Federal sentencing discretion under attack

GOP Seeks Big Changes In Federal Prison Sentences

• Listen to the story

Above is a link to an NPR story running this morning concerning Federal Sentencing Guidelines and the renewed interest by some in congress to take discretion out of the hands of federal judges.  Below is the online article.  With such small increments of discretion that most of us observe applied in cases, it is hard to believe that this is anything other than an election year motivator.

January 31, 2012

Every year, federal judges sentence more than 80,000 criminals. Those punishments are supposed to be fair — and predictable. But seven years ago, the U.S. Supreme Court threw a wrench into the system by ruling that the guidelines that judges use to figure out a prison sentence are only suggestions.

Republicans in Congress say that's led to a lot of bad results. They're calling for an overhaul of the sentencing system, with tough new mandatory prison terms to bring some order back into the process. Rep. James Sensenbrenner, a Republican from Wisconsin, brought up the subject at a recent hearing.

"A criminal committing a federal crime should receive similar punishment regardless of whether the crime was committed in Richmond, Va., or Richmond, Calif., and that's why I am deeply concerned about what's happening to federal sentencing," Sensenbrenner said.

Since the Supreme Court acted in 2005 to make the sentencing guidelines advisory — not mandatory — Sensenbrenner said, judges in places like New York City have imposed sentences below the guideline ranges almost half the time. But judges only a few hours further north in New York are still following the guidelines.

Former prosecutor Matt Miner — who also served as GOP congressional aide — says that's not justice.

The way you make sure the guidelines get due respect is to make them respectable.

- Douglas Berman, Ohio State University law professor

"We have a federal system. There should be consistency not just in the same courthouse and on the same floor or district by district but across the country, and we're failing in that," Miner says.

Douglas Berman, a law professor and sentencing expert at Ohio State University, said, "The way you make sure the guidelines get due respect is to make them respectable."

A lot of people argue ever since the Supreme Court weighed in, black men have it a lot worse.

Judge Patti Saris of Massachusetts leads the congressionally created U.S. Sentencing Commission. Saris spoke about the issue at a panel sponsored by the American Constitution Society and the American Civil Liberties Union in Washington earlier this month.

"The average sentence for a black male was 20 percent longer than that for a white male ... ," Saris said. "And I think what's important to add there is that no one here is accusing judges of being racist."

So, then, what's going on?

"It's not that the black male sentences are going up. It's that the white male sentences are going down," Saris said.

Berman, the law professor, says judges think many of the suggested punishments are too tough, especially in the areas of corporate fraud and child pornography, where the guidelines call for people who download images of children to sometimes get upwards of 20 years behind bars.

"There's 2,000 child porn cases and about 1,200 of them have below-guideline sentences, and they're all white defendants," Berman said. "And so now I think the easiest explanation for that entire 20 percent — or if not the entire 20 percent, than at least big part of that — is in fact, white child porn downloaders are getting significant leniency."

The sentencing commission studies that feedback, Saris says, and it really tries to make things better. For example, next month the commission will hold a hearing on whether child porn sentences are fair.

"Congress thinks about the world's worst offender when they're setting up a mandatory minimum," Saris said. "They're thinking about the big bad guy that we'd all agree, 'Gee, just send that person away.' But ... often, for every horrible horrible [case] you tell me about, I can think of a situation which is far less severe."

I would urge the commission to maybe sell Congress on the idea that the system is working pretty well.

- Amy Baron-Evans of the Federal Public and Community Defenders

Saris said despite all the criticism, the great majority of judges still give out punishments within the range of the old guidelines, even though they're no longer mandatory. She said she continues to believe the best approach is to keep the advisory guidelines for sentencing and to adjust them as needed based on feedback from judges.

Amy Baron-Evans works for the Federal Public and Community Defenders. She said there's nothing wrong with the way things are going now, and Congress shouldn't take away the discretion that judges have to evaluate each defendant, case by case.

"I would urge the commission to maybe sell Congress on the idea that the system is working pretty well," Baron-Evans said.

But that message can be politically unpopular, with some Republicans suggesting they might propose new mandatory sentences and cut the budget of the sentencing commission.

"I love that everybody wants to talk about how severe the system is," said Michael Volkov, a former prosecutor, at the recent panel discussion in Washington. "I'm sorry, politically, that is going nowhere folks. It's going nowhere."

Former prosecutor Bill Otis, testifying before the House Judiciary Committee last year, gave voice to those concerns.

"The commission either should return to its main job, creating mandatory guidelines, or give the taxpayers a refund," Otis said.

The House Judiciary Committee is planning more hearings on the issue this spring.

Georgia Law: Notable Legislation from 2011

• Evidence
  Georgia has (finally) modeled its evidence code on the Federal Rules of Evidence, which will go into effect January 1, 2013. However, some differences will remain. For more information, see David N. Dreyer et al. Dancing with the Big Boys: Georgia Adopts (most of) the Federal Rules of Evidence. 63 Mercer L. Rev 1 (2011).


• Domestic Relations
  Military Parents Rights Act—Effective May 11, 2011, provides added protection to members of armed forces in child custody disputes. O.C.G.A. §§ 19-9-1, -2, -6 (Supp. 2011).


• Employment Law
  Covenants Not to Compete—Effective May 11, 2011, Georgia courts authorized to “blue pencil” otherwise unenforceable contracts. O.C.G.A. § 13-8-50 (Supp. 2011).

Eleventh Circuit: Autopsy Reports Are Testimonial Evidence, Subject to Confrontation Clause

In United States v. Ignasiak, the Eleventh Circuit reversed the defendant’s convictions for health care fraud and unlawful dispensing of controlled substances, holding that the district court violated the Confrontation Clause by admitting autopsy reports into evidence without requiring in-court testimony by the medical examiners who performed the autopsies.

In this case, a jury convicted Dr. Robert Ignasiak of health care fraud and dispensing controlled substances in violation of 18 U.S.C. § 1347 and 21 U.S.C. § 841(a)(1)-(2), respectively. As evidence of fraud and improperly prescribing medications, the Government called two medical examiners to testify about autopsies they had performed, allegedly as a result of Dr. Ignasiak’s practices. During this testimony, the Government admitted (over the defendant’s objections) charts and autopsy reports of other patients whom the testifying doctors did not examine and questioned the doctors about those reports.

On appeal, the defendant argued that the admission of these reports/charts into evidence with no indication as to the availability of the doctors who actually performed the autopsies and authored the reports violated the Confrontation Clause and the rules of evidence. The Eleventh Circuit agreed.

The court of appeals, citing Crawford v. Washington, held that autopsy reports are testimonial evidence and, therefore, subject to the Confrontation Clause. The court also noted that there was no evidence that the individuals who performed the exams and authored the reports were unavailable or that the defendant had an opportunity to cross examine them. The defendant’s convictions were reversed and the case was remanded.

Eleventh Circuit: Use of File Sharing Software to Download Child Porn Not Sufficient to Trigger Five-Level Sentencing Enhancement

In two cases in January, the Eleventh Circuit addressed whether the use of peer to peer file-sharing software to obtain child pornography from other users in a way that permitted other users to obtain child porn from their respective shared folders supports the application of a five-level sentencing enhancement for distribution for receipt of a thing of value.

In United States v. Vadnais and United States v. Spriggs, the Eleventh Circuit held that the use of peer-to-peer file sharing software to download pornography was insufficient to warrant a five-level sentencing enhancement pursuant to U.S.S.G. § 2G2.2(b)(3)(B)—which applies to the “distribution of illicit images for the receipt, or expectation of receipt, of a non-pecuniary thing of value.”

The court of appeals reasoned that there had to be some evidence that the defendants knew or expected to receive something of value in return for sharing files to warrant the five-level enhancement pursuant to U.S.S.G. § 2G2.2(b)(3)(B). The defendants’ failure to turn off the file-sharing component of the software was not enough to prove that they expected to receive something in return for sharing the files. The court of appeals held that the defendants were subject to a two-level sentencing enhancement for distributing the illicit material, pursuant to U.S.S.G. § 2G2.2(b)(3)(F).

U.S. v. Cory Kent Traxler: Sentencing Guidelines Part II

• UNITED STATES V. CORY KENT TRAXLER

In another case concerning Sentencing Guidelines before the 6^th Circuit Court of Appeals, Cory Kent Traxler pled guilty to being a felon in possession of a firearm. A probation officer concluded that Traxler’s base offense level was a 33 due to his history as a career criminal. Three levels were subtracted due to Traxler’s having taken responsibility for his crimes resulting in a total offense level of 30.

Based on his offense level and a criminal history category of V, Traxler’s guideline range was 151 to 188 months of in prison. Traxler, however, was subject to a mandatory minimum sentence of 180 months, making his actual range between 180 and 188 months of imprisonment.

The District Court granted the government’s motion to depart downward from the statutory minimum based on Traxler’s substantial assistance and the court sentenced Traxler to 60 months of incarceration followed by three years of supervised release.

On appeal the government now argues that the district court erred by considering factors other than Traxler’s substantial assistance when deciding to depart downward from the sentencing guidelines.

The 6^th Circuit wrote that a district court’s decision to depart downward from a statutory minimum sentence “must be based solely upon the substantial assistance rendered by the defendant.” Before there can be a remand for re-sentencing there must be an indication of error in the record. Such an error exists in this case. The worry, according to the 6^th Circuit, is that the District Court based its decision not solely on the motion by the government, but also on a motion by Traxler asking for a downward variance in his sentence. The District Court was not clear regarding exactly what criteria it weighed in making its decision and it appears that the district court relied on non-substantial assistance factors when making its decision.

The 6^th Circuit ultimately held that because the District Court failed to adequately explain its decision, the sentence was deemed to be procedurally unreasonable and the case was remanded for re-sentencing.

Earlier:

Supreme Court Says Death Row Inmate Gets Second Chance After Attorneys’ Abandonment

Supreme Court Throws Out Murder Conviction After Prosecutors Fail to Turn Over Damaging Confession

U.S. v. Richard Bistline: Federal Sentencing Guidelines

• US. V. RICHARD BISTLINE

In a recently decided 6^th Circuit Court of Appeals case, Richard Bistline pled guilty to knowingly possessing child pornography on his home computer. The images and videos depicted 8-10-year-old girls being raped by adult men. Under the Sentencing Guidelines, Bistline was recommended to receive between 63 and 78 months’ imprisonment. 

The district court rejected the guidline recommendation and instead sentenced Bistline to one night’s conferment in the courthouse lockup, followed by ten years’ supervised release. In their appeal, the government argued the district court improperly rejected the sentencing guidelines. The 6^th Circuit ultimately agreed and vacated Bistline’s sentence. This is the first of two recent cases where the appeal of a District Court's guideline downward departure has been appealed and the government has won that issue in the sixth circuit.

In September 2007, law enforcement agents found that Bistline had uploaded hundreds of child porn images as shared files on a peer-to-peer Internet program. Bistline pled guilt to one count of possession of child pornography in violation of 18 U.S.C. § 2522. Bistline’s probation officer recommended a reduced sentence of only 24 months citing Bistline’s age (67-years-old), his lack of prior criminal convictions, his poor health and the fact that he served as a caretaker to his wife. 

The district court said from the beginning that it viewed the guidelines for possession of child pornography as “seriously flawed” as a result of Congress’ involvement in them. The Court too emphasized Bistline’s age, health and caretaker status and ultimately ruled in opposition to the guidelines. 

The government argued that the sentence meted out by the Court was substantively unreasonable meaning that the sentence was arbitrarily selected, based on impermissible factors and it failed to consider pertinent factors. The 6^th Circuit said that even though the Sentencing Guidelines are only advisory they are still the starting point for choosing a sentence and if the district court imposes a different sentence outside the range then the court must “ensure that the justification is sufficiently compelling to support the degree of variance.”

The district court’s justifications started with the belief that the sentencing guideline was “seriously flawed” due to Congressional involvement. The 6^th Circuit rejected this out of hand saying that a district court cannot reject a guideline merely because Congress exercised its prerogative in formulating the rule. The district court further sought to justify its decision by saying that the sentencing guidelines were not arrived at through empirical study and data. The 6^th Circuit rejected that as well saying that Congress based its action not only on empirical but also retributive grounds. 

The 6^th Circuit also discussed how Bistline’s sentence was not reasonable given that it did not reflect the seriousness of the offense. The district court was slammed for excusing Bistline’s conduct and portraying him as an innocent victim of pop-ups and viruses. The 6^th Circuit said instead the act was knowing and deliberate and repeated hundreds of times. A sentence of supervised release was simply not enough to reflect the seriousness of the offense. 

Finally, the 6^th Circuit notes that Bistline never expressed any genuine remorse for his acts, instead saying he did not understand why it was illegal to possess child pornography and expressing anger at having had his illegally downloaded music seized by federal authorities. His sentence was declared to be substantively unreasonable and his case was remanded.

See Our Related Blog Posts:

Supreme Court Says Death Row Inmate Gets Second Chance After Attorneys’ Abandonment

Supreme Court Throws Out Murder Conviction After Prosecutors Fail to Turn Over Damaging Confession

U.S. Supreme Court Decides Case on Potential Unreliable Eyewitness Testimony

• Perry v. New Hampshire

The U.S. Supreme Court recently decided the case of Perry v. New Hampshire. We originally wrote about the Perry case back in September. The defendant in the case was identified by a witness while also standing next to a police officer. When the witness was first asked for a description of the person suspected of committing a burglary, the witness said he was a "tall black man." When asked by an officer if she could provide a more detailed description, she pointed to the defendant standing with another officer and identified him as the suspect of the burglary. The question for the court was whether there must be police misconduct to successfully exclude unduly suggestive eyewitness identification evidence as a violation of due process. In a more broad sense, the Court was asked to determine if the standards for introducing eyewitness identifications should be strengthened due to the inherent unreliability of them.

In and 8 to 1 decision authored by Justice Ruth Bader Ginsburg, the court held that some sort of police misconduct is required for a judge to throw out and eyewitness identification. Specifically, the eyewitness testimony will not be thrown out unless it can be shown that the police have manipulated circumstances to produce a certain outcome. Justice Ginsburg cited to the purpose behind this rule as the reasoning for neglecting to strengthen the standards for admitting an eyewitness identification. The purpose behind it, she stated, is to deter police misconduct. Specifically, she said "when there is no misconduct, there is nothing to deter." By declining to hold otherwise, the Court left the job to the jury to determine the reliability of an eyewitness identification. By allowing the identification to be admitted, the jury will still have the opportunity to hear any rebuttal by the defense. The Court felt this was enough to surpass the inherent unreliable nature of an eyewitness identification.

Justice Sonya Sotomayor was the only dissenting Justice. She disagreed with the purpose of the rule of requiring police misconduct. According to her the purpose of the rule is to ensure a fair trial, not to deter police misconduct. Anything that weakens the opportunity for the defendant to have a fair trial should not be admitted. She stated in her dissent,

"Whether the police have created the suggestive circumstances intentionally or inadvertently... it is no more or less likely to misidentify the perpetrator. It is no more or less powerful to the jury."

This decision is quite controversial given the multitude of scientific studies that have proven that eyewitness identification is unreliable. It is no secret many convictions have been based off of eyewitness identification. Many of those convicted based on eyewitness identifications were later exonerated when technology progressed into the the use of DNA testing. It may be surprising to some that the Court has ignored the evidence of the this blatant unreliability, especially when there is a chance that many convictions are tainted with unreliable identifications. It will be interesting to see when the Court will be presented with this issue next. It is almost certain to rise again.

New Tennessee Legislation sought to combat gang problem

Local, state, and federal officials held a press conference in Chattanooga yesterday to announce the formation of the Chattanooga Area Gang Enforcement Team ("CAGE").  This team was created to address the recent outbreak in gang-related crime in the city and embraces both outreach and suppression efforts.  Among the options announced was the introduction of new laws including one that would create a criminal offense for being a gang member.  This bill (HB 2869) has just been introduced in the legislature and reads as follows:


(a)  It shall be unlawful for any person to actively participate in any criminal street gang, as defined by § 40-35-121(a) with knowledge that its members engage in or have engaged in a pattern of criminal gang activity as defined in § 40-35-121(a), and to willfully promote, further, or assist in any felonious criminal conduct by members of that gang.  

(b)  A violation of this section is a Class E Felony.  Any sentence imposed 
shall be served consecutively to the sentence for any other offense that is based 
in whole or in part on the same factual allegations, unless the sentencing judge 
or magistrate specifically orders the sentences for the offenses arising out of the 
same facts to be served concurrently.

It will be interesting if this law is passed to see how it is utilized by the police.  Will it be a stand along charge, or will it be added in addition to other crimes?  The provision requiring consecutive sentencing is important because it would have the effect of extending the total sentence if there were other crimes arising out of the same circumstance.  All pending bills in the Tennessee legislature can be tracked here.

 

TN Supreme Court not to have its jurisdiction challenged by legislature

Senator Mae Beavers

Senator Beavers withdraws bill. A bill introduced by Senator Mae Beavers, SB2348, that would have striped the Tennessee Courts of judicial review and instead given the legislature the final say on what is constitutional has been dropped.

The sponsor of the proposal to strip state courts of the power to block laws enacted by the Tennessee General Assembly quietly withdrew her bill yesterday after receiving heavy criticism from all sides of the political spectrum.   


Earlier: Tennessee legislature to claim it is the Supreme Court?

GPS monitoring requires search warrant says Supreme Court

• United States v. Jones

In a unanimous show of strength, the Supreme Court ruled 9-0 yesterday in US v. Jones  that police cannot surreptitiously track an individual for a month in their private car without a search warrant.  The court announced that police monitoring in the modern age, by GPS tracking, amounts to a search and the month long surveillance in this case required a warrant to be valid.  Without this necessary warrant, the police violated the Fourth Amendment protections afforded by the Constitution.


David Savage reports in the Los Angeles Times, "Even the justices who most often side with prosecutors rejected the government's view that Americans driving on public streets have waived their right to privacy and can be tracked and monitored at will. At least five justices appeared inclined, in the future, to go considerably beyond the physical intrusion involved in putting a GPS device on a car and rule that almost any long-term monitoring with a technological device could violate an individual's right to privacy."


"I would guess every U.S. attorney's office in the country will be having a meeting to sort out what this means for their ongoing investigations," said Lior Strahilevitz, a University of Chicago expert on privacy and technology.


Robert Barnes of the Washington Post reports, "The court rejected the government’s view that long-term surveillance of a suspect by GPS tracking is no different than traditional, low-tech forms of monitoring. But its decision was nuanced and incremental, leaving open the larger questions of how government may use the information generated by modern technology for surveillance purposes."


Jennifer Geiger of the Chicago Tribune writes, "At the center of the case is suspected narcotics trafficker and D.C. nightclub owner Antoine Jones, who was busted for possession of cocaine and firearms after police secretly tracked him by attaching a GPS unit to his car. The police got a warrant authorizing them to install the GPS unit on the suspect's Jeep Grand Cherokee. However, problems arose because of how the warrant was used. Police had 10 days to mount the device on the car, but didn't do it until day 11. The monitoring was also supposed to be done while in D.C., but the suspect was followed across state lines to Maryland."


The GPS monitoring occurred  without a warrant and outside the jurisdiction.


What the Court did not decide is whether a less intrusive measure, say surveillance without a warrant for a few days would be a violation of the law.  That will be the stuff of future cases as courts will wrestle with the boundary of privacy in this age of constant camera surveillance--bank machines, toll roads, parking lots, wireless cell towers, phone GPS systems, and even to cars that track their own whereabouts round the clock.  This mountain of information that many people think to be private is often available to easy government access and the spot where privacy concerns are tipped is still an open question.