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IN RE SENTENCING

January 30, 2004.

In re SENTENCING


The opinion of the court was delivered by: JACK WEINSTEIN, Senior District Judge

MEMORANDUM & ORDER

I. Introduction

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 Page 2 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 Page 3 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 Rule 32(i)(4)(B).

  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). Page 4

  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 ...


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