Thursday, December 9, 2010
The Ninth Circuit in U.S. v. Edwards had an unusual set of events. It seems a judge sua sponte asked the court to rehear a case en banc. The court then voted not to take the matter up, and a stinging dissent was authored by four judges - dissenting from the denial of the rehearing en banc. The issue is simple - the dissenting judges believed that the sentence was too low in this white collar case, as well as other white collar matters in the Ninth Circuit, and something needed to be done about this. To quote -
"our court's practice of uncritically affirming unreasonably lenient sentences for white-collar criminals renders the Sentencing Guidelines a nullity, makes us an outlier among the circuit courts, and impairs our ability effectively to review sentences for substantive reasonableness. Our "rubber-stamp" approach to reasonableness review permits district courts to abuse their sentencing discretion by paying lip service to appropriate sentencing considerations while paying inadequate heed to the substance of those considerations. Hence we can end up with people like Edwards who engage in fraud and other criminal activities intended to cause extremely large monetary damages, yet who spend token and inadequate time, or even not one day, in jail."
This dissent claims that the Ninth Circuit is "an outlier when contrasted with other circuits' substantive scrutiny of lenient white-collar sentences." It notes that, "[u]nless and until an en banc opinion posts an outer limit on sentencing discretion, we can expect to see more non-imprisonment sentences for serious offenses committed by repeat white-collar offenders. As a circuit we are not taking seriously the recommendations of the Sentencing Guidelines Commission in white-collar criminal matters."
(esp)(w/ a hat tip to Professor Jerold Israel)