Okay kids, quick Fifth of July update. Today is federal law day. I hope my recap of the first case can all help us think about sentencing a little differently and that it provides some fresh ideas to those of us in state court. The second case isn’t really relevant to much of anything, other than it is the BEST opinion I’ve read in a while.
Recently, the Sixth Circuit decided a matter of first impression. As everyone knows, there can only be so many first impressions, so these cases don’t come along every day. Essentially, a district court judge polled the jury that decided a child pornography case and asked them how much time they thought the defendant should spend incarcerated. Prior to the Sentencing Reform Act in Tennessee, juries used to settle penalties after rendering guilty verdicts, but we did away with that. This case has a tinge of that “everything that is old, is new again” feel. Judges typically go back and speak to jurors, but this judge actually asked specific questions about sentencing and then used that information when rendering a downward departure.
Here are the facts:
The Defendant was convicted of receiving and distributing child pornography. His sentencing range was above the statutory twenty-year maximum – his range was 262 years to 327 months – which runs in-between 21 and 27 years. After the trial, the judge polled the jury, and found:
Jurors’ responses ranged from zero to 60 months’ incarceration, with a mean of 14.5 months and median of 8 months. With one exception, every juror recommended a sentence less than half of the five-year mandatory minimum accompanying defendant’s offenses. See 18 U.S.C. §§ 2252(b)(1), 2252A(b)(1). Each juror’s recommendation was but a fraction of defendant’s calculated guidelines range.
Very interesting, especially for a child pornography case. It also shows the lack of awareness that jurors have about the effects of their decisions. The sentencing judge believed that the jury’s opinion showed how skewed the sentencing guidelines were, and used it as one factor, among the other required 3553 considerations for sentencing. I suppose for state court, this might fall under that catch-all provision at the end of the mitigating factors statute. The court sentenced the defendant to the mandatory-minimum 5-year sentence and ran the convictions concurrently to each other.
Despite the Government’s objections and appeal, the Sixth Circuit upheld the sentencing judge’s decision to consider the jury’s opinion, primarily because he did so while still utilizing the requirements of 3553. The Sixth Circuit found that: Considering the jury’s sentencing recommendation as part of the sentencing calculus did not conflict with the district judge’s duty or ability to properly weigh the § 3553(a) factors and independently craft an appropriate sentence. Verrrrrry interesting. Sorry, Government.
To read the full opinion, click here:
And, on to the second case. One of the civil litigators in my firm sent out this case, and just raved about it. Turns out he was right. It’s a criminal case, so it has nothing to do with his practice, but he read it because it was just SO interesting. And when was that last time you could say that about an opinion? I think the key is that it starts with a “hook” and is direct and “readable” throughout. Anyway, a nice example of legal writing if you’re need some inspiration:
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