Federal Sentencing and the Lack of Theory in Criminal Justice

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). 

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Seventh Circuit Criminal Case of the Week: Good Enough for Government Work

seventh-circuit51Under 21 U.S.C. § 841(b)(1)(A), certain drug offenders face a mandatory sentence of life imprisonment if they have two prior drug felony convictions.  As befits such a draconian statute, special procedural protections have been adopted to ensure that the mandatory minimum does not take defendants by suprise at sentencing.  Thus, 21 U.S.C. § 851(a)(1) requires that “before trial . . . the United States attorney [must] . . . serve[] a copy of [an] information on the [defendant] . . . stating in writing the previous convictions to be relied upon.”  But the statute does not specify under what circumstances, if any, a failure to comply with the rule precludes imposition of the mandatory minimum.

By the statute’s literal terms, there can be no doubt that the prosecutor in United States v. Williams (No. 09-1924) failed to comply.  In the § 851 notice he served on Williams, the prosecutor identified only one prior conviction (not the requisite two) and then merely stated, “Further information concerning the defendant’s criminal history can be obtained from the United States Probation Office and specifically the Pretrial Services Report in this matter . . . .”  The Pretrial Services Report, which listed a second drug conviction, was not actually served on the defendant until after trial.  Indeed, it appears that the prosecutor himself had not even received and read the Report before his attempt to incorporate it by reference into the § 851 notice.  This was very sloppy work, and the Seventh Circuit righly chastised both the individual prosecutor and his office (the Northern District of Indiana), which lacked any protocol on how to make § 851 notices.  But sloppiness, even inexcusable sloppiness, is not the same thing as reversible error, and the court (per Judge Posner) affirmed Williams’ life sentence. 

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A Case For Jury Nullification

12_angry_men3Jury 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. 

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