November 08, 2016
Gearing up for figuing the (right?) sentence for the various convicted "Bridgegate" federal criminals
As I mentioned in class today, our coming exploration of the federal sentencing system will be based in part on using the real-world "Bridgegate" case into a real-world sentencing exercise. To get started in preparation to that end, I recommend some review of at least the following two links:
This Wikipedia page, titled "Fort Lee lane closure scandal" provides lots of background on the scandal, at it provides this very helpful initial summary of the crime and the three protagonists now facing federal sentencing:
The Fort Lee lane closure scandal, also known as the George Washington Bridge lane closure scandal, or Bridgegate, is a U.S. political scandal in which a staff member and political appointees of New Jersey Governor Chris Christie (R) colluded to create traffic jams in Fort Lee, New Jersey, by closing lanes at the main toll plaza for the upper level of the George Washington Bridge.
The problems began on Monday, September 9, 2013, when two of three toll lanes for a local street entrance were closed during morning rush hour. Local officials, emergency services, and the public were not notified of the lane closures, which Fort Lee declared a threat to public safety. The resulting back-ups and gridlock on local streets ended only when the two lanes were reopened on Friday, September 13, 2013, by an order from Port Authority Executive Director Patrick Foye. He said that the "hasty and ill-informed decision" could have endangered lives and violated federal and state laws.
The ensuing investigations centered on several of Christie's appointees and staff, including David Wildstein, who ordered the lanes closed, and Bill Baroni, who had told the New Jersey Assembly Transportation Committee that the closures were for a traffic study.
The United States Attorney for the District of New Jersey Paul J. Fishman launched a massive federal investigation, resulting in a sweeping nine-count indictment against Bridget Anne Kelly, the deputy chief of staff, Baroni and Wildstein. Wildstein entered a guilty plea, and testified against Baroni and Kelly, who were found guilty on all counts in November 2016.
The copy of the plea agreement in which Mr. Wildstein agreed to plead guilty and which also has a copy of his charging "information."
April 15, 2015
If you are curious about federal child porn sentencing...
here is a link to the 400+ page report that the US Sentencing Commission published on the topic in December 2012. The report's executive summary is only about a couple dozen pages, can be accessed at this link, and here are some interesting excerpts:
[S]entencing data indicate that a growing number of courts believe that the current sentencing scheme in non-production offenses is overly severe for some offenders. As the Supreme Court has observed, the Commission’s obligation to collect and examine sentencing data directly relates to its statutory duty to consider whether the guidelines are in need of revision in light of feedback from judges as reflected in their sentencing decisions.
[A]s a result of recent changes in the computer and Internet technologies that typical non-production offenders use, the existing sentencing scheme in non-production cases no longer adequately distinguishes among offenders based on their degrees of culpability. Non-production child pornography offenses have become almost exclusively Internet-enabled crimes; the typical offender today uses modern Internet-based technologies such as peer-to-peer (“P2P”) file-sharing programs that were just emerging only a decade ago and that now facilitate large collections of child pornography. The typical offender’s collection not only has grown in volume but also contains a wide variety of graphic sexual images (including images of very young victims), which are now readily available on the Internet. As a result, four of the of six sentencing enhancements in §2G2.2 — those relating to computer usage and the type and volume of images possessed by offenders, which together account for 13 offense levels — now apply to most offenders and, thus, fail to differentiate among offenders in terms of their culpability. These enhancements originally were promulgated in an earlier technological era, when such factors better served to distinguish among offenders.15 Indeed, most of the enhancements in §2G2.2, in their current or antecedent versions, were promulgated when the typical offender obtained child pornography in printed form in the mail....
[M]ost stakeholders in the federal criminal justice system consider the nonproduction child pornography sentencing scheme to be seriously outmoded. Those stakeholders, including sentencing courts, increasingly feel that they “are left without a meaningful baseline from which they can apply sentencing principles” in non-production cases....
The Commission concludes that the non-production child pornography sentencing scheme should be revised to account for recent technological changes in offense conduct and emerging social science research about offenders’ behaviors and histories, and also to better promote the purposes of punishment by accounting for the variations in offenders’ culpability and sexual dangerousness.
In addition, you might find intriguing and informative the lengthy discussion of child porn sentencing in the split Third Circuit panel decision in United States v. David Grober (where the majority, inter alia, faults the district court for allowing me to testify at the sentencing hearing).
March 25, 2015
Intriguing federal fraud sentencing raising distinct offense and offender issues
As mentioned in class, this week we will continue to unpack the challenging question of exactly what are the essential aspects of the "offense" to be assessed and punished at sentencing, and next week we will focus on whether there are any essential aspects of the "offender" that must (or must not) be assessed and punished at sentencing. With both topics in mind, a story of an upcoming federal fraud sentence blogged at SL&P struck me as especially interesting: You be the judge: what federal sentence for modern sheriff playing Robin Hood?.
Here are the basics of the offense based on press accounts:
Charge(s) of conviction: federal mail fraud, carrying a statutory range of 0 to 20 years in prison
Real conduct: "created hundreds of fake police reports [over and 18 month period] for a friend who ran a credit repair business so people could claim their identities were stolen and get out of credit." Main victim seems to be the credit company Equifax, and there is not tangible evidence the offender received any money for his fraudulent behavior (but his friend in the credit repair business made thousands of dollars from the scheme and may have paid the offender cash for his assistance).
Here are the basics of the offender based on press accounts:
Characteristics at time of 2012-13 crime: Male, heavy-set, 37 years-old, sheriff of southern county.
Background: "no criminal record, ... has suffered from depression and anxiety the past four years [and] has migraines, high blood pressure and insomnia." The now-former sheriff "was raised in a broken home, saw his mother abused by a boyfriend and left at age 17 to relieve her of financial burden [while they] resided in a poverty-stricken area." The offender joined the county "in 1997, two years after graduating high school and rose to chief deputy, becoming sheriff in April 2010."
Today and for the next few classes, we will talk about offense and offender sentencing issues using this real case (rather than the fake Rob Anon case) as a focal point. Consider and be prepared to discuss whether and how you think sentencing law could and should require (or preclude) consideration some of the facts listed above at sentencing. Also, consider whether there are any additional facts about the offense or the offender you would like to know before sentencing.
March 09, 2015
Links to all the key guidelines for modern FSG sentencing of Rob Anon
With apologies for the delay, I will now finally through this post provide some hints and help for sentencing Rob Anon under the modern federal sentencing guidelines. Here are links to the key provisions of the "official" on-line version of the now-applicable US Sentencing Guidelines as provided on the US Sentencing Commission's website:
- §2B3.1 Robbery
- §3B1.1. Aggravating Role
- §4A1.1. Criminal History Category
I highly encourage class members to start working through these "basic" federal guideline sentencing materials on their own (and then use the comments to express frustration) before looking for any more sentencing help. That said, if (when?) you want/need some more help, here is a link to a worksheet created by the US Sentencing Commission intended to aid in the guideline sentencing process:
As you work through this assignment, please feel free use the comments to express what it feels like to sentence in the federal system now that a whole lot of law has been brought into the process.
Though I continue to hope I am doing a good job with my low-stress, high-learning class mantra, it is very important in my view for everyone to get through the Rob Anon guideline sentencing experience ASAP; having done so will be essential to getting the most out of our classes the rest of this month. If you have already done this exercise, do it again and/or review your work. If you have not done it yet, please do.
April 11, 2014
Comparing two federal drug offenders and the (now just amended) federal drug guidelines
To aid our discussion of drug sentencing under the existing federal sentencing guidelines (which were, as reported here, amended just yesterday) based on various offender and offense factors, let me briefly describe two notable federal drug offender:
Offender #1 was, at the time of his offense, a 21-year-old man in his second year at college and got involved in an ecstacy conspiracy through a friend. This fellow himself used various drugs and served as a middle-man dealer of thousands of ecstacy pill for seven months, earning personally between $30,000 and $40,000. Afraid of getting apprehended, this offender thereafter decided the drug business was not for him: he withdrew from the conspiracy on his own, graduated from college, stopped using drugs, and began lawful work in another state. But, a few years later, when the ecstacy conspiracy was disrupted, and Offender #1 was indicted on various federal drug charges. Offender #1 thereafter pleaded guilty and truthfully provided authorities with all the information he had about his offense and others involved in the conspiracy.
Offender #2 was, at the time of her offense, a 19-year-old woman who dropped out of high school when she got pregnant as a teenager. Her half-sister got her involved in a methamphetamine conspiracy as a way to make money while she cared for two children and their mother. She made at most a few thousand dollars as a drug courier, and was apprehended at a bus station by police during her third run as a courier with 2.35 kilograms of methamphetamine in her possession. While on pre-trial/sentencing release, Offender #2 got married, had another child started, taking GED classes and got a low-paying job. Offender #2 also pleaded guilty and truthfully provided authorities with all the information she had about her offense and others involved in the conspiracy.
Can you guess which of these two offenders faced a higher guideline sentencing range?
Can you guess what federal sentence was ultimately imposed on these offenders?
Answers to both these questions are revealed by reading Gall v. US (in our text at pp. 415-423) and US v. Reyes, CR 12-1695 (D.N.M. March 2014) (available here). Please review both these cases to facilitate our class discussions on Monday and Wednesday.
April 08, 2014
Military service in the federal sentencing guidelines, then and now (and in the future?)
As a follow-up to our class discussion about military service and to provide a specific proposal to debate in our next class, I thought it would be useful to review the history of how the federal sentencing guidelines have treated military service.
For starters, the original federal sentencing guidelines promulgated in 1987 said not one word about military service. Then, in 1991, the following provision was added to the guidelines:
§ 5H1.11. Military, Civic, Charitable, or Public Service; Employment-Related Contributions; Record of Prior Good Works (Policy Statement)
Military, civic, charitable, or public service; employment-related contributions; and similar prior good works are not ordinarily relevant in determining whether a sentence should be outside the applicable guideline range.
Then, in 2010, § 5H1.11 was amended so that it now reads:
Military service may be relevant in determining whether a departure is warranted, if the military service, individually or in combination with other offender characteristics, is present to an unusual degree and distinguishes the case from the typical cases covered by the guidelines.
Civic, charitable, or public service; employment-related contributions; and similar prior good works are not ordinarily relevant in determining whether a departure is warranted.
Now, circa 2014, I propose mendment to the first paragraph of § 5H1.11 to read as follows:
If the defendant served in the active military prior to the commission of the offense, and if evidence suggests that personal or professional issues resulting from military service played any role in contributing to the commission of the offense or impacted the defendant's mental or emotional condition at the time prior to or during the offense, reduce the otherwise applicable guideline sentencing range by one third.
REAL-WORLD UPDATE: Here is a timely press report on an interesting and on-going federal case raising these issues and other offender-circumstances for consideration at sentencing:
A federal judge next week will re-start the sentence hearing for an Iraq combat veteran with PTSD who pleaded guilty to trying to hire the KKK to kill a black neighbor. Chief U.S. District Court Judge Karon Bowdre on Wednesday set Monday, April 14, as the date for continuing the sentencing hearing for Allen Wayne "Big Dad" Morgan. The hearing will begin at 1:30 p.m. at the Hugo L. Black U.S. Courthouse in downtown Birmingham.
Bowdre had started the sentencing of Morgan on Feb. 27 but after it began she continued it to give prosecutors time to respond to a witness Morgan's attorneys planned to call. The hearing continued on Monday with testimony about Morgan's drug addiction, his alleged sexual abuse as a child, and his diagnosed PTSD from his combat missions. Defense attorneys argue that the Federal Bureau of Prisons is not equipped to handle combat veterans with PTSD. Bowdre announced that she would continue the hearing after more than four hours.
Morgan, 30, pleaded guilty to using and causing someone else to use interstate facilities and travel -- a telephone and a motor vehicle -- with the intent to commit a murder-for hire. He is charged with trying to hire the KKK to kill a neighbor, who is black, because he believed the man had raped his wife.
Other than criminal history, is there any specific "offender characteristic" that you think must be considered at sentencing? If so, how?
As we start digging into the challenging and dynamic sentencing topics of offender characteristics at sentencing, two fundamental questions arise: (1) what specific offender characteristics should or must never be considered at sentencing, and (2) what specific offender characteristics should or must always be considered at sentencing. As is our norm, we will unpack these issues aided generally by current federal sentencing realities (and specifically through a discussion of Problem 5-4 in our text).
Generally, there are thought to be a couple of easy answer to these questions: for (1), we are often quick to say that race should or must never be considered at sentencing; for (2), we are often quick to say that criminal history should or must always be considered at sentencing. Though we could question the soundness of these pat answers, I think it will be more beneficial to explore what other offender characteristics we might think should be on either the never or the always list.
Focusing on the always list, one might interpret the Supreme Court's recent Eighth Amendment rulings in Graham and Miller as a statment that an offender's youth is a constitutionally essential sentencing consideration (at least in some settings). Relatedly, as discussed in this recent post on my main blog, a number of states have enacted laws or considered bills to require consideration of military service and/or PTSD at sentencing.
Would you embrace and endorse a sentencing system that demands that all sentencing judges in all cases give consideration to an offender's age and history of military service? If you think these or other specific offender characteristics must be considered at sentencing, are you inclined to give judges broad discretion as to how they consider these matters or would you think it better to have guidelines that articulate with specificity just how these specific offender characteristics should be incorporated into non-capital sentencing.
March 30, 2014
With the killer bride and Rob Anon now behind bars, we will turn to drug sentencing and mandatory minimums
As reported fully here and here via my main blog, after Bridezilla Jordan Graham failed in her effort to withdraw her plea based on prosecutors' sentencing arguments, she was sentenced to 365 months in federal prison for having pushed her new husband off a cliff. (Notably, the district judge at sentencing cited Graham's apparently lack of remorse when giving her this long a prison sentence. Does this suggest she got a (much?) longer prison sentence not because of her offense but because of her failure to adequately say she was sorry after the fact? Would it trouble you if the sentencing judge had said expressly that he was planning to give Graham 240 months if she had seem genuinely sorry when she spoke at sentencing but then increase the sentence another 10 years once her remorseless attitude was clear?)
We could easily continue dissecting the Graham case for another week, especially with respect to Chapter 5 topics regarding how her "offender characteristics" did/should impact her sentence. Here, for example, are just some of the specific hard questions raised by this classic sentencing issue in the Graham case: should her decision to plead guilty (at the last minute) reduce or increase her sentence? Should her lack of remorse matter a lot (as it seemed to the sentencing judge)? How about her status as a newlywed? Would it have properly mattered at sentencing if she had some temporary or permanent mental difficulties, e.g., suppose she was extra upset on the fateful night because she had just learned she was pregnant or suppose she had long been diagnosed with bipolar disorder and had been off her meds since just before her wedding?
But rather than continue to obsess over the killer bride (or our old pal Rob Anon), I think it is time for us to move to the hottest (and perhaps most important and consequential) topic in non-capital sentencing: sentencing for drug offenses and legislative embrace of harsh (sometimes mandatory) minimum prison terms in an effort to deter drug crimes and their associated harms. Helpfully, a couple of recent stories from my main blog provide timely information and background on these matters, and I highly recommend that all students read (or at least skim) this trio of new materials:
Chief Judge Patti Saris, Chair of United States Sentencing Commission and federal district judge, gave this informative speech at the Georgetown University Law Center titled “A Generational Shift For Drug Sentences.” It provides great background on the past and present of federal drug sentencing.
US District Judge James Browning provides a defense of the federal sentencing status quo in a lengthy opinion in US v. Reyes, CR 12-1695 (D.N.M. March 2014) (available here). For any and everyone concerned about federal (or even state) sentencing for drug offenses, this opinion is a must-read. Reyes also provides a remarkable case-specific window into the modern drug trade and the persons who get caught up within it.
An on-going legislative sentencing reform debate developing around heroin in Louisiana, which is well covered in this notable news article headlined, "In heroin debate, a detour from sentencing reform."
March 25, 2014
Sentencing submissions in US v. Graham: YOU BE THE SENTENCING JUDGE (and/or predict what the real judges will do)
As promised, here are links to the sentencing submission in US v. Graham (D. Montana):
As I mentioned in class, I am VERY interest in having students review these submissions and then comment/opine about (1) what sentence they would give if the sentencing judges in this case, and/or (2) what sentence they predict the actual federal sentencing judge will give on Thursday at the actual sentencing.
For anyone who makes a judgment/prediction that is spot on, I will reward with a special surprise prize.
UPDATE: Outcome is detailed over at SL&P: Remorseless killer bride gets sentenced to 30+ years in federal prison
March 23, 2014
Seeking engagement on "offense" for sentencing purposes (with or without emphasis on "acquitted/uncharged conduct")
In this post from my main blog, titled "As a matter of law, policy and practice, what should be the 'offense' a sentencer considers?," I set out some ideas that I referenced in last Wednesday's class and that I am eager to review during our two classes this coming last full week of March. (Remember, class does not meet on 3/26; I suspect I have already conducted a make-up class with the extra minutes I have run class late some days.)
In that post (which I urge students to review), I explain why many challenging and controversial issues of modern sentencing can often relate to the consensus viewpoint that (1) offense(s) of conviction are a necessary and critical part of the "offense" to be considered at sentencing, but also that (2) at least some non-conviction, offense-related factors (such as a defendant's motive and role and the impact on victims) should also be considered sentencing. The constitutional issues considered by the Supreme Court in Watts and the broader debate over whether sentencing guidelines should focus mostly/exclusively on the "charged" offense or the "real" offense depend to a large extent on whether concern (1) or concern (2) is considered most important at sentencing.
Usefully, an interesting and notable variation on the Watts case was decided by the DC Circuit less than 10 days ago in a multi-defendant case involving one defendant named Antwuan Ball. I discussed the background and ruling in the Antwuan Ball case in this SL&P post titled "DC Circuit gives disconcertingly short-shrift to Antwuan Ball's many significant sentencing claims." Here are the factual basics:
Ball put the government to its burden of proof concerning allegations of his involvement running a massive drug conspiracy in Washington DC; a very lengthy jury trial led to Ball being acquitted in November 2007 on every count of a massive racketeering, drug conspiracy and murder indictment save for one crack distribution count related to a $600, half-ounce, hand-to-hand crack-cocaine deal in 2001.
At sentencing, federal prosecutors urged the district judge to rely heavily on all sorts of alleged wrongdoing by Ball to impose a (statutory maximum) sentence of 40 years on the crack charge/conviction. Relying on the prosecution's allegations that Ball was the leader of a huge crack conspiracy (claims which the jury concluded were not proven beyond a reasonable doubt), the district calculated Ball's guideline sentencing range to be 292 to 365 months (whereas Ball's guideline range would have been only 51 to 71 months absent consideration of "acquitted conduct").
District Judge Richard Roberts at sentencing declared that he "saw clear evidence of a drug conspiracy," and he ultimately decided to give Ball a (below-guideline-range) 225-month prison sentence for his conviction based on the 2001 hand-to-hand drug transaction. In other words, like the defendants in the Watts case that came before the US Supreme Court, Antwuan Ball's calculated guideline range and his actual sentence was significantly impacted by "real offense conduct" considered by the sentencing judge but not the basis for a conviction. But, as was likewise true for at least on of the Watts defendants, Antwuan Ball ultimately was eligible for and received a much lower sentence than he would have gotten had been convicted of all the offenses with which he had been charged. (Ball likely would have been facing a statutory mandatory LWOP if he had been convicted by the jury of being the leader of a big crack conspiracy.)
I have strong (but quite nuanced) views about what is wrong and what is not-so-wrong with how federal sentencing law now deals with defendants like Antwuan Ball, and you can become more informed and insightful than 99% of practitioners if/when you can understand why these issues are so philosophically and doctrinally challenging. And, to aid analysis, my post about the Ball case generated a pair of thoughtful posts at The Volokh Conspiracy: Professor (and former federal sentencing judge) Paul Cassell got the ball rolling via this post titled "Should a drug dealer acquitted of running a drug ring be sentenced for running a drug ring?". And then Professor Will Baude chimed in via this post titled "The real constitutional problem with Antwuan Ball’s sentence."
Among the reasons you might want to invest time/energy thinking through this case is because I likely will be authoring an amicus brief this coming summer in support of a cert petition if/when the lawyers for Antwuan Ball and his co-defendant decide to pursue further appeals. I would welcome any and all student help and input now or later concerning such a project.
March 17, 2014
Make sure you work on (and are ready to discuss) FSG sentencing of Rob AnonMonday's first post-break class will involve lots of catching up on events since our last gathering and lots of gearing up for our final six week of classes. It will help if everyone has already gone through the Rob Anon guideline sentencing experience, and having done so will be essential to getting the most out of our classes the rest of this month. If you have already done this exercise, do it again and/or review your work. If you have note done it yet, please do ASAP. And everyone is encouraged to discuss the experiences in the comments here.
March 03, 2014
REMINDER: for high learning and low stress this week...
everyone should be doing the first part (i.e., the first page) of the sentencing exercises ASAP: after reading (or even while reading) the Frankel excerpt and the notes that follow at the start of Chapter 3, everyone should imagine herself as a federal judge at the time of Judge Frankel and come up individually with an exact pre-guideline sentence for Rob Anon (the federal back robber described at the start of Chapter 4).
Students are welcome to also try to figure out (both procedurally and substantively) how Rob Anon would be sentenced now in the modern structured sentencing era, but that will not be essential for our conversations during the first few classes this week. After class on Tuesday, I will post some materials here on the blog that should make it somewhat easier to do the guidelines part of the exercise before Wednesday's class.
December 16, 2011
Hey sports fans, lots of federal sentencing stories to follow
As a big sports fan, I tend to get a kick out of being able to follow federal sentencing stories via the sports page. And now, as detailed in these two recent posts from my main blog, there are two timely stories worth watching closely:
- Any predictions (or suggestions) for ... sentencing of Barry Bonds?
- NFL player arrested by feds for big-time drug dealing
The second story, concerning the Chicago Bears receiver Sam Hurd and his alleged involvement in a big cocaine distribution scheme, provides a particularly good opportunity for students to think about plea bargaining practices and high-profile defendants. Should Hurd's defense attorney and/or the federal prosecutors handing the case be talking about trying to put together a quick plea deal before all the details of Hurd's alleged offense conduct become the topic of ESPN debate? Or should both sides be already thinking about the "fight to the death" approach that Jerry Sandusky's lawyers have adopted?
Anyone eager to talk more about these issues at a sports bar over drinks can/should come get me from my office late on Friday night. In addition to working late this Friday to follow the Bonds' sentencing from the West Coast, I am a free agent through the evening because my family has a "girls night out" without me at a holiday cookie party.
December 01, 2011
Filings from government in US v. Blagojevich
I talk about some of the issues discussed in class concerning the upcoming sentencing on my main blog in this post, and here is a link to the government's sentencing memo in US v. Blagojevich. I continue to look for an on-line version of the defense filing (and will give extra credit to any student who can find a link and post it in the comments).
In addition to the guideline stories I stressed in class, many other aspects of the government's memo merit consideration and comment. And this local article from a Spingfield paper, titled "Federal sentencing a confusing process," might be of special interest and appeal as you think about how the public thinks about these sentencing issues in a high-profile setting without having had the benefit of an entire semester of Sentencing Class with Crazy Professor Berman.
Among other topics, I would very much welcome/encourage you to pretend to be Judge Zagel and script in the comments a sentence (and an explanation for the sentence) to be imposed on Rod Blagojevich. For all we know, the Judge might read these comments before sentencing.
November 27, 2011
Start posing questions for DOJ visitor (and/or react to short paper assignment)
As you all know, everyone needs to turn in short-paper advice for Jonathan Wroblewski, the director of the Justice Department's Criminal Division Office of Policy and Legislation, by mid-day on Monday. While or after you complete this task, I hope you are thinking about hard questions to ask Mr. Wroblewski concerning his work for the Justice Department or his role on the US Sentencing Commission when he visits our class on Tuesday.
For a variety of reasons, it might be a good idea to get a list of questions for Mr. Wroblewski started in the comments to this post. So, go for it. In addition, students should also feel free to react to the second short-paper assignment in the comments to this post.
November 19, 2011
Class on Tuesday, 11/22: a day for working on problems (with a running start here)
Our final pre-Thanksgiving class will be a day for discussing problems: (a) I can/will respond to any problems anyone has with completing the second short paper, (b) I can/will respond to any problems anyone has figuring out what they are doing for the final paper, and (c) I can/will ask a bunch of hard questions about Problems 5-4 and 6-1 from the casebook (pp. 383-84 and 456-58 in our text).
I am (justifiably) fearful that 75 minutes on Tuesday will not be sufficient to do justice to both Problems 5-4 and 6-1 from the casebook, especially if/when everyone has a belly full of turkey and stuffing from the SBA lunch. Consequently, I am eager for initial student discussion/debate in the comments here about the issues posed by Problems 5-4 concerning the role/significance in federal sentencing of these eight offender characteristics:
- vocational skills
- mental and emotional condition
- physical condition, including drug dependence
- previous employment record
- family ties and responsibilities
- community ties
To foster targeted discussion, I would like to hear in the comments views on whether students think one or more of these offender characteristics absolutely should or absolutely should not be considered at sentencing.
To get the conversation started, I will assert my (devil's advocate?) opinion that EDUCATION absolutely should be considered at sentencing (based in part on this criminal justice report on "Education and Public Safety"), while PHYSICAL CONDITION absolutely should not be considered at sentencing (based in part on my fear that there is a worrisome tendency of persons to judge poorly those who look different). Does everyone agree?
For anyone who agrees that education should be considered at sentencing, would you also agree with operationalizing this view by providing sentencing rules/guidelines stating that for each and every degree obtained (high-school, college, graduate school), there should be a presumptive 25% reduction in the imposed prison term? If you do not like that rule/guideline, how else might be craft rules for considering education (or other offender characteristics) at sentencing?
UPDATE: I have linked from this post at my main blog to this article reporting on research which suggest that, for American men, "marriage was associated with lower levels of crime and less frequent substance use [and that] following the birth of a first biological child, men's crime trajectories showed slope decreases." Perhaps this provides support for, say, a 10% sentence reduction for men who get married and another 10% discount following the fathering of a first child."
November 17, 2011
Plans, papers and other notes on other of fronts
CLASS PLANS: Today and next Tuesday we will be discussing: (1) Tiernan & USSG 3E1.1 & Pepper and sentencing discounts for pleas and cooperation, (2) Problem 5-4 & Pepper and sentencing based on offender characteristics, and then (3) McMillan & Blakely & Problem 6-1 (in casebook). A timely and interesting circuit ruling that touches on many of these issues was handed down yesterday in US v. Robertson, No. 11-1651 (7th Cir. Nov. 16, 2011) (available here). I recommend it highly as a compliment/follow-up to many of the issues we will discuss in the next few classes.
SHORT PAPER LOGISTICS: The short-paper assignment (explained here) must be submitted no later than Monday 9am on November 28. Your names should be on the assignment, and you can hand in either a hard-copy or via a pdf attachment to an e-mail to me. Important note: earlier this week, Jonathan Wroblewski's boss gave a significant speech on federal sentencing law and policy (which I suspect Jonathan helped draft). The text of this speech is available at this link and may help your short-paper drafting efforts.
NEW SCOTUS CASES (AND AMICI OPPORTUNITIES): In this post at my main blog, I report on two intricate sentencing issues that have split lower federal courts that now appear ready for Supreme Court review. If (when?) the Supreme Court grants cert on these issues, they may become the focal point (along with the juve LWOP cases) of much of our post-Thanksgiving discussions during our last two classes following Jonathan Wroblewski's visit on Tuesday, November 29.
LUNCH/DINNER OPPORTUNITY WITH DOJ GUY: Speaking of Jonathan Wroblewski's visit on Tuesday November 29, I was thinking about trying to organize a lunch or dinner with students on that day if there is some student interest. I do not want to make this a huge/formal event, but students should let me know ASAP if they would be interested in such an opportunity.
November 01, 2011
Justice Breyer's Watts concurrence and the challenge of better guideline drafting
I made brief mention in class of Justice Stephen Breyer's concurrence in Watts, and I thought it might be useful to quote all of it here as the prelude to an (extra credit) challenge:
I join the Court’s per curiam opinion while noting that it poses no obstacle to the Sentencing Commission itself deciding whether or not to enhance a sentence on the basis of conduct that a sentencing judge concludes did take place, but in respect to which a jury acquitted the defendant.
In telling judges in ordinary cases to consider “all acts and omissions . . . that were part of the same course of conduct or common scheme or plan as the offense of conviction,” United States Sentencing Commission, Guidelines Manual § 1B1.3(a)(2) (Nov. 1995) (USSG), the Guidelines recognize the fact that before their creation sentencing judges often took account, not only of the precise conduct that made up the offense of conviction, but of certain related conduct as well. And I agree with the Court that the Guidelines, as presently written, do not make an exception for related conduct that was the basis for a different charge of which a jury acquitted that defendant. To that extent, the Guidelines’ policy rests upon the logical possibility that a sentencing judge and a jury, applying different evidentiary standards, could reach different factual conclusions.
This truth of logic, however, is not the only pertinent policy consideration. The Commission in the past has considered whether the Guidelines should contain a specific exception to their ordinary “relevant conduct” rules that would instruct the sentencing judge not to base a sentence enhancement upon acquitted conduct. United States Sentencing Commission, Sentencing Guidelines for United States Courts, 57 Fed. Reg. 62832 (1992) (proposed USSG § 1B1.3(c)). Given the role that juries and acquittals play in our system, the Commission could decide to revisit this matter in the future. For this reason, I think it important to specify that, as far as today’s decision is concerned, the power to accept or reject such a proposal remains in the Commission’s hands.
Here is the (extra credit) challenge for members of the class: Can/will someone propose in the comments a formal US Sentencing Guidelines provision to limit the authority of federal sentencing judge to enhance a sentence on the basis of acquitted conduct (which may or may not also cover uncharged conduct of the sort at issue in Fitch)?
(Note: The US Sentencing Commission has, in fact, never formally proposed an "acquitted conduct" provision in response to Watts.)
In addition to being eager to see student efforts to draft a provision of the US Sentencing Guidelines provision to limit the authority of federal sentencing judge to enhance a sentence on the basis of acquitted (and/or uncharged) conduct, I wonder if folks think that, now that Booker has made the guidelines advisory, the "problem" in Watts is now better (or worse).
October 24, 2011
"Measurement and Its Discontents" ... and modern sentencing laws and guidelines
The title of this post starts with the headline of this interesting commentary, which was published in yesterday's New York Times. Though not saying one word about sentencing, I thought many parts of piece (and especially the passages quoted below) were especially interesting and deserved consideration as we transition into our review and assessment of guideline sentencing systems:
Why are we still stymied when trying to measure intelligence, schools, welfare and happiness?
The problem is not that we don’t yet have precise enough tools for measuring such things; it’s that there are two wholly different ways of measuring.
In one kind of measuring, we find how big or small a thing is using a scale, beginning point and unit. Something is x feet long, weighs y pounds or takes z seconds. We can call this “ontic” measuring, after the word philosophers apply to existing objects or properties.
But there’s another way of measuring that does not involve placing something alongside a stick or on a scale. This is the kind of measurement that Plato described as “fitting.” This involves less an act than an experience: we sense that things don’t “measure up” to what they could be. This is the kind of measuring that good examples invite. Aristotle, for instance, called the truly moral person a “measure,” because our encounters with such a person show us our shortcomings. We might call this “ontological” measuring, after the word philosophers use to describe how something exists.
The distinction between the two ways of measuring is often overlooked, sometimes with disastrous results. In his book “The Mismeasure of Man,” Stephen Jay Gould recounted the costs, both to society and to human knowledge, of the misguided attempt to measure human intelligence with a single quantity like I.Q. or brain size. Intelligence is fundamentally misapprehended when seen as an isolatable entity rather than a complex ideal. So too is teaching ability when measured solely by student test scores.
Confusing the two ways of measuring seems to be a characteristic of modern life. As the modern world has perfected its ontic measures, our ability to measure ourselves ontologically seems to have diminished. We look away from what we are measuring, and why we are measuring, and fixate on the measuring itself. We are tempted to seek all meaning in ontic measuring — and it’s no surprise that this ultimately leaves us disappointed and frustrated, drowned in carefully calibrated details....
But how are we supposed to measure how wise or prudent we are in choosing the instruments of measurement and interpreting the findings? Modern literature is full of references to the dehumanizing side of measurement, as exemplified by the character Thomas Gradgrind in Dickens’s “Hard Times,” a dry rational character who is “ready to weigh and measure any parcel of human nature, and tell you exactly what it comes to,” yet loses track of his own life.
How can we keep an eye on the difference between ontic and ontological measurement, and prevent the one from interfering with the other?
One way is to ask ourselves what is missing from our measurements.... In our increasingly quantified world, we have to determine precisely where and how our measurements fail to deliver.