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). Continue reading “Federal Sentencing and the Lack of Theory in Criminal Justice”
Jury nullification is a controversial issue in criminal law. There are undoubtedly many definitions of it, but it occurs most fundamentally when a jury acquits a defendant even when the letter of the law says that he or she committed a crime. Appearing at first blush as a theory for anarchists, it is a well-established power of the jury in criminal cases, pre-dating the United States Constitution.
This article on the Fully Informed Jury Association website gives an example from America’s colonial days. In 1734, a printer named John Peter Zenger was arrested for committing libel against His Majesty’s government by publishing articles strongly critical of it. When brought to trial on the charges, he admitted what he had done, but argued he had an affirmative defense that what he printed was the truth and therefore that he should not be convicted. The judge instructed the jury that truth was no justification for libel, and that only the fact of the publications need be proved. Despite the judge’s instructions and Zenger’s confession, the jury acquitted Zenger. Clearly, the members of that jury opposed the Crown by engaging in nullification of the law before them. This opposition would eventually come to full fruition during the American Revolution.
The right for jurors to judge the law and not just the facts survived into American common law. Continue reading “A Case For Jury Nullification”
I want to begin by thanking Dean O’Hear and Marquette University Law School for the opportunity to be October 2009’s “Alum Blogger of the Month.”
Roman Polanksi, a famous director of movies such as Chinatown and The Pianist, was recently arrested in Switzerland 32 years after he fled the United States after pleading guilty to a child sex offense in California. According to Grand Jury testimony given by then 13 year-old Samantha Gailey, (viewable at the Smoking Gun website), Polanksi approached her to take pictures to be published in a magazine. Gailey and her mother agreed and she went with him to Jack Nicholson’s home on March 10, 1977 to take pictures (apparently Jack wasn’t home that day, just an unknown woman). After giving Gailey champagne while taking additional pictures of her, Polanski then gave her a Quaalude, which is a sedative similar in effect to barbiturates. Continue reading “The Long Arm of the Law”