Federal Criminal Law & Process – Page 43 – Marquette University Law School Faculty Blog

Environmental Sentencing: Its Bark Is Worse Than Its Bite — Should We Care?

Post author:Michael M. O'Hear
Post published:May 26, 2009
Post category:Criminal Law & Process Environmental Law Federal Criminal Law & Process Federal Sentencing Legal Scholarship

I have a new paper on SSRN about the sentencing of environmental offenders. The title is “Bark and Bite: The Environmental Sentencing Guidelines after Booker.” Using date collected by the United States Sentencing Commission, I show that judges sentence below the range recommended by the federal sentencing guidelines in an unusually high percentage of environmental cases, approaching sixty percent in some years.

Many environmentalists are apt to bristle at the apparent demonstration that federal judges are “soft” on environmental crime. Given how little the government must prove to get an environmental conviction, however — prosecutors need not show either harm to the environment or an intent to harm the environment — I am not convinced that judges really are devaluing the environment through their sentencing decisions. Still, I think the data warrant a rethinking of the environmental guidelines in order to give them more credibility with judges.

Here is the abstract:

Seventh Circuit Criminal Case of the Week: Watch the “R” Word, Prosecutors!

Post author:Michael M. O'Hear
Post published:May 18, 2009
Post category:Criminal Law & Process Federal Criminal Law & Process Seventh Circuit

Two months ago, I posted here about the Seventh Circuit’s sharp rebuke of a prosecutor in United States v. Farinella, in which the defendant was charged with selling mislabeled bottles of salad dressing. The court’s concerns focused, in part, on the prosecutor’s repeated suggestions to the jury that the salad dressing was spoiled, despite the absence of any evidence to that effect. The court, per Judge Posner, rightly took the prosecutor to task for attempting to inflame the jury’s emotions through evocative, but misleading, characterizations of the evidence. We can and should expect prosecutors to act with integrity and restraint in carrying on their critically important public functions, rather than playing the adversarial system for all it’s worth. In my experience, the vast majority of prosecutors appreciate — apologies to Vince Lombardi — that winning is not the only thing. But, when prosecutors do occasionally cross the line, as in Farinella, I am happy to see the courts call them out.

I was reminded of Farinella when reading the court’s decision last week in United States v. Mannava (No. 07-3748), in which the court, again per Judge Posner, overturned the defendant’s child enticement conviction based, again, on the prosecutor’s repeated use of misleading and inflammatory language in front of the jury.

Permission to Skip to the Chase

Post author:Jon Deitrich
Post published:May 17, 2009
Post category:Criminal Law & Process Federal Criminal Law & Process Federal Sentencing Seventh Circuit

In United States v. Booker, the Supreme Court held that the mandatory federal sentencing guidelines violated a defendant’s Sixth Amendment right to trial by jury. As a remedy, the Court excised the statutory provision, 18 U.S.C. § 3553(b), requiring the district court to impose a sentence within the guideline range, thereby rendering the guidelines effectively advisory. Under Booker‘s advisory guideline regime, district courts must still calculate and consider the guidelines, but are free to impose a reasonable sentence above or below the range based on the other sentencing factors set forth in 18 U.S.C. § 3553(a).

So, sentencing is now a two-step process. (In some circuits, it’s three steps, but let that pass.) The court must first calculate the guideline range, just as it did before Booker, and then at step two determine an appropriate sentence in light of all the statutory factors.

But guideline calculations can be quite complex. The Guidelines Manual approaches 600 pages, and studies have shown that, depending on who is doing the calculating, the same set of facts can produce divergent guideline ranges. (See Professor O’Hear’s article, “The Myth of Uniformity,” 17 Fed. Sent. Rep. 249, for more on this.) Must the court, post-Booker, still resolve all disputed guideline issues, even though it has settled on an appropriate sentence under the statutory factors? Last week, in United States v. Sanner, the Seventh Circuit addressed this question.