Sunday, July 30, 2006

Sentencing in Federal Land...

I typically try to keep this blog neutral and use it as a way to keep up on the exciting cases in this District. But following up on Marc's post below, I think there should be a lot more discussion about sentencing for federal offenses. The leading blog on sentencing is Sentencing Law and Policy by Douglas Berman, which is doing a great job highlighting many of these issues.

I really believe that if more regular people knew about how sentencing really occurs, they would be horrified. Marc highlights the acquitted conduct issue which is baffling to me (the actual 11th Circuit opinion which he references can be read here, and Judge Barkett's concurrence -- blasting the idea of using acquitted conduct at sentencing -- is definitely worth a read; here is Berman's take on this issue). Under the current state of the law, if you are charged with being a felon in possession of a firearm and murder, and a jury finds you not guilty of the murder and guilty of the felon in possession, then a sentencing judge could still sentence you as though you committed the murder. I'm not kidding.

There are many, many other troubling sentencing issues. Here's a few:
  • Why should crack offenders get sentenced on a 100-1 ratio to cocaine users?
  • Why are probation officers allowed to interpret the law and then advise judges of their opinions in an ex parte manner?
  • Why doesn't the Confrontation Clause apply with the same force at sentencing and trial?
  • Why does the preponderance standard apply at sentencing when at trial the standard is beyond a reasonable doubt?
  • Why don't the rules of evidence apply at sentencing?

And the Southern District just saw one of the worst sentencing problems (as serious as using acquitted conduct) -- punishing someone for exercising his right to a jury trial. One of our judges just sentenced Eduardo A. Masferrer to 30 years in prison on a white-collar offense. Thirty *years*! Thirty years ago I was three. In thirty years, Masferrer will be long gone. His co-defendants, who pleaded guilty, were sentenced to 28 months a piece. Ellen Podgor touches on the issue of being punished for proceeding to trial here.

The reason for the huge disparity between trial and plea is in part because some judges, after trial, hit the defendant with all of the guideline adjustments and enhancements possible whereas if there is a plea, both the prosecutor, probation officer, and judge are willing to negotiate those adjustments and enhancements away. This is especially evident in white collar cases like Masferrer's. It is even more true in weaker cases. In weaker cases, the prosecution really wants to bargain for lower sentences (so as not to lose at trial), increasing the risks of testing the government's case at a trial.

It's for this reason -- the enormous risks to defendants -- that trial numbers are way way down, especially in white-collar cases. The solution? I'm not sure. I suspect that our big sentencing changes (i.e. Apprendi/Blakely/Booker) aren't finished (and I'm sure that the Supreme Court will revisit the acquitted conduct issue)... But I never count on those sorts of changes. So my personal decision may sound a bit strange, but I think we (both sides) should just try more and more cases.

Anyway, enough for my Sunday rant. Back to the regular business of the blog....


Anonymous said...

why don't the judges in miami ever write a sentencing memo? every other district has sentencing memos published. rakoff just wrote a great one. the silence in this district is deafening.

Anonymous said...

Sentencing memo? How about publishing a decision on a motion to suppress, or a wiretap motion. Why is it that AUSAs and criminal defense attorneys in this district cannot find a Southern District opinion to cite?

Anonymous said...

It's a combination of things: Some are incapable, some are uninspired, most are too busy checking out the new palace and thinking of new ways to make life tenure less time-consuming.

Anonymous said...

It's one thing to encourage pleading when someone's clearly guilty of a malum in se crime, like, say, armed robbery and you want to say to the person, "Look, let's not waste everyone's time with a trial that's just going to establish what we already know." It's another thing entirely when the crime is based on complex securities compliance laws. And what's more, there had already been a hung jury, so guilt was certainly not a foregone conclusion. While I don't think people should get off with a slap on the wrist just because they're rich, the sentences for first time offender white collar criminals (far in excess of the sentences for second degree murder in a lot of jurisdictions) seem to me to be in tension with all of the rationales behind a criminal justice system.

Anonymous said...

What about the 205 seitz slapped on magluta's head? 180 years for paying his lawyers? What a joke that was. Does that mean he gets buried under the super max for 150 years after he's dead?

Anonymous said...

I would have been disappointed if Moore gave Masferrer any sentence less than 30 years. Small-time drug dealers who never had any of the opportunities that Masferrer had get 30 years every week. In general, senntences are too high, but we should not cry any tears over Masferrer.

Anonymous said...

I would have been disappointed if Moore gave Masferrer any sentence less than 30 years. Small-time drug dealers who never had any of the opportunities that Masferrer had get 30 years every week.

So because you have a grudge against the wealthy, their punishments should be high? The first trial went to a hung jury, so this isn't a cut-and-dried case, which is part of the injustice here. More appallingly, Masferrer's co-defendants got a sentence that was less than 8% of what he got, and the only differences were (1) their positions in the bank, yet all three were the top-ranking officials and (2) the decision to go to trial. So the judge essentially is rewarding the two co-defendants for committing a crime that is apparently worthy of a 30-year sentence because they admitted guilt in a case where guilt was proven to be uncertain by the first jury.

Anonymous said...

Miami's last cocaine cowboy rode into the sunset last week.

Salvador Magluta, considered one of Miami's most notorious narcotics dealers, was prosecuted in federal court for having witnesses murdered and for laundering millions of dollars in drug proceeds. A federal judge then punished Magluta with a 205-year sentence. Magluta, 48, will live in prison till the day he dies.

But Magluta was never convicted of the homicides for which he was sentenced. A jury of his peers found Magluta not guilty of the murders, and guilty only of the nonviolent money-laundering charges -- crimes that carry a maximum sentence of 20 years. The jury's verdict notwithstanding, the judge decided that Magluta was responsible for the homicides and sentenced him accordingly.

In a watershed 1997 opinion, the U.S. Supreme Court ruled that federal judges, in imposing sentence, may ignore jury verdicts of acquittal and determine whether defendants have done wrong. The Herald applauded the punishment, and the new U.S. attorney claimed that such a sentence sends a message about justice. It does indeed: The message is that prosecutors can lose and still win, that a jury no longer stands between an accused American and a life sentence.

The jury is a special American institution and has been, until recently, the heart and soul of our criminal-justice system. The jury stands between arbitrary rule and the citizenry, and is a shield against overzealous government. Our Founding Fathers recognized that even an independent judiciary was not enough to protect us against abuses of power. They didn't trust judges to mete out justice on questions of guilt or innocence. To determine the answers to these questions, the Founders wanted the commonsense judgment of citizens.

Acting upon the court's 1997 ruling, prosecutors and judges have found ways to end-run jury verdicts and the jury system itself. Judges sentence defendants convicted of lesser charges as though they had committed other, more-serious crimes, even in the face of a not-guilty verdict by a jury. Based on inconclusive evidence, or even rejected evidence, a judge is free to send a man to jail for life. Not guilty doesn't mean anything anymore. Conviction is optional.

It is the jury verdict that separates America's legal system from that of so many other nations. All countries, even the worst, have laws, judges, lawyers. Most have trials -- or what are called trials -- and many even have juries. But in too many of those countries a verdict is a foregone conclusion: the prosecution having indicted, the jury is simply a rubber stamp. In Magluta's case the jury's verdict was treated as irrelevant, and because it was Magluta no one cared. As Justice Felix Frankfurter famously warned:

``It is easy to make light of insistence of scrupulous regard for the safeguards of civil liberties when invoked on behalf of the unworthy. It is too easy. History bears testimony that by such disregard are the rights of liberty extinguished, heedlessly at first, then stealthily, and brazenly in the end.''

Milton Hirsch and David Oscar Markus are criminal-defense attorneys based in Miami.