Federal Sentencing – Page 25 – Marquette University Law School Faculty Blog

Explaining Sentences in Wisconsin and Federal Court

Post author:Michael M. O'Hear
Post published:July 1, 2009
Post category:Criminal Law & Process Federal Criminal Law & Process Federal Sentencing Legal Scholarship Wisconsin Criminal Law & Process Wisconsin Supreme Court

I have a new paper on SSRN entitled “Appellate Review of Sentence Explanations: Learning from the Wisconsin and Federal Experiences.” As I observed in a recent post, I’ve become very interested in the way that sentences are explained to defendants, and how appellate review of explanations can potentially contribute both to procedural justice goals and to substantively better sentences. My forthcoming article in the Florida State Law Review focuses on “explanation review” in the federal system. The new paper focuses on the contrasting experience in Wisconsin and proposes a general framework for explanation review that blends the best features of the Wisconsin and federal systems.

As I see it, the basic flaw of the federal system is to permit sentencing judges to avoid any explicit engagement with the purposes of punishment if they impose a sentence within the recommended guidelines range. In a sense, the basic flaw of the Wisconsin system is the reverse: the Wisconsin Supreme Court permits sentencing judges to avoid any explicit engagement with the state sentencing guidelines (or any other objective benchmark); little more is required than an explanation that expressly invokes the purposes of punishment and references a few case-specific facts. My proposal seeks to promote engagement with both guidelines and purposes.

I presented the paper earlier this month at the Marquette Criminal Appeals Conference. It will appear in a symposium issue of the Marquette Law Review this winter. The abstract appears after the jump.

Seventh Circuit Criminal Case of the Week: Protracted Prosecution, Contrition, and Age as Sentencing Factors

Post author:Michael M. O'Hear
Post published:June 29, 2009
Post category:Criminal Law & Process Federal Criminal Law & Process Federal Sentencing Seventh Circuit

seventh-circuit3 The Seventh Circuit had some interesting commentary on a number of different sentencing factors in United States v. Presbitero (Nos. 07-1129, 07-1610, & 07-1712). Writing for the court, Judge Williams affirmed Presbitero’s conviction of tax offenses, reinstated a codefendant’s conviction, and remanded for resentencing in order to determine whether Presbitero qualified for a leadership enhancement under the sentencing guidelines. Judge Williams concluded by addressing the government’s arguments that the district court took impermissible factors into account when it sentenced Presbitero to a below-guidelines sentence.

First, the Seventh Circuit agreed with the government that the expense and stress of protracted litigation could not be considered as a mitigating factor for Presbitero. Since Presbitero spent almost ten years (!) defending charges brought by the government, it is hard to see how anyone could qualify for a sentence reduction based on the burdens of protracted litigation if he does not. The court cited concerns about encouraging defendants to overspend on expensive lawyers as a reason not to treat litigation costs as a mitigating factor. There would also be equitable concerns in giving a sentence benefit to defendants who are able to spend a lot of money on private lawyers. Still, I wonder if the court has given too little regard to the nonfinancial toll of litigation. In some cases, as Malcolm Feeley famously observed in a book of the same title, “the process is the punishment.” Although lawyers may make neat distinctions in their heads between the process by which guilt is determined and the punishment imposed afterwards, many defendants surely experience the process as deeply traumatic and stigmatizing in its own right. In extreme cases, it may not be inappropriate to reduce the length of the formal sentence in recognition of the fact that the defendant has already suffered a great deal prior to the imposition of the sentence.

Second, the Seventh Circuit rejected the government’s contention that Presbitero’s “obstinate behavior” should have been considered an aggravating factor.

Seventh Circuit Case of the Week: The Jude Saga Continues

Post author:Michael M. O'Hear
Post published:June 13, 2009
Post category:Criminal Law & Process Eastern District of Wisconsin Federal Criminal Law & Process Federal Sentencing

seventh-circuit1 For a resident of Milwaukee, there can be no question about the marquee Seventh Circuit case last week: the court decided the appeals of three of the defendants convicted in the notorious Frank Jude beating. In United States v. Bartlett, the court (per Chief Judge Easterbrook) affirmed the convictions of all three defendants and the sentences of two. However, the Seventh Circuit also vacated the sentence of Jon Bartlett, who will now have to be resentenced in the lower court.

As everyone living in the Milwaukee area knows, Bartlett and his codefendants were police officers convicted of civil rights violations for the savage beating suffered by Jude, a biracial man. For many, the Jude case, which received intense local media coverage, was emblematic of the state of police-community relations in inner-city Milwaukee.

Bartlett’s “win” on appeal resulted from a discrepancy in his sentencing.