Courtroom 12B: An Observation of Federal Sentencing in a Post-Booker Era

I. The Background: Federal Sentencing Guidelines

I recently visited Courtroom 12B in the Daniel Patrick Moynihan United States Courthouse. Robinson’s description of the building as magnificent is accurate. Facing the entrance is a blindfolded goddess holding two scales and bending slightly forward as if bracing for a fall. From the top floor windows is a view of gray, steam-emitting skyscrapers. Behind the building, kids chase each other on the playground and along the spacious corridor, Vermont marbles produce a soothing air, just like in the mall.

In two hours of observation, I sat through two proceedings undoubtedly affected by the Supreme Court’s 2005 decision to declare the 1987 Federal Sentencing Guidelines advisory (see US v. Booker). Before Booker, guidelines called for punishment to consider the intersection of offense level and criminal history. Many argued this process gave truth in sentencing, made outcomes more predictable and offered flexibility for parties to dispute evidence on sentencing factors. Others suggested the guidelines reduced discretion for judges while incentivizing plea bargaining and increasing discretion for prosecutors.

Today, the current discretionary system is favored, but examining the disparity between the sentencing offered in each circumstance reveals that Booker did not completely eliminate a judge’s ability to award punishment that seems undeserved.

II. Court Observations

A. US v. Guerrero

The first sentencing hearing was that of Guerrero, a Dominican national with no prior convictions. In exchange for the government dropping other charges against him, he pled guilty to one count of conspiracy to distribute narcotics. The government agreed that Guerrero’s actions in taking phone calls made him only a minor co-conspirator in the scheme. Four family members showed up for support and witnessed his sentence -- 36 months with a recommendation to be incarcerated close to his mother in Pennsylvania. It is likely Guerrero will be deported after serving his sentence.

B. US v. Rehnquist

The sentencing hearing of US v Rehnquist came next. Rehnquist, a Colorado resident, pled guilty to one count of conspiracy to distribute marijuana in exchange for the government dropping all other charges. Unlike Guerrero, Rehnquist posted bail and wore a suit and tie. He admitted to transporting 5000kg of marijuana from Colorado to NYC in 14 trips but cooperated with the government after the arrest and agreed to testify against co-conspirators. He read a statement describing his involvement in a 12-step program to escape substance abuse and even mentioned the 7 Habits of Highly Effective People. Despite a prior DUI conviction and sentencing guideline calling for 140 months, he was sentenced to 30 months in prison. Rehnquist reports to a federal prison in Colorado on April 17.

III. Considering the Difference in Sentencing

I wonder what factors were in play during the sentencings. Essentially, both defendants were accused of the same type of crime; in fact, it seems the only differences between them were:1. Race, 2. Cooperation with the government, 3. Prior conviction, 4. Substance abuse victim defense and 5. Citizenship. Looking only at the defendants’ acts themselves, there is seemingly no way that Guerrero, a small fry in a drug distribution empire, is more blameworthy than Rehnquist, a vital link in a distribution chain. During the sentencing hearing, the judge repeatedly emphasized the advisory nature of the guidelines. Even so, it is clear his sentencing authority was unitary. Prior to Booker, this authority was mostly in the hands of the federal prosecutors, subject to the occasional tinkering by the sentencing judges. Did Booker change the destinies of these two defendants?

A. The Sentencing Calculus as a Form of Legal Magic

Probably not. The sentencing calculus is just another form of “legal magic.” With the mandatory sentencing regime crumbling in federal courts, the sentencing judge’s weighing of mitigating factors is probably dispositive. This confirms Frank’s critique that even if legal rules are tight and neat and a judge is intelligent and responsible, decisions are entirely unpredictable.

Here, each side marshaled possible mitigating factors for consideration, but the odds were still stacked against the Dominican. He was incarcerated so he could not obtain support letters, volunteer at the local church, or attend an AA meeting. Without speaking English, he could not read the 7 Habits. Finally, as just a small fry, he probably couldn’t offer any useful information to the government for trial. It is likely the other co-conspirator also pled so the government didn’t even need a trial. As a result, Guerrero couldn’t possibly put the positive spin on the facts he needed in this critical juncture of his life. One need not be a criminologist to predict 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 higher-order function which makes the “Sentence” also a function of the judge.

B. A Better, Post-Booker World?

Booker may be more honest because it recognizes that the difference in blameworthiness of defendants with similar criminal acts and histories may require dissimilar sentences. It also may be more honest because it leaves the length calculus to the judge’s discretion, rather than using the “ultra-rapid” legal-logic machine designed by a despotic Sentencing Commission. Through analyzing the case, we might say Frank’s argument simply convinced 5 members of the Booker court and drove them to take more into consideration when sentencing.

Still, all is not well. Assuming that most district judges take sentencing seriously, we are reminded that “power tends to corrupt, and absolute power corrupts absolutely” even when it facially seems that a process is more justified than the alternative. The recent case where two Pennslyvania juvenile court judges used sentences to profit from privately run youth detention centers corroborates my fear. As in the post-Booker federal courts, the state judges’ sentences in juvenile proceedings are all but unappealable. A repeat of this state case in the post-Booker federal court seems inevitable.

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 magnificent view. From the windows, one can see numerous gray skyscrapers, with steams coming out of their tops. Behind the building, kids were chasing each others on the playground. Along the spacious corridor, the Vermont marbles emitted a soothing air, just like in the mall.

I sat through two proceedings in about 2 hours. The first one was the sentencing hearing of US v Guerrero. Mr. Guerrero, a Dominican national, agreed to plead guilty to one count of conspiracy to distribute narcotics in exchange of the government dropping the other charges against him. The government only alleged that Mr. Guerrero took some phone calls and agreed that he was just a minor co-conspirator in the scheme. Mr. Guerrero had no prior convictions. Four of his family members showed up to support him. He was sentenced to 36 months and was recommended to be incarcerated in Pennsylvania to be close to his mother. He is all but certain to be deported after serving his sentence.

The next proceeding was the sentencing hearing of US v Rehnquist. Mr. Rehnquist, a resident of Colorado, plead guilty to one count of conspiracy to distribute marijuana in exchange of the government dropping all the other charges. Unlike Mr. Guerrero, Mr. Rehnquist posted bail earlier 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 agreed to testify against the other co-conspirators. He also read a statement describing how he had been pulling himself out of the substance abuse problem by doing the 12 steps. He even mentioned the 7 Habits of Highly Effective People. Even though he had a prior conviction of driving under the influence, he was sentenced to 30 months in prison, despite the sentencing guideline called for 140 months. The government agreed with the sentencing. Mr. Rehnquist is to report to a federal prison in Colorado on April 17th.

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.