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).
April 12, 2015
Final weeks to focus on purposes, offense, offender, sentencing and post-sentencing for sex offenders
A number of stories I have recently covered on my blog leads me to conclude we would usefully bring our semester to an informative and challenging close by giving special attention to the uniquely dynamic purposes, offense/offender, sentencing/post-sentencing issues raised by an array of sex offenses and offenders. Though I will assign some formal readings from our casebook on these topics on Tuesday, I will kick off this final segment of the course by urging everyone to cruise through the Sex Offender Sentencing archive on my main blog looking for stories they find especially interesting and thus worthy of in-class discussion.
To highlight how dynamic and challenging sex offender sentencing issues can be, consider these posts concerning notable sex offender sentencing rulings and stories making headlines just in the past few weeks and months:
Distinct goals/purposes issues:
- Yet again, Sixth Circuit reverses one-day sentence for child porn downloading as substantively unreasonable
Distinct offense considerations:
- Oregon Supreme Court to consider constitutionality of LWOP sentence for public pubic promotion
Distinct offender considerations:
- Did serial rapist, former NFL star Darren Sharper, benefit from celebrity justice in global plea deal?
Distinct post-sentencing consequences and concerns:
- Can a sheriff prohibit sex offenders from a church that is sometimes a school?
- First Circuit creates hard and firm standards before allowing sex offender penile plethysmograph testing
I would be especially grateful if student come to class on Tuesday having reviewed many of these linked stories and with an opinion about which aspect(s) of sex offender sentencing they would like us to focus particularly upon in the final weeks of class.
April 09, 2015
Understand the terms of USSC debate over the fraud guidelines
As mentioned in class on Wednesday, and as detailed in this official notice, the US Sentencing Commission has a public meeting scheduled for April 9, 2015, at 1:00 pm (which is to be live-streamed here). The big agenda item of note for the meeting is the "Vote to Promulgate Proposed Amendments," and the most consequential amendments being considered concerns proposals to tweak § 2B1.1, the key guideline for fraud cases and many other white-collar offenses.
I doubt the actual USSC meeting will be a must-see event, though I still urge you to tune in. But I have a must-read for anyone interested in white-collar federal sentencing: this fantastic Jurist commentary by Prof Randall Eliason titled "The DOJ Opposition to the Proposed Sentencing Guideline Amendments: Fighting the Wrong Battles in Fraud Cases."
March 28, 2015
Working text of Amended RID bill for reducing drunk driving crimes and harms
As you should recall, we ended class on Thursday with a working draft proposal for new drunk-driving legislation. Here is what has made it through our drafting committee so far:
First Offense DUI: imprisonment from minimum term of zero to five years max
Second Offense DUI: imprisonment from minimum term of six month to seven years max
Third (or Greater) Offense DUI: imprisonment from minimum term of two years to ten years max
In addition, a sentencing judge should (must?) give the minimum term for any DUI offense if and only when the defendant's BAC was .10% or lower and no tangible harm result from the offense. A sentencing judge should (must?) impose a sentence above the minimum if the defendant's BAC was above .10% or tangible harm resulted from the offense.
We could (and perhaps should) continue to discuss and debate other offense-related provisions to incorporate into this sentenceing --- e.g., we might provide more specific guidance/mandates concerning what other BAC levels or types of harms should/must result in a certain amount of jail time. But, in order to reduce the risk of potential unwarranted disparity, I think it may be even more important that we consider whether and how to provide some offender-related instructions to judges for the exercise of their sentencing discretion in this setting. And to get the discussion started, here are some proposals for consideration:
Proposal 1. A judge generally should (must?) sentence an offender at or near the applicable minimum term if and when the defendant has no criminal history, has pleaded guilty and accepted responsibility and shown remorse, and has demonstrated a willingness to seek treatment for any substance abuse or personal problems that may have contributed to the offense.
Proposal 2. A judge generally should (must?) sentence an offender at or near the applicable maximum term if and when the defendant has a significant criminal history, has refused to accept responsibility and shown remorse, and has failed to demonstrate a willingness to seek treatment for any substance abuse or personal problems that may have contributed to the offense.
(Contrary) Proposal 3. A judge generally should (must?) not in exercising his sentencing discretion consider in any way a defendant's criminal history, whether he has shown any remorse, or whether any substance abuse or personal problems may have contributed to the offense.
As these proposals are written, it is possible (but not essential) to favor both Proposal 1 and Proposal 2. But Proposal 3 is intended to be directly contrary to the Proposal 1 and my goal here is to explore whether and how you favor (or oppose) the consideration of some common offender-related sentencing factors.
I would encourage students to use the comments to discuss any part of this on-going debate over our new sentencing bill, and folks should feel especially free to propose any additional amendments and modifications to the bill. We will build on what we have done to date in our class discussion on Tuesday and Wednesday.
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.
January 15, 2015
Who are similar defendants sentenced for similar crimes to Dzhokhar Tsarnaev and John Rowland . . . AND WHY DO WE CARE?
As the text reveals, federal sentencing doctrines and state sentencing laws express in various ways an interest in achieving consistency in sentencing outcomes across a range of cases: e.g.,
- 18 US Code § 3553(a)(6) orders federal judges at sentencing to consider "the need to avoid unwarranted sentence disparities" among similar defendants;
- Ohio Revise Code § 2929.11(B) provides that sentences imposed for felonies shall be "consistent with sentences imposed for similar crimes committed by similar offenders."
Arguably, the US Constitution might be thought (at least since the end of the Civil Law) to demand consistent sentencing outcomes over a range of cases: the Fourteenth Amendment, of course, precludes governments from "deny[ing] to any person within its jurisdiction the equal protection of the laws."
We will begin next week by discussing the normative and practical issues raised by these kinds of commitments to sentencing consistency. Normatively, I hope students can explain why we should have a strong commitment to sentencing consistency, especially if there is reason to worry that such a commitment may complicate efforts to achieve justice in each individual case. Practically, I hope students can explain how we can effectively determine who are, in the words of federal law, "defendants with similar records who have been found guilty of similar conduct"? Helpfully, the on-going federal cases highlighted in the questionnaire provide a real-world lens to focus concretely on these abstract questions.
Here is an alphabetical list of some defendants arguably similar to Dzhokhar Tsarnaev (links via Wikipedia and with carnage; federal sentences they received):
- Ted Kaczynski (killed 3, injured over 20; LWOP)
- Timothy McVeigh (killed 186, injured over 600; death sentence)
- Terry Nichols (conspired with McVeigh; LWOP)
- Eric Rudolph (killed 2, injured over 100; LWOP)
Especially given that Tsarnaev is surely most similar to all those on this list other than McVeigh, does a commitment to sentencing consistency entail that Dzhokhar Tsarnaev must get an LWOP sentence? If a federal jury in the Tsarnaev case were to return a sentence recommendation of death, should the presiding federal judge ignore that recommendation and impose LWOP in order to "avoid unwarranted sentence disparities" among similar defendants?
Here is an alphabetical list of some defendants arguably similar to former Connecticut Gov John Rowland (links via Wikipedia when available and federal prison sentences received):
- Illinois Gov Rod Blagojevich (14 years)
- Massachusetts House Speaker Salvatore DiMasi (7 years)
- Louisiana Gov Edwin Edwards (10 years)
- Illinois Gov George Ryan (6.5 years)
- Bridgepost (CT) mayor Joseph Ganim (9 years)
- Alabama Gov Don Siegelman (6.5 years)
- Connecticut Treasurer Paul Sylvester (4.3 years)
Given that Rowland is facing sentencing for his second federal fraud/corruption charges, shouldn't concerns about sentencing consistency demand he now get a federal sentence of at least 6.5 years if not a lot more?
UPDATE as of 11am Monday: Kudos to those students who have already shared thoughtful comments below about the importance and challenges of achieving sentencing consistency.
One important additional factor in this critical debate which we will discuss in class today (and throughout the semester) is WHICH ACTORS in the criminal justice system should be especially concerned with seeking sentencing consistency and HOW PROCEDURLLY shoud greater consistency be pursued: e.g., should legislatures be especially concerned with sentence consistency and pursue it by enacting detailed sentencing guidelines and/or should sentencing judges be especially concerned with sentence consistency and pursue it by thoroughly researching "comparables" before imposing a sentence.
One especially notable actor in an especially notable setting that must confront these concerns a lot is a prosecutor in a jurisdiction with the death penalty. For example, is it virtuous for an Ohio prosecutor, in the name of consistency, always pursue a capital charge for any statutory eligible murder and refuse to plea the case down to a lesser punishment (which is the stated policy of long-time Hamilton County prosecutor Joe Deters)? Alternatively, as this new post on my main blog hints, should we be critical of the Colorado prosecutors in the Aurora killer James Holmes case for not being willing to take an LWOP plea given that prosecutors have often cut LWOP plea deals for other mentally-challenged mass killers like Ted Kaczynski (the Unibomber) and Jared Lee Loughner (the Tucson shooter).
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 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.
January 16, 2014
Sincere marijuana reform question: exactly what are DEA officials "scared" of?
The question in the title of this post, which I am now posting to all the blogs in which I now participate, is my sincere reaction to this new Washington Post article headlined "DEA operations chief decries legalization of marijuana at state level." Here is the context:
The chief of operations at the Drug Enforcement Administration on Wednesday called the legalization of marijuana at the state level “reckless and irresponsible,” warning that the movement to decriminalize the sale of pot in the United States will have severe consequences.
“It scares us,” James L. Capra said, responding to a question from a senator during a hearing focused on drug cultivation in Afghanistan. “Every part of the world where this has been tried, it has failed time and time again.”
Capra’s comments marked the DEA’s most public and pointed criticism of the movement toward decriminalization in several states, where local officials see it as an opportunity to generate tax revenue and boost tourism....
Capra said agents have watched the early days of legal marijuana sales in Colorado with dismay. “There are more dispensaries in Denver than there are Starbucks,” he said. “The idea somehow people in our country have that this is somehow good for us as a nation is wrong. It’s a bad thing.”
Capra said that senior DEA officials have faced uncomfortable questions from law enforcement partners abroad. During a recent global summit on counter-narcotics in Moscow, he said, he and the head of the DEA were at a loss to explain the loosening drug laws. “Almost everyone looked at us and said: Why are you doing this [while] pointing a finger to us as a source state?” he said. “I don’t have an answer for them.”...
Capra said he worries about the long-term consequences of the national mood on marijuana, which law enforcement experts call a gateway to more dangerous drugs. “This is a bad experiment,” he said. “It’s going to cost us in terms of social costs.”
Let me begin by saying I respect all those who work in the DEA and other law enforcement agencies dealing with illegal drug issues, and I am certain all those who do this work have much more first-hand knowledge of the myriad harmful social costs of drug use and abuse than I ever will. But it is for that very reason that I ask this question about exactly what has DEA officials "scared": I sincerely want a much better understanding of what "social costs" of reform are being referenced here so that I can better assess for myself how I think these potential "social costs" of state-level marijuana reform stack up to the existing "social costs" I see due to current pot prohibition laws and norms.
That said, I think I might be able to help DEA officials avoid "being at a loss" to explain loosening drug laws in the US to their international friends in Moscow or elsewhere. Here is what I suggest DEA officials say: "The United States of American is an exceptional nation that, in President Lincoln's words, was "conceived in Liberty" and its citizens recently have become ever more skeptical about the growth of government's coercive powers and ever more concerned about paying high taxes for government programming perceived to be ineffectual. Thus, just as the people of America were the first to experiment seriously with a constitutional democracy (which has worked out pretty well), now some of the people of America are eager to experiment seriously with a regime of marijuana regulation rather than blanket prohibition."
This account of why polls show ever greater support for marijuana legalization is my sincere understanding of why so much drug reform activity is going on now in the United States. The current "Obama era" is defined by a period of relatively tight budgets, relatively low crime, and yet still record-high taxing-and-spending in service to criminal justice programming. These realities, especially in the wake of the Tea Party movement and other notable libertarian responses to the enormous modern growth of state and federal governments, have more and more Americans thinking we should be open to experimenting with a regime of marijuana legalization and regulation rather than blanket prohibition.
It is quite possible, as the DEA official suggests, that "this is a bad experiment." But even if it is, the experiment does not "scare" me, in part because I have a hard time fully understanding what potential increased social costs should make me or others truly "scared." More importantly, I have enormous confidence that, if the social costs of marijuana reform prove to be significant, the American people will realize pot reform is "a bad experiment" and will again change its laws accordingly. Indeed, this is precisely the experiences we have seen with our legal experiments with other drugs throughout American history:
roughly 100 years ago, we experimented with national alcohol Prohibition, but thereafter discovered this was bad experiment due to a variety of social costs, and then went back to a regulatory regime for this drug, and have in more recent times kept tightening our regulatory schemes (e.g., raising the drinking age from 18 to 21), as drunk driving and other tangible social costs of alcohol misuse have become ever more evident;
roughly 50 years ago, we experimented with nearly everyone have easy access to, and smoking, tobacco nearly everywhere, but thereafter discovered this was bad experiment due mostly to health costs, and then have been on a steady path toward ever tighter regulation and localized prohibition (e.g., The Ohio State University just became a tobacco-free campus), as lung cancer and other health costs of tobacco use have become ever more evident.
I emphasize these historic examples of American drug experimentation because it is certainly possible to lament the harms produced along the way or the enduring "social costs" of having tobacco and/or alcohol still legal. But it is also possible to conclude, as I do, that what makes America both great and special — dare I say exceptional — is that we persistently maintained our fundamental commitments to freedom, democratic self-rule and the rule of law throughout these experiments. Consequently, this modern era's new round of American drug experimentation has me excited and intrigued to watch unfold the next chapter of the American experience, and I am not "scared" by the marijuana reform movement because they it strikes me as a further vindication of our people's fundamental commitments to freedom, democratic self-rule and the rule of law.
But maybe I am just way too high on the idea of American exceptionalism to have a sensible and sober understanding off all the potential harms and "social costs" that are apparently scaring DEA officials. And, as I said above, I readily acknowledge that all those who work on the front lines of the drug war have much more first-hand knowledge of the myriad harmful social costs of drug use and abuse than I ever will. But, again, that it why the question in the title of this post is sincere: I genuinely and really want to have a much better understanding of what has DEA officials "scared" so that I can sensibly temper my excitement and optimism about modern marijuana reforms.
I fear that responses to this post could become snarky or ad hominem real quickly, but I hope all readers will tap into the spirit of my inquiry and really try to help me understand just what potential social costs of modern marijuana reform could lead those in the know to be "scared" as the quote above suggests. And I am posting this query in all five blogs I work on these days because I am eager to get wide input and as many diverse insights on this question as possible.
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).
March 09, 2010
Specific interest in particular offense conduct and offender characteristics as sentencing factors
Though I am prepared and eager to discuss whichever offense conduct and offender characteristics that students find most interesting as sentencing factors, there are a few factors that I want to give special attention in our class on March 10. Specifically, in class I will be especially eager to hear your thoughts on these potential sentencing factors:
A. Role in the offense
B. Number of images in child porn downloading offense
C. Amount of money "at risk" in credit card identity theft
E. Drug dependence
F. Military service
Especially if you have strong and/or unique perspectives on any or all of these sentencing factors, feel free to start sharing your views in the comments to this post and be certain to raise you hand and your voice in our coming classes.
March 04, 2010
Some twists on consideration of acquitted conduct
There are too many stories that surround the concept of acquitted conduct to cover them all, but I wanted to provide some links to some of these stories as recently covered in my main blog for anyone interested in continuing to think about these issues of what offense conduct can/should be considered at sentencing. Here are just a sample of some coverage:
- Practitioner’s Note: Acquitted Conduct in the News (Again)
- Judge Bright urges SCOTUS attention to acquitted conduct enhancement
- New academic paper on acquitted conduct after Booker