ERLINGER V. US

 

The Supreme Court issued the opinion in Erlinger v. US this week. It is an opinion we have been waiting for for a long time as Florida courts have consistently refused to apply the decision in Apprendi and its progeny to Florida's oppressive sentencing statutes. Now comes the first crack in the wall.

And who better to explain the implications of the Big E decision than our own appellate superstar Dan Tibbett: 

Having spent a little time digesting Erlinger v. US, the US Supreme Court's decision means that Florida's system of sentencing enhancements, definitely including Habitual Violent Offender, Violent Career Criminal, and Prison Release Reoffender, and probably including Habitual Offender, is unconstitutional.  

Erlinger says, like Apprendi said 24 years ago, that any fact that increases the range of punishments a defendant faces, meaning either a minimum mandatory that would not otherwise apply or an increase in the maximum sentence, must be found by a jury.  Facially, it would sound like this obviously applies to HO, HVO, VCC, and PRR sentencing, but the State's argument, almost universally accepted by Florida judges so far, has always been that it does not because these enhancements depend on prior convictions, and prior convictions are an exception that can be determined by a judge, relying on Almendarez-Torres.  The Erlinger majority ( this part of the opinion is agreed on by 6 justices) basically says that Almendarez-Torres is probably wrong but nobody asked them to overrule it and they don't need to overrule it in this case so they won't at this time.  This language means it would be wise to preserve argument that it is unconstitutional to consider prior convictions not found by a jury at all, as probably Almendarez-Torres will get explicitly overruled in next few years.  However, Erlinger says that even if the prior convictions exception to Apprendi exists it applies ONLY to the judge determining "what crime, with what elements, the defendant was convicted of" in the prior case.  EVERYTHING else must be determined by a jury to be considered at sentencing. Documents about the prior convictions can only be consulted for the "limited function of determining the fact of the prior conviction and the then-existing elements of that offense".  In other words, the only reason a judge can find the date of a prior conviction is to figure out what the elements of the crime were on that date (this matters more for federal ACCA sentencing, which is what Erlinger was specifically about).

All of the Florida sentencing enhancements depend not just on the fact of the prior conviction but on a date that is used not to determine what the elements were but the actual fact of when the defendant committed the crime, was convicted of the crime, or was released from prison/probation for the crime.  You aren't an HO just for having 3 priors, you have to have been convicted of one of them or been released for one of them within 5 years of the current crime.  You aren't a HVO/VCC unless you were convicted/released on the enumerated felony within 5 years.  PRR obviously depends specifically on the prison release date.  None of these dates are the fact that a defendant was convicted of a certain crime, or elements of the prior conviction.  And none of them are determined by a jury in Florida.  The judge looks at a document and says yes this guy was convicted/released on x date.

The reason I said HO is probably unconstitutional and the others definitely are is that the others all impose a minimum mandatory.  HO does not have a min man but does increase the maximum, so it is slightly different, but certainly if the defendant is sentenced above the statutory max for that degree of felony this argument would apply.

In my view anyone with a sentencing for a client where the State is seeking any of these enhancements should become familiar enough with Erlinger to argue and preserve this issue.  Florida said that Apprendi was not retroactive and that would certainly be the State's argument with Erlinger also.  Also I can see no reason anybody should be stipulating to dates of priors when they were not determined by a jury.

Er Linger by Anonymous PbHV4H on Scribd

SENTENCING STRATEGIES

Caught cheating and now fired.

UPDATE: Exclusive. The Evil Genius, coach of the NE Cheaters, who cheated their way to several super bowl wins and losses (hahahaha) will be fired today. They will call it a mutual parting of the ways. But what we know is that once the Evil Genius could not cheat, and  once his bougie QB left the team, the screen was pulled back on the Great Oz and it was revealed that he was not much at all. A pedestrian loser whose team wins four games a year. Most retirements merit a Rumpolian "Well done. Well done indeed."  Although we appreciate , nay admire, his misanthropic press conferences. his firing generates a simple "Goodbye and good riddance." 

Prediction- Like Vince Lombardi after leaving the Packers, he will be hired by the Washington Commies. Things didn't work out well for Mr. Lombardi when he went to DC. (He died shortly thereafter of colon cancer, rejecting a colonoscopy with a curt "I'm not going to let them shove anything up my a$$..." Of course we do not wish ill health on the evil genius. Just more losing.) 

SETENCING STRATEGIES 

We are not very familiar with sentencing.  It is an area of the law we have been able to avoid needing to study. 

But our knowledge extends to the understanding that there are various sentencing strategies.  

There is the compassion strategy- rent a family, haul a few kids to court, get a bad medical diagnosis and beg for mercy. 

There is the Churchill strategy: "In victory magnanimity; in defeat defiance." 

And there is the ol' remain silent and hope you come back on appeal. 

But in the annals of criminal defense, we are pretty sure that the strategy of the below defendant, in a court in Las Vegas recently, has ever worked. 

IN PRAISE OF JUDGE TINKLER MENDEZ

 The story broke Tuesday by superstar reporter David Ovalle on his twitter @Davidovalle305 (no use linking to an article behind a firewall)  that MDPD police detective Armando Socarras pled guilty during a bench trial before Judge Tinkler Mendez. Socarras was caught stealing $1300 cash during a fake drug bust set up by public corruption detectives. The prosecution- rightfully so- was seeking an adjudication and prison. Judge Tinkler Mendez declined to follow the recommendations of the prosecution and sentenced Socarras to twenty-four months probation and withheld adjudication. 

Here is why we support that decision. 

First, what Socarras did was reprehensible. And we sincerely doubt this was his first rodeo. Cops have been stealing money from contraband busts ever since Al Capone was running booze during prohibition. In federal court, the land of no-mercy, there are enhancements for public corruption by police officers which would have boosted the almighty federal guidelines into a severe prison sentence. The 18 USC 3553 factors would have also supported a prison sentence under the "send a message" theory to other corrupt police officers, which we imagine there just might be a few more in the Sunshine State. 

And of course there is the defense attorney mindset of punishing a cop who has been responsible for so many defendants going to prison. If he stole money, maybe just maybe he lied on an a-form! Judges everywhere reading this blog are gasping at that last sentence. How many times have judges based their decisions denying motions to suppress on the theory that "this officer would not put her career on the line to lie in this case." News flash- yes they would and they do all the time. 

So lets start with the proposition that the prosecution's request for a year in prison and an adjudication was, if anything, lenient, perhaps reflecting Socarras's plea, albeit at the very last moment. 

Now we turn to the sentence, issued by a Judge affectionately called "Tink" by the denizens of the REGJB. 

This was a first offense (or at least a first arrest). The defendant had significant money pressures. Although it hurts the public perception of law enforcement, he stole drug proceeds, not the life savings of an elderly person. Socarras faces the loss of his law enforcement credentials, if he hasn't lost them already, and the loss of his career. He has admitted his responsibility and appears motivated towards rehabilitation. 

Our point is this. There are tens of thousands of defendants every year in a similar position to Socarras. And probably five percent of them get the type of mercy shown by the judge here. The rest of them. a large majority of them most likely African-American young men, have their life thrown into the gulag. Sent to prison, they emerge hardened and more bitter. Unable to get a job or public housing, their limited future narrows even more. Judges send people to jail for up to a year for misdemeanor and traffic offenses for goodness sakes. How many people in Socarras's position receive the type of reasoned mercy and a sentence that Judge Tinkler-Mendez issued? 

The answer is far too few. And this is the starting point. Good lawyers should  now repeatedly tell felony judges how Officer Socarras got a withhold and probation while stealing from a crime scene. "And if he got that sentence then why isn't my client entitled to.....(fill in the blank)? "

For years we perambulated around the REGJB on bond hearings telling Judges that Joyce Cohen got a bond, so why can't my client get a bond? This lasted until the current crop of thirty-something judges would stare at us blankly, having been in diapers at the time of the last great murder trial in the REGJB. 

The point is we hope and want our judges to be more than human calculators, adding up points and issuing a top of the guidelines sentence because while we all know there is NO SUCH THING as a trial tax, it just so happens that in this case, despite the pre-trial probation offer, ten years prison is the right sentence here. 

We applaud Judge Tinkler-Mendez for her bravery. It isn't easy to show mercy when the public is watching. People want the death penalty for all crimes, until they or a loved one are charged, and then they cannot understand why the punishment is so harsh. 

Let's hope this is the start of a trend of treating people a bit more humanely, especially in non-violent crimes. If Socarras gets in  trouble again, it most likely will not be a violent crime and he can still be sentenced to prison. Without a badge he does not represent a danger to our community. 

Let's see what happens in other cases, and if you have a case similar to this one where the Judge wants a five year prison sentence, let us know. The door swings both ways on praise and public criticism. 

STONE COLD WRONG

We can make the case that the current "lock-em up and throw away the key" mentality originated in the late 1970's-1980's, when cities were besieged from a never ending miasma of violent crime fueled by a drug epidemic. A few notorious media cases of lenient sentences, the bestowing of nicknames like "let-em-go...[add name of judge here], stir, mix, rinse, repeat, and voila!- you have the  crime bill under President Clinton and the dismemberment of the traditional role of judges by the enactment of a slew of minimum mandatory prison sentences. 

Twenty-five plus years later you have a generation of poor, mostly black young men swallowed and forgotten  in the maw of the federal and state prison systems, and a philosophy of warehousing anyone unlucky enough to be caught in the criminal justice system. 

When did we accept the fact that it is appropriate to throw away the life of an individual because judges should "send a message" to others? As if potential criminals sit around daily reading the transcripts of sentencings and making decisions on whether or not to commit a crime based on what someone else was sentenced to. 

When did we accept that prison is easy? That losing your wealth to lawyers and fines and forfeitures, and losing your inability to support your family was an insignificant side-effect of a criminal conviction? When did the nation decide that eating slop, having your entire future in the hands of nasty and spiteful corrections officers, losing the inability to seek health care when you need it, losing the inability to make the basic decisions about when you can shower or use a bathroom was easy and that prison was no big deal and that inmates in prison are laughing at us? 

When did we decide that non-violent crimes requires incarceration beyond a year or two? 

Roger Stone was sentenced on Thursday to 40 months. Those who do not like what he stands for (mostly liberals who in the past have always been accused of being soft on crime) are outraged at how low the sentence is. 
We say go serve a day in prison and then tell us 40 months is a slap-on-the-wrist. 

It's time we bring back sanity to sentencing. There should be no prison for non-violent first offenders who do not victimize others (so do not send us Bernie Madoff as an example of a non-violent first offender- he victimized others).  Age should be a factor in sentencing. Juveniles are too young to fully appreciate their actions. People who are in the 60's or 70's represent almost a zero risk of recidivism. The ability to electronic monitor people has removed the need for incarcerating many of the people who are now sent to prison. 

Love him or hate him, the sentence for Roger Stone is stone cold wrong.  His sentence highlights all that is wrong with the federal sentencing system. 

SDRAWKCAB

We are getting it backwards. "WE" meaning the criminal defense community as we continue to criticize the sentence handed to Paul Manafort. 

The internet and the opinion pages are alive with examples of harsh sentences handed out to the indigent clients of public defenders. "How could my client get life in prison in California for stealing a pair of pants while Manafort gets 47 months?" writes former Public Defender Rachel Marshall Sunday in an OpEd piece here in the Washington Post. 

The question isn't why Manafort got 47 months. The question and conversation we need to be having is why a poor man with two priors decades old was sentenced to prison for life for stealing a pair of pants in a scheme to obtain money to buy a car seat for his new born son? 

Judge Ellis, who sentenced Manafort was quoted over the weekend asking if anyone criticizing the sentence has ever spent a week in prison, or even a day?  That is the conversation we need to be having. 

Prison has a destructive effect on the individual and the soul. 
Think for a moment the destructive effect on you-Ms. Reader- and your family, if you were incarcerated for six months. Would your bills be paid? Would you lose your house, your car, your credit rating? How would it affect your family? Assume an average life span of seventy five years. An eight year sentence takes ten percent of that precious time away.   If you're 70 and statistically will not live until 80, would you celebrate a five year sentence? Does anybody truly think spending your remaining years behind bars, away from family and decent health care, is a lenient sentence? Have you ever woken up in the middle of the night sick? Take a Tylenol or a cough medicine or go to the ER. Good luck getting care within ten hours if you wake up at 2AM ill in prison.  You sit and suffer with your fate in the hands of people who resent your presence and enjoy seeing you suffer. 

And what of the deterrent effect?  How many middle-aged white men who are lobbyists in DC sat around Saturday night and plotted to commit crimes and evade taxes because they see what happened to Manafort as a slap on the wrist and are willing to risk what he is going through? 

Slap on the wrist? You go to a detention facility and be confined to a wheel chair and spend endless hours pondering what another human being is going to sentence you to. "You can beat the rap, but not the ride." Manafort did neither. 

The conversation we need to be having as criminal defense attorneys is the disastrous affect prison has on people. That a year in prison affects a person's life for the next five years and five years in prison creates obstacles that most people will never overcome. 

The conversation we should be having is why we have a system that allows prosecutors to threaten people with decades of time for crimes that do not physically hurt anyone. Tax evasion is bad. What Manafort did does not affect your blogger or you in the least. If Manafort had never been caught, life would have gone on unaffected for all of us. 

We have it "SDRAWKCAB"  which is "Backwards" spelled Backwards. 

We are missing an opportunity and shame on us. 

Coming Monday: Revenge of the Jedi and Mr. Markus. 

SENTENCING - SENDING A MESSAGE TO THE COMMUNITY .....

THE CAPTAIN REPORTS:

UPDATE: Vice President Joe Biden wrote an open letter to the victim in the Stanford rape case that is a must read.  Please check the comments section or you can read the entire letter by going here.

SENTENCING ISSUES PART DEUX ........

QUERY:  How many trial court judges have you encountered that launched your client at sentencing with their intent being  sending a message to the community?

While our humble Blog author is hot on the subject of sentencing, let's examine what a recent 4th DCA decision said about sentencing in criminal cases.

The case is Futo Charles v. State of Florida found at No. 4D11-3314 decided on May 31, 2016. In a 2-1 decision authored by Judge Stevenson, the court affirmed the convictions of the defendant on several gang related crimes. 

"After a two-week trial, the jury found Charles guilty of racketeering, conspiracy to commit racketeering, possession of Ecstacy/MDMA, and possession of marijuana. He was also convicted of twelve predicate offenses, but was found not guilty of all of the predicate offenses that involved gun violence."

Charles' low end of the guidelines scored him at 79.8 months.  At sentencing, the ASA argued to the court that it should impose the maximum sentence based on Charles' long criminal record.  The Assistant State Attorney said to the court that it should "send a clear message to everyone who decides to participate in a violent criminal organization" that "a life in crime does not pay."

Trial Court Judge Karen Miller sentenced Charles to nearly 66 years FSP.

Here's where it gets interesting.  In the Opinion, the court stated that "when a trial court relies on impermissible factors in sentencing a defendant, the court violates the defendant’s due process rights".

What, pray tell, were the impermissible factors that Judge Miller used here?

Well first, the appellate court reminds us of what factors the trial court judge can consider, including: the "defendant’s criminal history, employment status, family obligations, and over-all reputation in the community."

It was at that point that Judge Stevenson wrote that "the CPC does not list sending a message to the community or deterring persons other than the individual defendant being sentenced as sentencing factors properly considered by trial courts."

"Trial judges should not consider general deterrence when imposing individual sentences for several reasons. First, the goal of general deterrence is already addressed by the sentencing scheme put in place by the Legislature. Second, the CPC does not include general deterrence in its "unambiguous" list of factors a trial court may consider in sentencing an individual defendant. § 921.231(1). If the Legislature had intended to include general deterrence as a permissible sentencing factor, "it would have done so." Norvil, 41 Fla. L. Weekly at S191. Third, we find it fundamentally unfair to single out one defendant for especially harsh treatment in order to serve the utilitarian purpose of sending a message to the community. "

The 4th therefore held that "where a trial court imposes a sentence on an individual defendant with the intent to "send a message" to the community, the sentence rests on an impermissible sentencing consideration."  The sentence was reversed and the case sent back for sentencing before a different trial court judge.

CAPTAIN OUT .....
Captain4Justice@gmail.com

STAYING STUPID ON CRIME

YOUR EXCLUSIVE REGJB BLOG AFTERNOON CONE OF CONTINUANCES UPDATE (just got back from court)

Bill is upgraded to a Hurricane but appears to be heading off to the east. Bermuda and the Carolinas need to keep an eye on Bill. 

Ana is downgraded to a Tropical Depression and Tampa and the Panhandle look to be likely targets, but it might graze Key West, so if you are down there the only thing to do is to increase your level of alcohol consumption IMMEDIATELY BY ORDER OF RUMPOLE (just don't drive).

From NY Times Op-Ed Columnist Charles Blow, an Op-Ed piece entitled "Getting Smart on Crime" caught our attention. (The title links to the article.)

Stats: US Prison population has quadrupled over the last 25 years while the population has grown by less than a third.

The US has more inmates per capital than any of the 36 European Countries with the largest inmate populations. The total number of US inmates is MORE than the combined total of inmates of those 36 countries.

States spend 1 in every 15 dollars on corrections.

Yeah, those drug minimum mandatories are really working well aren't they?

A 2006 UCLA study found that in California it was cheaper to put drug offenders in rehab programs than to incarcerate them, and the recidivism rate is much lower.

As Judges Rosinek and White-Labora like to remind us: "Drug Court Works!!"

Anybody want to defend the reasoning behind the legislature investing the discretion in drug cases with a 25 year old prosecutor and taking it away from a 50 year old judge?

We elect or appoint Judges (beyond the three hour lunches they take) to make tough decisions on cases. There is no justification, beyond political pandering by politicians seeking votes, for legislatures to enact minimum mandatory sentences beyond the review and discretion of Judges.

Want to piss off a prosecutor in Miami? Watch them preen around court waiving a 15 or 25 year minimum mandatory at some kid- just waiting for the defense attorney to coming begging for something...anything. Then you tell the Judge the client is eligible for youthful offender sanctions and the judge has the discretion to sentence without regard to the minimum mandatory. Makes the prosecutor crazy. They just can't stand to have anyone other than them play the role of the almighty.

But YO sentencing works. When given the opportunity with YO sentencing options, Judges make well informed and reasonable sentencing decisions almost all the time. The same cannot be said for "Dr. NO, Esq," at the SAO and his policy on minimum mandatory sentences. But then again, most judges have a lot more legal and life experience than that .....(fill in the blank with your own choice derogatory adjective.)

Maybe someone reading this will cite the above mentioned statistics to a judge or prosecutor in court today or this week.

It's a start.

PROPORTIONALITY

Accused and soon to be convicted swindler Bernie Madoff will probably plead guilty in Federal Court in the Southern District of New York tomorrow.  The title of the post links to the NY Times article. 

He is 70 years old and will receive what will in effect be a life in prison sentence. 

Query: 

A thirty year old man  steals 10 million dollars and get's a ten  year sentence. He's out when he's 38 or so. 

A seventy year old man steals 10 million dollars and gets a ten year sentence. Statistically speaking he is likely to die in prison. 

Should age be a factor in sentencing vis a vis the impact the length of the sentence is likely to have on the person's life span?  Should the likelihood that an older person is more likely to not live out their prison sentence be a factor in reducing their sentence?

We're not talking about Madoff here. His crimes dwarf what we're talking about. He changed the face of the financial landscape of this country by bankrupting charities that have little ability to recoup their endowments and he stole the life savings of hundreds if not thousands of older individuals, many of whom have no idea and little ability to support themselves in their 70's, 80's or beyond. 

Madoff will get what amounts to a life in prison sentence because the number of his victims and the sophistication and scope of his fraud dwarfs any known previous scheme. 

So putting aside the emotions associated with Madoff, should age, and specifically the advanced age of an individual be a reason for a departure below the guidelines?

MARKUS STRIKES BACK.

Our favourite federal blogger continues to do his job and make life miserable for federal prosecutors who secretly taped him without permission from the Department of Justice. 

The Herald article is here. 

Recently we learned that in one of our federal cases we were taped by the government:

Rumpole: "You know you still owe me money."

Client: "Yeah. Nothing I can do about it. What's our defense at trial?"

Rumpole: "I'm not sure."

Client: "Looks like we're going to lose."

Rumpole: "Yeah. Nothing I can do about it."

See you in court, not talking on the phone. 

Mercy Mercy

The quality of mercy is not strained, It droppeth as the gentle rain from heaven
Upon the place beneath.
It is twice blest:It blesseth him that gives and him that takes.
'Tis mightiest in the mightiest: it becomes the throned monarch better than his crown...
But mercy is above this sceptred sway,
It is enthroned in the hearts of kings,
It is an attribute to God himself;
And earthly power doth then show likest God's,

Portia, Merchant of Venice.

Many times (but not too many) in our fabled career, we have been called upon to beseech those that wear black robes to dispense both mercy and justice.

Lately, there has been commentary in the media about the 23 month sentence Michael Vick received. We have read and heard sports commentators and media figures state that while they believe Vick needed to be punished, his punishment, which caused Vick the loss of a 50 million dollar contract, was too severe. In essence, what they are saying is that because of what Vick lost, which is more than the average individual, his punishment exceeded what was necessary.

Our thoughts on this are mixed. However, what occurs to us is that people criticizing the sentence have no experience with clients being sent to prison (which unfortunately we do in those rare cases that our pleas before a jury fall on deaf ears).

Even the slightest prison sentence usually results in an individual losing their job, placing their house in jeopardy, and a hardship in economic and social matters beyond the months served. Basically everyone loses money and work and has career problems after going to prison. With privilege and great wealth comes responsibility, which Vick did not demonstrate.

Should the Judge have sentenced Mr. Vick to less time because Vick stood to lose significantly more than the average defendant? We say no. While personal considerations should be relevant in sentencing, business considerations rarely should affect a Judge’s decision to lessen a sentence. Mr. Vick ruthlessly participated in abusing and killing animals. If the collateral consequence of his sentence is that besides being incarcerated he loses 50 million dollars and years during a playing career that cannot be recaptured, so be it.

It was not that long ago when professional athletes were drafted into the armed service and sent to war. Ted Williams lost at least five years of professional baseball when he served his country as a front line fighter pilot during WWII and the Korean War. There are some things, perhaps many things, more important than an athletic career. We say this even though we recognize that athletic careers today, with the potential to earn over a hundred million dollars are vastly more lucrative than athletic careers were up through the 1970’s.

The only value we see in the Vick discussion is the value in understanding that incarceration is a severe form of punishment. To the extent the Vick saga lessens the general public’s appetite for the “lock em up and throw away the key” approach to criminal law, that is a good thing. But Vick deserves every day of the sentence he received, and we hope he feels in someway the pain and misery he has caused.

See you in court, where because of this blog and our big mouth, we can no longer wow Judges with our memorized recital of Portia’s elegant speech.

FEDERAL (yawn) SENTENCING

Here is some shocking news. You might want to sit down before you read this. The Supreme Court decided yesterday that Judges must issue .....(hang on now)
reasonable sentences.

Granted, some Judges North of the Border were fit to be tied upon hearing the news, as well as an unfortunate minority of Judges in our building, but other than that, the decisions issued yesterday by the Supreme Court in Kimbrough HERE and Gall HERE were run of the mill, post Booker/Blakley federal sentencing cases.

Because we are a full service blog, we will summarize the decisions for you, so you don't have to waste precious time reading case law.


1) The majority opinion by Justice Ginsberg in Kimbrough is nothing earth shaking. Rather, in post Booker sentencing, the decision affirms the trial court’s ability to fashion a sentence above or below the guidelines, so long as the sentence is reasonable, and addresses the statutory provisions that a sentencing court must consider. Ginsberg wrote:

The ultimate question in Kimbrough’s case is “whether the sentence was reasonable—i.e., whether the District Judge abused his discretion in determining that the §3553(a) factors supported a sentence of [15 years] and
justified a substantial deviation from the Guidelines range.”

Yawn. So what else is new? Judges have to issue a reasonable sentence that accomplishes the goals of §3553(a). So long as a Judge says the sentence meets those goals, and does a fairly accurate on the record analysis of the specific factors in 3553, an appellate court should not disturb it.

What caught our attention was Justice Thomas’s dissent. The dissent in Kimbrough is a fairly nifty “I told you so” repudiation of the remedy of Booker.

Thomas wrote:

The Court, (in the Booker line of cases) however, chose a more sweeping remedy. Despite acknowledging that under the mandatory Guidelines not “every sentence gives rise to a Sixth Amendment violation,” the Court rendered the Guidelines advisory in their entirety and mandated appellate review of all sentences for “reasonableness.”

As will be seen, Thomas has a problem with the remedy of Booker.

As a result of the Court’s remedial approach, we are now called upon to decide a multiplicity of questions that have no discernibly legal answers.

In other words, Congress makes the law, court’s interpret the law. But here, according to Thomas, the Court has gone beyond invalidating the sentencing scheme of the guidelines. The court has manufactured a remedy, which after Booker, it must now continually define.

And if you know Justice Thomas like we know Justice Thomas, you know that he has no patience for judicial law making.

Congress did not mandate a reasonableness standard of appellate review—
that was a standard the remedial majority in Booker fashioned out of whole cloth. The Court must now give content to that standard, but in so doing it does not and
cannot rely on any statutory language or congressional intent.
We are asked here to determine whether, under the new advisory Guidelines regime, district courts may impose sentences based in part on their disagreement with
a categorical policy judgment reflected in the Guidelines.
But the Court’s answer to that question necessarily derives from something other than the statutory language or congressional intent because Congress, by making the Guidelines mandatory, quite clearly intended to bind district courts to the Sentencing Commission’s categorical policy judgments. By rejecting this statutory approach, the Booker remedial majority has left the Court with no law to apply and forced it to assume the legislative role of devising a new sentencing scheme.

Rumpole says, what Justice Thomas does, and does very well, is point out the philosophical problem with post Booker sentencing: that the decisions apply court created remedies and thus now require the court to define the parameters of the remedy previously created. In Justice Thomas's world (and perhaps the world envisioned by our Constitution) Congress creates the law, the courts interpret the law.

In the other sentencing decision issued today, Gall v.US., Justice Stevens answered the question that the court could not get to last year: whether a reviewing court must apply a proportionality test to a sentence that is below the guidelines- meaning that should a sentence that is way below the guidelines be required to be supported by extraordinary reasons explaining the departure? Or is any departure that meets the reasonableness requirement valid no matter how disparate the variance between the guideline sentence and the ultimate sentence?

The Court had granted cert in a case asking just that question last year, but alas the Appellant assumed room temperature before the case was argued, mooting the decision, for him at least.

Justice Stevens wrote:

We also reject the use of a rigid mathematical formula that uses the percentage of a departure as the standard for determining the strength of the justifications
required for a specific sentence...

Assuming that the district court’s sentencing decision is procedurally sound, the appellate court should then consider the substantive reasonableness
of the sentence imposed under an abuse-of-discretion standard. ..But if the sentence is outside the Guidelines range, the court may not apply a presumption of unreasonableness. It may consider the extent of the deviation, but must give due deference to the district court’s decision that the §3553(a) factors, on a
whole, justify the extent of the variance. The fact that the appellate court might reasonably have concluded that a different sentence was appropriate is insufficient to justify reversal of the district court.

While Stevens does a better job than Ginsberg of explaining and defending the post Booker sentencing scheme, the message of both cases is the same: a reasonable sentence carries the day.

See you in court, where we generally avoid this whole messy problem by going to trial...and winning.

ps. You know things must be slow if we are driven out of boredom to read (gasp) case law.

W MAKES A COURAGEOUS AND LONELY STAND

BUSH AND SENTENCING.

President Bush opened up a can of worms when he commuted the sentence of former VP aide Scooter Libby. Bush’s reasons supporting the commutation sounded very familiar to most of us who practice criminal law in the State and Federal Courts: Libby was a first time offender; he was convicted of a non-violent offense; Libby had made substantial contributions to society during his lifetime; the effects of Libby’s incarceration would be harsh on his wife and children; Libby was most likely destined to suffer consequences of his conviction that would be more far reaching and punitive, including the loss of his license to practice law and his ability to earn a living.

The problem with the President’s reasoning is that these are reasons that are usually rejected by the courts. Let’s stick with Federal courts for a moment and address the reasons point by point:

No Prior record: The response is that the guidelines already adequately take into account lack of prior record by not scoring any additional points.

Non-violent offense: the guidelines are the guidelines and also take whether there was injury or threat of use of force into account.

The effect on Libby’s family: Judges are specifically prohibited from considering this factor unless there are extraordinary circumstances which don’t exist here. Paris Hilton's parents were said to be depressed to the point where they could barely eat anything at their country club's Saturday evening social during the time their daughter was in jail.

The effect on Libby’s future earnings and his background and contributions to society: these matters are reported to the Judge in the pre-sentence report but are not legally authorized reasons to depart downward from the guidelines.


So what are we to make of our President’s new found sympathy for felons?
Can we expect a Bush/Libby sentencing doctrine, to be invoked on behalf of every first time offender with a family that relies on him who has otherwise led a law abiding life?

If nothing else, Bush’s commutation of Libby’s prison sentence may well have opened a national discussion on the harshness of the Federal Sentencing Guidelines. If a tough law and order don’t mess with Texas President finds 30 months for a first time offender too harsh, then isn’t it about time Congress got off their duffs and stopped thwarting the President’s well known compassion for felons and amended the sentencing guidelines to more reflect the Republican/Conservative beliefs in giving first offenders a second chance?

We join in with the President and his Republican allies and demand that the Democratic controlled Congress address this inequity and national disgrace. How many more commutations will our President be forced to issue to protect first offenders from serving a federal guideline mandated prison term before the Democrats do something about this? Isn’t it time the rest of the politicians joined our President and stopped playing politics with people’s lives?

Doesn’t any other politician have the courage of our President to stand up to the law and order lobbyists and the public’s fear of crime fueled demands for prison for anyone and everyone convicted of any crime?

We admire the President for his courageous and lonely stance on this important issue. We have in the past written about our differences with the President and his policies.

But when he is right, he is right. Well done Mr. President; well done indeed.

Prison is no place for first time offenders convicted of non violent offenses.

See You In Court, arguing just that, and citing our President as authority in the matter.