Tuesday, July 13, 2004

Some observations from today’s hearing*

The following is collection of thoughts I have put together following today’s hearing in the Senate. Rather than recap the testimony of everyone who appeared before the committee, I’ve collected a “food for thought” approach to this summary.

Kansas. The state of Kansas reformed its sentencing guidelines in the wake of Apprendi and many have pointed to Kansas as model for federal reform. For more on that thought, see the Sentencing Law and Policy post entitled, “Can the Kansas system work for the feds?” I was surprised, however, at how little play the Kansas system got during the hearing. (In keeping with our baseball motif for the day we can probably blame that on the fact that Kansas is a small market, or on Bud Selig, take your pick.) In fact, only Mr. Vinegrad discussed the Kansas sentencing system, and only briefly.

Is the status quo chaos? Several of the panelists disagreed over whether the current “situation” let’s say, is disruptive/chaotic/a mess. My impression is that the senators think the status quo is chaotic and disruptive, at least that’s what Hatch, Leahy and Sessions indicated.

Consensus: Congress should wait. There appears to have been a consensus (or a near consensus) that the Congress should wait for the Supreme Court to weigh in before it makes any changes to the guidelines. The first panel was unanimous in that regard; the second panel many not have been unanimous on this point.

Consensus: The theoretical framework of the SG is sound, it’s implementation is less than perfect. I think there was agreement on this point. No one expressed an interest in a return to indeterminate sentencing. This topic raises an interesting question. During the hearing it was suggested that prior to 1987 a sentence could only be appealed if the sentence violated the constitution. I’ll go on the record as saying that I don’t think that’s right. I recall reading that sentences could be appealed if, for example, the judge relied on false information in the imposition of a sentence. I recall reading this somewhere. Any help would be appreciated.

The DOJ brief.
It was my impression that the Hon. John Steer’s testimony was a recitation of the DOJ brief.

The Feeney Amendments. The Feeney Amendments and the PROTECT Act generally, crept into the discussion.

Bowman proposal. Prof. Barkow suggested that the Bowman proposal would be inconsistent with Blakely. This merits further discussion.

In the end, I think Prof. Barkow recommended making the guidelines “advisory” rather than rules.

Mandatory Minimums. I think mandatory minimums were given a bipartisan trouncing today. If someone was willing to defend them, they were silent. There was a lot of mandatory minimum bashing today coming from academics and both parties.

Side Bar (Random Comments)

Judge Sessions’s made the point that the SG disproportionately impact Native American communities. I have never thought of that.

I must say that I was very impressed with the questions asked by Senator Durbin and by Professor Bowman’s testimony. Both were excellent today.

I was very impressed by our academic and political leaders today. It appears as though everyone is moving carefully, and cautiously on this issue. I hope we continue to think this through without resorting to any quick legislative fixes. We’ve been presented with a rare opportunity to have a meaningful, national debate about sentencing in this country. We should seize it and meaningfully reform a system that is sound in principle but imperfect in it’s execution.

* These are my own personal views. Feel free to publicly disagree or challenge any factual statements.

From a reader who emailed me personally:

You asked for help regarding the scope of sentence review prior to the Sentencing Reform Act.
I would refer you to U.S. v. Tucker, 404 U.S. 443,447, 92 S. Ct. 589, 591-92, 30 L. Ed. 2d 592, (1972):

The Government is also on solid ground in asserting that a sentence imposed by a federal district judge, if within statutory limits, is generally not subject to review. Gore v. United States, 357 U.S. 386, 393,78 S.Ct. 1280, 1284, 2 L.Ed.2d 1405. Cf. Yates v. United States, 356 U.S. 363, 78 S.Ct. 766, 2 L.Ed.2d 837. But these general propositions do not decide the case before us. For we deal here, not with a sentence imposed in the informed discretion of a trial judge, but with a sentence founded at least in part upon
misinformation of constitutional magnitude....

Thus, I think the "misinformation of constitutional magnitude" is what's important here. In Tucker the Defendant filed a s. 2255 claiming he should be resentenced because past crimes, which the sentencing court took into consideration, were constitutionally invalid (he was not afforded counsel, pre-Gideon). So the "misinformation" was really the use of invalid convictions for sentencing considerations.
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United States v. Rone, 743 F.2d 116 (7th Cir. 1984) was a successful appeal of sentence under the old law on misinformation of constitutional magnitude. I believe that one of the reasons there were few appeals of sentences at that time was because Strickland v. Washington was in its infancy. I believe that an old law or indeterminate sentence could be appealed based on ineffective assistance of counsel also.
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