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Is the sentencing cure worse than the disease?

I don't do a lot of Federal criminal work, but I'm helping an attorney with a sentencing memorandum now, and it's given me a good opportunity to review the 6th Circuit's post-Booker decisions.  As you probably know, prior to Booker Federal sentences were determined according to the Sentencing Guidelines, first published in 1984.  The Guidelines rank every crime and every factor involved in it (amount of money stolen, quantity of drugs possessed) and assign that a value, then cross-index the result with the defendant's criminal history, which is itself a number derived from assessing the defendant's prior convictions.  This results in a "Guidelines" range, and the judge must impose a sentence within that range unless he comes up with a really, really good reason not to.  It's a fascinating exercise, and I hear Milton-Bradley has bid on the rights to make it a board game.

Then the Supreme Court came along a couple years back in Booker and declared that all those determinations about amounts of money stolen and quantity of drugs possessed were judicial fact-finding, and since here in America we're supposed to at least give lip service to the idea of a jury determining key facts like that, that's a no-no.  After much wailing and gnashing of teeth, the Court by a 5-4 vote decided that the Guidelines didn't have to go altogether, but could still be used as long as they were treated as "advisory" instead of as mandatory.

The course of law, like love, is never smooth, and it hasn't been in this case.  Some courts have decided that a sentence within the guidelines range is still "presumptively" reasonable, while others have decided that they're not.  And that's just in the 6th Circuit.  If you want a thorough analysis of the 6th Circuit's post-Booker decisions, you should check out Sumter Camp's excellent summary on the 6th Circuit Blog

The short version is that, in the two-plus years since Booker came down, there have been exactly two decisions where the 6th Circuit affirmed a sentence which was below what the Guidelines provided.  One of those decisions was last week, in US v. Cherry, where it affirmed a 120-month sentence in a child-porn case; the Guidelines provided for a sentence between 210 and 262 months.  If you've got a sentencing case in Federal court, it's an opinion you should have.  Don't get too excited, though; just four days later, a different panel reversed a 72-month sentence in a child-porn case where the Guidelines provided for the same range as Cherry. 

Some clarification may be around the corner.  Back in February, the Supreme Court had oral argument on two sentencing cases, Claiborne v. US and Rita v. US.  The issues they present are flip sides of the same coin:  essentially, in Rita the question is whether a sentence within the Guidelines is presumptively reasonable, and in Claiborne the question is whether a sentence outside of the Guidelines is presumptively unreasonable.

Then again, it may be that it's too late to hope that the Supreme Court can clarify what's become an increasing muddle, and not just on the Federal level.  I've been practicing for over 30 years, long enough to remember the "old days" when a judge's discretion in sentencing was largely unbridled, as long as it was within the limits provided for the particular crime by the legislature.  Then complaints arose about sentencing disparities and the need for more codification and uniformity, and we wound up with "truth in sentencing" and the Guidelines and requirements that judges consider the "recidivism" and "seriousness" factors, and evaluate whether this was the "worst form of the offense" or whether granting probation would "demean the seriousness of the crime."  The result of all this has been a substantial expenditure of judicial resources, both at the trial level in complying with the new rules, and at the appellate level ensuring that compliance.  Even post-Foster, the number of state criminal appellate decisions dealing with sentencing probably is in the five-to-ten percent range; I wouldn't want to even hazard a guess at the comparable percentage of Federal cases that deal with Booker and Guidelines issues.

I'd like to say that, after all that, sentencing appears to be much fairer now than it was then.  I'd like to say it.  I don't really think I can.  Sometimes different isn't better, and this might be a case where the game wasn't worth the candle.

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