Departures, variances and defense advocacy
In emphasizing how important it is for district judges to fully explain and document their post-Booker sentencing decisions, as discussed here, many Commissioners and witnesses at the USSC hearings (basics here) expressed the view that judges at sentencing must now (1) calculate an applicable guideline range, and then (2) make traditional departure determinations under the guidelines, and then (3) decide whether to follow or vary from the (now advisory) guidelines based on the 3553(a) factors.
I think district judges should carefully follow this protocol not only because it is suggested by Booker (and mandated by the Second Circuit in Crosby), but also because only if judges follow this protocol will we get a precise and complete understanding of Booker‘s impact on federal sentencing practices. Moreover, this methodology also should help keep some teeth in 5K1.1 substantial assistance departures (which, as noted here, is a big concern for the Justice Department).
And yet, I suspect it is going to be dangerously easy for courts and counsel to collapse the departure and variance considerations (steps 2 and 3 above), especially in cases where a traditional departure is plausible but unlikely. I fear particularly in cases of “discouraged” considerations such as prior good works or family circumstances, judges and counsel will not be inclined to go through the hard doctrinal work of deciding whether a case is sufficiently exceptional to justify a departure and will principally focus on variance arguments based on the 3553(a) factors.
For defense counsel, I think there will be significant strategic issues in decided whether and how to develop departure and variance arguments. Though it might seem sensible to always first pitch for a departure, and then seek a variance as a fall-back position, counsel might risk losing credibility or placing emphasis on less helpful factors by putting greater focus on a departure claim than a variance claim. Also, it will be interesting to see, in the development of reasonableness review, whether departures get as much (or possibly more) appellate scrutiny as variances.
While defense counsel contemplate these matters in particular cases, they can can and should draw on collected wisdom of two decades of mitigating claims developed in the guideline system. Helpfully, attorney Michael Levine has long been assembling this wisdom in a regularly updated mega-resource that, pre-Booker, had been entitled “88 Easy Departures.” Michael was kind enough to send my way his post-Booker update of this document which is now, tellingly, entitled “108 Easy Mitigating Factors.” This documents, which can be downloaded below, provides advise to defense counsel and effectively marshalls in a topic fashion “cases granting, affirming, or suggesting mitigating factors.”