06 April 2004

Panel Discussion on the Federal Sentencing Guidelines

This post is incomplete. Unfortunately, court beckons. I will try to complete the post tonight when I get back (probably very late).

From America and the Courts: The 03/31/2004 video is worth watching (if you have two hours and broadband).

Although they are interwoven, four general themes seemed to drive the discussion.

(1) Fundamental fairness issues: Representative Feeney (17:35) and US Attorney McNulty (46:45) both point to how the guidelines are supposed to make sentencing so that people with similar crimes and similar histories get treated the same.

Ashcroft Memo One (49:30) ensures that this is not how things happen. AM1 requires that each Defendant get convicted of the crime which will get him the most severe sentence. This is the conspiracy charge which is the first count of almost every indictment. And if your client is the dummy who drove his cousin to the 7-11 in exchange for a single rock of crack and then, after purposefully not asking what is going on, went into the store to buy some munchies while Cousin sold his 50 g. cocaine base (crack) to the government's informant out in the parking lot your client is on the hook for the same weight as the cousin is. He might get a slight departure as a minor participant but his punishment is surely more similar to the drug dealer's than to another Defendant who buys a rock of crack.

Or your client could go to trial and get three points added for not accepting responsibility and the he could testify and get two points added for obstructing justice. And then he can go to prison for more time than his dealer-cousin.

Late in the discussion Mr. Dillon, frustrated by Mr. Silver's assertion that judges need discretion to actually provide justice in individual cases, blurts out, "Fair is what Congress defined it as under the guidelines." (1:29:40) This is, of course, not true. Congressionally laid out sentencing guidelines are constitutional, or at least the rule of law, but that does not mean that they have anything to do with fairness.

(2) Too many downward departures: A lot of figures get thrown around in discussing this and the argument seemed pretty even to me as presented. The pro-guideliners kept talking about uneven departure rates around the nation and throwing the low departure rates of the 4th Circuit and specifically the Eastern District of Virginia against higher rates around the country and emphasizing how downward departures vastly outnumbered upward departures. The anti-guideliners kept talking about how the average rate around the nation was half what was foreseen when the guidelines were put into law. At the end of the discussion a lady from the audience dealt a fairly serious blow to the pro-guideliners when she pointed out that the reason the Eastern District of Virginia had such a low number of downward departures is because of the rocket docket which means that most of the downward departures occur as Rule 35 motions (post trial motion for reduction) and are therefore not included in the statistics. (1:35:00) On the other hand, USA McNulty pretty convincingly destroyed an argument that the downward departures must not have been too bad because prosecutors weren't appealing them. (1:31:10)

Although not presented in the discussion, a major flaw in the pro-guideliners' argument was its reliance on the fact that downward departures heavily outnumbered upward departures. If you think about that for a couple minutes the reason for it becomes obvious. Prosecutors control the charging process; they will rarely give the judge a reason to depart upward. They are not likely to undercharge someone (for those of you who don't practice criminal law trust me on this one) and even if they don't pile on charges they will have most likely have charged crimes which, under the massive federal penalties, carry a great amount of time. There is really not much of a reason for judges to increase time. However, on those occasions when the prosecution overcharges (rare as we all hope those are) the only true check on that is the judge's ability to depart downward. Note the question from the audience member about how the downward departure rate might denote a serious problem in the harshness of the sentencing. McNulty ducks the question with a Cheshire cat grin. (1:4120) Now, as a politician/prosecutor McNulty cannot concede anything is wrong but when a prosecutor doesn't immediately and vociferously defend punishment it is a pretty clear indicator that things are seriously out of kilter. Mr. Dillon also fails to answer the question; instead he goes totally off point talking about the vote by which the bill to which the Feeney Amendment (and is subsequently made to look fairly silly about it by Mr. Toon).

(3) Prosecutors are now in control of the courthouse:

(4) The change of the standard of review for sentencing guideline cases:

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