January 22, 2005
Increased Sentences & DoJ Guidance
As usual, Doug Berman on Sentencing Law & Policy takes the barest thoughts of others and builds on them to discuss important ramifications from Booker, and his post "Increased Sentences post-Booker" deals with the issue of judges increasing sentences beyond the Guidelines range and possible due process/ex post facto concerns. The post here earlier discussed U.S. District Judge Crane in the S.D. Texas (McAllen Div.) when he sentenced three defendants convicted of public corruption offenses to longer terms of imprisonment in reliance on the advisory nature of the Guidelines. Doug poses the following additional issues for consideration in light of the increased sentences:
. . . [while] the due process question is contestable, I must wonder out loud if individual prosecutors have an obligation to make an independent judgment (and not wait for a defense objection) about whether the law allows an increase in a post-Booker sentence based on pre-Booker conduct. Relatedly, in the name of consistency, I wonder if Main Justice should issue some sort of directive about this matter to its offices. Otherwise I could imaging varying legal and policy judgments from different US Attorneys Offices about whether to try to reopen and seek longer sentences in past-sentenced cases.
I think the issue Doug raises is particularly important in white collar crime cases because the pressure for an upward sentence (we can't really call them departures any more, can we?) will be greater in the area of public corruption and corporate/business crime (e.g. accounting, securities, bank, & insurance fraud) than in other prosecutions. The drug and weapons crimes already have significant sentences, and with the criminal history categories (and "armed career criminal" sentences) it is usually not difficult to give a long term of imprisonment to repeat offenders. White collar offenders are more likely to come in lower if the amount at issue is not significant, they're rarely higher than Catetory I on the grid, and there are no mandatory minimums to deal with in these cases.
Judge Crane in McAllen, TX, specifically mentioned the effect on the public trust as meriting the increased sentences for the three defendants called back before him. Cases involving those who owe a fiduciary obligation (especially lawyers!) may draw requests from prosecutors for increased sentences beyond those in the Guidelines because of the breach of trust and need to send a message to professionals. Will the U.S. Attorney's Offices adopt a consistent policy that permits (or opposes) sentences outside the now-advisory Guidelines range? The government should not be allowed to "have its cake and eat it too" by arguing against lower sentences as violative of the remedial portion of Booker or as unreasonable on appeal, and then ask judges to give greater sentences because the harm is not comprehended by the Guidelines.
Regarding Main Justice guidance, this is certainly an area that cries out for consistency, but the rather heavy-hand approach of Main Justice over the past few years in the area of charging, plea bargaining, and appeals of downward departures has caused the local USAOs to resist the rules coming from DC. There is nothing particularly new about the tension between Main Justice and the field offices, but any attempt to draft a rigid policy on sentencing will not be viewed positively in all offices. The change from John Ashcroft, who seemed to a the leading proponent of centralized control, to Alberto Gonzales may lead to a more flexible approach. Booker guidance will likely be the first chance Gonzales (and his team) has to send a message to the U.S. Attorney's Offices about how he will approach issues of cooperation between local offices and DC. The sentencing issue will also be a test of whether DoJ wants to use policy pronouncements or will turn to Congress to legislate a solution to restore of measure of prosecutorial control over sentencing. (ph)
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