Criminal Procedure : Week of 24 March 2008

March 24

No professor. :(

25 March

Booker and § 3553(8) (factors to be considered when imposing sentence). Goals of sentencing outlined in (2). The court says that basing sentences on facts found only by a judge (i.e., not by a jury), is unconstitutional. So the guidelines are deemed advisory. This is how important the adversarial process is to the court: without it, the court is just sort of left hanging.
You have to have detailed explanations for departures from the guidelines, but also for sentences within the guidelines (c.f. Gall, which requires discretion).
The purpose of the guidelines was to take the judge out of the deciding role, but the courts are putting the judge back in. How are we going to take facts into account, if there's no legal standard about what inference to draw from any given fact?
Look at Ranum: what do all those findings of fact have to do with § 3553(8)? Is this not exactly what the legislature was trying to stamp out: value judgments made about the facts that influence sentencing? Maybe we are reading this too closely-- we'll always be able to find flaws.
Anchoring effects: a psychological phenomenon perhaps provided by the guidelines. Sort of a "where to start" thing, when reasoning: it tells us the starting point, and also gives us notions about how far on either side of the guidelines we should stray.
N. Morris: uniformity doesn't necessarily mean uniformity of outcomes; uniformity of process may be sufficient. We should consider the facts in the same way, even though the facts might distinguish degrees of culpability.
Are the reasons we're supposed to give more than just a post hoc story that explains what we did? Anyone can make up one of those.
The Jane Green document was a pre-sentence report doctored up by the sentencing commission in order to train judges in how to apply the guidelines. But, ironically, it considers factors not identified in the guidelines, so it's not obvious whether it's a good training tool.
The act of decision making is invisible to the decider: we know when we have decided, but then the best they seem to do is to tell a story that makes their decision plausible.
So the idea of a common law of sentencing is attractive, but it seems like sentences are always distinguished by exceptional conditions. Still, an awful not of facts are recurring facts (consider, for example, a series of crimes at the same location).
A problem with sentencing: people wind up getting punished for failing to meet conditions whose purpose was poorly thought-out to begin with. For example, requiring someone to get a GED.
State v. Gallian

26 March

The remedy in Booker and Fanfan fixes the problem (of judges finding facts that increase the penalty beyond the maximum set by the guidelines) by simply making the guidelines advisory. The statutory maximum is still the maximum, but a judge could sentence up to the statutory maximum without finding any facts. The issue they address is the fact that the guidelines set a new (lower) maximum for the ordinary crime, and then judges would find aggravating factors.
Smith's theory (w/Gallion
Let's think about current sentencing in WI. Should we decide incarceration period first, or period of extended supevision? If our purpose is to punish "enough but not too much," maybe it doesn't matter. If our purpose is public protection, we might approach it differently: what sort of condition must the offender be in so that the public (or his family, etc.) is not at risk? What strategies towards that end might be available/reasonable? Then we can go back to figure out how much prison time should be imposed so that the goal is fulfilled.

A major flaw with sentencing is that lawyers aren't paying much attention to it. They make arguments ("my client is a boy scout and a virgin; he should get probation" vs "his client is a murder waiting to happen-- he has to be locked up"), but that doesn't help the judge, and it doesn't further the purposes of sentencing.

There is jury sentencing in some states. The instructions are awful: here are 27 factors you may consider, without any guidance as to how they should be weighed. It's complete discretion offered by the maximum allowed by statute, and they don't even have the degree of experience that judges have.

Specifications of additional requirements you must fulfill in order for the use of discretion to be lawful. That's what these cases (McCleary, Gallion, and Gall) are about: they define discretion as the application of a process, and offer descriptions of what that process should be. Of course, there are not that many compliant sentences imposed, so... maybe all this doesn't matter so much?

Note that the injustice of the crack cocaine 100-1 ratio was evident to everyone, but congress proceeded anyway. Granted, there was hysteria.

Crochiere: what happens when facts change? If sentences are cast in stone, and then facts change, then we have sentences that are based not on the facts as they are, but as they were. The supreme court is OK with this. Finality trumps chages (so, you can do time for marijuana possession, even if it is decriminalized later). This, by the way, was not a problem with indeterminate sentencing: the parole board had the ability to change the imposed sentence. With TIS, the court needs to effictively anticipate facts that might change.

Lawyers know, somewhat, the "going rate" for crimes in a given court. Say 12 years for an armed robbery at night with an unloaded pistol. There was some consistency there, and lawyers could basically try to determine whether a given instance of a crime was typical or not. The problem was that it was not governed by law-- it was underground.

There's a tension between uniformity of sentencing and responsiveness to facts. Note that a lot of the litigation about drug trade is really about the weight of the specific quantity of drugs in question. It drives judges crazy that they're spending their careers on this issue.

Sentencing objectives: public safety. What is it, and do we have it right? Is public safety a lower crime rate?

Qualities: specifity (if we don't say what the objective is, we can't assess whether or not the proposed measure is reasonable), clarity (why the measures of the sentence are imposed: is the period of incarceration for incapacitation or for treatment?), and parsimony.

March 27

One approach: if we can find an extended supervision strategy that protects others and burdens you sufficiently that you are punished appropriately, then there's no need to incarcerate. Of course, the currency of the realm is still prison (even though only about 50% of felonies result in prison). If you're a lawyer, and you have a felony case that you're going to lose, don't think prison right away: start thinking about how you can propose a plan that punishes your client but keeps him out on extended supervision. Of course, only if that would be a good idea for your client. Perhaps it would be a disaster; you've got to figure that out.
Could a trial court have reasoned to this sentence, based on the facts in question? If you say yes, then you're not really reviewing the trial court's decision: you're making a new decision and substituting it for the trial court. Gallion is sort of hollow, in that respect.
Gallion requires that the sentence be based on inferences from the facts. So if you're a lawyer, you want to present facts, and help the court draw inferences.
Good defense counsel, as a routine, send sentencing memoranda to the court. In the Bromberger example, the judge had to request information: don't tell me there's a burglary epidemic engulfing the jurisdiction-- let me know who is doing the crimes, so I can tell whether this sentence is going to have any impact whatsoever.
The reason the government considers less criminal reports to the police to be equal to public safety is that this is what they can measure. It is easy to generate more arrests this year than last year. But what about asking people who are in a place where there are public safety issues, "are you safer this year than last year?"
Alternatively, how important is public safety to voters, compared with punishing people because we want to? Maybe that's more what the voters want. Reading programs (liberal solution) and more arrests (law-and-order solution) do not address the issue.
The Rule of Law approach: first, figure out what risk we're trying to defend against-- then figure out what measures are available to counter that risk. If you are trying to prevent re-offending, the first step should be to determine whether there is an actual risk of re-offending. And the standard can't be "beyond reasonable doubt," because these are predictive facts.
So what should the sentence in the Joey Bromberger case be?
Do we want judges making moral judgment based on their guts (i.e., is it worse to burgle to feed your drug habit, or less bad)? We could make a rule that motive is irrelevant, or that things done for thrills are worse. That's the sort of choice that we'd want the legislature to state; then judges have guidance when it comes to individual cases.
Suppose you believe someone deserves 20 years in prison, are we willing to trade away some of the just desserts in order to gain some public safety? Suppose the person is only 17, when she emerges at 37, will she be a greater or a lesser danger?
The victim has a statutory right to be heard at sentencing, but that right is often exploited by the prosecution to torpedo the offender. Lots of victims want an apology and an explanation, and maybe restitution. In this respect, victims are treated badly by prosecutors: they are needed as evidence.