CTA7: Sentencing Judge Cannot Consider Failure to Prosecute Coconspirator

On Friday, the Seventh Circuit ruled in United States v. Scott (No. 10-1597) that a judge sentencing one conspirator may not take into account the government’s failure to prosecute a coconspirator.  Here’s what happened.  In 2009, a federal grand jury charged Scott and a coconspirator with mail fraud.  Scott pled guilty and was sentenced to 63 months in prison, while, for unknown reasons, the government dismissed all charges against the coconspirator.  On appeal, Scott argued that the sentencing judge erred by not taking into account the unexplained dismissal of charges against the coconspirator.  In essence, his theory was this: federal sentencing law is intended to minimize unwarranted disparities as between similarly situated offenders, and the disparity between one conspirator getting a long prison term and the other one not even getting a conviction is a very profound one indeed.

The Seventh Circuit didn’t bite, holding categorically that “we reject the notion that a court may consider the coconspirator’s lack of a conviction under § 3553(a) because holding otherwise would deprive prosecutors of the opportunity to exercise any meaningful prosecutorial discretion in coconspirator cases” (8).

I agree, however, with Judge Williams’ concurring opinion that such a broad holding was unnecessary and regrettable.

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Can the Sentencing Judge Take Into Account How Good the Defendant’s Health Insurance Is?

When a defendant with a chronic health condition faces sentencing, it is often argued that prison should be avoided or minimized so as to prevent exacerbation of the condition and ensure that the defendant receives adequate medical care.  These arguments invite the sentencing judge to evaluate the quality of care available in prison (my impression is that judges, rightly or wrongly, commonly defer to the assurances of prison officials that adequate care will be provided).  But there is another dimension to the argument: the defendant is at least implicitly claiming that he or she would get adequate care outside of prison — if the available care on the outside is no better than on the inside, there would be no basis for mitigation.

I had not seen this dimension addressed in an appellate decision before, but the Seventh Circuit did so last week in United States v. West (No. 10-1292).  Here’s what happened.

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SCOTUS to Decide Whether Sentencing Judge Can Base Prison Term on Time Needed for Treatment Program

On Friday, the Supreme Court agreed to resolve a longstanding circuit split on the question of whether a federal sentencing judge may set the length of a prison term based on what the judge believes will be necessary for a defendant to complete a prison-based treatment program.  The case is Tapia v. United States (No. 10-5400).

After being convicted of alien smuggling and bail jumping, Tapia was sentenced to 51 months in prison.  The judge made clear that the sentence was based, at least in part, on what the judge anticipated would be necessary for Tapia to complete a drug treatment program:

I am going to impose a 51-month sentence[:] 46 months [for smuggling] plus five months for the bail jump[.]  [O]ne of the factors that affects this is the need to provide treatment.  In other words, so she is in long enough to get the 500 Hour Drug Program, number one.

The dispute over the permissibility of the judge’s reasoning has its roots in the origins of the Sentencing Reform Act of 1984.   Continue reading “SCOTUS to Decide Whether Sentencing Judge Can Base Prison Term on Time Needed for Treatment Program”