As Doug Berman notes, the 5th birthday of the Supreme Court’s Booker decision is approaching. Ah, it seems like only yesterday that the Sentencing Guidelines were mandatory and any defendant who didn’t rat was going down the river forever. So naturally, the alternative to slavish consistency, reducing judges to 3rd grade mathematicians and grid readers, is back on the table.
In the Wall Street Journal, Amir Efrati lobs a grenades into the system to mess with our heads. He offers two anecdotes in his law column to suggest that we’re back to playing spin-the-sentencing-wheel:
First, writes Efrati:
Earlier this year, a Florida man who had been running a fraud scheme that cheated investors out of about $15 million decided to come clean.
Michael Riolo, 38 years old, offered information to the government before the case was brought and turned over his computers, records and assets.
Last month, U.S. District Judge Kenneth Marra of West Palm Beach, Fla., gave Mr. Riolo 24½ years in prison.
Fifteen million, 24½ years. Contrast this with another little story:
In another case this fall, Michael Regan, a Massachusetts hedge-fund manager, also turned himself in and pleaded guilty to running a similar scheme that defrauded investors out of $9 million. His sentence [issued by U.S. District Judge Carol Amon in Brooklyn]: seven years.
Why the disparity? It’s hard to say.
Efrati writes that the disparity owes, at least in part, to landmark Supreme Court cases in 2005 and 2007 that gave federal judges more freedom to depart from sentencing guidelines. The new latitude has caused a problem to creep back into the federal system: Defendants can receive wildly different sentences for similar crimes.There are few things more useless to rational discussion that basing conclusions on superficial anecdotes, then using the anecdotes to leap to baseless conclusions. Efrati demonstrates a talent for both. If the only factor to be considered on sentence is the amount of the alleged loss, then there might arguably be a point to Efrati’s article. But it’s not, and there’s not. Instead, it’s misinformation designed to foster the same simplistic approach that gave rise to the Sentencing Guidelines in the first place.
Did either of the defendant’s cooperate? Was there a 5k1.1 letter involved? What about the sentencing factors under § 3553(a)? There are a multitude of individualizes considerations that go into an appropriate sentence, almost all of which are ignored by the Sentencing Guidelines, which elevated consistency over anything else.
Of course there are disparities in sentencing. There should be disparities in sentencing, as there disparities in the individuals being sentenced. Glossing over the details, the very factors upon which individualized sentences are supposed to be based such that we can move beyond one-size-fits-all sentencing that is so attractive to people for whom thinking is a terrible strain, does not contribute to a “debate”; crunching numbers will never serve as a viable argument for how properly to deal with human lives.
Having lived through the Sentencing Guidelines since 1987, and watched as judges were compelled to impose sentences that no one, except the coldest kid prosecutor, thought reasonable, the experiment was tried. And failed. That some would rehash the same arguments that gave rise to the Idiots Guide To Sentencing does not mean that the rest of us need to indulge it another time around.
There is no debate. Disparities happen. There is a risk that some defendants will receive sentences more harsh than would be imposed under the guidelines, but foreclosing the opportunity to seek a sentence predicated upon the specific nature of the case and individual defendant’s circumstances is not the answer. I refuse to get back on this merry-go-round. Any anybody who thinks Judge Carol Amon is a softy is clueless anyway.
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