I cannot help but wonder the factors that were in play during these two sentencing. Both defendants are accused of essentially the same type of crime and the differences between them are: 1. Race; 2. Cooperation with the government; 3. Prior conviction; 4. Substance abuse victim defense; 5. Citizenship. If we just look at the acts of the defendant themselves, there is no way that Mr. Guerrero is more blameworthy than Mr. Rehnquist. Mr. Guerrero is just a small fry in a vast drug distribution empire while Mr. Rehnquist could be described as a vital link of the distribution chain. During the sentencing, the judge repeatedly emphasized that the guidelines were now just advisory, as per Booker. But the fact is that his sentencing authority has become unitary. Prior to Booker, this authority was mostly in the hands of the federal prosecutors, subject to the occasional tinkering by the sentencing judges. Had Booker changed the destinies of these two defendants?

Probably not. The sentencing calculus is just another form of “legal magic.” With the mandatory sentencing regime crumbling in the federal courts, the subjective weighing of the mitigating factors by the sentencing judge is probably dispositive. This corroborates Frank’s critique that even if the legal rules are tight and neat, and even if the judge is intelligent and behaves himself, his decisions are entirely unpredictable. Here each side marshaled all possible mitigating factors for the consideration of the judge. But the odds are stacked against the Dominican. He was incarcerated so he couldn’t go around the block to get support letters, or volunteer at the local church, or attend an AA meeting. He doesn’t speak English so he cannot read 7 Habits of Highly Effective People. Finally, he was just a small fry and he probably couldn’t offer any useful information to the government for trial. The other co-conspirator probably also plead so the government didn’t even need a trial. Thus, Mr. Guerrero couldn’t possibly put the positive spin of the facts he needed in this critical juncture of his life. One doesn’t need to be a criminologist to predict that he would come out worse through this process of weighing the factors.

A post-Booker sentencing judge engages in a more subtle form of “legal science.” Sentence = L (f1, f2, …, fn). Prior to Booker, L is a one to one function defined by a fixed table. Now, L is a just a higher-order function which makes the “Sentence” also a function of the judge. After all, Booker is more honest since it recognizes not all defendants are the same blameworthy just because they did the same criminal act with the same criminal history. It leaves the length calculus to the judge’s discretion, rather than the “ultra-rapid” legal-logic machine designed by a despotic US Sentencing Commission. Can we say Frank’s argument at least have convinced 5 member of the Booker court with regard to sentencing? But not all is well. Assuming that most of the district judges take the sentencing seriously, but we are reminded that “power tends to corrupt, and absolute power corrupts absolutely.” My fear was corroborated by the story coming out of the Pennsylvania juvenile courts. Two judges had been giving out unusually harsh sentences to juvenile defendants so that they could get a cut from the profit out of two privately run youth detention centers. As in the post Booker federal courts, the state judges’ sentences in a juvenile proceeding are all but unappealable. A repeat of this Pennsylvania case in the post Booker federal a court is all but inevitable.

-- XinpingZhu - 05 Apr 2009

• This paragraph feels too long for the average reader - at least if I'm any indication of such a reader. You lost my attention here. - Molissa

• A little bit of linguistic editing to remove the occasional blemish would be a good idea.

• It would have been helpful, if your real purpose was to discuss sentencing, to have begun not with the guidelines, but with the fact that the mandatory guidelines were a tiny parenthesis in history. The idea of "one size fits all" sentencing was the predictability you are claiming for it, but the primary result was to empower the prosecutor, because the only way to get a shorter sentence in the mandatory guidelines regime was through the prosecutorial declaration that you were cooperating. So the guidelines regime disempowered judges and wholly empowered prosecutors, which most people who weren't prosecutors found rather alarming and which district judges, who take sentencing rather seriously--even though most of them intensely dislike doing it--very much resented. Someone reading your essay wouldn't know any of this, because you didn't find it out.

Courtroom 12B

Paper Title

On Friday morning, I visited Courtroom 12B in the Daniel Patrick Moynihan United States Courthouse at Foley Square. The building is quite magnificent, just as described by Robinson in Lawyerland. Facing the entrance is a blindfolded goddess holding two scales, slight bending forward as if she was going to fall. The top floors command a beautiful view. From the windows, I can see the steams coming out from the numerous gray skyscrapers. The Vermont marbles are emitting a soothing air, just like in the mall.

I sit through two proceedings in about 2 hours. The first one was the sentencing hearing of US v Guerrero. Mr. Guerrero, a Dominican national, agrees to plead guilty to one account of conspiracy to distribute narcotics in exchange of the government dropping the other charges against him. The government only alleges that Mr. Guerrero took some phone calls and agrees that he is just a minor co-conspirator in the scheme. Mr. Guerrero has no prior convictions. Four of his family members showed up in the court room to support him. He got a 36 month sentence and was recommended to be incarcerated in Pennsylvania to be close to his mother. He is likely to be deported after serving his sentence.

The next proceeding was the sentencing hearing of US v Rehnquist. Mr. Rehnquist, a resident of Colorado, pleads guilty to one account of conspiracy to distribute marijuana in exchange of the government dropping all the other charges. Unlike Mr. Guerrero, Mr. Rehnquist posted bail and was wearing a suit and tie. He admitted that he transported 5000kg of marijuana from Colorado to NYC in 14 trips. But he cooperated with the government after the arrest and agrees to testify against the other co-conspirators. He also read a statement that how he has been pulling himself out of the substance abuse problem by doing the 12 steps. He even mentioned 7 Habits of Highly Effective People. Even though he has a prior conviction of driving under the influence, he was sentenced 30 months in prison, despite the sentencing guideline calls for 140 months. The government agrees with the sentencing. Mr. Rehnquist is to report to a federal prison in Colorado on April 17th.

It is probably rash for me to reach conclusions since I have only sit through two sentencing hearings and I missed most of the trial prior to the sentencing. But I cannot help but to wonder what the factors are in play during sentencing. Both defendants are accused of essentially the same type of crime and the differences between them are: 1. Race 2. Cooperation with the government 3. Substance abuse victim defense 4. Citizenship 5. Prior conviction. If we just look at the acts of the defendant themselves, there is no way that Mr. Guerrero is more blameworthy than Mr. Rehnquist. Mr. Guerrero is just a small fry in a vast drug distribution empire while Mr. Rehnquist could be described as a vital link of the distribution chain. During the sentencing, the judge repeatedly emphasized that the guidelines are now just advisory, as per Booker. But the fact is that his discretionary power has become immense. He can take wider range of sentencing factors. No doubt how he does this calculus is a new form of “legal magic”. At least it is possible to arrive a 50% of accuracy rate by predicting whether the accused is guilty of a certain crime, if you are a good student of Holmes. But how can anyone be confident to predict the outcome of a sentencing hearing? Of course statistical methods can be used, as hoped by Loevinger. With the mandatory sentencing regime crumbling in the federal courts, the personal characteristic of the sentencing judge is probably the determinative factor in the length of the sentence. This corroborates Frank’s critique that even if the legal rules are tight and neat, and even if the judge is intelligent and behave himself, his decisions are entirely unpredictable. Cohen based his critique on the unreliable nature of fact finding. Here exists similar fuzziness of fact finding. The judge wholly adopted the presentencing report prepared by the parole department. Those findings are almost irrefutable. Also each side marshaled all possible mitigating factors for the consideration of the judge. But the stacks are against the Dominican. He was in prison so he cannot go around the blocks to get support letters, or volunteer at the local church, or attend an AA meeting. He was a flight risk so he cannot post bail and leisurely plot defense strategy with his lawyer after grabbing a Starbucks coffee before stepping into the courtroom. He doesn’t speak English so he cannot read 7 Habits of Highly Effective People. Finally, he is just a small fry and he probably cannot offer any useful information to the government for trial. The other co-conspirator probably also plead so the government didn’t even need a trial, not to mention witnesses. Thus, Mr. Guerrero cannot possibly put the positive spin of the facts he needs in this critical juncture of his life. One doesn’t need to be a good statistician to predict that he will be worse off going through this process of “weighing the evidence”.

The post-Booker sentencing judge is engaging in a more subtle form of “legal science”. Sentence = L (f1, f2, …, fn). Prior to the Booker decision, L is a one to one function defined by a fixed table. Now L is a just a higher-order function which makes the “Sentence” also a function of the judge. After all, Booker is more honest since it recognized not all defendants are the same blameworthy just because they do the same criminal act with the same criminal history. It leaves the length calculus to the judge’s discretion, rather than the “ultra-rapid” legal-logic machine designed by a despotic US Sentencing Commission. Can we say Frank’s argument at least convinced 5 member of the Booker court with regard to sentencing? Call me primitive, I still found this terrifying.

Section I

Subsection A

Subsub 1

Subsection B

Subsub 1

Subsub 2

Section II

Subsection A

Subsection B

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