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March 16, 2018

Lots to consider and discuss as we get back together

I am looking forward to getting back to our discussion of federal sentencing realities this coming week, and I expect on Monday (3/19) to get us finally into a discussion of "acquitted conduct" and the Supreme Court's decision in United States v. Watts, 519 U.S. 148 (1997).  But before we get together, I want to make sure everyone also knows of this great event in Saxbe right before our class: 

The 2018 David H. Bodiker Lecture on Criminal Justice will feature James Forman Jr., professor of law at Yale Law School and best-selling author of the critically acclaimed book, Locking Up Our Own: Crime and Punishment in Black America (2017), which explores how decisions made by black leaders, often with the best of intentions, contributed to disproportionately incarcerating black and brown people....

This lecture is scheduled for noon on March 19 in Saxbe Auditorium, located inside Drinko Hall.

In addition, if you have been taking a well-deserved break, you might have missed some of these posts from my other blog that touch on issues we have been exploring:

March 16, 2018 in Class activities | Permalink | Comments (0)

March 9, 2018

March madness predictions, sentencing style

I believe we will know the outcome of two interesting and very different sentencing cases I have been following before the end of today (March 9).  But before we get sentencing outcomes, I wanted, in the spirit of March Madness, to encourage sentencing students (if not already checked out for Spring Break) to make sentencing predictions with the prospect of a reward.  Specifically, anyone who comments to this post with a sentencing prediction in these two pending cases who comes within two years of the actual outcome will be treated by me at a coming happy hour:

Federal fraud sentencing for "Pharma Bro" Martin Shkreli, being decided by US District Judge

State involuntary manslaughter sentencing for Shana Elliott, being decided by a Texas jury


March 9, 2018 in Interesting new cases | Permalink | Comments (0)

March 6, 2018

Appreciating the subtle and significant impact of DOJ charging policies on sentencing outcomes

We will wrap up our two-week sentencing of Rob Anon on Wednesday by noting the persistent discretion that still subsists within a federal sentencing system now filled with all sort of sentencing law.  The most obvious locus of modern federal sentencing discretion, and the form that still garners the most attention, resulted from the Supreme Court's landmark Booker ruling making the guidelines advisory instead of mandatory.  Please come to class thinking about whether and why you would be, as sentencing judge, inclined to "vary" from the guideline range you calculated for Rob Anon.  Please also think about what a federal prosecutor or public defender might argue to you that might make you more inclined to "vary" from the guideline range.

Also to be covered, as mentioned on Monday, is the prospect of Rob Anon being subject to a 924(c) charge carrying a seven-year mandatory minimum consecutive term for brandishing a gun while committing  "any crime of violence or drug trafficking crime."  This possibility highlights the extraordinary sentencing impact that prosecutorial charging/bargaining discretion can have, and we will work through its potential echo effects.  Notably, the import and impact of federal prosecutorial charging/bargaining discretion got some distinctive public attention in May of 2017 when Attorney General Jeff Sessions issued a new memorandum establishing charging and sentencing policies for the Department of Justice that essentially reversed memoranda issued by Attorney General Eric Holder giving more discretion to individual prosecutors as to what charges and sentences to pursue.  A post at my main blog provided this accounting (with my added highlights):

This memorandum is relative short and to the point, and here is some of its key language:

Charging and sentencing recommendations are crucial responsibilities for any federal prosecutor.  The directives I am setting forth below are simple but important.  They place great confidence in our prosecutors and supervisors to apply them in a thoughtful and disciplined manner, with the goal of achieving just and consistent results in federal cases.

First, it is a core principle that prosecutors should charge and pursue the most serious, readily provable offense. This policy affirms our responsibility to enforce the law, is moral and just, and produces consistency.  This policy fully utilizes the tools Congress has given us.  By definition, the most serious offenses are those that carry the most substantial guidelines sentence, including mandatory minimum sentences.

There will be circumstances in which good judgment would lead a prosecutor to conclude that a strict application of the above charging policy is not warranted.  In that case, prosecutors should carefully consider whether an exception may be justified.  Consistent with longstanding Department of Justice policy, any decision to vary from the policy must be approved by a United States Attorney or Assistant Attorney General, or a supervisor designated by the United States Attorney or Assistant Attorney General, and the reasons must be documented in the file.

Second, prosecutors must disclose to the sentencing court all facts that impact the sentencing guidelines or mandatory minimum sentences, and should in all cases seek a reasonable sentence under the factors in 18 U.S.C. § 3553.  In most cases, recommending a sentence within the advisory guideline range will be appropriate. Recommendations for sentencing departures or variances require supervisory approval, and the reasoning must be documented in the file.

This AP article about this new AG Sessions' memo provides this brief and effective account of what these directions change:

The directive rescinds guidance by Sessions’ Democratic predecessor, Eric Holder, who told prosecutors they could in some cases leave drug quantities out of charging documents so as not to trigger long sentences. Holder’s 2013 initiative, known as “Smart on Crime,” was aimed at encouraging shorter sentences for nonviolent drug offenders and preserving Justice Department resources for more serious and violent criminals.

Though Holder did say that prosecutors ordinarily should charge the most serious offense, he instructed them to do an “individualized assessment” of the defendant’s conduct. And he outlined exceptions for not pursuing mandatory minimum sentences, including if a defendant’s crime does not involve violence or if the person doesn’t have a leadership role in a criminal organization.

My hope is you can, with the help of our engagement with the Rob Anon case, now have a fuller and deeper appreciation for the potential impact, in individual cases and across a range of cases, of the May 2017 Sessions Memo.  We will discuss this matter a bit further in class on Wednesday.

March 6, 2018 in Guideline sentencing systems, Who decides | Permalink | Comments (0)

Important scheduling matters for first few weeks of April

Even though March has just gotten started, it will be April before you know it, and I wanted to make sure everyone know of some class schedule issues of importance for the first part of April.  Some of this I have mentioned in class, but some of this is new news (and would be helped by student input):

Monday, April 2: Zachary Bolitho, Moritz class of 2007 who now serves as Deputy Chief of Staff and Associate Deputy Attorney General to the Deputy Attorney General Rod Rosenstein, will be speaking to our class.  As repeatedly mentioned, and as shown at the end of this list of US Sentencing Commissioners, Zachary Bolitho also now serves as the designated ex officio member of the United States Sentencing Commission representing the Attorney General.  As mentioned also repeatedly mentioned, mini-paper #4 should be a memo addressed to ADAG Bolitho.

Monday, April 9NO CLASS!!

Thursday, April 12: Make-up class possibilities:

March 6, 2018 in Class activities, Who decides | Permalink | Comments (0)

March 5, 2018

Diving deep into many particulars of modern guideline sentencing (and mandatory minimums) for Rob Anon and others

This final week before Spring Break, we will be diving even deeper into the sentencing of Rob Anon under the modern federal sentencing guidelines.  I continue to welcome comments to this prior post if/when you want to discuss your experiences with guideline sentencing, though I also welcome new comments here as I reprint the US Sentencing Commission's latest accounting of the average sentences that modern federal robbery defendants now receive. 

Over the last few years, the US Sentencing Commission has be producing terrific Quick Fact publications (you might call them mini-papers) about various federal sentencing realities. This recent one for "Robbery Offenses" was released in August 2017, and reported that in "fiscal year 2016, there were 1,554 robbery offenders, who accounted for 2.5% of all offenders sentenced under the guidelines."  This two-page document has too much data to capture in this space, but here are particulars that seem particularly notable in light of our Rob Anon exercise:  

The most common Criminal History Category for these offenders was Category I (25.0%). The proportion of these offenders in other Criminal History Categories was as follows:  11.0% of these offenders were in Category II; 20.2% were in Category III; 13.5% were in Category IV;  7.8% were in Category V; and 22.6% were in Category VI.

The median loss for these offenses was $2,846.  92.1% of robbery offenses involved losses of $95,000 or less.  82.5% of robbery offenses involved losses of $20,000 or less.

Sentences for robbery offenders were increased for: 48.7% of offenders for taking the property of a financial institution or post office; 61.2% of offenders for using or brandishing a firearm or dangerous weapon or making a threat of death; 13.0% of offenders because a victim sustained bodily injury; 22.0% of offenders for abducting or physically restraining a victim; 8.5% of offenders for carjacking; 8.2% of offenders for taking a firearm, destructive device, or controlled substance; and 5.1% of offenders for recklessly creating a risk of death or bodily injury in the course of fleeing from a law enforcement officer.

More than one-third (34.1%) of robbery offenders also had convictions under 18 U.S.C. § 924(c).

The average sentence length for robbery offenders was 111 months.  

  • The average sentence length for robbery offenders with a conviction under section 924(c) was 180 months. 
  • The average sentence length for robbery offenders without a conviction under section 924(c) was 75 months. 

In fiscal year 2016, 46.7% of robbery offenders without a conviction under section 924(c) were sentenced within the guideline range.

  • Substantial assistance departures were granted in approximately 11 to 13 percent of robbery cases without section 924(c) convictions in each of the past five years.
    The average reduction for these offenders was 42.6% during the five year time period (which corresponds to an average reduction of 36 months).
  • The rate of non-government sponsored below range sentences increased during the past five years for robbery cases without section 924(c) convictions from 22.5% to 24.7%.  The average reduction for these offenders was 32.1% during the five year time period (which corresponds to an average reduction of 24 months).

In fiscal year 2016, 43.0% of robbery offenders with a section 924(c) conviction were sentenced within the guideline range.

  • Substantial assistance departures were granted in approximately 19 to 22 percent of robbery cases with section 924(c) convictions in each of the past five years.
    The average reduction for these offenders was 41.7% during the five year time period (which corresponds to an average reduction of 84 months).
  • The rate of non-government sponsored below range sentences increased during the past five years for robbery cases with section 924(c) convictions from 18 to
    21 percent. The average reduction for these offenders was 17.3% during the five year time period (which corresponds to an average reduction of 31 months).

UPDATE: It just dawned on me, as I was thinking about how much to talk about the impact of section 924(c) charges and convictions in the federal sentencing process, that I should flag that just last year the Supreme Court finally got around to discussing the interplay of mandatory minimum sentencing provisions and the discretion created by Booker's conversion of the guidelines from mandates to advice.  The Supreme Court's unanimous(!) work in Dean v. United States is worth checking out, in part because it highlights the potential severity of "stacked" 924(c) convictions.

And if you have been wondering, "what the heck is a section 924(c) conviction and why is it so significant," here is a link or two or three to help(?) on that front.

March 5, 2018 in Class activities, Guideline sentencing systems, Sentencing data | Permalink | Comments (0)