England Cracks Down on Judicial Sentencing Discretion, Sort of

Julian Roberts has a new article that explains sentencing reforms recently implemented in England pursuant to the Coroners and Justice Act 2009.  It is interesting to see that the political dynamic in England is quite reminiscent of the ongoing debates over guidelines and judicial discretion in the federal sentencing system here.

England has had sentencing guidelines for more than a decade, but there have been concerns that judges do not follow them consistently.  (Curiously–and in marked contrast to the U.S. experience–England’s guidelines were set up without any systematic data-collection process to monitor compiance.  However, one study in 2008 suggested that only about half of cases are sentenced within the guidelines range.)  As a result, legislation was proposed to give the guidelines more of a presumptive character.

Continue reading “England Cracks Down on Judicial Sentencing Discretion, Sort of”

Sentencing, Stereotypes, Porn, and Plain Error

Add one more to an interesting line of Seventh Circuit cases that overturn sentences because of a district judge’s apparent reliance on facts that are not in the record, and that seem instead to be based on stereotypes about certain types of offenders.  (For earlier cases, see here and here.)  In the new case, United States v. Halliday (No. 10-2337), the district judge imposed a 240-month sentence for child pornography possession and receipt — 30 months longer than the government requested — because “this Court has seen no remorse, no acceptance; belief that this is just ordinary conduct, victimless crimes.”

The trouble is that nothing in the record supported the judge’s perception of a “belief that this is just ordinary conduct, victimless crime.”  No doubt, there are many child pornography defendants who have this view, or who say things at sentencing suggesting such a view.  But, as far as one can tell, Halliday was not one of them, and it is indeed troubling that the district judge seemed to be sentencing him on the basis of generic perceptions about his class of offenders.

But did this really rise to the level of plain error, as the Seventh Circuit held?

Continue reading “Sentencing, Stereotypes, Porn, and Plain Error”

Seventh Circuit Overturns Sentence for Lack of Responsiveness to Defendants’ Arguments for Lenience

Henry and Elizabeth Robertson were involved in a mortgage fraud scheme in the 1990’s.  Many years later, they were charged with and pled guilty to wire fraud for their part in the scheme.  Despite an unusual and compelling story of self-motivated rehabilitation, they were sentenced to 63 and 41 months of imprisonment, with almost no comment by the district judge in response to their arguments for lenience.  Earlier this week, however, the Seventh Circuit vacated the sentences based on this lack of responsiveness.  United States v. Robertson (No. 11-1651).

The decision rests on a line of Seventh Circuit cases going back to United States v. Cunningham, 429 F.3d 673 (7th Cir. 2005).  These cases, which have not been followed in some other circuits, require district judges to address nonfrivolous arguments for a below-guidelines sentence.  As I discussed in this article, I think the Cunningham rule should be adopted more widely and enforced more rigorously.  For that reason, I’m glad to see the Seventh Circuit reaffirm the rule in Robertson.

Although it does not purport to break any new legal ground, the decision nonetheless has some noteworthy aspects.

Continue reading “Seventh Circuit Overturns Sentence for Lack of Responsiveness to Defendants’ Arguments for Lenience”

Judge Must Explain New Sentencing Decision After Revocation of Supervised Release

As I described here and here, the Seventh Circuit has an interesting line of cases that attempt to establish some minimal standards for the way that district judges explain their sentences.  Add to that line the court’s decision last week in United States v. Robertson (No. 10-3543).  I think that Robertson is the court’s first decision to apply the explanation requirement to a resentencing that occurred after revocation of a defendant’s supervised release.

That the explanation requirement would apply here is perhaps not a given, since, as the court observed, the district judge has even more discretion in this setting than in an original sentencing.  (4)  The court ruled, however, that the district judge must indeed “say something that enables the appellate court to infer that he considered both [the recommendations of the sentencing guidelines and the statutory sentencing factors].”  (4)

In Robertson, the guidelines recommended a term of 12-18 months following the defendant’s revocation for growing marijuana, but the district judge instead imposed a sentence of 34 months.  Here is the “explanation” for the sentence that the Seventh Circuit found inadequate:

Continue reading “Judge Must Explain New Sentencing Decision After Revocation of Supervised Release”

Posner Weighs in on Sentencing for Possession of Child Pornography . . . and Much More

Yesterday, in United States v. Garthus (No. 10-3097), the Seventh Circuit affirmed a thirty-year sentence for a defendant who pled guilty to transporting, receiving, and possessing child pornography.  Given the defendant’s age, 44, this is close to a de facto life sentence, which is remarkable — or should be remarkable, but perhaps really isn’t any more — for a mere consumer, not a producer, of kiddie porn.

In any event, Judge Posner’s wide-ranging opinion for the panel includes much food for thought.  Here are some of the more noteworthy aspects of his analysis, some of which have broad relevance to sentencing outside the pornography context.

Continue reading “Posner Weighs in on Sentencing for Possession of Child Pornography . . . and Much More”

Seventh Circuit Vacates Below-Guidelines Sentence Based on Failure to Address Crack-Powder Disparity Argument

Readers of this Blog will know that one of my pet peaves is sentencing judges who fail to address defendants’ arguments for lenience.  As I discussed in this article, the Seventh Circuit may have the best case law in the country on this issue.  You can now add to the court’s good precedent United States v. Johnson (No. 10-2503).  Convicted of trafficking in crack cocaine, Johnson argued that he should receive a below-guidelines sentence based on the unfairness of then-applicable 100:1 crack-powder disparity.  Although the judge was not obliged to accept the argument, the Seventh Circuit held that she was nonetheless required to respond in an express way to it.

What seems especially notable about Johnson is that the defendant actually did receive a below-guidelines sentence the first time around.  The government argued that this should have precluded relief.  Although the Seventh Circuit acknowledged that the “requirement that the district court specifically address the defendant’s principal, potentially meritorious sentencing arguments applies with less force where the judge received voluminous evidence and listened carefully to the defendant’s arguments and in the end imposed a short prison sentence significantly below the applicable guidelines range” (5, internal quotation marks and alterations omitted), the court sensibly declined to adopt a bright-line rule.  Just because the defendant caught a break at sentencing does not mean that he lacked a worthy argument for an even bigger break.

“I Don’t Have to Take Any Time for This”

The Supreme Court will once again address alleged Brady violations by the New Orleans District Attorney’s Office.  Earlier this week, the Court granted certiorari in Smith v. Cain (No. 10-8145), in which Smith alleges that the prosecutor suppressed a veritable boatload of exculpatory evidence in his murder trial.  I’ve only read the cert. petition, which obviously has a partisan slant, but on the face of things it appears there was some pretty egregious police and prosecutor misconduct.  And, of course, there is a well-documented history of Brady violations in the DA’s office in New Orleans, including in the Supreme Court’s  earlier case of Kyles v. Whitley, 514 U.S. 419 (1995).  Earlier this very term, the Court again dealt with discovery issues in the Big Easy in Connick v. Thompson, declining to find civil liability for what even the state conceded were violations of Brady.  Indeed, according to the cert. petition, the very assistant district attorney who prosecuted Smith later had his law license suspended for a Brady violation in another case.

I’m a little surprised the Court took Smith, both because it has not been through federal habeas (it’s coming directly up from the state court system) and because it’s basically an “error-correction” case — at least as framed by the cert. petition, the case does not really present any questions of law, but will instead require the justices to roll up their sleeves and sort through a rather complex evidentiary record to produce a case-specific, fact-intensive ruling.  On the other hand, for reasons that are not clear to me, this seems to be precisely the way that the Court has engaged with Brady ever since United States v. Bagley in 1985.  See, e.g., Kyles; Cone v. Bell, 129 S. Ct. 1769 (2009).

In some ways, I’m more interested to hear what the Court has to say about a collateral procedural issue  in Smith that received relatively brief treatment in the petition, but that is also expressly encompassed by the cert. grant.  Smith claims that the Louisiana courts violated his due process rights by rejecting all of his Brady-type claims without finding any facts or providing any explanation.

Continue reading ““I Don’t Have to Take Any Time for This””

Seventh Circuit Vacates Sentence Based on Parsimony Clause

According to the so-called parsimony clause of 18 U.S.C. § 3553(a), federal sentences must be “sufficient, but not greater than necessary, to comply with” the sentencing purposes set forth in § 3553(a)(2).  In general, appellate courts have been less than vigorous in enforcing this mandate.  No doubt, this has much to do with the open-ended nature of the (a)(2) purposes (deterrence, incapacitation, retribution, and the like) — it’s hard to say precisely in any given case what is sufficient or necessary to advance these purposes.  You can sympathize with appellate judges who want to avoid what seems an intellectual quagmire.

But even if the parsimony clause cannot be (or won’t be) effectively enforced as a substantive matter, appellate courts may nonetheless do some good by ensuring that sentencing judges pay attention to the clause as a procedural matter.

Continue reading “Seventh Circuit Vacates Sentence Based on Parsimony Clause”

Doubts About Deference to Police Hunches

Over the course of the past decade or so, legal scholars have been paying increasing attention to psychological research on cognition and decisionmaking.  In general, this has meant that scholars have become more sensitive to the common sorts of cognitive bias that have the potential to warp legal decisionmaking.  But, inspired in many cases by Malcolm Gladwell’s 2005 best-seller Blink: The Power of Thinking Without Thinking, another line of psychology-influenced legal scholarship seeks to harness the insights available through subconscious mental processes.  As Gladwell demonstrated, hunches can be amazingly accurate in many contexts, particularly hunches by experts.  This has led to arguments that courts ought to be quite deferential to police officers seeking warrants or testifying at suppression hearings — demanding rigorous justifications for officers’ suspicions, the argument goes, might cause officers not to rely on their hunches as much, which might be detrimental to effective policing.

Andrew Taslitz responds critically to this line of thinking in a helpful new article, Police Are People Too: Cognitive Obstacles to, and Opportunities for, Police Getting the Individualized Suspicion Judgment Right, 8 Ohio St. J. Crim. L. 7 (2010).  Taslitz first outlines the many sources of cognitive bias that seem likely to infect police suspicions in many common circumstances, particularly white police officers interacting with minorities in high-crime neighborhoods.  As even Gladwell recognized, hunches are not foolproof and can be led astray by superficial appearances and other irrelevant cues.  (My own summary of Gladwell’s thought-provoking but mostly inconclusive book would be, “Hunches are more reliable than conscious deliberation except when they are not.”)  Taslitz then argues that robust explanation requirements for officers can help to diminish the negative effects of cognitive bias without sacrificing the power of hunches.  He concludes:

Continue reading “Doubts About Deference to Police Hunches”

Resentencing Explanation and Plain Error

When the U.S. Sentencing Commission reduces the sentencing ranges associated with a particular offense, defendants sentenced under the old range may request an adjustment of their sentences under 18 U.S.C. § 3582(c)(2).  When the district judge grants such a request and resentences the defendant, must the judge explain the new sentence?  The Eighth Circuit says sometimes yes and sometimes no.  In its recent decision in United States v. Burrell (No. 09-1664), the court said that the new sentence must be explained if the judge has reduced the sentence from one in the middle of the old range to one at the top of the new range.  The court thus distinguished earlier decisions that indicated no explanation was necessary if the judge remained at the same relative position within the new range.

Also at issue in the case was the Rule 51(b) requirement that an objection must be made in the ditrict court in order to preserve an issue for appellate review.  In dissent, Judge Loken argued that Burrell’s claim should be reviewed using the highly deferential plain-error standard because Burell never raised his lack-of-explanation concern in the district court.  Continue reading “Resentencing Explanation and Plain Error”