Sentencing Class @ OSU Moritz College of Law

What data in the federal system would indicate the Biden Administration is drawing down the federal drug war?

With my usual apologies for only scratching the data/metrics surface in class yesterday, I wanted to link here to some of the materials I mentioned and then set up our final discussion giving particular emphasis to the (federal) war on drugs.  To start, on the crime front, I flagged graphics in class drawn from this short FactTank report, titled "What the data says (and doesn’t say) about crime in the United States," from the Pew Research Center.  I recommend the full piece, though I could easily cite to dozens more articles about so many other uncertain metrics regarding crime.

And when it comes to uncertainty about crime, I always think about drugs because illegal drug activity is the kind of behavior that is unlikely to be regularly reported to police and that is so wide-spread that it has to be, by necessity, only selectively enforced by police and prosecutors.  One reason the so-called "War on Drugs" is often called racist is because survey evidence suggests that blacks and whites use and sell drugs at roughly similar rates, but blacks are much, much more likely to be subject to drug-related arrests, sentences, and incarceration.  This data visualization (also reprinted) from The Hamilton Project is a little dated, but it captures the basic disconcerting data realities of seemingly extraordinarily disparate enforcement patterns.

But, as is often the case, there are reasonable debates based on existing data as to whether we ought to worry particularly about drug war disparities if our biggest concern is mass incarceration.  LawProf John Pfaff wrote an interesting book a few years ago (summarized here) stressing data showing the relatively low percentage of state prisoners incarcerated for drug offenses to argue that we ought not focus on drug offenses as a cause or driver of modern mass incarceration.  Sure enough, if you check out the amazing "Whole Pie" accounting of incarceration, one sees that "only" about 15% of the state prison population is made up of drug offenders.  (One quibble I have always brought up in discussions with Prof Pfaff is his failure to consider sufficiently how prior drug offenses impact and extend the sentences of state (and federal) offenders for other crimes.  Many folks in the states subject to particularly harsh three-strikes or habitual offender laws often have prior convictions based in drug enforcement.  As I see it, folks getting decades in prison for, say, a robbery in 2015 based in part on prior drug offenses in 2010 and 2005 are still "drug war" prisoners.)

However one considers drug war realities in state justice systems, the significant impact of drug enforcement at the federal level is indisputable.  I noted in class this US Sentencing Commission Quick Facts document about caseloads and sentencing in drug cases in the federal system, and that data document shows that more than a quarter of all federal cases sentenced last year were drug cases and the average sentence for all these cases was 77 months (whereas the average sentence for all fraud offenses last year was 23 months).  Another way to see the impact of drug cases in the federal system is this other USSC Quick Facts document on the federal prison population as of June 2020.  That document shows that roughly 45% of the federal prison population is incarcerated for drug offenses and that there are more than 10 times as many current federal prisoners serving time for drug offenses than for fraud offenses.  Indeed, it appears that there are roughly the same number of meth offenders in federal prison as there are federal firearm and robbery offenders combined (and firearm and robbery offenders are the two biggest categories of prisoners after drug offenders according to this USSC data).

But the story gets even more interesting if you look at some of the quite divergent racial patterns in federal drug enforcement and sentencing.  In this Vox article is a slightly dated chart (also reprinted here) that breaks down the racial composition of offenders for different drugs in the federal system, and it shows that almost all sentenced crack offenders are black whereas very few marijuana and meth offenders are black.  These data suggest that if one had the goal of significantly reducing the number of black federal prisoners serving time for drug offenses, reducing significantly the number of crack (and powder cocaine) prosecutions would be sufficient.  But it the concern was more broadly about all people of color, marijuana and meth prosecutions are key because they are disproportionately involving Latinx individuals.  And, if gender intersectionality is of concern, check out this USSC Quick Facts on female offenders which reports that "Among female drug trafficking offenders, 41.6% were Hispanic followed by White (40.1%), Black (13.4%), and Other races
(5.0%)" as compared to "female fraud offenders, [who were] 43.6% were White, followed by Black (31.3%), Hispanic (18.6%), and Other races (6.5%)."

I know that processing all this data is near impossible, and my main goal is just to highlight how many different metrics one might wish to consider.  But I also wanted to finish by focusing on how the new Biden Administration players might set goals for these data as part of an effort to "de-escalate" the drug war.  The number of drug cases prosecutors by federal authorities would seem to be a matter largely of prosecutorial discretion and a matter that the Biden Administration could significantly alter over time.  Given that recent history details about 20,000 federal sentences imposed for drug cases averaging around six years in prison, that means roughly 120,000 years of federal prison is being allocated to federal drug enforcement each year.  Would it be reasonable for a new Attorney General to announce that by, say, 2024 she thinks the federal system ought to allocate only around 50,000 years of federal prison to federal drug enforcement each year (e.g., there should be only 10,000 cases averaging 5 years)?  Or how about only 20,000 years of federal prison to federal drug enforcement each year (only 5,000 cases averaging 4 years)?  Or is this crazy talk?

Are there any "offender characteristics" that you think must be considered at sentencing? If so, how?

As we continue digging into the challenging and dynamic topics of offender characteristics at sentencing, I urge you to think about what offender characteristics should or must always be considered at federal sentencing with two particular "whos" in mind: the US Sentencing Commission and US District Judges.  

The challenge for the USSC 

You should closely review Problem 5-4 in the text and the notes that follow (pp. 322-26).  You will see that Congress in the Sentencing Reform Act of 1984 instructed the USSC to consider the "relevance" of various offender factors at sentencing (and only declared a few factors like race and sex and socio-economic status off-limits).  In other words, Congress gave the Sentencing Commission considerable discretion to include various offender factors in guideline calculations, but the USSC has historically deemed nearly all offender factors — such as "disadvantaged upbringing" and "drug or alcohol dependence" and "education and vocational skills" and "employment record" and "family ties and responsibilities" — as either "not relevant" or "not ordinarily relevant" at sentencing.

Notably, in a 2014 law review article, a former Chair of the US Sentencing Commission, US District Judge William Sessions, criticized the federal sentencing guidelines for having too often and for too long declared offender characteristics to be "prohibited or discouraged factors" because of a fear these factors could too readily lead "courts to issue different sentences to defendants with similar records who have been found guilty of similar conduct."  In his article, titled "The Relevance of Offender Characteristics in a Guideline System," Judge Sessions asserted that the "Commission needs to embrace the relevance of human factors and educate judges and practitioners as to their impact on the sentencing process;" drawing from his own sentencing experiences, Judge Sessions suggested that factors like "past drug dependence" and "positive response under pretrial supervision" ought to be the basis for new "guidelines that encourage consideration of those characteristics where appropriate."  

Do you agree that it is problematic that the federal sentencing guidelines largely seek to exclude consideration of offender characteristics and that the US Sentencing Commission consider a new approach to these matters?  Judge Sessions says "the Sentencing Commission should take more of an initiative to collect data on offender characteristics, draft guidelines that encourage consideration of those characteristics where appropriate, and educate judges about the reasons why those characteristics are relevant should what might these guidelines look like."  If you were serving on the USSC, what kinds of "data on offender characteristics" might you want to collect and what kind of "draft guidelines" might you start to compose?

 

The challenge for US District Judges

Even when the guidelines were mandatory before Booker, US District Judges had some limited authority to give some effect to offender characteristics at sentencing when selecting an exact sentence within the guideline range.  (For example, a judge impressed by a defendant's charity work could reference this personal history when giving a 51-month term to a defendant facing a guideline sentencing range of 51-63 months.)  But US District Judges before Booker largely understood that most "usual" offender characteristics were of little importance within the guideline structures, and that reality in turn often led defense attorneys to spend little or no time developing any offender-based mitigating factors to present to judges at sentencing.

But when Booker made the guidelines advisory, US District Judges became obligated to focus upon and follow the statutory instructions in 18 U.S.C. § 3553(a).  And the very first subsection of this statutory provision states judges "shall consider the nature and circumstances of the offense and the history and characteristics of the defendant" (emphasis added).  In other words, Congress gave US District Judges a formal instruction to consider offender considerations, and this instruction became a focus point for advocacy and decision-making after Booker.  This provision was also stressed by US District Judge Robert Pratt when he initially sentenced Brian Gall to 36 months of probation rather than within the guidelines sentencing range of 30-37 months in prison.  The Eighth Circuit reversed Judge Pratt's sentence as unreasonable, but the Supreme Court reversed that reversal (excerpted in our text at pp. 341-48) to essentially confirm that offender characteristics could play a much larger role in federal sentencing after Booker.

If you were able to advise a group of federal judges about modern sentencing under the advisory guideline system, what advice might you give circa 2020 as to how best to approach the consideration of offender characteristics?  Are there any offender characteristics that you think federal district judges should or must always consider at sentencing?  If so, how should judges now approach these matters without creating the risk of unjust sentencing disparities or other potential problems?

Spotlighting federal government's ability (and efforts) to control both "charges" and "real" conduct in some drug cases

As we wrapped up a too-quick discussion of the "offense" for sentencing purposes with a focus on drug cases, I briefly mentioned the somewhat (in)famous litigation in Chicago surrounding so-called "stash-house sting" case.  I have done a series of blog posts about these cases at my main blog, some of which are linked below.  Here is a 2019 Chicago Tribune article, headlined "Convicted in a controversial stash house sting operation, Leslie Mayfield is struggling to rebuild his life after prison," which focuses on one stash-house defendant while also telling the broader stories of these cases.  I recommend the new Tribune article in full (and posts linked below) for those interested in these stores, but here is an overview of the basics (with sentencing points bolded) drawn from this press piece (which also highlights the role of a bunch of different critical "whos"):

Leslie Mayfield wasn’t used to entering a courtroom except in shackles.  Over the years, through his trial for conspiring to rob a drug stash house, his sentencing to a decades-long prison term and his long-shot fight to overturn his conviction on entrapment grounds, Mayfield had always been escorted into court by deputy U.S. marshals from a lockup in back....

But recently, he took a seat in U.S. District Judge Edmond Chang’s courtroom gallery, whispering to his attorney that it all felt strange as he waited for his name to be called....  Reviewing reports on Mayfield’s progress, Chang noted that since his release from prison, he’d found a job, reconnected with his family and maintained a strong motive to stay straight.  Then the judge made the transformation official, agreeing that Mayfield, 51, no longer needed court supervision.

The ruling marked a quiet milestone in the widely criticized sting operations in which the U.S. Bureau of Alcohol, Tobacco, Firearms and Explosives used informants to lure unsuspecting targets into a scheme to rob drug stash houses — an undercover ruse concocted by the government.

For years, the stings were considered a smashing success, touted as a law enforcement tool to remove dangerous criminals from the streets.  But the practice came under fire in 2014 when attorneys for the University of Chicago Law School mounted a legal challenge on behalf of nearly four dozen Chicago-area defendants alleging the stings disproportionately targeted African Americans and Hispanics.

Both the ATF and the U.S. attorney’s office staunchly defended the operations in court, saying they followed rigorous guidelines to ensure the stings were lawful.  While the legal effort to prove racial discrimination fell short, the tactics drew sharp rebukes from many judges.  Prosecutors began quietly dismissing the more serious charges, and over the next year or so, most of the defendants — including Mayfield — were sentenced to time served.

As the first to be cleared of all court supervision, Mayfield could be viewed as a success story, but he’s struggled in many ways.  Like so many ex-cons, Mayfield is learning how hard it can be to rebuild his life after prison.  He also continues to fight guilt over the plight of his brother and cousin — both of whom he recruited into the scheme and are still serving decades-long prison sentences....

The outlines of each stash house sting followed the same basic pattern: ATF informants identified people they believed would commit a drug-related robbery.  If the target met certain criteria — including a violent criminal background — agents approved the sting.

The elaborate operations included a fake stash house location, fictitious amounts of money and drugs, and other made-up details of a robbery plot.  An undercover agent posing as a disgruntled drug dealer followed a script aimed at convincing the target to agree on secret recordings to take part in the robbery, pledge to bring guns — and use them if necessary. Since agents claimed that massive quantities of drugs were involved, the prosecutions often carried eye-popping sentences, sometimes even life behind bars.  Nearly all the targets, though, turned out to be African American or Hispanic — many of whom had minimal criminal histories....

Mayfield was convicted at trial in 2010 and handed a 27-year sentence.  His brother, with only a nonviolent drug conviction in his past, and his cousin both were given 25-year prison terms.

In 2014, the University of Chicago’s Federal Criminal Justice Clinic led an effort to have charges against 43 defendants dismissed on grounds that the cases were racially biased.  In a landmark hearing in December 2017, nine federal judges overseeing the cases heard testimony from dueling experts on policing who came to dramatically different conclusions.  The U.S. attorney’s office denied that the stings disproportionately affected minorities, arguing that targets were selected by their propensity for violence, not race.  For instance, while out on bond, two men facing stash house-related indictments were charged in separate shootings, including the wounding of a Chicago police officer.

But many judges overseeing the cases had clear concerns that the ends did not justify the means.  In a decision that wasn’t binding but served as a guide for other judges, then-U.S. District Chief Judge Ruben Castillo said the stings shared an ugly racial component and should “be relegated to the dark corridors of our past.”

While Castillo stopped short of dismissing the case before him, his 2018 ruling had a ripple effect.  At the urging of Castillo and other judges, the U.S. attorney’s office began offering plea deals and dropping counts that involved stiff mandatory minimum sentences.

The results were startling.  While many of the 43 defendants faced mandatory sentences of 15 to 35 years in prison if convicted, 32 instead were released with sentences of time served after pleading guilty to lesser charges.  Most of the others received prison terms that were significantly below federal sentencing guidelines.

I was fortunate to get Alison Siegler, Clinical Professor of Law and Director of the University of Chicago Law School's Federal Criminal Justice Clinic, to author a series of posts for my main blog about her remarkable work in these remarkable cases.  Provided below are links to my main blog of an early press piece, and there her three posts about the amazing and consequential work of defense lawyering in this setting:

• Deep dive into litigation over Chicago “Stash House Stings”

• Guest post series on Chicago "stash-house sting" litigation: Part 1 on "Sentencing Victories"

• Guest post series on Chicago "stash-house sting" litigation: Part 2 on "Legal Victories"

• Guest post series on Chicago "stash-house sting" litigation: Part 3 on "A Path for Future Litigation" 

Just what is "acquitted conduct" sentencing and is it a really big problem or really no big deal?

To start the final week of October, we will turn to discuss the (insufficiently discussed) Supreme Court ruling in US v. Watts upholding the constitutionality of the use of so-called "acquitted conduct" in the calculation of the sentencing guidelines.  I would like us in class (and here in the comments) to explore just what "acquitted conduct" is and whether it should be a big concern.  As I will note in class, the Michigan Supreme Court last year grappled with this issue (as noted here) and decided that "once acquitted of a given crime, it violates due process to sentence the defendant as if he committed that very same crime."  The state of Michigan appealed this ruling to SCOTUS, but (as noted here) the Supreme Court declined to reconsider this issue.

Watts was a federal sentencing case, and it bears remembering that US Sentencing Commission or Congress could seek to preclude the use of "acquitted conduct" as a matter or guideline or statutory rule for the federal system.  In fact, just last year, as detailed in this press release, "U.S. Senators Dick Durbin (D-Ill.) and Chuck Grassley (R-Iowa), the lead sponsors of the landmark First Step Act, introduced the bipartisan Prohibiting Punishment of Acquitted Conduct Act of 2019, which would end the unjust practice of judges increasing sentences based on conduct for which a defendant has been acquitted by a jury."  Here is more from the release:

Along with Durbin and Grassley, the legislation is also cosponsored by Senators Patrick Leahy (D-VT), Thom Tillis (R-NC), Cory Booker (D-NJ), and Mike Lee (R-UT).

Our criminal justice system rests on the Fifth and Sixth Amendment guarantees of due process and the right to a jury trial for the criminally accused.  These principles require the government to prove a defendant’s guilt beyond a reasonable doubt to a jury.  Under the Constitution, defendants may be convicted only for conduct proven beyond a reasonable doubt.   However, at sentencing, courts may enhance sentences if they find, by a preponderance of the evidence, that a defendant committed other crimes.  The difference in those standards of proof means that a sentencing court can effectively nullify a jury’s verdict by considering acquitted conduct.

One prominent example of this unjust practice is the 2005 case of Antwuan Ball, who, along with his co-defendants, was convicted of distributing a few grams of crack cocaine, but acquitted of conspiring to distribute drugs.   Despite this, the sentencing judge held Mr. Ball responsible for the conspiracy, nearly quadrupling his sentence to 19 years.  Mr. Ball asked the Supreme Court to consider his case, but the Court denied the petition for the writ of certiorari.  Justice Scalia wrote a blistering dissent, joined by Justices Ginsburg and Thomas, noting that “not only did no jury convict these defendants of the offense the sentencing judge thought them guilty of, but a jury acquitted them of that offense.”  Scalia decried the practice, writing that, “this has gone on long enough.”

The Prohibiting Punishment of Acquitted Conduct Act would end this practice by:

• Amending 18 U.S.C. § 3661 to preclude a court of the United States from considering, except for purposes of mitigating a sentence, acquitted conduct at sentencing, and
• Defining “acquitted conduct” to include acts for which a person was criminally charged and adjudicated not guilty after trial in a Federal, State, Tribal, or Juvenile court, or acts underlying a criminal charge or juvenile information dismissed upon a motion for acquittal.

Do you think this statutory proposal works functionally to overturn the ruling in Watts at least for federal defendants?  Do you see any possible problems administering this statutory change if it were to become law?  And if acquitted conduct is worrisome, how about so-called dismissed or uncharged conduct (and need we worry that prosecutors will move to dismiss charges mid-case in order to avoid limits on sentence enhancements for acquitted conduct)?

Why do you think this bill was not introduced until 2019, more than two decades since Watts?  Why do you think this bill, despite having notable bipartisan support, has not yet made any progress in Congress?  Is it important to have this issue prioritized in future federal sentencing reform bills or do you consider this matter of only marginal concern?

Some FIRST STEP Act basics and thoughts about possible next steps

The FIRST STEP Act, which is fully titled the Formerly Incarcerated Reenter Society Transformed Safely Transitioning Every Person Act, was signed by Prez Trump into law on Dec. 21, 2018.  Many have rightly called this law the biggest federal criminal justice reform legislation in a generation, and yet others have rightly called this law a relatively small modification to the federal criminal justice system.  Among the good questions we will explore in class is whether the FIRST STEP Act is a very big deal or much ado about very little.

Because lots of disparate provisions got rolled into the FIRST STEP Act with lots of different mandates or changes for lots of different parts of the system, it is hard to readily summarize all the Act's many elements or to effectively track its overall impact. The Congressional Research Service has produced this intricate 20-page overview of Act, which is initially summarized this way:

The act has three major components: (1) correctional reform via the establishment of a risk and needs assessment system at the Bureau of Prisons (BOP), (2) sentencing reform via changes to penalties for some federal offenses, and (3) the reauthorization of the Second Chance Act of 2007 (P.L. 110-199). The act also contains a series of other criminal justice-related provisions.

As is true for many legislative reforms, the impact of the FIRST STEP Act is being shaped by many "whos" other than Congress.  How the US Sentencing Commission, the US Department of Justice and courts implement and respond to new sentencing law can often matter as much or more than statutory particulars.  One persistent question for advocates of major federal sentencing reforms is whether to now seek to amplify the impact of FIRST STEP Act by focusing on other "whos" or to pursue additional statutory reforms from Congress.  What advice might you give on this "who" front to the director of a new criminal justice group?  Do you think your advice on this front could change after Election Day?  

Though the FIRST STEP Act is now nearly two years old, we are now only starting to get a sense of its impact.  Helpfully, US Sentencing Commission a few months ago produced this big intricate data report (and this infographic) detailing the impact of the FIRST STEP Act over the period it calls “First Step Year One” running from Dec 21, 2018 to Dec. 20, 2019.  Importantly, this document only examines key sentencing provisions and not all the bigger prison reforms and various other elements of the First Step Act.  Helpfully, the federal Bureau of Prisons and the National Institute of Justice have useful webpages about the FIRST STEP Act focused on the work these agencies are doing under the Act that are focused more on the prison-reform piece of the FIRST STEP equation.

The COVID pandemic, which has impacted federal criminal justice enforcement in many ways known and unknown, has made certain provisions of the FIRST STEP Act especially important (e.g., the new "compassionate release" rules) and other provisions harder to implement (e.g., the prison programming plans).  Especially because of the extra COVID complications, if you are interested in really digging into any aspect of the FIRST STEP Act (for mini-paper 5 or for any other reason), I would urge you to consider focusing on just one particular provision and maybe even just one "who" working to apply or implement that provision. 

As I mentioned in class, both Prez Trump and former VP Biden has spoken about there interest in supporting additional sentencing reforms in Congress.  We will be sure to talk in class about what kinds of reforms you would be eager to champion if (and when?) Congress turns back to sentencing reform in the (near?) future.

Reviewing again how mandatory minimums impact (and distort) the federal sentencing system

In this post from last month, back when we were focused on "whos," I highlighted some data on mandatory minimums in the federal sentencing system.  Back then, we were talking somewhat generally about how prosecutors garner sentencing power from mandatory minimum sentencing statutes.  Now that we are working through the sentencing of Rob Anon, we can focus with even greater particularity on how one of these statutes, 18 U.S.C. § 924(c), can operate to put federal prosecutors into a powerful position in the application of all facets of the federal sentencing system.

Notably, way back in 1991, only a few years into the functioning federal sentencing guideline system, the US Sentencing Commission wrote this lengthy report explaining why mandatory minimums undermined many of the goals of guideline reforms.  And in 2011, the Sentencing Commission wrote another lengthy report detailing lots of problems with mandatory minimums in operation.  And yet, mandatory minimums persist in the federal system.  And this USSC Quick Facts details that the number of § 924(c) offenders has grown considerably in recent years.

If you are interested in some background on, and lot of information about litigation surrounding, 924(c) offenses, this 2015 Congressional Research Service report is effective.  And this 2020 Firearm Primer from the USSC also has some coverage of 924(c) caselaw.  Feel no obligation to review these long documents, but do take note of how much law surrounds just one small part of a federal sentencing system now filled with law.

UPDATE: Especially because we are going to focus on prosecutoral power in conjunction with one federal firearm law, I found this new Columbus Dispatch article especially interesting and timely.  The piece is headlined "Harsher federal charges to be sought to help combat deadly Columbus gun violence," and here are excerpts (with my bolding added):

U.S. Attorney David DeVillers said Wednesday he hoped to bring "shock and awe" to criminals committing gun violence on Columbus streets with a focused effort on getting harsher sentences for those who have firearms illegally.  "We want this to be a warning, we want this to be a shock and awe to the people committing these violent crimes and firearm offenses," he said.

The effort will focus on two Columbus neighborhoods that have been hot zones for gun violence — Linden and the Hilltop — and on charging defendants in federal court with crimes that have harsher sentences than what state law can provide.

The federal prosecutor announced the initiative Wednesday alongside partners Columbus police Chief Thomas Quinlan, Roland Herndon, special agent in charge of the Bureau of Alcohol, Tobacco and Firearms Columbus field office; Franklin County Prosecutor Ron O'Brien and City Attorney Zach Klein.  The announcement occurred as The Dispatch completed the final day Wednesday of a four-part series on the rising gun violence in the city.

Herndon said of the 126 homicides this year in Columbus as of mid-afternoon Wednesday, 100 have been the result of gunfire and 18% of those have been juveniles. He said there have been an additional 440 non-fatal shootings in 2020. "Our youth, our future," Herndon said. "We cannot stand for that anymore."...  Authorities will not seek federal charges against juveniles, but will aim to charge any adults that provide them with guns.

The initiative will involve dedicated attorneys from the city attorney, county prosecutor and U.S. Attorney's offices focusing on identifying convicted felons in possession of firearms, those providing guns to juveniles in order to commit crimes, possessing weapons with filed-off serial numbers, and other firearms offenses, such as misdemeanor domestic violence offenders possessing guns.

Klein said his office has seen a 250% increase in the number of domestic violence cases involving firearms. “Gun violence in our community is creating fear, ruining lives, and in far too many situations, taking lives," he said in a prepared statement later. “Think about the innocent bystanders, especially children, whose lives change in an instant due to gunfire and violence."

DeVillers said his office will be freezing work on other types of cases, such as immigration and white-collar crime, to focus on firearms crimes and violence. "We are going to take every single gun crime and federal violent crime we can take," he said. "It’s not bravado, it’s a warning."

O'Brien said he was "excited" and "thrilled" to be a part of the initiative, which can add additional prison time to sentences locally with the way crimes are charged in each court. "We will show the thugs on the street that we mean business," O'Brien said.

DeVillers said the program will be reevaluated every 90 days to see what is working and determine success, which will be measured in part by decreases in shootings and homicides. 

Some resources for sentencing Rob Anon under the modern federal sentencing guidelines

As I have emphasized in our recent classes, much of the rest of our time together will have us discussing non-capital (and mostly federal) sentencing policies and practice after modern guideline reforms.   As we turn to sentencing Rob Anon under the modern federal sentencing guidelines, I would encourage class members to try to figure out how to identify and assess federal guideline sentencing laws relevant to Rob Anon with just the help of on-line search materials or traditional legal research resources (and feel free to use the comments to express frustration on how hard this can be for novices).  Consider that a federal defendant or a novice lawyer taking on his or her first federal criminal case will not likely have access to any perfect guide (or even "Guidelines for Dummies") to enable ready understanding of the federal sentencing guidelines.

If and when you would like some guideline sentencing help, you can turn to these links which take you directly to key guideline provisions for Rob Anon appearing in the "official" on-line version of the now-applicable US Sentencing Guidelines as provided on the US Sentencing Commission's website:

• §1B1.1. Application Instructions

• §2B3.1. Robbery
• §3B1.1. Aggravating Role
• §4A1.1. Criminal History Category

• Sentencing Table

I highly encourage class members to start working through these "basic" federal guideline sentencing materials on their own (again feeling free to use the comments to express frustration) before looking for any more sentencing help.  That said, if (when?) you want or need even more help, here is a worksheet created by the US Sentencing Commission intended to aid in the guideline sentencing process:

• Worksheet for Individual Offenders

In this assignment, give particular thought to the array of challenges that modern federal sentencing law may present for modern federal sentencing lawyers.  If you want to think particularly about the import and impact of sentencing law for the work of defense attorneys, perhaps check out this article I wrote some years ago seeking to highlight "the array of challenges that the Federal Sentencing Guidelines create for defense counsel."

Preparing to sentence Rob Anon before (and later after) the enactment of the federal sentencing guidelines

As stressed in class, much of the rest of the semester is going to explore non-capital (and mostly federal) sentencing policies and practice before and after modern guideline reforms.  Our work will start and advance through a deep discussion of sentencing realities faced in sentencing Rob Anon — whose crime and history appear in short form at pp. 205-06 of our text.  We will be exploring the sentencing of Rob Anon in multiple eras: (1) in a pre-guideline world (the world Judge Marvin Frankel criticizes in the excerpt in our text), then (2) in a pre-Booker mandatory federal guideline sentencing world, and then (3) in a post-Booker advisory federal guideline sentencing world.  (For historical reference, era 1 in federal sentencing extended from about 1910 to 1989, era 2 extended from 1989 to 2005, and era 3 has run from 2005 to the present.) 

We will not get started on these topics in earnest until Thursday of this coming week (because we will be watching a documentary on prison history on Tuesday).  But it is not too early for you to get started on thinking about sentencing Rob Anon the pre-reform system, especially because doing so should deepen your appreciation for some of the comments and criticisms of Judge Marvin Frankel about this system (which are required reading and appear in our text at pp. 126-131).

So, imagine yourself as a federal district judge in 1972 presented with the Rob Anon case for sentencing.  The only key legal concerns for you as a federal judge sentencing circa 1972 are (1) that Rob Anon's statutory sentencing range is 0 to 25 years in federal prison (see  18 U.S.C. § 2113(d)) and 0 to $250,000 in a fine (see 18 U.S.C. § 3571(b)(3)), and (2) that federal parole officials will have complete discretionary authority (but absolutely no requirement) to release Rob Anon after he has served at least one-third of whatever sentence you impose.

In addition to imagining how you, as a judge, would sentence Rob Anon in this world, think also about how prosecutors and defense attorneys would approach sentencing in such a (pre-guideline) world.  You need not yet (and I suggest you do not yet) try to sentence Rob Anon under post-reform (pre- or post-Booker) modern federal sentencing laws.  After we have had a chance in class to talk about your experiences and judgments concerning Rob Anon's sentencing circa 1972, then I will give you guidance and help in sentencing him under modern federal sentencing laws and guidelines.

UPDATE:  I am now able to post below here a form/questionnaire for working through the pre- and post-guideline sentencing of Rob Anon.  I will talk more about this form and about the guideline part of the exercise in our coming class and in future blog posts.  But, if you want to get a running start, I will be grateful if you can use this form to work through the sentencing exercise(s) in the coming weeks. 

Download 2020 Guidelines exercise

Other than criminal history, is there any "offender characteristic" that you think must be considered at sentencing? Aside from race, is there any "offender characteristic" that you think must not be considered at sentencing

As we continue 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 statement that an offender's youth is a constitutionally essential sentencing consideration (at least in some settings).  Notably, in 2013 the Ohio General Assembly amended Ohio Revised Code § 2929.12 to add Section (F) providing that the "sentencing court shall consider the offender's military service record and whether the offender has an emotional, mental, or physical condition that is traceable to the offender's service in the armed forces of the United States and that was a contributing factor in the offender's commission of the offense or offenses."

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 any kind of community service (and not just 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?  For example, should honorably military service for a number of years earn a presumptive 10% or 25% sentence reduction?  Should being under 25 and thus still having a developing brain lead to, say, a 10% or 25% sentence reduction? 

Understanding the challenges of criminal history through the Armed Career Criminal Act

Thanks to everyone for being a great audience for our special guest today, and now we get back to our regular programming.  As promised, we are starting a turn toward a discussion of whether, when and how "offender circumstances" should to be considered at sentencing.  Though I mentioned age in class, we will start with slightly less controversial topics like criminal history and plea/cooperation discounts.  I suspect we will only get through the criminal history discussion on Wednesday, in part because the issue is a lot harder than you might first imagine.

The Supreme Court's ruling in Johnson v. United States in particular, and the operation of the Armed Career Criminal Act (ACCA) in general, provide a great setting to unpack the challenges of criminal history.  The Johnson case is excerpted in our casebook at pp. 295-300, and you may find it helpful to first focus on the general provisions of ACCA at 18 U.S.C. § 924(e), which provides (with key language emphasized):

In the case of a person who violates section 922(g) [prohibiting certain kinds of illegal possession of a firearm] and has three previous convictions by any court referred to in section 922(g)(1) of this title for a violent felony or a serious drug offense, or both, committed on occasions different from one another, such person shall be fined under this title and imprisoned not less than fifteen years, and, notwithstanding any other provision of law, the court shall not suspend the sentence of, or grant a probationary sentence to, such person with respect to the conviction under section 922(g).

In other words, commit a firearm possession offense when already having three significant priors and there is a mandatory minimum prison term of 15 years.  This US Sentencing Commission document provides some basic data about the sentencing of firearm offenders that shows ACCA's dramatic impact:

• The average sentence for offenders convicted of violating only section 922(g) and under ACCA was 186 months.
• The average sentence for offenders convicted of violating only section 922(g) but not sentenced under ACCA was 59 months.

In other words, for the same basic offense conduct and convicted of the same criminal statute, federal defendants on average receive more than a decade longer in prison (roughly three times longer) due to having certain types of prior offenses.

ACCA was one part of the massive Comprehensive Crime Control Act of 1984 (the Act which also created the US Sentencing Commission), so this distinctive mandatory minimum sentencing statute was never voted on independently.  Imagine being a member of Congress right now being asked to sign on to a bill proposing to repeal ACCA in its entirety (as a partial response to Johnson).  Would you support outright repeal or instead seek to amend 924(e)?  What kind of amendment would you seek?

Lurking mandatory minimum statute for consideration as we imagine the modern federal sentencing of Rob Anon

I hope everyone has now had the chance to work through the sentencing of Rob Anon under the modern federal sentencing guidelines, perhaps with the help of some of the materials linked in this post).  If you made an effort to do independent research in order to try to figure out how on your own all of the federal sentencing laws relevant to Rob Anon, you may realize that I left out of my prior posting an important statutory provision, namely 18 U.S.C. § 924(c), which imposes mandatory minimum sentences for people who use or carry a firearm during the commission of certain crimes.  Specifically, this statutory provision states:

(c)(1)(A) Except to the extent that a greater minimum sentence is otherwise provided by this subsection or by any other provision of law, any person who, during and in relation to any crime of violence or drug trafficking crime (including a crime of violence or drug trafficking crime that provides for an enhanced punishment if committed by the use of a deadly or dangerous weapon or device) for which the person may be prosecuted in a court of the United States, uses or carries a firearm, or who, in furtherance of any such crime, possesses a firearm, shall, in addition to the punishment provided for such crime of violence or drug trafficking crime —

(i) be sentenced to a term of imprisonment of not less than 5 years;

(ii) if the firearm is brandished, be sentenced to a term of imprisonment of not less than 7 years; and

(iii) if the firearm is discharged, be sentenced to a term of imprisonment of not less than 10 years.

Think about how this additional mandatory minimum statute, which would seem to be applicable to Rob Anon, should impact the work of various sentencing actors at various sentencing stages in this case.  

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.

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.

Interesting accounting of federal bank robbery sentencing (and parole) in pre-guidelines era

Starting with Wednesday's class, we will start unpacking the sentencing of Rob Anon under the modern federal sentencing guidelines.  I welcome comments to this prior post if/when you want to discuss your experiences with guideline sentencing.  This post, however, is meant to wrap up our pre-guideline sentencing experiences with the help of this interesting 1986 US Government Accounting Office report reviewing the "median sentences imposed and median time served for 609 offenders convicted of armed and unarmed bank robbery who were confined in the Federal Prison System as of June 30, 1983, and on whom release decisions had been made by the Parole Commission."

I think folks find might the whole US GAO report interesting, but I will provide this imperfect summary:

• Those convicted of armed bank robbery received a sentence of, on average, 15 years and served in prison, on average, 6 years
• Those convicted of unarmed bank robbery received a sentence of, on average, 10 years and served in prison, on average, 5 years

Usefully, the short report also notes that the US Parole Commission had "established parole release guidelines as required by law which indicate the customary range of time to be served by offenders before release from prison." These parole guidelines had two parts, "offense severity and parole prognosis": the severity of the offense was "broken down into eight categories" and the parole prognosis score ranging "from 0 to 10."  These Parole Commission guidelines served as a partial template for the work of the original US Sentencing Commission creating the original US Sentencing Guidelines (especially its criminal history categories).

In addition to giving you another perspective on the range of sentencing outcomes for the likes of Rob Anon, this report serves as another reminder of just how practically consequential the abolition of parole was as a feature of the Sentencing Reform Act of 1984.  We will discuss that reality and other parts of the SRA starting Wednesday. 

Exploring federal sentencing realities for some local federal appellants

As mentioned in class, mini-paper #3 provides you an opportunity to explore federal sentencing realities surrounding a federal defendant of your choice. Continuing a series of posts providing suggestions about possible federal defendants you might consider examining for mini-paper #3, below are some links to some Sixth Circuit opinions all from the first two months of 2018 in cases in which a federal defendant appealed some aspect of his federal sentencing.

As we will discuss in class, before modern guideline reforms, appeals of federal sentences were very rare and very rarely successful. Now, as you can see from the list below, federal sentencing appeals are quite common (and you will have to click through to get a sense for how often successful):

United States v. Terrance Ford and Brian Williams (drug offenses resulting in imprisonment for 120 months and 180 months, respectively)

United States v. Richard Thornton and Keenan Crane and David Tatum (fraud offenses resulting in imprisonment for 136 months, 80 months, and 66 months, respectively).

United States v. Bernardo Santana (drug offenses resulting in imprisonment for 180 months)

United States v. Michael Ferguson (firearm offenses resulting in imprisonment for 105 months)

United States v. Kenneth Jozwiak (fraud offenses resulting in imprisonment for 51 months)

United States v. Anthony Sanders (drug offenses resulting in imprisonment for 60 months)

United States v. John Benchick (fraud offenses resulting in imprisonment for 110 months)

United States v. Malcolm Roberson (firearm offenses resulting in imprisonment for 41 months)

United States v. Arthur Charles Smith (armed robbery offenses resulting in imprisonment for 262 month)

United States v. James Cortelyou (sex offenses resulting in imprisonment for 157 months)

United States v. Timothy Vallier (sex offenses resulting in imprisonment for 264 months)

United States v. Donald Allen (sex offenses resulting in imprisonment for 300 months)

United States v. Velasquez Curuchiche (sex offenses resulting in imprisonment for 600 months)

Some hints and help for sentencing Rob Anon under the modern federal sentencing guidelines

As stressed in class last week, the next two weeks are going to involve detailed discussions of federal sentencing policies and practice before and after modern guideline reforms. 

We will begin on Monday with a deep discussion of the sentencing realities faced in sentencing Rob Anon in a pre-guideline world (the world Judge Marvin Frankel criticizes in the excerpt in our text which you should read and re-read).  In addition to imagining how you, as a judge, would sentence Rob Anon in this world, think also about how prosecutors and defense attorneys would approach sentencing in a pre-guideline world. 

We will then turn to sentencing Rob Anon under the modern federal sentencing guidelines.  I highly encourage class members to try to figure out how to identify and assess federal guideline sentencing laws relevant to Rob Anon with just the help of on-line search materials or traditional legal research resources (and feel free to use the comments to express frustration).  Consider that a federal defendant or a novice lawyer taking on his or her first federal criminal case will not likely have access to any perfect guide (or even "Guidelines for Dummies") to enable ready understanding of the federal sentencing guidelines.

If and when you would like some basic guideline sentencing help, you can turn to these links which take you to key guideline provisions for Rob Anon appearing in the "official" on-line version of the now-applicable US Sentencing Guidelines as provided on the US Sentencing Commission's website:

• §1B1.1. Application Instructions

• §2B3.1. Robbery
• §3B1.1. Aggravating Role
• §4A1.1. Criminal History Category

• Sentencing Table

I highly encourage class members to start working through these "basic" federal guideline sentencing materials on their own (again feeling free to use the comments to express frustration) before looking for any more sentencing help.  That said, if (when?) you want or need even more help, here is a link to a worksheet created by the US Sentencing Commission intended to aid in the guideline sentencing process:

• Worksheets for Individuals

As you work through this assignment, give particular thought to the array of challenges that modern federal sentencing law may present for modern federal sentencing lawyers.   If you want to think particularly about the import and impact of sentencing law for the work of defense attorneys, perhaps check out this article I wrote some years ago seeking to highlight "the array of challenges that the Federal Sentencing Guidelines create for defense counsel."

Unearthing federal sentencing realities for some celebrity federal defendants

As mentioned in class, mini-paper #3 provides you an opportunity to explore federal sentencing realities surrounding a federal defendant of your choice. Continuing a series of posts providing a suggestions about possible federal defendants you might consider examining for mini-paper #3, here are some links to posts from my main blog from the last few years about "famous" or high-profile offenders whose federal sentencing stories you might find engaging:

Rene Boucher (that guy who attacked Senator Rand Paul)

Michael Flynn

Jared Fogle

Dennis Hastert (former speaker of the US House)

Abby Lee Miller (star of Dance Moms)

Larry Nasser

Sholom Rubashkin (rabbi who receive commutation from Prez Trump)

Sheldon Silver (former speaker of New York Assembly)

Martin Shkreli (that Pharmo Bro guy)

Michael Slager

Kevin Trudeau (infamous infomercial star)

Ross Ulbricht (creator of Silk Road website)

Anthony Weiner

Unearthing federal sentencing realities under federal defendants now before SCOTUS

As mentioned in class, mini-paper #3 provides you an opportunity to explore federal sentencing realities surrounding a federal defendant of your choice. In a series of posts, I will be providing a series of suggestions about possible federal defendants you might consider examining for mini-paper #3.

In this post, for example, I thought it worth highlighting federal defendants whose cases are currently before the Supreme Court.  Sentencing issues are the focal point for SCOTUS in some of these cases, but other matters concern SCOTUS for the first five cases listed below.  Below I have provided links to SCOTUSblog materials on cases involving federal criminal defendants now pending before the Justices, along with the sentences the defendants received according to the briefs of the US Solicitor General:

Class v. United States ("sentenced to 24 days of imprisonment, to be followed by 12 months of supervised release")

Carpenter v. United States ("sentenced ... to 1395 months in prison")

Marinello v. United States ("sentenced ... to 36 months of imprisonment, to be followed by one year of supervised release")

Byrd v. United States ("sentenced to 120 months of imprisonment, to be followed by three years of supervised release")

Dahda v. United States ("sentenced to 189 months of imprisonment, to be followed by ten years of supervised release")

----

Lagos v. United States ("sentenced petitioner to 97 months of imprisonment, to be followed by three years of supervised release, and ordered $15,970,517 in restitution")

Rosales-Mireles v. United States ("sentenced ... to 78 months of imprisonment, to be followed by three years of supervised release")

Hughes v. United States ("sentenced to 180 months of imprisonment, to be followed by five years of supervised release")

Koons v. United States ("sentenced ... to 180 months in prison, to be followed by ten years of supervised release")

Chavez-Meza v. United States ("sentenced to 135 months of imprisonment, to be followed by five years of supervised release")

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."

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).

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.

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:

• §1B1.1. Application Instructions

• §2B3.1 Robbery
• §3B1.1. Aggravating Role
• §4A1.1. Criminal History Category

• Sentencing Table

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:

• Worksheets for Individuals

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. 

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.

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.

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." 

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):

• Defense sentencing memorandum for Jordan Linn Graham

• Prosecution sentencing memorandum for Jordan Linn Graham

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

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.

Make sure you work on (and are ready to discuss) FSG sentencing of Rob Anon

Monday'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.

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.    

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.

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.

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.

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:

1. age
2. education
3. vocational skills
4. mental and emotional condition
5. physical condition, including drug dependence
6. previous employment record
7. family ties and responsibilities
8. 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."

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.

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).

"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.