Federal sentencing is complicated. The guidelines haven’t been mandatory for more than a decade and exactly what judges care about when imposing sentence varies widely from circuit to circuit, courthouse to courthouse, and judge to judge.
Because of the demise of the sentencing guidelines, there’s now a wide swath of information that could go before the court at sentencing.
It seems that for a few years the government didn’t think about it, now the government is seeing these floodgates open and they are taking advantage of sentencing’s different procedural posture.
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It makes sense that a judge should consider, say, whether a guy facing sentence is a good father who lovingly takes care of a disabled son, or reliably helps elderly neighbors during a snowstorm, without going to a full blown evidentiary hearing on exactly what a mensch the guy is. It would be a little absurd to call a person’s elderly neighbors in to subject them to cross-examination about a person’s good deeds.
On the other hand, if the government wants to prove up someone’s prior bad deeds — especially if those bad deeds are criminal — that’s a different story. Then someone is being tried, and sentenced, in part for criminal conduct, the proof of that criminal conduct really ought to be subject to something like a trial’s procedural protections.
In a different vein, some judges care deeply about the entire affect of a conviction and sentence on the person as a whole. Some simply don’t. And some tend to care about the prison sentence alone — that’s the number on the chart — but can be moved to care about a little more if you’ve got a strong and persuasive argument.
If you pay attention to the broader policy conversation happening around criminal justice reform, then actually represent someone accused of a crime in federal court, you’re likely to get whiplash. While even some Republicans in Congress care about, say, reforming draconian collateral consequences, it’s jarring to see a federal judge or prosecutor not seem to recognize that this is a problematic issue.
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A very nice opinion came out recently talking about collateral consequences of a sentence and why they should be considered at sentencing from the Eastern District of New York. (the opinion is here)
Here’s how it starts:
I am writing this opinion because from my research and experience over two decades as a district judge, sufficient attention has not been paid at sentencing by me and lawyers-both prosecutors and defense counsel-as well as by the Probation Department in rendering its pre-sentence reports, to the collateral consequences facing a convicted defendant. And I believe that judges should consider such consequences in rendering a lawful sentence.
As the Court explains,
There is a broad range of collateral consequences that serve no useful function other than to further punish criminal defendants after they have completed their court imposed sentences. Many-under both federal and state law-attach automatically upon a defendant’s conviction.
The effects of these collateral consequences can be devastating.
The opinion is a must-read for anyone who represents people charged with a crime in federal court. It details the history of collateral consequences, how they’ve ballooned, and how they can derail a person’s life far beyond the time imposed in prison.
If one purpose of a sentence is to rehabilitate, these consequences much more frequently defeat that purpose. Though there is a competing line of thought that says that a conviction should function as a kind of “civil death” — that a person convicted of a crime should be prevented from engaging in civil society thereafter. Though, in fairness, this line of thought was more popular back when drawing and quartering was seen as a reasonable punishment.
The court said that “there are nationwide nearly 50,000 federal and state statutes and regulations that impose penalties, disabilities, or disadvantages on convicted felons.” That’s a lot of law for district courts to look at.
As a defense lawyer, I’ve raised collateral consequence issues to district court judges in the past. Some care, most don’t. Some wash their hands of the issue, saying that’s done by someone else, a judge is only supposed to think about prison time.
The law moves slowly. Lawyers and judges want to make sure someone else is stepping out first. Hopefully now that one judge has taken a strong line on the importance of looking at collateral consequences, others will follow.
In the meantime, if you’re doing a sentencing memo, here’s new force behind an argument that hasn’t gotten much attention in the past.
Matt Kaiser is a white-collar defense attorney at KaiserDillon. He’s represented stockbrokers, tax preparers, doctors, drug dealers, and political appointees in federal investigations and indicted cases. His twitter handle is @mattkaiser. His email is [email protected] He’d love to hear from you if you’re inclined to say something nice.