United States District Court, E.D. New York
January 30, 2004.
In re SENTENCING
The opinion of the court was delivered by: JACK WEINSTEIN, Senior District Judge
MEMORANDUM & ORDER
The sentencing of criminal defendants has traditionally involved
questions of fairness and justice. Judges charged with this duty approach
the task with solemnity, recognizing its centrality to the rule of law
and the credibility of the judiciary. See, e.g., Koon v. United States,
518 U.S. 81 (1996); Kate Stith & Jose Cabranes, Fear of Judging:
Sentencing Guidelines in the Federal Courts (1998). With the advent of
the United States Sentencing Commission and Guidelines in 19881, the
ability of judges to fairly balance the complex web of particularities in
an individual's case when meting out punishment was circumscribed.
28 U.S.C. § 991.
Passage of the Prosecutorial Remedies and Other Tools to end the
Exploitation of Children Today Act of 2003 ("PROTECT Act") carries
further the attenuation of the capacity of federal judges to do their
work properly by requiring the Court of Appeals to review de novo a
District Court's departure from the applicable Sentencing Guidelines
range. Pub.L. No. 108-21 117 Stat. 650 (2003), In effect, primary
sentencing authority is shifted to the appellate judges whenever a trial
court provides a lower sentence than do the Guidelines matrices. For a
judge to exercise what amounts to original power to sentence without
actually seeing the person being
sentenced is contrary to American tradition, as recognized in Koon.
To assist me Court of Appeals judges in their new onerous task of more
closely supervising trial judges in minimizing departures from the
Guidelines strictly construed against discretion all sentencing
hearings before the undersigned will be recorded by an appropriate video
recording device. The appellate judges can then observe the actual people
they arc sentencing. The alternative, to have all the parties and their
witnesses appear in the appeals court so that they can be seen and heard
a sine qua non for proper de novo sentencing review would be too
awkward and time consuming.
II. Sentencing Procedure
In almost all criminal cases in federal courts, the defendant now
accepts a plea bargain from the government. See United States v. Speedy
Joyeros, N.A., 204 F. Supp.2d 412, 417 (E.D.N.Y. 2002) ("The virtual
elimination of federal criminal trials, substituting administrative
decisions not to prosecute or pleas of guilty, has substantially changed
our federal criminal law system."), "Increased prosecutorial discretion
and power have raised the percent of guilty pleas from 86% of all federal
convictions in 1971 to 95% in 2001." Id.; see also Adam Liptak, U.S. Suits
Multiply, But Fewer Ever Get to Trial, Study Says, N.Y. Times, Dec, 14,
2003 at Al. The modem judge and his or her law clerks spend far more time
with the Sentencing Guidelines Manual than the Federal Rules of Evidence
or Criminal Procedure. As a consequence, sentencing hearings routinely
conducted following the entering of a guilty plea are the critical events
in criminal prosecutions.
Rule 32 of the Federal Rules of Criminal Procedure requires that the
court receive a presentence report in advance of the sentencing hearing.
The presentence report contains a
recitation of the defendant's "history and characteristics" including
criminal background, family history, medical and psychological history
and other pertinent facts. Fed.R.Crim.P. 32(d). The presentence report
is indispensable, but it remains a record, purposefully written in a
lifeless, "nonargumentative" style. Id.
Those attending a sentencing hearing typically include the defendant
and defendant's counsel, an Assistant United States Attorney, a probation
officer (who prepared the presentence report), a court reporter, the
judge, and the family, friends, employers, and other witnesses for the
defendant and for the government. If the defendant is in custody, he or
she is brought to court clad in prison garb, under the watchful eye of
the United Stales Marshals. Otherwise, the defendant arrives in civilian
attire. The closest family members arc invited to sit with the defendant
so that the court may observe them and interrogate them if necessary, and
so that they and the defendant can furnish each other with emotional
support. Given that the majority of defendants are charged with drug
crimes, there is rarely a tangible "victim" in the court pursuant to
In accordance with Rule 32, defense counsel, the defendant, the
prosecutor and the victim (if present) are given opportunities to speak.
Id. at 32(i). If a motion for departure is being heard, the defense
presents its case with testimony from at least the defendant. The
government is then afforded the opportunity to present its position.
Grounds for departure arc often based on a mix of circumstances or
characteristics, some of which are readily observable by the court:
familial circumstances, see U.S.S.G. § 5H1.6, disabilities, see U.S.S.G.
§ 5H1.4, and physical stature indicating the enhanced possibility of
sexual abuse in prison, see id,; see also § 5K2.10, among others. The
court then imposes a sentence "without unnecessary delay." Id. at 32(b).
In a substantial number of cases an adjournment is necessary so that
supporting documents and photographs of family and living conditions can
be obtained from abroad. At times adjournments of a year or more are
needed so that the defendant can demonstrate rehabilitation. See United
States v. K, 160 F. Supp.2d 421, 426 (E.D.N.Y. 2001) ("Adjournment of
sentence is permitted to allow the court to determine defendant's
postoffense, presentence rehabilitation and to explore and consider a full
range of appropriate sentencing alternatives,").
III. PROTECT Act and Its Consequences
A. PROTECT Act
The PROTECT Act's main features include implementing a national Amber
Alert communication system, providing judges with the discretion to
increase the term for supervision of released sex offenders up to a
maximum of life, and extending the statute of limitations for child
abductions and sex crimes to the life of the child victim.
Included in this Act is the Feeney Amendment, applying to all types of
cases; it is not directed particularly at sex offender eases. Among other
matters, it restricts the circumstances in which a judge may depart from
the Sentencing Guidelines, and it requires de novo appellate review of
departures, normally downward. Pub, L, No, 108-21, § 401; cf. United
States v. Mellert, 2003 WL 22025007 (N.D. Cal. July 30, 2003)
(criticizing the PROTECT Act).
The relevant provision states that "the court of appeals shall review
de novo the district court's application of the guidelines to the facts."
Id. at § 401, First, de novo review applies when the district court
"tail[s] to provide the written statement of reasons" for the departure,
Id. Second, if the sentence is not consistent with sections 3553(a)(2)
and (b) of title 18 of the United States Code (as amended) or if it is
"not justified by the facts of the case," the appeals court will
utilize its de novo power to reject the sentence. Id. The PROTECT Act
will routinely require de novo appellate review in cases in which a
district court judge departs from the Sentencing Guidelines without the
government's consent even where the departure is justified as a matter of
law. B. Standard of Review
Prior to the enactment of the PROTECT Act, the Court of Appeals
reviewed a district court's departures from the sentencing guidelines
under an "abuse of discretion" standard. See Koon v. United States,
518 U.S. 81 (1996). Under the abuse of discretion standard, the Court of
Appeals for the Second Circuit reviewed only "those reasons articulated by
the district court at the time of sentencing." United States v. Evans,
352 F.3d 65 (2d Cir. 2003). The formal test for reviewing a downward
departure was "whether the circumstances relied upon to justify a
downward departure are so far removed from those found exceptional in
existing case law that the sentencing court may be said to be acting
outside permissible limits; then, and only then, should we rule that it
has misused its discretion," United States v. Middleton, 325 F.3d 386,
389 (2d Cir. 2003).
In Zervos v. Verizon New York, Inc., the Court of Appeals for the
Second Circuit clarified the meaning of de novo review: "When we review a
district court's decision de novo, we take note of it, and study the
reasoning on which it is based. However, our review is independent and
plenary; as the Latin term suggests, we look at the matter anew, as though
it had come to the courts for the first time," 252 F.3d 162, 168 (2d
Cir. 2001), Thus, under the PROTECT Act, the members of the appeals court
will in effect sit as sentencing judges when hearing an appeal from a
departure. See, e.g., United States v. Motion, 345 F.3d 943, 946 (7th
Cir. 2003) ("Instead of
one district judge, three appellate judges now decide whether a departure
is justified."), C, The Necessity of Video Recordings
The PROTECT Act's mandate of de novo review of downward departures
dictates that the Court of Appeals act in effect as a sentencing court,
See, e.g., United States v. Stultz, ___ F.3d ___, 2004 WL 64958 (2d Cir.
2004) ("Although discussion of the PROTECT Act is lea for another day, we
cannot help noting that district courts enjoy, under the Supreme Court's
guidance, a distinct institutional advantage over appellate courts in
determining sentences, This follows because of the vastly greater number
of sentencing cases they are required to rule upon, only a small
percentage of which are ever appealed. To move the various appellate
courts from their traditional function of reviewing to the front lines of
determining sentences de novo, will certainly at the least undermine the
Sentencing Commission's laudable goal of eliminating unjustified
disparities in sentencing.") (footnote omitted). The sentencing hearing
normally requires that the defendant be observed for credibility, mental
astuteness, physical characteristics, ability to withstand the rigors and
dangers of incarceration, and a myriad other relevant factors. In many
instances, it is necessary to observe the employer's and familial ties to
the defendant. A judge applies mental impressions of many tangible and
intangible factors when imposing a sentence. See, e.g., United States v.
Lara, 905 F.2d 599 (2d Cir. 1999) (affirming district court's downward
departure based in part on physical observations). Many of these factors
do not appear in the transcript.
The defendant's words, his facial expressions and body language, the
severity of any infirmity, the depth of his family's reliance, or the
feebleness of his build cannot be accurately conveyed by a cold record.
Many defendants are ill educated and inarticulate. They do not have
the intellectual capacity to articulate, as might a great novelist,
what is in their hearts. They are, after all, mere people,
De novo review requires that judges of the Court of Appeals conduct a
hearing as "though [the defendant] had come to the courts for the first
time." Zernos, 252 F.3d at 168. It is unlikely that the Court of Appeals
judges would elect to require a criminal defendant to appear in the
appellate courtroom so its judges could in fact revisit the sentence de
novo. A proceeding as important to the criminal justice system as the
meting out of punishment, however, requires more than a mere review of
the printed record. A de novo review would be factually deficient without
a video record of the district court's sentencing hearing.
Use of a video recording does not solve completely the problem of
fairly applying critical subtle factors in deciding the fate of a fellow
human being. In those rare circumstances when cases are tried, judges
observe the defendant for longer time periods than are available during
sentencing hearings and can apply what they have observed when
sentencing. But, since cases arc rarely tried anymore, this limitation is
not a serious issue. See, e.g., Speedy Joyeros, N.A., 204 F. Supp.2d at
This order does not run afoul of the provision against the
photographing or broadcasting of criminal proceedings in the federal
courts. Fed.R. Crim, P. 53. Rule 53 was amended in 2002 with an emphasis
on modern technologies, but the Committee chose not to expand the ban on
photography to modern recording devices. See Fed.R.Crim.P. 53 advisory
committee's notes. The "videotape is move akin to a judicial record than
a violation of the ban on cameras in a federal courtroom," United States
v. Berger, 990 F. Supp. 1054, 1057 (C.D. Ill. 1998).
The sentencing video recording kept in and under the control of the
trial court and
appellate court does not constitute a broadcast. See United States v.
McVeigh, 931 F. Supp. 753, 755 (D. Colo. 1996) (holding that the public
distribution of audio recordings is the "functional equivalent of a
broadcast"); Untied States v. Kerley, 753 F.2d 617 (7th Cir. 1985); United
States v. Hasting, 695 F.2d 1278 (11th Cir. 1983); see also Webster's
Third International Dictionary (1967) (defining a broadcast as the "act
of making widely known" or "radio or television transmission especially
for general use"),
De novo appellate review of a district court's departure from the
Sentencing Guidelines is deficient without a video record of the
sentencing proceedings. All sentencing hearings conducted by the
undersigned shall be recorded by a video device. The video record will be
kept under control of the Clerk of the court. It shall chronicle the
defendant's observable demeanor during the hearing and capture, as much
as it is possible to do so, the real world humanity that the district
court judge confronts.
The video record shall be stored on a video cassette, digital video
disc or other similar device. The video recording will not replace the
transcript, which will continue to be prepared.
Defendants, any witnesses or the government shall have the option of
refusing a video recording of all or part of the sentencing hearing.
Counsel, reporters and other interested persons will be permitted to
view and listen to the video in court, To avoid the risk of inadvertent
broadcasting in violation of federal court policy, they will not be
permitted to copy it or remove it from the courthouse, It will be made
available by the Clerk of this court to the Court of Appeals on the
request of that court,
Since the equipment is already at hand, and law clerks present can
handle it, the
costs will be minimal.
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