Defendants in federal criminal cases often cooperate with the government to get their sentence reduced, especially when facing an extremely high statutory mandatory minimum (it is not uncommon for federal defendants to face mandatory minimums of ten years or higher). In these cases, to get below the mandatory minimum, the government must file a motion to credit the defendant for his or her assistance. If this is done before sentencing, it is filed pursuant to 18 U.S.C. § 3553(e); if after sentencing, it is filed pursuant to Fed. R. Crim. Pro. 35(b). A recent emerging issue in federal sentencing law has been what factors a judge may consider when reducing a sentence under either of these provisions.
Without a mandatory minimum, a judge is free to impose a reasonable sentence under 18 U.S.C. § 3553(a), which tells judges to account for the nature of the crime; the history, characteristics, and rehabilitative needs of the defendant; the public interest in protection, deterrence, and punishment; the type of sentences available; the applicable Sentencing Guidelines (including pertinent policy statements); the need for uniformity in sentencing similar defendants for similar crimes; and restitution. When a mandatory minimum must be imposed, however, most courts have held that only the defendant’s assistance may be considered when imposing a sentence below the minimum.
The Seventh Circuit has recently addressed this issue in the context of both 3553(e) and Rule 35. See United States v. Johnson, No. 08-3541 (7th Cir. September 4, 2009); United States v. Shelby, No. 08-2729 (7th Cir. October 20, 2009).
In both cases, the court ruled that only a defendant’s substantial assistance can be considered when determining the extent of the reduction, and that other factors normally relevant under § 3553(a) can be used only to reduce or leave in place that reduction, but never to increase it. At least one other circuit has criticized this as an unfair “one way ratchet” in applying § 3553(a) factors to these cases. See United States v. Grant, 567 F.3d 776 (6th Cir. 2009) (which is also now in flux as on October 16 the Sixth Circuit vacated that decision and ordered a re-hearing en banc).
Does it make sense to limit sentencing judges’ discretion in these cases to considering only substantial assistance for the extent of the reduction? For 3553(e) motions it may because the language of that statute states that a court has limited authority to sentence a defendant below a statutory minimum so as to reflect a defendant’s assistance. Rule 35(b) contains no such language and states a defendant’s sentence can be reduced if the defendant provided substantial assistance, but does not otherwise limit the factors that can be considered. The Shelby court found that despite this difference in language, it does not make sense to treat Rule 35(b) motions differently from those filed under 3553(e), and did so largely on various policy grounds.
Judge Terrance Evans wrote an interesting dissent in Shelby. He wrote that United States v. Booker, 543 U.S. 220 (2005), which held that the United States Sentencing Guidelines were no longer binding on sentencing courts, and Kimbrough v. United States, 128 S.Ct. 558 (2007), which held that judges can legally disagree with the disparity between how crack and powder cocaine are treated under the guidelines, represented a “sea change” in federal sentencing law. He criticized the “one-way ratchet” approach, stating, “If it’s kosher to rely on the § 3553(a) factors in giving only 50 percent of a sentence reduction sought by the government in a Rule 35 resentencing, why can’t those factors also be considered in giving the defendant more of a reduction?” He fears that judges will now just “fudge” these hearings when they want to grant reductions larger than what may be deserved based solely upon the defendant’s assistance by exaggerating the assistance and disingenuously cloaking their reasoning in factors related only to assistance.
Evans also criticized the government for bringing the appeal, saying, “I would hope it has much better things to do. Without an appeal, Shelby’s sentence would have passed under the radar screen without notice,” and further noting, “After all, it’s not like we’re running out of people behind bars.” He cited a Pew Charitable Trust study that found America’s prison population has increased by 700 percent since 1970, and that America now incarcerates more people than Russia, South Africa, Mexico, Iran, India, Australia, Brazil, and Canada combined — at an average cost of $22,650 per year per inmate.
Does it make sense to base federal sentencing jurisprudence on the prison population? Or on minor differences in wording between statutory provisions that ostensibly accomplish the same thing (i.e., reducing sentences for cooperation, with the only difference that one governs cooperation given before sentencing and one given after sentencing)? Should we base it on individual judges’ discretion and wisdom, the very thing the Sentencing Guidelines were supposed to limit when they were enacted in the mid-1980’s?
The uncertainty in federal sentencing is representative of the uncertainty inherent in the criminal justice system as a whole. I remember back to my first-year criminal law class taught by Professor O’Meara (with a generous recent refresher discussion via email), where he talked about criminal justice as an area of law “without an effective theory.” He borrowed this term from Columbia University Professor George Fletcher, and it refers to the observation that the criminal justice field does not seem to have an overarching goal or objective to address the problem of criminal conduct in our society. Are we trying to primarily deter crime? Achieve retribution and punish the criminal? Incapacitate them (commonly referred to as “warehousing” them in prison)? Do we want to rehabilitate them and have them (hopefully) return to society as productive citizens?
The criminal justice system seems to try to address all of these concerns without really accomplishing any of them. The long federal mandatory minimum sentences for drug crimes have been in effect for over twenty-five years without much decline in drug dealing. Almost none of my federal clients (many of whom are no strangers to the state criminal justice system) have any concept that ten-, fifteen-, and twenty-year mandatory minimum sentences are common in federal court until after they are indicted. Punishment doesn’t seem to work well either because many criminal defendants reoffend, which also indicates they have not been rehabilitated. Perhaps the goal the federal system accomplishes best is warehousing criminals, keeping them out of the community and stopping them from committing crimes for at least as long as they are in prison.
Ultimately, the criminal justice system may be incapable of having an overriding theory because it is a purely reactive system: it operates only after a crime is committed, a victim is identified (whether it is an individual or the community), and a defendant is charged with a crime. I’ve often thought that the only real way to address crime would be to go after its root cause, whatever it may be: poverty, lack of education, lack of family support, mental illness, drug-addiction, etc. The problem is that the cause of crime is as varied as the individual committing it. Until this can be truly addressed, federal sentencing law (as an example), and the criminal justice system as a whole, will continue to struggle with finding an effective theory of addressing crime.
This debate would be entirely unnecessary if Congress would take the sensible step of eliminating mandatory minimum sentences. It is rarely a voluntary choice for a defendant to cooperate in federal court. Almost every defendant who cooperates does so out of the hope that the prosecution will award the cooperation with a 5K1 or Rule 35 motion. Even when the cooperation begins the defendant is given no idea as to what type of credit he or she will receive.
In criminal cases, a defendant has a 5th Amendment right against self-incrimination. However, when a defendant is given the impression that his silence will result in conviction and imposition of a 5, 10 or 20 year prison sentence, the defendant’s decision to cooperate is unsurprising. Mandatory minimums force defendants, even in cases where the evidence is shaky or questionable, to incriminate themselves and others. As a result, very few defendants ever challenge the government’s evidence or assertions.
Now, couple this with the penalties that exist under the sentencing guidelines for “obstruction” and “acceptance of responsibility.” Although the sentencing guidelines are advisory in the post-Booker world, a judge must still determine the defendant’s offense level and give meaningful consideration to the advisory range. If a defendant has a motion hearing in federal court and testifies, he or she can be given a 2 level sentencing enhancement if the testimony is found to be false. If a defendant has a trial (which is his or her constitutional right), if that defendant loses he or she will often be given a 3 point enhancement for failing to “accept responsibility.”
I believe there needs to be meaningful reform to the entire structure of the federal system, both by eliminating mandatory minimum sentences and by eliminating the punishment that exists for exercising one’s constitutional right to a jury trial.