Sentencing Beyond the Calculus w Track Changes

8/7/2019 Sentencing Beyond the Calculus w Track Changes

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SENTENCING: BEYOND THE CALCULUSBy

John L. Kane

In 1988, shortly before the Sentencing Reform Act of 1984s mandatory guidelines tookeffect, I conducted my last sentencing until 2005 when United States v. Booker declared themandatory provisions of the Act unconstitutional and the guidelines henceforth advisory. Ithought then and continue to believe that the term mandatory guideline is an oxymoron andreflects the Acts lack of a coherent intellectual core.

Along with two other district judges in Colorado and a few others around the country, I

had ruled the mandatory provisions of the Act unconstitutional. We each had ourown reasons.The gravamen of my ruling was that Congress could not require a formulaic process for limitingconsideration in sentencing to certain factors and dictating a result. Mandatoryguidelinesconverted sentencing from a judicial act to a clerical or, at best, administrative one and thereforeviolated Article III of the Constitution and a string of cases interpreting it.Neither Congress nora commission, I held, had the power to dictate to a sitting judge what decisionwas required in aspecific case. To follow such a dictate was in my view --- and I continue to bel

ieve --- aviolation of my oath of office. Alas, my decision was not appealed.

My published decision was as thorough as I could make it, given the limitationsof timeand ability, and reflected a reluctance to declare an Act of Congress unconstitutional. HadCongress enacted a statute fixing criminal sentences at a set penalty for each offense withoutvariances, ranges, exceptions or deviations, I would have thought such legislation Draconian andunwise, but not unconstitutional.

The defendant in my case had escaped from a federal penal facility. After declaring theAct unconstitutional, I sentenced him and made findings, as I had always done, without referenceto the guidelines, basing his sentence on a number of factors including the nature of the offense(escape), the degree of violence involved (none), the effects on the victims (there were none), the

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defendants background and record (extensive), and the evaluation in the ProbationDepartmentspresentence report. I was especially attentive to prospects for rehabilitation (slim), availability oftreatment (for drugs and alcohol), the statements and submissions of defense counsel (sparse)

and the defendants allocution (he was tired of doing time and recognized the futility of hisconduct).

To ensure my sentence was not aberrant, I reviewed data showing typical sentences in theDistrict of Colorado, the Tenth Circuit and across the nation. Indeed there werevariances. Ourdistrict tended to give longer sentences for bank robbery and kidnapping than elsewhere andlower sentences than the national average for marijuana, but higher for heroin and other hard

drugs. I continue to think these disparities make sense because demographic factors are critical

to determining an appropriate and just sentence. It is one thing to rob a bank in an urban areawith security cameras and law enforcement at hand and quite another to rob a bank in a smalltown with no police force and the nearest deputy sheriff fifty miles away. In Colorado, evengeography can be a crucial consideration. The consequences of destroying a statue in downtownWashington, D.C. cannot be compared with burning down a ski hut situated above timberline ina remote forest where emergency shelter is literally a matter of life and death.

The guideline factors that I did not consider included the defendants cooperationwithlaw enforcement when it meant informing on others whom the defendant consideredexpendable,or pleading guilty rather than going to trial and calling it acceptance of responsibility when itreally was the result of a plea bargain, or, as I saw in one case, deducting points because thedefendants lawyer did not obstruct justice by filing a raft of motions. I doubt imposing lightersentences for informing on others or pleading guilty rather than going to trialor for not filingmotions and putting the prosecution to its proof amount to constitutional violations, but theyhave nothing to do with achieving a just sentence for the commission of a crime.They may infact hinder rather than advance the prospects of rehabilitation or increase rather than reduce thechances of recidivism.

Before the Sentencing Reform Act was implemented, federal crimes carried broad rangesof penalties and federal trial judges had the discretion to choose an appropriat

e sentence.Sentences were immune from appellate review and trial judges were not required to state reasons


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for the sentence imposed. Appellate judges resisted proposed reforms which wouldhave

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required the trial judge to articulate reasons subject to review on an abuse ofdiscretion standard.A sense that the process was unfair, disparate and ineffective for controlling crime prevailed.

In passing the Sentence Reform Act, Congress intended to invest the sentencing p

rocesswith clarity, uniformity and fairness. The Act failed to achieve any of those ends. Its practicaleffect was to transfer the power to sentence from the judiciary to those in theexecutive branchmaking the charging decisions. And, the opposition of the appellate courts notwithstanding, theAct introduced appellate review into the sentencing process.

Interestingly enough, in determining abuse of discretion, the standard on appealignoredthe trial courts stated reasons for a specific sentence, but employed the more me

chanisticapproach of deciding whether the court complied with the minutia of the mandatory guidelinecalculations. When the Supreme Court held the guidelines advisory in Booker, thecircuit courtswere thrust into the cauldron of reviewing the trial courts exercise of reason ona discrete basisrather than compliance with the Sentencing Commissions fiats. Because the transition providesan object lesson in how the law evolves when lower courts are uncomfortable witha precedent-shattering decision, a brief history is necessary.

After Booker, most circuits continued to afford undue deference to the guidelines. TheTenth Circuit, for example, required sentencing judges to make findings of extraordinarycircumstances to justify any variance from the guideline dictates, and presumedany variance tobe unreasonable. (Courts seldom define unreasonable. Because the meaning almost alwaysmust be discerned from the context in which it is used, the words analytical value is parched.)

Between the Supreme Court decisions in Booker and three years later in Gall v. UnitedStates and Kimbrough v. United States, the majority of circuits endeavored to adhere to theguidelines. In deciding whether a sentence outside the guidelines was unreasonable, the circuitcourts tried to preserve the guidelines professed objectivity, but in doing so engaged in theirown subjectivity. They quite simply appropriated the discretionary power properly reserved tothe trial courts.

When ruling on whether a variance from the now advisory guidelines was justified, some

appellate courts first assessed the magnitude of the variance, considering the difference betweenthe guideline range and the sentence imposed in terms of both percentage and abs


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olute number

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of months. Some courts went so far as to announce a rule with arithmetic pretensions that thefurther the sentence was from the guideline, the greater the justification required. The TenthCircuit, for example, categorized variances at three levels: extreme,substantial, and

significant. No clear line distinguished one from another.

In one case, a 45.8 month variance was extreme, while in another, a 33 month variancewas substantial. The percentage of variance in the first, however, was 99.6%, but122% in thesecond. Thus, if there were a 110% and 40 month variance, a trial court could treat it either asextreme or substantial, while the Court of Appeals could either agree or disagree. Later, theappellate courts gave up categorizing the variances by saying that under eitherthe lowest or the

highest scrutiny, the sentences were either reasonable or unreasonable without,of course,defining either term. In sum, the degree of variance failed to shed any light onthe subject for thedistrict courts.

Taking a more generic approach, the appellate courts next started looking to thefacts in aparticular case to decide whether they were dramatic enough to justify the trial courtsvariance. To justify variances in specific cases, the district courts had to make the offense standout from such offenses generally. In all these cases, the district courts found

some facts todistinguish each from the typical ones. Some sentences were affirmed and others reversedbecause the facts did not stand out enough to justify the variance. None of theappellatedecisions described what constituted dramatic facts,compelling reasons, or sufficientexplanation and justification. Whether the facts in a particular case were dramatic enough tojustify a variance was apparently the product of an unarticulated consensus by the appellatepanel.

In Booker, the Supreme Court intended to give trial judges discretion in sentencing. Thisrequired the trial judges subjectivity to come into play. Some circuits misunderstood theCourts intent --- or perhaps wished to evade it --- and continued to give great deference to theguidelines, whose raison detre was to reduce sentencing discretion to a nullity.The guidelinesostensible purpose of establishing objectivity in sentencing ran counter to theessential purposeof the judicial function and was so recognized by the Supreme Court in Gall andKimbrough.

Ironically, by introducing the evanescent reasonable requirement for any deviationfrom the


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guidelines, the appellate courts resorted to their own subjectivity which not only ran counter tothe intent of Booker, but also against the stated goal of the guidelines: to reduce subjectivity.

Sentencing, however, is in its essence subjective. The term condign sentence has b

eenused for millennia to describe a just sentence. Condign comes from the Latin (condignus) andmeans worthy, decent and appropriate. A more literal translation is with dignity.It is notpossible to determine a condign sentence without looking closely at all relevantfacts andcircumstances and making a nuanced decision. Sentencing by slavish adherence toa grid isantithetical to the decisional process. There simply is no viable matrix for determining a condignsentence.

So what is required? The short answer is one must infuse values into objective data. Themelding of values with facts -- of subjectivity with objectivity -- is a human function and not amechanical one. For the judge, sentencing in each case should be a stark emotional andintellectual experience, fraught with the realization that to trivialize the process as if it wereroutine is irretrievably obscene.

What kinds of sentencings keep me awake at night? All of them do. More than onceI

have risen in the early morning hours to search for my copy of Hannah Arendts Eichman inJerusalem to recover a phrase about the banality of evil. But what leads me to show mercy toone defendant and throw the book at another?

The first question I ask myself is: How do I put an end to this criminal behavior? Is itpart of a pattern of conduct or an aberrant implosion of circumstances? Quite obviously violentpeople must be isolated from society. The need to protect others from violence applies withequal force to predatory behavior inherent in the various iterations of fraud and adulteration ofproducts. In some cases, however, isolation is neither necessary nor productiveand release ofthe miscreant under supervision has greater efficacy.

Scant evidence supports the assumption that imprisonment deters criminal behavior. Infact, I doubt that punishment keeps most people from committing crimes. No offender commitsa crime unaware that penalties can be imposed. Obviously, the prospect of punishment did notdeter the defendant from committing the charged offense. Most offenders believe

---withconsiderable confirming data --- that they wont be caught. The total number of crimes


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committed is unknowable. Of those detected, fewer than 30% result in arrest. Ofthose arrested,about 25% are prosecuted for felonies. A few offenders, particularly those belonging to gangs,consider arrest and conviction inevitable and imprisonment a rite of passage.

Punishment of one does not deter others who are similarly situated. Most law-abidingpeople have far more powerful behavioral influences such as emotional stability,moral values,work ethics and education. The offenders I sentence tend to share the opposite characteristics.They have little education; they cant deal with stress; they have no job skills and no tradition ofdomestic stability. To end their patterns of criminality, one or more of these characteristics mustbe changed. There is no formula for sentencing because no two defendants are truly alike. Here

are a few examples of what I consider condign sentences and why I imposed them.

A woman in her twenties entered the United States from Eastern Europe on a studentvisa. Even with English as her second language, she graduated from a prominent Midwesternuniversity with honors. She became involved with another immigrant from an entirely differentculture. They married without telling their families. Shortly after the wedding,her husbandbecame increasingly demanding. He berated her for not earning enough in her career track joband for wasting time pursuing a graduate degree. When she purchased clothes or g

rocerieswithout his permission, he destroyed them. She became depressed and gained weight.

When she lost her job, her husband physically abused her and then obtained fraudulentcredit cards which he made her use to buy i-Phones in retail stores and hand them over to him.He divorced her and brought his new wife to their home, requiring the defendantto sleep in thebasement and continue to engage in the credit card fraud. The losses exceeded $100,000.Eventually she was arrested in Colorado. Her ex-husband fled the country.

Because her purchases occurred in several states, her public defender spent considerabletime negotiating a global resolution of the charges against her. The defendant made completedisclosure of the crimes and pled guilty to the Colorado charges. Her public defender did more,however, than achieve a successful plea bargain. She re-established her clients connectionswith her family in Eastern Europe, obtained mental health counseling for her injail andpersuaded her to participate in a program of dieting and exercise. Even so, this

young womanspent more than year incarcerated before being sentenced. Because she was in theUnited States


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on a student visa, she would be deported immediately following completion of anysentenceimposed. I sentenced her to time served and five years of supervised release with the conditionthat she voluntarily depart the country and report within sixty days that she was receiving mental

health treatment in her homeland. Not all fraudsters are alike. Why did this young womandeserve a second chance? Because the primary victim of her conduct was herself.

In contrast, I sentenced a female banker to three years imprisonment, five yearsofsupervised release and full restitution of well over $100,000 she had embezzledfrom a smallbank in Colorados central mountains, where she was an officer. She, too, had seriouspsychological problems. She had manipulated accounts at the bank on repeated occasions. She

used false entries to finance a home she and her husband could not afford. Whileon bond, shecontinued to socialize, dine at the towns most expensive restaurant and joke withhercompanions that nothing much would happen to her --- perhaps a six-month sentence at aminimum security facility. Where the woman from Eastern Europe was filled with remorse, theembezzling banker exuded bravado and contempt.

The indifference this defendant demonstrated and her continued efforts to be thefocus ofattention were doubtless manifestations of the personality disorder for which sh

e began receivingpsychiatric treatment following her arrest, but they also reflected the high probability ofrecidivism characteristic of embezzlers. Her conviction will bar her for life from working in abank, but any job providing access to finances will present a continuing risk offurther fraudulentconduct. Why a prison sentence in this case and not in the credit card offense?It boils down tothis: While the credit card companies suffered financial losses, the first defendant was a strangerto her victims. The people in that small mountain town and the employees and officers of thebank knew and trusted the banker. They had developed relationships with her andrewarded herwith social status and recognition. They deserved to be able to say that she didnt get away withit; that their lives, honest labor and trust would not be trivialized.

I have made mistakes in sentencing that are not reviewable. Despite the revulsionsociety has for child pornography, I once sentenced to time served and supervised release adefendant who possessed and exchanged on the internet thousands of the most disgusting sorts of

pornographic photos and movies of prepubescent children. The prosecutor called for a ten yearsentence and if the punishment were to fit the crime that would have been lenien


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t. But this

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defendant suffered from kidney failure and was receiving dialysis treatments three times a weekwhile awaiting a kidney transplant. Had I sentenced him to prison, he would havelost his placeon the transplant list. Lengthy medical reports and the most detailed presentence statement I

have ever seen, prepared by his public defender, convinced me that a prison sentence would verylikely result in his death.

The defendant adamantly denied that he was a pedophile and insisted his activities wereharmless. While on supervised release he refused to participate in a required sex offendertreatment program. He was brought back to court and admonished that sex offendertreatmentwas not optional. I told him if he came back to court again, he could expect tobe sentenced to

prison and when his sentence was completed he would be ordered once again to participate insex offender treatment and sentenced again if he failed to comply. These warnings made noimpression and the treatment program director eventually expelled him. I have now sentencedhim to prison for failure to comply with the conditions of supervised release. If he survives thissentence, he will be placed again on supervised release. I have no confidence that he will make asuccessful adjustment. The warnings, however, must be real.

In another child pornography case I sentenced the defendant to six years and six

monthsimprisonment followed by six years of supervised release. Under the Adam Walsh Act he willbe required to register as a sex offender for the rest of his life. The guideline calculations wereessentially the same as for the other defendant. Both were about the same age, neither had priorconvictions, and both had been detected because of heavy trafficking in child pornography on theinternet. Curiously, both insisted pornography itself did not interest them; itwas the collectingand exchange with others that motivated them. Neither had the slightest empathyfor the childrenwho were the subjects of the pornography, nor seemed to grasp that these children carry withthem for the rest of their lives the shame, humiliation and dehumanization caused by thisperversion. Both defendants considered themselves as, at most, voyeurs and justified this self-image on the basis that no physical contact had occurred. The health of the second defendantwas poor, but not nearly so bad as the first. He was, however, a frail and passive man afflictedwith severe tremors under stress. At sentencing, he could not speak and insteadhad his lawyer

read a letter of allocution he had written. When I sentenced him, he fell to thefloor in a faint.According to expert testimony, however, his condition was not such that his life


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jeopardized by a prison sentence. The difference between the two amounts to degree of illnessand mobility.

Cultural influences can also play a role in sentencing. In a recent case, the defendant, a

restaurant owner, was a leader in a large marijuana growing conspiracy. He was anaturalizedAmerican citizen who was born in China under almost unimaginable conditions. Thedefendantwas the sixth son of ethnic Chinese farm laborers who had migrated from North Vietnam. Thefamilys economic circumstances were such that all members shared a single toothbrush.Resentful of the childs birth, his father had given him up as a baby to people ina nearby village.His mother searched for him and returned home with him where the father beat herfor

controverting his authority. A pattern of physical abuse of the defendant and his mother ensued.

The defendant faced a possible maximum sentence of life imprisonment and a supervisedrelease period of not less than five years. Immediately upon his arrest and without promise offavorable treatment, he agreed to cooperate with the government. Aside from stating that hischildhood upbringing was without incident, he was truthful and helpful. He surrendered hispersonal assets and helped locate assets belonging to other members of the conspiracy. He was

informative and accurate about the roles played by other people in the organization, includingmembers of his family. His older brother, who was the most culpable, fled the country. Becauseof the defendants cooperation, the government moved for a sentence reduction ---the so-calledsafety valve --- which exempted him from the otherwise mandatory minimum sentenceoften years.

At sentencing the government recommended a term in the range of 30 to 36 monthsbecause the defendant held a leadership role in the organization and directed many of the othersinvolved. I thought the recommendation was reasonable, but declined to follow itand insteadsentenced the defendant to 18 months followed by six years of supervised release.

I based my sentence on a thorough probation report and sentencing memorandum filed bythe court-appointed defense attorney. I considered the sentences imposed by other judges on theother defendants and his wifes plea agreement, which enabled her to remain at home and carefor their four small children. Attached to the sentencing memorandum were numero

us letters inCantonese accompanied by translations which explained a number of cultural aspects meriting


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Deleted: twoDeleted: Mandarin


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Deleted: just Deleted: justattention. This sixth son who in infancy had been relinquished by his father wasnow caring forhis parents in his own home and taking his father twice weekly to receive chemotherapy for lungcancer. Learning that a neighbor in China needed money to pay for medical treatm

ent, thedefendant paid her bills. Another neighbor had lost the familys cow and the defendantpurchased a replacement. He had not engaged in crime to revel in conspicuous consumption.

Not only had the defendant accepted responsibility for his actions, he had demonstratedgreat remorse. His principal concern in facing a prison sentence was that he would not beavailable to care for his father. His loss of face in the Chinese-American community and in his

native village drove him to make amends. This defendants criminal behavior couldnot be

considered separate from his otherwise admirable conduct.

One of the many problems I have had with the guideline criteria is that to render asentence all characteristics must be considered as they relate to one another. It is neither rationalnor fair to itemize individual characteristics and calculate their sum. This defendants remorsehad as much or more to do with the culture of which he is a part as with any legal consideration.And his remorse was corroborated by other factors. Clearly he was a leader in th

e criminalenterprise, but his selfless acts and generosity throughout his adulthood showedhe was also aleader within his family and his community. Demonstrations of honor and compassion occurringbefore arrest form a strong foundation for rehabilitation.

In looking at the defendant in the round, I also considered factors defense counsel did notraise. As distinguished from other drug cases, there was no gang involvement norextension ofthe illegal activity into other areas of crime. No firearms were involved and noviolence againstor exploitation of others occurred or was even threatened. Finally, I was impressed that inaddition to learning English and serving as the spokesman for other recent Chinese immigrants,the defendant had graduated from high school and finished two years of college with a B-average.

In sum, he demonstrated emotional stability, leadership, education and a strongworkethic. He had clearly made the effort to improve his own life, his familys and that of others.

Nevertheless, he had engaged in a crime of significant dimensions. In doing so,he hadsurrendered his right to live free in society without redeeming himself through


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imprisonment.

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The fact that his incarceration would cause pain, suffering and deprivation to others, especiallyhis young children and his aged parents, was one of those impenetrable consequences ofviolating the law. It was a significant cause of his remorse, but as his defenseattorney stated,

Causation is not compulsion. I think the chances of his engaging in further criminal conductare now slim. With time, that which was out of balance can be put back into balance.

I had very little to do with my final example. In late 2007, following a SupremeCourtdecision, the Sentencing Commission amended the guidelines to reduce the disparity inmandatory sentences between crack and powder cocaine offenses. Some federal prisonersbecame eligible to apply to a district judge for a reduced sentence. A defendant

who hadreceived a Les Miserables sentence from a colleague of mine now deceased moved forareduction of his sentence. He was then fifty years old. His history had been oneof repeated actsof juvenile delinquency, numerous felonies, drug dealing and gang membership. Hehad spent asmuch or more of his life in prison as he had on the outside and on his latest sentence he hadalready served fifteen years. Reducing his sentence according to the SentencingCommissionscalculation nevertheless required him to serve another two years.

When I granted his motion for reduction of sentence, I asked if he had anythingto saybefore I imposed the new sentence. He said, I want out of this. I cant live anymore the way Ihave. I want to go home to my family and leave that life on the streets behind forever. I dontknow what I will do, but I know I cant do more crime. I asked him if he could readand he said,Yes, but I dont do that a lot.

I told him he had two years to do something to get ready for the outside and heshouldread every book he could get his hands on. What you must do, I said, is learn to experiencelife outside of your own immediate surroundings. Reading is the best, and perhaps only way youcan do that. If you spend the next two years talking with other inmates, you will be back.

About six months after I resentenced him, I asked his lawyer how his client wasdoing.He replied, Hes reading, Judge.

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Sentencing Beyond the Calculus w Track Changes