Sentencing Judges, Explain Yourselves

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(Michael O’Hear) It’s always interesting to see a topic one is writing about show up in the advance sheets.  (I suppose “interesting” isn’t quite the right word for it when a new case requires a massive rewrite – as happened to me when the Supreme Court decided Blakely v. Washington – but fortunately that’s not where this post is headed.)  I’ve been on a procedural justice kick in my scholarship for the past couple years.  First, I took on procedural justice in plea bargaining (e.g., here and here).  Then, I got interested in how the social psychology model of procedural justice might play out in the sentencing context, particularly with respect to the explanation for the sentence provided by the sentencing judge.  The Seventh Circuit had a good decision in this regard a few years ago in United States v. Cunningham, 429 F.3d 673 (7th Cir. 2005), which indicated that judges must provide an express reason for rejecting nonfrivolous arguments made by defendants for a sentence below the recommended sentencing guidelines range.  As I discuss in a forthcoming Florida State Law Review article, however, post-Cunnighamcases, including the Supreme Court’s decision in Rita v. United States, 551 U.S. 338 (2007), have largely undermined the robust explanation requirement that was seemingly contemplated by Cunningham.

But a new Seventh Circuit decision from just last week, United States v. Harris, tells us that the Cunningham explanation requirement still has some life left.  

Here’s what happened.  David Morrow was sentenced to an eye-popping 504 months in prison for conspiring to sell crack cocaine.  This extraordinary punishment was ordered despite the fact that Morrow was diagnosed with diabetes in 2006 and had a leg amputated a few months later.  At sentencing, counsel identifed Morrow’s health concerns as a mitigating factor, as did the presentence investigation report prepared by a probation officer.  Yet, the sentencing judge said nothing about Morrow’s health problems in imposing a sentence twelve years above the minimum recommended by the federal sentencing guidelines.

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September 19, 2014 |

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