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\u00a0ten years or higher).\u00a0 In these cases, to get below the mandatory minimum, the government must file a motion to credit the defendant for his or her assistance.\u00a0 If this is done before sentencing, it is filed pursuant to 18 U.S.C. \u00a7 3553(e); if after sentencing, it is filed pursuant to Fed. R. Crim. Pro. 35(b).\u00a0 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.\u00a0<\/p>\n
Without a mandatory minimum, a judge is free to impose a reasonable sentence under 18 U.S.C. \u00a7 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.\u00a0 When a mandatory minimum must be imposed, however, most courts have held that only the defendant\u2019s assistance may be considered when imposing a sentence below the minimum.<\/p>\n
The Seventh Circuit has recently addressed this issue in the context of both 3553(e) and Rule 35.\u00a0 See<\/em> United States v. Johnson<\/em>, No. 08-3541 (7th<\/sup> Cir. September 4, 2009); United States v. Shelby<\/em>, No. 08-2729 (7th<\/sup> Cir. October 20, 2009).\u00a0 <\/p>\n In both cases, the court ruled that only a defendant\u2019s substantial assistance can be considered when determining the extent of the reduction, and that other factors normally relevant under \u00a7 3553(a) can be used only to reduce or leave in place that reduction, but never to increase it.\u00a0 At least one other circuit has criticized this as an unfair \u201cone way ratchet\u201d in applying \u00a7 3553(a) factors to these cases.\u00a0 See<\/em> United States<\/em> v. Grant<\/em>, 567 F.3d 776 (6th<\/sup> Cir. 2009) (which is also now in flux as on October 16 the Sixth Circuit vacated that decision and ordered a re-hearing en banc<\/em>).<\/p>\n Does it make sense to limit sentencing judges\u2019 discretion in these cases to considering only substantial assistance for the extent of the reduction?\u00a0 For 3553(e) motions it may because the language of that statute states that a court has limited authority to sentence a defendant below a statutory minimum so as to reflect<\/em> a defendant\u2019s assistance.\u00a0 Rule 35(b) contains no such language and states a defendant\u2019s sentence can be reduced if<\/em> the defendant provided substantial assistance, but does not otherwise limit the factors that can be considered.\u00a0 The Shelby<\/em> court found that despite this difference in language, it does not make sense to treat Rule 35(b) motions differently from those filed under 3553(e), and did so largely on various policy grounds.<\/p>\n Judge Terrance Evans wrote an interesting dissent in Shelby<\/em>.\u00a0 He wrote that United States v. Booker<\/em>, 543 U.S. 220 (2005), which held that the United States Sentencing Guidelines were no longer binding on sentencing courts, and Kimbrough v. United States<\/em>, 128 S.Ct. 558 (2007), which held that judges can legally disagree with the disparity between how crack and powder cocaine are treated under the guidelines, represented a \u201csea change\u201d in federal sentencing law.\u00a0 He criticized the \u201cone-way ratchet\u201d approach, stating, \u201cIf it\u2019s kosher to rely on the \u00a7 3553(a) factors in giving only 50 percent of a sentence reduction sought by the government in a Rule 35 resentencing, why can\u2019t those factors also be considered in giving the defendant more of a reduction?\u201d\u00a0 He fears that judges will now just \u201cfudge\u201d these hearings when they want to grant reductions larger than what may be deserved based solely upon the defendant\u2019s assistance by exaggerating the assistance and disingenuously cloaking their reasoning in factors related only to assistance.<\/p>\n Evans also criticized the government for bringing the appeal, saying, \u201cI would hope it has much better things to do.\u00a0 Without an appeal, Shelby\u2019s sentence would have passed under the radar screen without notice,\u201d and further noting, \u201cAfter all, it\u2019s not like we\u2019re running out of people behind bars.\u201d\u00a0 He cited a Pew Charitable Trust study that found America\u2019s prison population has increased by 700 percent\u00a0since 1970, and that America now incarcerates more people than Russia, South Africa, Mexico, Iran, India, Australia, Brazil, and Canada combined — at an average cost of $22,650 per year per inmate.<\/p>\n Does it make sense to base federal sentencing jurisprudence on the prison population?\u00a0 Or on minor differences in wording between statutory provisions that ostensibly accomplish the same thing (i.e., reducing sentences for cooperation, with the only difference that one governs cooperation given before sentencing and one given after sentencing)?\u00a0 Should we base it on individual judges\u2019 discretion and wisdom, the very thing the Sentencing Guidelines were supposed to limit when they were enacted in the mid-1980\u2019s?\u00a0<\/p>\n The uncertainty in federal sentencing is representative of the uncertainty inherent in the criminal justice system as a whole.\u00a0 I remember back to my first-year criminal\u00a0law class taught by Professor O\u2019Meara (with a generous recent refresher discussion via email), where he talked about criminal justice as an area of law \u201cwithout an effective theory.\u201d\u00a0 He borrowed this term from Columbia University Professor George Fletcher, and it refers to the observation that the criminal justice field does not seem to have an overarching goal or objective to address the problem of criminal conduct in our society.\u00a0 Are we trying to primarily deter crime?\u00a0 Achieve retribution and punish the criminal?\u00a0 Incapacitate them (commonly referred to as \u201cwarehousing\u201d them in prison)?\u00a0 Do we want to rehabilitate them and have them (hopefully) return to society as productive citizens?<\/p>\n The criminal justice system seems to try to address all of these concerns without really accomplishing any of them.\u00a0 The long federal mandatory minimum sentences for drug crimes have been in effect for over\u00a0twenty-five years without much decline in drug dealing.\u00a0 Almost none of my federal clients (many of whom are no strangers to the state criminal justice system) have any concept that ten-,\u00a0fifteen-, and twenty-year mandatory minimum sentences are common in federal court until after they are indicted.\u00a0 Punishment doesn\u2019t seem to work well either because many criminal defendants reoffend, which also indicates they have not been rehabilitated.\u00a0 Perhaps the goal the federal system accomplishes best is warehousing criminals, keeping them out of the community and stopping them from committing crimes for at least as long as they are in prison.\u00a0<\/p>\n Ultimately, the criminal justice system may be incapable of having an overriding theory because it is a purely reactive system: it operates only after a crime is committed, a victim is identified (whether it is an individual or the community), and a defendant is charged with a crime.\u00a0 I\u2019ve often thought that the only real way to address crime would be to go after its root cause, whatever it may be: poverty, lack of education, lack of family support, mental illness, drug-addiction, etc. \u00a0The problem is that the cause of crime is as varied as the individual committing it.\u00a0 Until this can be truly addressed, federal sentencing law (as an example), and the criminal justice system as a whole, will continue to struggle with finding an effective theory of addressing crime.<\/p>\n","protected":false},"excerpt":{"rendered":" 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\u00a0ten years or higher).\u00a0 In these cases, to get below the mandatory minimum, the government must file a motion to 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