do not violate the Constitution, courts are bound to abide by them.  That is true even though courts otherwise have broad discretion in imposing sentence under the Sentencing Reform Act of 1984, 18 U.S.C. 3551 et seq., as modified by this Court in United States v. Booker, 543 U.S. 220 (2005).  The Sentencing Guidelines are now advisory, and courts may vary based solely on policy considerations, including disagreements with the Guidelines.  But where Congress has made a specific policy determination concerning a particular offense (or offense or offender characteristic) that legally binds sentencing courts, and the Commission (as it must) incorporates that policy judgment into the Guidelines in order to maintain a rational and logical sentencing structure, that specific determination restricts the general freedom that sentencing courts have to apply the factors set forth in 18 U.S.C. 3553(a). Congress did not intend for the general standards in Section 3553(a) to trump specific policy determinations that Congress itself directs to sentencing courts.  Booker provides for review of sentences for “reasonableness,” and a sentencing court does not act reasonably when it rejects a specific congressional mandate.

Download kimbrough_govt_brief.pdf

Top-side briefs in Gall and Kimbrough

All the briefs on the petitioners/defendants' side of the two pending SCOTUS reasonableness cases, Gall v. United States and Kimbrough v. United States, were filed last week. I believe all of these briefs can be accessed at this page created on the New York Council of Defense Lawyers ("NYCDL") website.  (In addition, Paul Rashkind has assembled a lot of the briefs here, and I believe they will also appeal on this defender website eventually.)

I have only so far had a chance to read some of the briefs (in part because I was helping with this NYCDL brief in Gall).  There appears to be a lot of interesting and important post-Rita work being done in these briefs, and readers are encouraged to spotlight particular efforts and passages they consider especially notable.  I hope to find time after the bottom-side briefs are filed to comment on what the Justices might think about what they are being told.

UPDATE:  I have been told that briefs on the defender website are available here for Gall and here for Kimbrough.

The sentencing transcript in Kimbrough

In this prior post, I discussed some of the issues (and linked the cert papers) related to the Supreme Court's cert grant last Monday in Kimbrough v. United States, No. 06-6330, the crack sentencing case.  I have since had a chance to review the transcript fromt the district court sentencing in Kimbrough, which I provide for downloading below.

In an effort to putting aside all the intricate legal issues related to Booker and 3553(a) and guideline provisions, I would like to read comments from folks after they review this transcript on the most basic and essential question: was the sentence given by Judge Raymond Jackson to Derrick Kimbrough on April 15, 2005 reasonable?

Download kimbrough_sentencing_transcript.pdf

Some recent related posts:

• Thinking through Kimbrough and the state of crack sentencing
• SCOTUS scratches my sentencing itch, but also has me scratching my head
• A coming reasonableness clusterf#@k?  Ruminations while waiting for Rita

Thinking through Kimbrough and the state of crack sentencing

The Supreme Court's cert grant last Monday in Kimbrough v. United States, No. 06-6330, justifiably received a lot of attention (see here) because it appears that SCOTUS is finally going to get involved in the long-standing debate over crack sentencing (which has hit new heights since Booker).  Notably, this morning brings two distinct commentaries here and here calling upon the Supreme Court and others to do something about crack sentencing inequities. 

But, the timing and the context for the Court's foray into this arena has me still scratching my head about what the Justices are up to with federal sentencing these days.  Let me explain:

1.  Quirky facts:  The cert papers in Kimbrough — and here are links to Kimbrough's petition, the government's response, and Kimbrough's reply — indicate the case facts are very quirky.  According to the cert petition, Derrick Kimbrough pleaded guilty without a plea agreement and "turn[ed] down the government's offer to dismiss the § 924(c) count," which added five extra mandatory years to his sentence.  And yet, for some unclear reason, Kimbrough was denied an "acceptance of responsibility" reduction.  I am wondering what weird back-story might explain all this.

2.  Quirky timing:  Last month the US Sentencing Commission proposed amendments to the crack guidelines and strongly encourage Congress to make further adjustments (details in this archive).  The new crack guidelines will become effective (absent congressional action) November 1, which will be after SCOTUS hears argument, but before a ruling, in Kimbrough.  Though the district court's initial sentencing in Kimbrough makes the USSC's amendment not directly relevant, now seems like an especially quirky time for the Justices to be opining on crack sentencing dynamics.

That all said, simply the cert grant in Kimbrough should help lower court judges and Congress and the Justice Department and the USSC and others appreciate the need to focus on cocaine sentencing justice throughout 2007.  That alone makes the grant in Kimbrough valuable, even if curious.