BLOG BULLETS:

 

• The child pornography guideline can be deconstructed through extensive express judicial criticism in multiple opinions, a history of amendments based almost completely on Congressional directives rather than empirical research, and the Sentencing Commission’s own report recognizing problems with the guideline.
• The career offender guideline can be deconstructed based on its original creation in response to a statutory directive, Sentencing Commission reports showing problems with the guideline, and implicit judicial criticism evidenced by frequent departures and/or variances from the guideline.
• The fraud guideline can be deconstructed based on multiple articles criticizing the guideline, an amendment history at least partially based on Congressional directives, and several district court opinions criticizing the guideline’s overly great reliance on loss.

 

NOW THE BLOG:

In last week’s post, I said I’d talk about some examples of deconstruction in this post. Before I get into that, though, know that you don’t need to reinvent the wheel. There’s a host of deconstruction materials on specific guidelines to be found at www.fd.org, including materials on the career offender guideline, the child pornography guideline, the ecstasy guideline (that’s for the drug, not the emotion), the firearms guideline, the fraud guideline, the immigration guideline, the relevant conduct guideline, the tax guideline, and materials on mitigating factors and the issue of probation and other alternatives to incarceration. And there’s probably more to be found in your local Federal Public Defender office.

But with that said, let me move on to some examples of deconstruction, albeit in more summary form than you’d want to argue it to a court.

Child pornography guideline: With this guideline, you can start with Step 5 from my post last week (all the references to “steps” in these examples will be references to the “steps” in my post last week), because one of the more fruitful areas here is the harsh, consistent criticism of the guideline in a multitude of district court opinions. It can be found in court of appeals opinions like United States v. Henderson, 649 F.3d 955, 956 (9th Cir. 2011), United States v. Grober, 624 F.3d 592, 597 (3d Cir. 2010), and United States v. Dorvee, 616 F.3d 174, 185 (2d Cir. 2010), as well as a multitude of published district court opinions. Going to step 1 then reveals that the original guideline offense level in 1987 was far lower and it was steadily increased not based on any empirical research but in response to multiple congressional directives. Moving on to steps 2 and 3, you find, first, a Sentencing Commission report acknowledging problems with the guideline and its lack of foundation in empirical research, see United States Sentencing Commission, The History of the Child Pornography Guideline (Oct. 2009), available atwww.ussc.gov, and various independent studies showing child pornography defendants have low recidivism rates. Going to step 4, you can find the Deputy Federal Public Defender paper I mentioned in my post last week that’s been cited in numerous court opinions.

Career offender guideline: Starting this time with step 1, you’ll find that there was never any data collected on past practice for “career offenders,” possibly because it’s not an easily definable group. You’ll also find it was indisputably not based on empirical research, but was created in response to a statutory directive in the original Sentencing Reform Act, at 28 U.S.C. § 994(h), requiring that “[t]he Commission shall assure that the guidelines specify a sentence at or near the maximum term” for defendants who were convicted of a crime of violence or a drug trafficking offense and had two prior convictions for such offenses. Moving on to step 2, you’ll find Sentencing Commission materials raising doubt about the guideline, including (1) a Sentencing Commission working group paper available on the www.src-project.org website that acknowledges the career offender guideline’s failure to draw any distinction based on the seriousness of either the new offense or the prior offenses and (2) a discussion in a section of the Commission’s Fifteen Years of Guidelines Sentencing report that I mentioned in my post two weeks ago that (a) shows that “career offenders” whose priors are drug trafficking offenses have no higher risk of recidivism than their non-career-offender criminal history category would suggest, (b) suggests that the career offender guideline does nothing to deter drug crime, and (c) recognizes that the career offender guideline creates racial disparity. Skipping ahead to step 5, you then find both implied judicial criticism in the form of a relatively high percentage of below-guidelines sentences in career offender cases and opinions criticizing the application of the guideline in individual cases, if not in general. But do see the general criticism of the guideline in United States v. Faulkner, 952 F.2d 1066 (9th Cir. 1991) as “too blunt an instrument.” Id.at 1073.

Fraud guideline: This time we start with step 4, partly because it directs you to information for the other steps. You find some nice scholarly critical commentary from a former DOJ guidelines expert who characterizes the guidelines in general as “flawed in ways that cannot be corrected without fundamental change,” Frank Bowman, The Failure of the Federal Sentencing Guidelines: A Structural Analysis, 105 Colum. L. Rev. 1315, 1319-20 (2005), and articles describing and criticizing a steady ratcheting up of the theft and fraud guideline specifically, see Frank Bowman,Pour Encourager les Autres? The Curious History and Distressing Implications of the Criminal Provisions of the Sarbanes-Oxley Act and the Sentencing Guidelines Amendments that Followed, 1 Ohio St. J. Crim. Law 373, 387 (Spring 2004); Frank Bowman,The 2001 Federal Economic Crime Sentencing Reforms: An Analysis and Legislative History, 35 Indiana L. Rev. 5 (2001). You go back to step 1 and you find the amendments steadily ratcheting up the guideline that these articles describe and criticize. Then, in the history of the guideline, you find (1) an acknowledgment in the Justice Breyer article that I’ve cited in some of the previous posts that the Commission didn’t even start with “past practice” for this guideline, but “decided to abandon the touchstone of prior past practice,” Stephen Breyer, The Federal Sentencing Guidelines and the Key Compromises Upon Which They Rest, 17 Hofstra L. Rev. 1, 22-23 (1988); (2) a number of specific offense characteristics added in response to Congressional directives or statutory changes, see, e.g., U.S.S.G. App. C, amends. 596, 653; and (3) an article suggesting that other increases in the guideline were based on “oblique signals” from Congress rather than empirical research, Jeffrey S. Parker and Michael K. Block, The Sentencing Commission, P.M. (Post-Mistretta): Sunshine or Sunset?, 27 Am. Crim. L. Rev. 289, 319 (1989). Moving to step 4, you can find studies showing it’s the fact and certainty of punishment rather than the extent of punishment that deters white collar offenders, and moving on to step 5, you can find several district court opinions criticizing the guidelines’ “fetish with absolute arithmetic,” United States v. Parris, 573 F. Supp. 2d 744, 751 (E.D.N.Y. 2008), and “inordinate emphasis . . . on the amount of actual or intended financial loss,”United States v. Adelson, 441 F. Supp. 2d 506, 509 (S.D.N.Y. 2006); see also United States v. Emmenegger, 329 F. Supp. 2d 416, 427 (S.D.N.Y. 2004) (also criticizing guideline’s emphasis on loss).

So there’s some examples. Next week, I’ll end this series of posts by talking about something I call reconstruction.