Monday, July 23, 2018

Why aren't there more written decisions on sentencing?

For as long as I can remember, the culture in this District is for sentencing decisions to be announced and discussed in open court at sentencing. This isn't the case in other Districts, where judges frequently write lengthy orders explaining their decisions.

 Here is a recent example from the District of Colorado where the judge rejected the prosecutor's request for a 15-year sentence for a person who wrote a $300 check intended for a terrorist organization. The judge also rejected the guidelines and sentenced the defendant to time-served (which was a significant amount of time). He had some interesting lines in the Order:
In over forty years of judging I have never imposed a harsher sentence because a defendant asserted his right to trial by jury or to testify at that trial. I am not about to do so now or in the future. I consider any trial “tax” or penalty to be contrary to the ages-long values and standards of our legal system. It is more closely associated with the jurisprudence of Russia, as described by Dostoyevsky, than our own tradition as described by Benjamin Cardozo. In that vein, application of the Obstruction of Justice Enhancement here would be a violation of the concepts of justice and of ordered liberty.
Kudos to Judge Kane for this thoughtful order.  After all, the judiciary is meant to be a check on the executive branch, who never requests a sentence under the guidelines except in cooperation cases.  Section 3553 calls for the guidelines to be just one factor at sentencing. But prosecutors, all these years after Booker, still see that as the only factor. 


Anonymous said...

Prosecutors see the guidelines as the "only factor"? Didn't they ask for above the guidelines in this case?

David Oscar Markus said...

Fair point. But they never seek below guidelines sentenced.

Anonymous said...

Almost never you're right about that. I once saw Moreno quizzing a DC doj attorney (asking for above) if he ever in his career asked for below, and he confessed he hadn't. It was a very fair comment, and cause for introspection. Notwithstanding, I have seen several ausas make a 10 second "soft ask" for low end and then let the defense go to work. That's not asking for below, but it's not too shabby. It also is deferential to defense atty to put on a good show and get the credit when the judge goes below.

Rumpole said...

OMG the judge is amazing. A voice in the wilderness.
I don't begrudge prosecutors not asking for below guidelines, but the trial tax should be roundly criticized.

As to Moreno, as a state court judge he once sentenced a defendant to below guidelines after a second degree murder trial. The facts have faded with history, and the defendant wasn't innocent, but it was a very unusual set of facts that just weren't accounted for in the guidelines and as I recall the state was fine with the sentence.