Explaining Sentences in Wisconsin and Federal 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. 

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

seventh-circuit3The 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. 

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Seventh Circuit Criminal Case of the Week: What If the Defendant Thought He Was Breaking the Wrong Law?

seventh-circuit2When Doli Pulungan attempted to export 100 military-grade riflescopes to Indonesia in 2007, he knew he was breaking the law.  He was just wrong about which law.  His clients told him there was a ban on military exports to Indonesia, but the ban actually expired in 2005.  Instead, Pulungan violated a different law that requires a license in order to export “defense articles.”  Thus, his elaborate ruse of shipping through Saudi Arabia in order to evade the nonexistent Indonesia embargo did him no good.  A jury ultimately convicted him of “willfully” attempting to violate the export license law, and a judge sentenced him to four years’ imprisonment.

But was his violation truly “willful”?  On appeal, the government conceded that “willfully” means “with knowledge that a license is required,” but argued that the evidence established Pulungan had this knowledge.  The government relied chiefly on Pulungan’s dishonesty with business associates about what he intended to do with the riflescopes and his intent to violate the nonexistent embargo.  But Pulungan’s dishonesty is readily explained by his belief that he was violating the wrong law.  Thus, as the Seventh Circuit saw it in United States v. Pulungan (No. 08-3000), the government was really invoking the doctrine of transferred intent: “As the prosecutor sees things, an intent to violate one law is as good as the intent to violate any other.”  The court, per Chief Judge Easterbrook, was unmoved by this use of the transferred intent doctrine and overturned Pulungan’s conviction. 

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