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What Are We Leaving on the Table at Sentencing? Examining the Sentencing Guidelines and the § 3553(a) Factors Colin Stephens, Smith & Stephens John Rhodes,

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1 What Are We Leaving on the Table at Sentencing? Examining the Sentencing Guidelines and the § 3553(a) Factors Colin Stephens, Smith & Stephens John Rhodes, Federal Defenders of Montana Technical Support by Ken Michael, Federal Defenders of Montana

2 Alleyne v. United States, 133 S. Ct. 2151, 186 L. Ed. 2D 314 (June 17, 2013). Alleyne is basically a simple syllogism: 1. Any fact that, by law, increases the penalty for a crime is an “element” that must be submitted to the jury and found beyond a reasonable doubt; 2. Mandatory minimum sentences increase the penalty for a crime; 3. Ergo, any fact that increases the mandatory minimum is an “element” that must be submitted to the jury.

3 Interestingly, Alleyne addressed a situation where there already was a mandatory minimum which was then increased by judicial fact finding. Does a fact which triggers a mandatory minimum in the first place also require submission to a jury? Yes. “Elevating the low-end of a sentencing range heightens the loss of liberty associated with the crime....” “This reality demonstrates that the core crime and fact triggering the mandatory minimum sentence together constitute a new, aggravated crime, each element of which must be submitted to the jury.”

4 The oral argument in Alleyne really did not address the factual minutia of the case. Rather, it addressed the grander question of what facts require submission to a jury. One of the phrases that reoccurred in the oral argument was whether the defendant has the right to have issues which would give rise to a more lenient sentence submitted to a jury. This contrasts with Blakely and Apprendi rulings regarding the submission of facts which trigger a more extreme sentence. It’s really the same argument from a different perspective. The Alleyne Court agreed.

5 It’s essentially a defendant’s right to have the jury decide this: versus this:

6 Alleyne is not (or highly unlikely to be) retroactive. All courts have denied applying retroactively. Basically, if Apprendi wasn’t retroactive, no way will Alleyne be. For an interesting article on the problem with retroactive application of certain SCOTUS cases, check out the article “Gideon’s Shadow” on the Social Sciences Research Network. Available at

7 The fall-out from Alleyne could be significant as there are a number of bogus exceptions and carve-outs to a full application of Apprendi. The issue in Alleyne was only one such exception. Fines was another issue that the Court determined required submission to the jury during the last term in Southern Union. The largest of these exceptions is the prior conviction exception, i.e., a case where the mandatory minimum sentence is triggered or increased due to the presence of a prior conviction, e.g., 851 increases.

8 SCOTUS, especially Justice Thomas, seems to be shifting more and more toward determining that any issue which affects the sentence in a significant way must be submitted to the jury. Decisions like Southern Union and Alleyne put decisions like Almendarez- Torres on the endangered species list. In Almendarez- Torres, SCOTUS concluded that the Constitution does not require submission of a defendant’s prior convictions to a jury, in that case it was the fact that the defendant had been previously deported. Justice Scalia disagreed and wrote an excellent dissent in which he refused to draw distinctions between elements of the crime and “sentencing factors.” Almendarez-Torres was a 5-4 split. Notably, Justice Thomas was in the majority in Almendarez-Torres. Later, Justice Thomas would then go on to join the majority in Apprendi. In a concurring opinion, Justice Thomas stated that he had incorrectly joined the majority in Almendarez-Torres. (I interpret this to mean that Justice Scalia had forgotten to turn his blinker on prior to the conference on Almendarez- Torrez).

9 “The exception to trial by jury for establishing ‘the fact of a prior conviction’ finds its basis not in the Constitution, but in precedent of this Court. Moreover, it has long been clear that a majority of this Court now rejects that exception.” (Rangel- Reyes v. United States, 547 U.S (2006) (Thomas., J. dissenting on denial of cert.)).

10 Southern Union Co., 132 S. Ct (2012). Criminal fines increase a defendant’s maximum possible sentence. Therefore, the Sixth Amendment reserves determinations regarding an increase in fine to a jury. Southern Union was charged and convicted by jury of multiple counts the Resource Conservation and Recovery Act. RCRA provides that a fine of not more than $50,000 per day for each violation. The issue comes down to a factual finding of how many days and how many violations. Those must be decided by a jury.

11 Cases like Southern Union and Alleyne demonstrate the importance of not forgetting about the Constitution during sentencing. It can be an important tool for effective sentencing advocacy.

12 They also demonstrate that we should keep pushing, even when the issue has been decided. On the issue of the prior-conviction exception to Apprendi, that issue seems to be ripe for challenge. The caveat is, however, that we may not want priors to be admitted. Thus, we should also not forget about Old Chief v. United States, 519 U.S 172 (1997).

13 Arguing constitutional rights, with the exception of the Eighth Amendment, has been largely ignored in the modern era. In days of yore, a conviction for a specific crime carried a specific offense. Rachel E. Barkow, Recharging the Jury: The Criminal Jury’s Constitutional Role in an Era of Mandatory Sentencing, 152 U. Pa. L. Rev. 33 (2003). Such a scheme deprived courts from even considering most constitutional issues.

14 Constitutional rights which have been recognized at sentencing are: 1. Right to effective assistance of counsel at sentencing (Glover v. United States, 531 U.S. 198 (2001)). a.Interestingly, this issue is raised most often in capital cases, i.e., counsel was ineffective in presenting mitigation evidence. However, there is nothing which suggests that efficacy during sentencing is limited to capital cases. 2. Limited privilege against self-incrimination (Mitchell). 3. In Burns v. United States, 501 U.S. 129 (1991), the Court noted that counsel failure to give defendant advance notice of facts that would result in a higher sentence might raise serious due process concerns. 4. Certain substantive due process rights have been recognized: a. Court can’t base a sentence on “materially untrue” assumptions about the defendant’s criminal record; b. Court can’t punish a defendant for a successful appeal; c. Court can’t consider race, national origin, or gender in sentencing; d. Religious beliefs may still be up in the air, but generally not unless the religious belief somehow gave rise to the crime (polygamy; Rastafarianism, etc.).

15 “The basic function of constitutional rights is to limit the government’s ability to interfere with civil liberties. Sentencing is the process by which the government determines precisely how much liberty it will take from a defendant. Sentencing courts therefore should not impose sentence based on matters protected by the Constitution.” Clarissa B. Hessick & F. Andrew Hessick, Recognizing Constitutional Rights at Sentencing, California Law Rev. (2011).

16 Just don’t forget about the Constitution during sentencing. Some questions need to be explored even in the face of contrary case law. 1.Does consideration of acquitted conduct in imposing a sentence violate Double Jeopardy? 2.Does consideration of acquitted conduct at sentencing violate a defendant’s Sixth Amendment right to a jury trial? a.Even if the judge believes the defendant committed the crime despite the acquittal, is it still appropriate for the judge to punish the acquitted defendant through a different means? 3.How conscious are we of the “trial tax?” Defendants who go to trial routinely receive longer sentences that those who do not. Is this a de facto punishment for a defendant exercising his constitutional rights? a.Is a denial of leniency because the defendant chose to go to trial the same as an increase in punishment?

17 4.Does a harsher sentence because of the defendant’s failure to express remorse during sentencing violate his Fifth Amendment right? a.Mitchell is limited in its holding to “factual determinations respecting the circumstances and details of the crime.” (Mitchell, 526 U.S. at 328). 5. Does enhancing a sentence for not showing remorse violate the First Amendment’s protection to free speech? a.It seems like a content-based punishment to me. i.West Virginia State Board of Education v. Barnette, 319 U.S. 624 (1943) (The Government cannot, as a general matter, punish an individual for refusing to speak). b. The Ninth shot this argument down in U.S. v. Smith, 424 F.3d 992 (9th Cir. 2005) (ruling, apparently, that sentencing factors (recidivism, amenability to rehabilitation, etc.), trumped the First Amendment. REALLY!?

18 Obviously, you don’t have to do any of these. However, they are worth thinking about on the off chance that will also make the judge think.

19 If you ever get in a pinch, repeating the following lines will alleviate most problems, especially in Judge Molloy’s Court: “Your honor, that information was passed along to me by Mr. Rhodes and Mr. Stephens. They were (and always are) in error. I apologize for listening to them.”

20 WHY IS THIS CLIENT DIFFERENT THAN ALL THE OTHER HUNDREDS THAT COME BEFORE THE JUDGE?

21 18 § 3553(a)1-7 INDIVIDUAL CHARACTERISTICS Individual Characteristics

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24 MITIGATION FROM THE START ALL ABOUT HUMANIZING YOUR CLIENT Working with pretrial services officer for release Relaying that same information to the AUSA Get to know your client – releases Get to know your pretrial services officer Get to know available services

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29 The Supreme Court instructs United States v. Tucker, 404 U.S. 443, 446 (1972) Sentencing “inquiry [is] broad in scope, largely unlimited either as to the kind of information [judges] may consider, or the source from which it may come”

30 Williams v. Tucker, 337 U.S. 241, 246 (1949) “both before and since the American colonies became a nation, courts in this country and in England practiced a policy under which a sentencing judge could exercise a wide discretion in the sources and types of evidence used to assist him in determining the kind and extent of punishment to be imposed within limits fixed by law”

31 Williams v. Tucker “Highly relevant – if not essential – to his selection of an appropriate sentence is the possession of the fullest information possible concerning the defendant’s life and characteristics.”

32 And Congress agrees 18 U.S.C. § 3661 “No limitation shall be placed on the information concerning the background, character, and conduct of a person convicted of an offense, which a court of the United States may receive and consider for the purpose of imposing an appropriate sentence.”

33 Pretrial Services Interview Right to answer questions Right not to answer questions Answers must be truthful Do not discuss offense conduct Do not discuss other criminal conduct Do not discuss criminal history

34 Appeal Waivers

35 Scope of Change of Plea Waiver Mitchell v. United States, 526 U.S. 314, 317 (1999): – “Two questions relating to criminal defendant’s Fifth Amendment privilege against self- incrimination are presented to us.”

36 Mitchell, 526 U.S. at 317 “The first is whether, in the federal criminal system, a guilty plea waives the privilege in the sentencing phase of the case, either as a result of the colloquy preceding the plea or by operation of law when the plea is entered.” “We hold the plea is not a waiver of the privilege at sentencing.”

37 Mitchell, 526 U.S. at 317 “The second question is whether, in determining facts about the crime which bear upon the severity of the sentence, a trial court may draw an adverse inference from the defendant’s silence.” “We hold a sentencing court may not draw the adverse inference.”

38 PSR Process Do not permit uncounseled contact between the USPO and your client Attend all meetings Screen all paperwork

39 PSR Interview Right to answer questions Right not to answer questions Answers must be truthful Do not discuss offense conduct – Acceptance of Responsibility Statement Do not discuss other criminal conduct Do not discuss criminal history

40 Acceptance of Responsibility U.S.S.G. § 3E1.1(a) – “If the defendant clearly demonstrates acceptance of responsibility for his offense, decrease the offense level by 2 levels.”

41 Acceptance of Responsibility Statement Get it in writing

42 United States Sentencing Guidelines 800 pound gorilla

43 Make the Guidelines Work for your Client

44 “Significant Procedural Error” Reversible procedural error is: – Fail to calculate the Guidelines correctly – Treat the guidelines as mandatory – Fail to consider § 3553(a) factors – Fail to address parties’ arguments – Fail to adequately explain sentence Comes before review for substantive reasonableness

45 United States v. Flores, 2013 U.S. Dist. App. LEXIS (9 th Cir. August 2, 2013) 360 months-to-life district court range 180 months sentence imposed 292-to-365 months correct range, per 9 th Circuit “we cannot say whether the district court would impose the same sentence if it kept the correct Guidelines in mind throughout the process”

46 Guidelines One Dimensional Guidelines = math without subtraction Acceptance of Responsibility reduction Safety Valve and minor role reductions Up, up and away

47 47 “Evolved” in a One-Way Upward Ratchet Amended in a “one-way upward ratchet increasingly divorced from considerations of sound public policy and even from the commonsense judgments of frontline sentencing professionals who apply the rules.” Frank O. Bowman III, The Failure of the Federal Sentencing Guidelines: A Structural Analysis, 105 Colum. L. Rev. 1315, (2005).

48 Guidelines Flawed in Both Directions Guidelines range results almost exclusively from aggravating factors Mitigating factors, § 3553(a)(1), NOT Included in the calculation – And policy statements generally prohibit or discourage mitigating factors as departure Minimal attempt to reflect “Need” for Deterrence, Incapacitation, Rehabilitation in the most effective manner, § 3553(a)(2), based on the defendant’s individual characteristics “Kinds” of sentences permitted by statute other than prison, § 3553(a)(3), rarely recommended

49 Underserve probation 1984: 38% of defendants received straight probation 18 U.S.C. § 3582(a): “The court, in determining whether to impose a term of imprisonment, and if a term of imprisonment is to be imposed, in determining the length of the term, shall consider the factors set for in section § 3553(a) to the extent they are applicable, recognizing that imprisonment is not an appropriate means of promoting correction and rehabilitation.”

50 28 U.S.C. § 994(a)(1) “The Commission... shall promulgate... guidelines... for use of a sentencing court in determining the sentence... including – (A) a determination whether to impose a sentence to probation, a fine, or a term of imprisonment [and] (B) a determination as to the appropriate amount of a fine or the appropriate length of a term of probation or a term of imprisonment. “

51 First Time Non-Violent Offenders Were Supposed To Get Probation. U.S.S.C. “shall insure that the guidelines reflect the general appropriateness of imposing a sentence other than imprisonment in cases in which the defendant is a first offender who has not been convicted of a crime of violence or an otherwise serious offense.” 28 U.S.C. § 994(j).

52 Congress intended probation and other alternatives for: Drug treatment Educational programs Vocational training Employment skills Mental health treatment Medical treatment S. Rep. No , at (1983)

53 Courts Must Consider All Kinds of Available Sentences, and Can Sentence Below Guidelines Zones Must consider all “kinds of sentences available” by statute, § 3553(a)(3), even if the “kinds of sentence... established [by] the guidelines” recommend only prison. United States v. Gall, 552 U.S. 38, 59 & n.11 (2007). Probation authorized for any offense with a statutory maximum below 25 years unless expressly precluded. See 18 USC § 3561(a); 18 USC § 3559(a).

54 If Judge Likes Departures Chapter 5 of the Guidelines Also listed in back of 2012 Manual – 35 downward departure provisions Often subject to narrow restrictions and limitations – 23 neutral departure provisions (up or down) 12 of which appear in rarely used GLs – Watch out upward departure provisions Often very broadly stated Never argue for a departure alone.

55 Deconstruction

56 BREAK DOWN THE ANCHORING EFFECT OF A NUMBER DISABUSE THE JUDGE OF MISCONCEPTIONS ABOUT THE GUIDELINES, EDUCATE THE JUDGE ABOUT HOW THEY ARE FLAWED, AND ADVOCATE § 3553(a) FROM THERE

57 Courts Must Consider All Mitigating Factors, and Ignore Contrary Policy Statements Gall v. United States, 552 U.S. 38, 50 n.6, (2007) Section 3553(a)(1) is a “broad command to consider... the history and characteristics of the defendant” Court approved variance based on factors the policy statements deem “not relevant” or “not ordinarily relevant” and which ignored the policy statements

58 Gall v. United States, 552 U.S. 38 (2007) Judge appropriately gave significant “weight” to voluntary withdrawal from the conspiracy abstained from drugs, completed education, established business age and immaturity at the time of the offense All supported the conclusion that imprisonment was not necessary to deter Mr. Gall or to protect the public from further crimes by him

59 Question is Whether the Facts are Relevant to Purposes and Parsimony Pepper v. United States, 131 S. Ct. 1229, (2011) “No question” that Pepper’s – remaining drug-free for five years – attending college and achieving high grades – succeeding at work – re-establishing a relationship with his father – marrying and supporting a family Are “highly relevant” to the need for deterrence, incapacitation, and treatment and training And “bear directly on the District Court’s overarching duty to ‘impose a sentence sufficient, but not greater than necessary’ to serve the purposes of sentencing”

60 How it was supposed to be Two reasons it may be “fair to assume that the Guidelines, insofar as practicable, reflect a rough approximation of sentences that might achieve § 3553(a)’s objectives.” Rita v. United States, 551 U.S. 338, 350 (2007). 1.U.S.S.C. used “empirical approach” to develop initial guidelines, beginning “with an empirical examination of 10,000 presentence reports setting forth what judges had done in the past” 2.Guidelines can “evolve” in response to judicial decisions, sentencing data, criminological research, and consultation with experts and all stakeholders (not just DOJ) Rita, 551 U.S. at

61 But “not all guidelines were developed in this manner” Gall v. United States, 552 U.S. 38, 46 & n.2 (2007) Kimbrough v. United States, 552 U.S. 85, 96 (2007)

62 62 But “not all of the Guidelines are tied to this empirical approach.” Gall, 552 US at 46 n.2 (referencing Kimbrough to explain variance) Ranges set significantly higher than past practice for the most common offenses, e.g., drugs, “career offender,” white collar, many others Did not include probationary sentences in estimating average sentence length, or in making probation available Prohibited or deemed “not ordinarily relevant” offender characteristics always considered in the past Radical “relevant conduct” rule: same sentence for acquitted and uncharged crimes as if charged and convicted Ratcheted up throughout pre-Booker era – over 750 amendments – often without regard to research or sentencing data

63 Courts May Vary From Guidelines That Lack Empirical Basis and Recommend Punishment Greater Than Necessary Rita, 551 U.S. at 351, 357 – Judge may find the “Guidelines sentence itself fails properly to reflect § 3553(a) considerations,” or “reflects an unsound judgment” Kimbrough v. United States, 552 U.S. 85, 101 (2007) – “courts may vary [from Guideline ranges] based solely on policy considerations, including disagreements with the Guidelines” (citing Rita) – not an abuse of discretion to conclude that a guideline that is not the product of “empirical data and national experience... yields a sentence ‘greater than necessary’ to achieve §3553(a)’s purposes, even in a mine-run case”

64 Three points: The guideline was not developed by the Commission in its “characteristic institutional role,” i.e., not based on “empirical data and national experience.” The guideline recommends punishment that is greater than necessary to serve the purposes of sentencing under § 3553(a)(2). The sentence you propose better serves the purposes of sentencing.

65 Not Just Crack Illegal reentry: United States v. Amezcua-Vasquez, 567 F.3d 1050 (9th Cir. 2009) Career offender: United States v. Mitchell, 624 F.3d 1023 (9th Cir. 2010) Child pornography: United States v. Henderson, 649 F.3d 955 (9th Cir. 2011)

66 Use Decisions of Other Judges “Until the Commission does the job right, which should take considerable time, it should lower the ranges in drug trafficking cases by a third for the reasons set forth above. In the meantime, the current ranges will be given very little weight by this Court.” United States v. Diaz, 2013 WL (E.D.N.Y Jan. 28, 2013) (Gleeson, J.) Career offender guideline as applied to low-level, non-violent drug addicts “has the potential to overstate the seriousness of a defendant's record and her risk of re- offending, to result in a sentence significantly greater than necessary to protect the public by deterring further crimes of the defendant, to result in unwarranted sentencing uniformity and unwarranted sentencing disparities among defendants found guilty of similar conduct, to result in an unduly harsh sentence which does not promote respect for the law, and to be inconsistent with the obligation to apply all of the relevant § 3553(a) factors” United States v. Newhouse, __ F. Supp. 2d __, 2013 WL , *28 (N.D. Iowa Jan. 30, 2013) (Bennett, J.)

67 “The Sentencing Commission to this day has never been able to articulate why it has two points for this, or four points for that.... These are just numbers. And yet once they are placed the whole thing is blessed and said to be rational.” Judge Rakoff (E.D.N.Y.) (keynote speech at the ABA’s Nat’l Inst. on White Collar Crime, March 2013).

68 The Ninth Circuit Gets It Henderson, 649 F. 3d at 963 & n.3 A district court’s disagreement with a guideline not developed by the U.S.S.C. based on “empirical data and national experience” is subject to abuse-of-discretion review The “fact that the Guidelines conform to Congressional directives does not insulate them from a Kimbrough challenge.”

69 “[S]entencing judges can reject any Sentencing Guideline, provided that the sentence is reasonable.” Mitchell, 624 at 1030.

70 Vulnerable guidelines Drugs Fraud Relevant conduct Illegal reentry Career offender Child pornography Firearms Relevant Conduct ???????????

71 Congressional Staff Describe the “Bidding War” in Congress That Led to the Drug Guidelines “It was this frenzied, panic atmosphere—I’ll see you five years and raise your five years. It was the crassest political poker game.” – Michael Isikoff & Tracy Thompson, Getting Too Tough on Drugs: Draconian Sentences Hurt Small Offenders More Than Kingpins, Wash. Post, Nov. 4, 1990, at C1, C2 (quoting Eric Sterling, counsel to the House Subcommittee on Crime at the time) – See also Eric Sterling, Legislative Scatology,

72 Heart of Sentencing Advocacy

73 18 U.S.C. § 3553(a) Shall impose a sentence sufficient but not greater than necessary to satisfy the need for just punishment in light of the seriousness of the offense, deterrence, incapacitation, rehabilitation in the most effective manner In light of all offense and offender circumstances, all kinds of sentences available by statute, and avoiding unwarranted disparities.

74 CHARACTER VIDEO ADMISSIBILITY (SOME JUDGES MAY OBJECT?) COSTS PROVIDES THE EMOTION AND PASSION MISSING FROM A LETTER (maybe substitutes for testimony) INTERVIEWS OF FAMILY MEMBERS, TEACHERS, EMPLOYERS, COUNSELORS LESS IS MORE

75 Experts at sentencing Child pornography – Computer forensic – Psychosexual evaluation (MSOTA) Meth lab quantity projection Drug abuser Forensic account ?

76 Writ of habeas corpus ad prosequendum Concurrent v. consecutive sentence 18 U.S.C. § U.S.C. § 3585 U.S.S.G. § 5G1.3

77 What Kind of Evidence Explain why it happened and why the sentence you propose is appropriate with – Facts about the offense – Facts about the history and characteristics of the defendant Research – Why do those facts matter to the purposes of sentencing? E.g., research establishes that defendants over age 40 recidivate at a low rate

78 Get It On the Record! PSR – Get favorable facts into PSR – F.R.Crim.P. 32(i)(3) objection Adduce evidence – Witnesses – Documentation

79 Why? That’s how we implement advocacy – on the record Not much explanation required for a Guidelines sentence if you don’t contest it. Rita, 551 U.S. at 357. Must consider only nonfrivolous arguments Must explain why if court rejects them. Id. at 351, 357. If court fails to explain how the sentence complies with § 3553(a) or fails to address your arguments and evidence, object, and then gain reversal for procedural error. Gall, 552 U.S. at 51.

80 When courts of appeals reverse for inadequate explanation or failure to adequately address a nonfrivolous argument, the sentence on remand is different in the majority of cases. Jennifer Niles Coffin, Where Procedure Meets Substance: Making the Most of the Need for Adequate Explanation (Nov. 2011), CHAMPION, MAR. 2012, at 36.http://www.fd.org/pdf_lib/Procedure_Substance.pdf

81 “Every defendant who asserts that his or her personal circumstances warrant leniency is compelled to supply a factual predicate for the contention, and defendants who do not... are at the mercy of the instincts and intuitions of the sentencing judge.” United States v. Chapman, 694 F.3d 908, 914 (7th Cir. 2012) “‘[S]tock’ arguments in mitigation often can be rejected with little or even no explanation.” United States v. Gary, 613 F.3d 706, 709 (7th Cir. 2010).

82 Variances Reversed Because No Evidence Reversing below-guideline sentence of probation because the district court based its disagreement with the Commission’s policy advising imprisonment for tax offenders on a “hunch” that prison is not a deterrent. United States v. Bragg, 582 F.3d 965, 969 (9th Cir. 2009)

83 Avoid departure language when arguing § 3553(a) “Exceptional” “Extraordinary” “Unusual” “Atypical” “Heartland” UNLESS IT’S TRUE

84 Use Language of 18 USC § 3553(a) Every sentence must comply with it “Shall” impose a sentence “sufficient, but not greater than necessary” to satisfy the “need” for – Just punishment, the seriousness of the offense, respect for law – General deterrence – Incapacitation (protect the public from defendant) – Rehabilitation in the most effective manner “Shall” consider – all offense and offender circumstances – all kinds of sentences available by statute – avoiding unwarranted disparities and unwarranted similarities

85 Nature and circumstances of the offense and history and characteristics of the defendant

86 Mitigating Factors Formerly Subject to Departure Law No More Math Without Subtraction – Part IV Empirical research, sentencing data, judicial decisions – Age – Education and vocational skills – Mental and emotional conditions – Physical condition, drug or alcohol dependence or abuse, gambling addiction, physique – Employment record – Family ties and responsibilities – Post-sentencing rehabilitation – Role in the offense – Criminal history – Military, civic, charitable work, public service, employment, good works – Lack of guidance as a youth, disadvantaged upbringing – Substantial assistance – Pretrial release compliance, acceptance of responsibility – Rehabilitation

87 If the client is young Young offenders reform in a shorter period of time. – Laurence Steinberg & Elizabeth S. Scott, Less Guilty by Reason of Adolescence: Developmental Immaturity, Diminished Responsibility, and the Juvenile Death Penalty, 58 Am. Psychologist 1009, (2003) – Robert J. Sampson & John H. Laub, Crime in the Making: Pathways and Turning Points Through Life, 39 Crime & Delinq. 396 (1993) Young offenders (e.g., in their 20s) are less culpable than the average offender because of brain development. – Jay N. Giedd, Structural Magnetic Resonance Imaging of the Adolescent Brain, 1021 Annals N.Y. Acad. Science (2004); Margo Gardner & Laurence Steinberg, Peer Influence on Risk Taking, Risk Preferences and Risky Decision Making in Adolescence and Adulthood: An Experimental Study, 41 Developmental Psych. 625, 632 (2005); Federal Advisory Committee on Juvenile Justice, U.S. Dep’t of Justice, Office of Juvenile and Delinquency Prevention, Annual Report 8 (2005), Miller v. Alabama, 132 S. Ct. 2455, (2012); Graham v. Florida, 130 S. Ct. 2011, (2010); Roper v. Simmons, 543 U.S. 551, 567, (2005)

88 Just Punishment, Respect for the Law, and Seriousness of the Offense § 3553(a)(2)(A)

89 Prison can be unjust punishment Medical problems BOP will not adequately treat BOP often does not provide “required medical services to inmates.” U.S. Dep’t of Justice, Office of the Inspector General, Audit Division, The Federal Bureau of Prisons’ Efforts to Manage Health Care (Feb. 2008),  U.S. v. Martin, 363 F.3d 25 (1st Cir. 2004)  U.S. v. Gee, 226 F.3d 885 (7th Cir. 2000)  U.S. v. Pineyro, 372 F. Supp. 2d 133 (D. Mass. 2005)  U.S. v. Rausch, 570 F. Supp. 2d 1295 (D. Colo. 2008) Empirical research shows that defendants who are old, young, small are subject to abuse, rape, violence in prison No More Math Without Subtraction at 64-66, 104, , sentencing/No_More_Math_Without_Subtraction.pdf

90 Prison Is Unjustly Punitive in This Case Medical problems BOP often does not provide “required medical services to inmates.” U.S. Dep’t of Justice, Office of the Inspector General, Audit Division, The Federal Bureau of Prisons’ Efforts to Manage Health Care (Feb. 2008), Defendants who are older and/or infirm suffer more Hannah T.S. Long, The “Inequality” of Incarceration, 31 Colum. J. L. & Soc. Probs. 321, (1998) U.S. Dep’t of Justice, National Institute of Corrections, Correctional Health Care: Addressing the Needs of Elderly, Chronically Ill, and Terminally Ill Inmates, at 10 (2004) Elaine Crawley & Richard Sparks, Older Men in Prison: Survival, Coping, and Identity, in The Effects of Imprisonment 343, (Alison Liebling & Shadd Maruna eds., 2005)

91 Culpability of Young Offenders Young offenders (up to mid-20s) are less culpable than older offenders. – Jay N. Giedd, Structural Magnetic Resonance Imaging of the Adolescent Brain, 1021 Annals N.Y. Acad. Science (2004) – Margo Gardner & Laurence Steinberg, Peer Influence on Risk Taking, Risk Preferences and Risky Decision Making in Adolescence and Adulthood: An Experimental Study, 41 Developmental Psych. 625, 632 (2005) – Federal Advisory Committee on Juvenile Justice, U.S. Dep’t of Justice, Office of Juvenile and Delinquency Prevention, Annual Report 8 (2005), – Miller v. Alabama, 132 S.Ct (2012); Graham v. Florida, 130 S.Ct (2010)

92 Evidence Regarding the Need for Incapacitation

93 Lengthy imprisonment increases recidivism by disrupting employment, reducing prospects of future employment, weakening family ties, and exposing less serious offenders to more serious offenders. Miles D. Harer, Do Guideline Sentences for Low-Risk Drug Traffickers Achieve Their Stated Purposes?, 7 Fed. Sent. Rep. 22 (1994) Lynne M. Vieraitis et al., The Criminogenic Effects of Imprisonment: Evidence from State Panel Data , 6 Criminology & Pub. Pol’y 589, (2007) U.S.S.C., Staff Discussion Paper, Sentencing Options Under the Guidelines (Nov. 1996), plification/SENTOPT.HTM

94 Not Necessary to Protect the Public from Further Crimes of the Defendant Drug offenders have lower than average rates of recidivism. – U.S.S.C., Measuring Recidivism: The Criminal History Computation of the Federal Sentencing Guidelines 13 (2004) (“Offenders sentenced in fiscal year 1992 under fraud, (16.9%), larceny,(19.1%), and drug trafficking, (21.2%), are overall the least likely to recidivate.”) The drug guideline does not identify defendants most in need of incapacitation. – “[N]o apparent relationship between the sentencing guideline final offense level and recidivism risk.” Neil Langan & David Bierie, Testing the Link Between Drug Quantity and Later Criminal Behavior among Convicted Drug Offenders (Paper presented at the American Society of Criminology’s annual meeting in Philadelphia Nov. 4, 2009)

95 Young offenders Reform in a shorter period of time. Laurence Steinberg & Elizabeth S. Scott, Less Guilty by Reason of Adolescence: Developmental Immaturity, Diminished Responsibility, and the Juvenile Death Penalty, 58 Am. Psychologist 1009, (2003) Robert J. Sampson & John H. Laub, Crime in the Making: Pathways and Turning Points Through Life, 39 Crime & Delinq. 396 (1993) Graham, Miller, Roper

96 Age “Recidivism rates decline relatively consistently as age increases,” from 35.5% under age 21, to 9.5% over age 50. USSC, Measuring Recidivism (2004), (includes technical supervised release violations – not all new crimes)

97 Recidivism Drops Precipitously with Age Robert J. Sampson, and John H. Laub, L ife-Course Desisters: Trajectories of Crime Among Delinquent Boys Followed to Age 70, 451 CRIMINOLOGY 555 (2003)

98 First Offenders Minimal or no prior involvement with the criminal justice system is a powerful predictor of reduced likelihood of recidivism. – A Comparison of the Federal Sentencing Guidelines Criminal History Category and the U.S. Parole Commission Salient Factor Score, 15 (Jan. 4, 2005), http// www. ussc. gov/ publicat/ Recidivism Salient FactorCom.pdf. – Recidivism and the First Offender (May 2004), gov/publicat/Recidivism-First Offender.pdf. Those with 0 points have lower recidivism rates than others in Criminal History Category I. – Michael Edmund O’Neill, Abraham’s Legacy: An Empirical Assessment of (Nearly) First-Time Offenders in the Federal System, 42 B.C. L. Rev. 291 (2001).

99 First Offenders – 0 points Even lower recidivism rates than other defendants in Criminal History Category I. – Michael Edmund O’Neill, Abraham’s Legacy: An Empirical Assessment of (Nearly) First-Time Offenders in the Federal System, 42 B.C. L. Rev. 291 (2001). – A Comparison of the Federal Sentencing Guidelines Criminal History Category and the U.S. Parole Commission Salient Factor Score, 15 (Jan. 4, 2005), http// www. ussc. gov/ publicat/ Recidivism Salient FactorCom.pdf. – Recidivism and the First Offender (May 2004), gov/publicat/Recidivism-First Offender.pdf.

100 Other characteristics predicting low risk of recidivism USSC, Measuring Recidivism (2004), First Offender: rate of reconviction for those with 0 points is 3.5%, with 1 point is 5.5%, with 2 or more points is 10.3% Employment History: recidivism rate far less if employed in past year than if unemployed Education: the more education, the lower the recidivism rate Family: recidivism lower if ever married even if divorced Abstinence from drug use: recidivism rate far lower if abstinent for past year than if used drugs Non-Violent Offender: fraud, larceny and drug offenders the least likely to recidivate

101 Lengthy imprisonment increases recidivism by disrupting employment, reducing prospects of future employment, weakening family ties, and exposing less serious offenders to more serious offenders. Miles D. Harer, Do Guideline Sentences for Low-Risk Drug Traffickers Achieve Their Stated Purposes?, 7 Fed. Sent. Rep. 22 (1994) Lynne M. Vieraitis et al., The Criminogenic Effects of Imprisonment: Evidence from State Panel Data , 6 Criminology & Pub. Pol’y 589, (2007) U.S.S.C., Staff Discussion Paper, Sentencing Options Under the Guidelines (Nov. 1996), plification/SENTOPT.HTM

102 Evidence Regarding General Deterrence

103 Debunk the Myth: Severity Has No Deterrent Effect Michael Tonry, Purposes and Functions of Sentencing, 34 Crime & Just. 1, 28 (2006) Zvi D. Gabbay, Exploring the Limits of the Restorative Justice Paradigm: Restorative Justice and White Collar Crime, 8 Cardozo J. Conflict Resol. 421, (2007) Andrew von Hirsch et al., Criminal Deterrence and Sentence Severity: An Analysis of Recent Research (1999) David Weisburd et al., Specific Deterrence in a Sample of Offenders Convicted of White Collar Crimes, 33 Criminology 587 (1995) Francis T. Cullen et al. Prisons Do Not Reduce Recidivism: The High Cost of Ignoring Science, Prison Journal 91: 48S (2011)

104 “Incapacitating a low-level drug seller prevents little, if any, drug selling; the crime is simply committed by someone else.” U.S.S.C., Fifteen Year Review at 134; U.S.S.C., Cocaine and Federal Sentencing Policy at 68 (1995)

105 Unnecessary for Deterrence No evidence that increased drug sentences have a deterrent or other crime control effect – “Those assigned by chance to receive prison time and their counterparts who received no prison time were re-arrested at similar rates over a four-year time frame.” Donald P. Green & Daniel Winik, Using Random Judge Assignments to Estimate the Effects of Incarceration and Probation on Recidivism among Drug Offenders, 48 Criminology 357 (2010) – “[I]t is unlikely that the dramatic increase in drug imprisonment was cost-effective.” Ilyana Kuziemko & Steven D. Levitt, An Empirical Analysis of Imprisoning Drug Offenders, 88 J. of Pub. Econ. 2043, 2043 (2004)

106 Evidence Regarding Rehabilitation in the Most Effective Manner

107 Tapia v. United States 654 U.S. ___ (2011) Holding: 18 U.S.C. § 3582(a) does not permit a sentencing court to impose or lengthen a prison term to foster a defendant’s rehabilitation, unanimously reversing Ninth Circuit

108 Mental Health Treatment Works and Costs Less Dale E. McNiel & Renée L. Binder, Effectiveness of a Mental Health Court in Reducing Criminal Recidivism and Violence, 16 Am. J. Psychiatry ( 2007) Ohio Office of Criminal Justice Services, Research Briefing 7: Recidivism of Successful Mental Health Court Participants (2007), efing7.pdf efing7.pdf BOP costs $29,000+ a year

109 Treatment and training in most effective manner Only 15.7% of federal prison inmates with substance abuse disorders receive treatment after admission to BOP. Statement of Faye Taxman, Professor, George Mason University, Drug Treatment for Offenders: Evidence-Based Criminal Justice and Treatment Practices, Testimony before Subcomm. on Commerce, Justice, Science, and Related Agencies (Mar. 10, 2009) BOP cannot provide treatment to many who need and want it. U.S. Government Accountability Office, Bureau of Prisons: Growing Inmate Crowding Negatively Affects Inmates, Staff, and Infrastructure (Sept. 2012), Community residential treatment programs for offenders on probation or supervised release offer better options and access to drug treatment than a lengthy prison sentence. Nat’l Center on Addiction and Substance Abuse, Behind Bars II: Substance Abuse and America’s Prison Population. P. 40, tbl. 5-1

110 Drug treatment works and saves money Nat’l Institute on Drug Abuse, National Institutes of Health, Principles of Drug Abuse Treatment for Criminal Justice Populations (2006), Susan L. Ettner et al., Benefit-Cost in the California Treatment Outcome Project: Does Substance Abuse Treatment “Pay for Itself?,” Health Services Res. 41(1), (2006)

111 Drug treatment in the community works even better. Missouri Sent’g Advisory Comm’n, Smart Sentencing, Vol. 1, Issue 4 (July 20, 2009) Doug McVay, Vincent Schiraldi, & Jason Ziedenberg, Justice Policy Institute Policy Report, Treatment or Incarceration: National and State Findings on the Efficacy of Cost Savings of Drug Treatment Versus Imprisonment at 5-6, 18 (2004) Elizabeth K. Drake, Steve Aos, & Marna G. Miller, Washington State Institute for Public Policy, Evidence-Based Public Policy Options to Reduce Crime and Criminal Justice Costs: Implications in Washington State (2009),

112 Medical Condition U.S. v. Alemenas, 553 F.3d 27 (1st Cir. 2009) U.S. v. McFarlin, 535 F.3d 808 (8th Cir. 2008) U.S. v. Spigner, 416 F.3d 708 (8th Cir. 2005) U.S. v. Garcia-Salas, 2007 WL (10th Cir. Dec. 27, 2007) U.S. V. Rodriguez-Quezada, 2008 WL (S.D.N.Y. Sept. 15, 2008) U.S. v. Carmona-Rodriguez, 2005 WL (S.D.N.Y. April 11, 2005)

113 Need for Deterrence § 3553(a)(2)B)

114 Debunk the Myth No particular amount of imprisonment or any imprisonment is necessary for deterrence. Michael Tonry, Purposes and Functions of Sentencing, 34 Crime & Just. 1, 28 (2006) Zvi D. Gabbay, Exploring the Limits of the Restorative Justice Paradigm: Restorative Justice and White Collar Crime, 8 Cardozo J. Conflict Resol. 421, (2007) Andrew von Hirsch et al., Criminal Deterrence and Sentence Severity: An Analysis of Recent Research (1999) David Weisburd et al., Specific Deterrence in a Sample of Offenders Convicted of White Collar Crimes, 33 Criminology 587 (1995) Francis T. Cullen et al. Prisons Do Not Reduce Recidivism: The High Cost of Ignoring Science, Prison Journal 91: 48S (2011)

115 Sentencing Options § 3553(a)(3) Community Service – rehabilitative, saves the community money, saves incarceration costs, keeps families together, integrates community House arrest Electronic monitoring

116 Disparity Caused by Failure to File Motion Under 5K variances for cooperation without §5K1.1 motion – U.S.S.C., 2011 Sourcebook, tbls.25, 25A, 25B. – U.S. v. Arceo, 535 F.3d 679, 688 & n.3 (7th Cir. 2008) – U.S. v. Blue, 557 F.3d 682, 686 (6th Cir. 2009) – U.S. v. Jackson, 296 Fed. App’x 408, 409 (5th Cir. 2008) – U.S. v. Doe, 218 Fed. App’x 801, 805 (10th Cir. 2007) – U.S. v. Fernandez, 443 F.3d 19, 35 (2d Cir. 2006) – U.S. v. Lazenby, 439 F.3d 928, 933 (8th Cir 2006)

117 Sentencing Resources – Sentencing by the Statute – Information on sentencing purposes, variances, probation, how to determine past practice, deconstruction No More Math Without Subtraction – Empirical research, statistics, and caselaw on numerous mitigating factors Where Procedure Meets Substance: Making the Most of the Need for Adequate Explanation (Nov. 2011) Appellate Decisions After Gall Hemingway & Hinton, Departures and Variances -- Outline of Caselaw on All Kinds of Variances and Departures Fighting Fiction with Fact: Research to Help Advocate for Lower Sentences Deconstructing the Guidelines -- sample memos, papers, articles

118 Sentencing Resources U.S.S.C. (annual) Sourcebook Federal Sentencing Guidelines Handbook Federal Sentencing Law and Practice Defending A Federal Criminal Case, Chapter 17 Sentencing Law and Policy blog Ninth Circuit blog SCOTUS blog


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