Etienne speculated that some justices may have felt the facts of the Jones case were "too good" to be a vehicle for making a broad pronouncement on the issue. She explained that Jones involved a judge ignoring an actual acquittal by a jury, whereas a more common scenario is a judge basing an enhanced sentence on conduct that may or may not have been charged or was not part of a plea agreement. Ruling on a case involving an actual acquittal might leave the broader issue unresolved.
Recently in Sentencing Category
Generally, a judge deciding on a sentence within the legally allowed range can consider any facts he finds proved by a preponderance of evidence. Should a fact be excluded from that consideration because a jury has found it not proved beyond a reasonable doubt? There is no logical reason why it should, yet the practice remains controversial.
Today the U.S. Supreme Court decided not to take up the case of Jones v. United States, No. 13-10026. Justice Scalia, joined by Justices Thomas and Ginsburg (a line-up you don't see every day) dissented.
Justice Scalia's theory is that if the facts in question are needed to prevent the sentence from being "substantively unreasonable" then it becomes an effective "element of a crime." Unlike mere sentencing facts, elements must be found by juries beyond a reasonable doubt. What is "substantively unreasonable" you might well ask? Well, the Supreme Court has made a complete mess of guidelines sentencing in the wake of its awful, confused, confusing decision in the Booker case. "Substantively unreasonable" is a concept in the review of sentencing decisions by appellate courts.
I think that is stretching "elements" way too far. The underlying problem, though, is that Congress needs to overhaul federal sentencing to deal with Booker, and it hasn't done it.
Returning to mandatory guidelines, with simpler essential facts found by juries, is the way to go, in my opinion.
P.S.: Looks like Bill and I were writing on this at the same time. I'll leave them both up, so readers get two perspectives on the case.
Vote NO on Proposition 47. It is a Trojan horse. Under the guise of protecting schools and neighborhoods, Prop. 47 turns certain crimes into misdemeanors and exposes Californians to significant harm. For instance, Prop. 47 makes possession of date-rape drugs into a misdemeanor at a time when we're combatting sexual assault on college campuses. Too many people fall prey to identity theft. By reducing the crime of identity theft to a misdemeanor, Prop. 47 carries neither consequence to the thief nor relief to the victims, who are forever haunted by the aftermath of the crime.
All communities struggle with gun violence. Stolen guns are often used to commit violent offenses, shootings and murders. Too many children and innocent bystanders have died from gunfire. Stealing a firearm, under Prop. 47, would be only a misdemeanor. That reduction does nothing to ensure safe neighborhoods or create safe schools.
My point is really two fold: (1) most of the folks I see should go to prison and most reasonable observers would agree; (2) in the few "close" cases where a judge must decide between prison and probation, I am not good at making that decision personally and [18 U.S.C.] section 3553(a) is not much help.
The provocative title of this post is the title of this provocative new article available via SSRN and authored by (former federal prosecutor) Mark W. Osler and (current federal judge) Mark W. Bennett. Here is the abstract:
Numbers don't lie: America has suffered an explosion in imprisonment that has been fundamentally unrelated to actual crime levels.
Yes, well, we all know what other kind of incarceration was "fundamentally unrelated to actual crimes" -- concentration camps!
With the president and a line-up of his usual antagonists behind the same bill, the momentum for sentencing reform could be unstoppable. The result will be one of the biggest surprises of all the years of the Obama presidency -- a bipartisan success in passing new laws to reduce the nation's prison population.
Attorney General Eric Holder warned Friday that a new generation of data-driven criminal justice programs could adversely affect poor and minority groups, saying such efforts need to be studied further before they are used to sentence suspects.I have disagreed with and criticized Mr. Holder at times, sometimes strongly, but he's right on this. The sentence for a criminal offense should depend on the crime the defendant chose to commit and the crimes he has chosen to commit in the past. That is justice.
In a speech in Philadelphia to a gathering of the National Association of Criminal Defense Lawyers, Mr. Holder cautioned that while such data tools hold promise, they also pose potential dangers.
"By basing sentencing decisions on static factors and immutable characteristics--like the defendant's education level, socioeconomic background, or neighborhood--they may exacerbate unwarranted and unjust disparities that are already far too common in our criminal justice system and in our society," Mr. Holder told the defense lawyers. Criminal sentences, he said, "should not be based on unchangeable factors that a person cannot control, or on the possibility of a future crime that has not taken place."
See also today's News Scan and the story linked there.
Francois Holloway has spent nearly two decades of a 57-year sentence in a federal prison, for serious crimes that no one disputes he committed. There were armed carjackings, and his participation in an illegal chop shop, where stolen cars would be dismantled and sold for parts.But the fairness of the mandatory sentence has been a matter of dispute, not only for Mr. Holloway, but also for a surprising and most effective advocate: the trial judge, John Gleeson.