Wednesday, January 12, 2005

Booker-What is a Reasonable White Collar Sentence?

The topic of the day, without doubt, is the Booker decision. Most likely many are still engaged in creating a map of the various decisions.   It is always amazing how clear laws create such incredible division among the brightest of minds, the Supreme Court. This is not new for sentencing.  For example, the Court in Koon v. United States had several decisions all giving different interpretations on what could or could not be a downward departure. Amazingly, even with uniformity there were different interpretations and different results. In many cases, the Sentencing Commission would resolve disputes as they arose on the sentencing horizon.

While the sentencing guidelines were intended to promote uniformity, some have questioned whether it achieved its purpose.  Did it merely shift judicial discretion into the hands of prosecutors, thus providing uniformity only facially?  Through charge bargaining, 5K1.1 motions, and plea agreements some may have wondered if the sentencing goals were ever achieved. 

But today's decision in Booker  (not Fanfan as it could have been called), puts some of these questions to rest.  The question now remains - what is the effect of removing the word "mandatory" before the words "federal sentencing guidelines," and specifically for this blog, what will be considered a "reasonable" sentence in a white collar case.

The initial post on this site, as well as the several posts on Douglas Berman's Sentencing Blog and others that he references, provide excellent discussion that dissects, explains, and synthesizes today's Supreme Court decision. But there are some questions that will linger even after reading the decision in this case. 

For example, will this decision really make a difference in the white collar sphere, an arena where fraud guidelines have been a source of contention and a segment of sentencing where mandatory minimums are not the crux of the sentencing scheme?The answer to this question most likely relates to plea bargaining, a component of the system that provides certainty to all parties in the system and removes the need in many cases for appellate review. Since most cases proceed through an agreement of the parties, the question is whether the Booker decision will influence this practice.

  • Will defendants be reluctant to plea bargain because of a "possibility" that they might now do better at sentencing? 
  • Will the sentence, if it falls below the advisory level of the guidelines, be found to be "unreasonable"?
  • If a judge states a "reason" for imposing a sentence, will that be sufficient?
  • Will Congress rush in with mandatory sentences, trying to resume a position of power, prior to seeing if this decision truly influences the sentences issued by courts?
  • If Congress reacts, will the new statutory structure be subject to a new challenge and will it be found constitutional?

The bottom line may be that if parties desire to achieve certainty and avoid risk-taking, in practice this decision may not make a significant difference.  But it remains to be seen what the fallout will be.  Key questions will be - Are white collar offenders risk takers, and therefore will they feel that they should present their facts for review?  Will prosecutors be "reasonable" in the plea agreements that they offer?  Will judges defer to agreements reached by the parties? Restoring an element of judicial discretion does not necessarily create havoc. It all depends on how all the players - judges, prosecutors, defense attorneys, and Congress react?     Optimistically,   


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