Notable new sentencing opinion from Judge Gertner for low-level crack dealer
Long-time readers know that and today US District Judge Nancy Gertner long ago earned her place in my Sentencing Judges Hall of Fame by effectively exploring a range of important issues through detailed sentencing opinion in the immediate wake of Blakely and Booker. And I am pleased now to report that, though basic sentencing law is now more settled, Judge Gertner continues to write opinions that knock important sentencing issues out of the park.
Earlier this week, for example, she produced a fascinating discussion of post-Booker sentencing issues through a 26-page decision in US v. Wigham, No. 06cr10328-NG (D. Mass. Nov. 30, 2010), which can be downloaded below. Sentencing fans will want to read the opinion in full, and here is a snippet to whet the appetite:
Once I determine that a Guideline sentence does not apply, I must then decide what sentence is appropriate to meet the statutory sentencing purposes of 18 U.S.C. § 3553(a) as Booker directs. See 543 U.S. at 224. In this regard, I will use the approach which I used in other drug sweep cases, described in United States v. Garrison, 560 F. Supp. 2d 83 (D. Mass. 2008). In Garrison, I evaluated and compared the sentences imposed on men picked up in the same sweep, the same geographical area, with the same charges — including sentences imposed by other judges — to the case of the defendant before me. In effect, Garrison makes the sentences of individuals imposed by other judicial officers function as precedent for my sentence, part of a common law of sentencing.
The government criticizes the Garrison approach, arguing that it will somehow exacerbate disparity in this jurisdiction and cites to a recent article by Professor Ryan Scott (“Scott”), Inter-Judge Sentencing Disparity After Booker: A First Look (Ind. Legal Studies Research, Paper No. 140, 2010), which reflected concerns about Massachusetts federal sentencing. As I describe below, Scott’s article defines disparity in terms of the extent to which District of Massachusetts judges are following the Sentencing Guidelines. Following the Guidelines, it suggests, promotes the kind of sentencing consistency that the Sentencing Reform Act aimed for.
I disagree with the premise, as I describe below. S imilarly situated with respect to the Guideline categories does not necessarily mean similarly situated with respect to the defendant’s actual role in the criminal endeavor or his real culpability. Guideline categories (like career offender guidelines) are frequently over broad, giving the same “score” to individuals who are not remotely similar and ignoring critical differences between them (their role in the offense, their mens rea) that should bear on punishment. In any event, in this case, the government’s position touting the Scott article was ironic. It agreed that the Guideline sentence is far too high for Whigham.
To the extent that Scott’s findings suggest differences in the approach to the Guidelines among the judges in Massachusetts, they should be carefully evaluated, which I do below. The critical question is what these disparities reflect — whether they reflect the untutored preferences of particular judges, as often occurred pre-Guidelines, or real jurisprudential differences involving Guidelines that are problematic. In my judgment, they reflect the latter; the good faith, reasoned evaluations of Guidelines and facts. Even before Booker, the Guidelines contemplated that district court judges would depart from the Guidelines on occasion, that the Commission would consider these departures and amend the Guidelines, if appropriate, allowing for a collaborative evolution of Guideline law. After Booker, more of the work of that evolution is to be done by the appeals courts than the Commission — determining which approaches are “reasonable” and which are not.
In the short term, until there is precedent in the areas in which there are real issues, like the career offender and crack cocaine Guidelines, differences in approach across cases are unavoidable. That is all the more reason for using the Garrison approach, at the very least, looking carefully at the sentences given to individuals in a given sweep, in the same geographic area, in roughly the same time period, having the same role in the offense.
Let me be clear — in answer both to Professor Scott and the critics of advisory Guidelines: When I choose not to follow the Guidelines, it is not because I simply disagree with them and seek to substitute my own philosophy of sentencing. It is because the Guideline at issue is wholly inconsistent to the purposes of sentencing under 18 U.S.C. § 3553(a). And when I assign a non-Guidelines sentence, I am likewise not picking a number out of the air, but keying what I do, to the extent possible, with the sentences and reasoning of other judges, and the evidence that I have been given. Finally, I write decisions so that my reasoning is clear and may usefully serve as precedent to others.