Saturday, July 23rd, 2005

Thank Goodness for Booker

United States v. Tammy Brady, Docket No. 04-0729-cr (2d Cir. July 22, 2005) (Cardamone, Cabranes, Sotomayor) (Op. by Cardamone): This case is a good illustration of how the pre-Booker mandatory Guidelines regime often produced irrational and unnecessarily harsh results that fail to comport with our basic sense of justice. At a pre-Booker sentencing, Judge Gleeson — no softie — granted a relatively small downward departure from a range of 12 to 18 months and imposed a sentence of 5 years’ probation with 3 months’ home detention. The departure was made under U.S.S.G. § 5H1.3 — as recommended by the EDNY Probation Office (also no bargain, as defense lawyers are well aware) — to account for (1) the horrific abuse that Ms. Brady suffered throughout her childhood and adolescence, which (2) created a mental disease or condition that (3) in turn contributed to her commission of the instant offense (a conspiracy to steal money from her employer, Citibank). See generally United States v. Rivera, 192 F.3d 81 (2d Cir. 1999) (setting forth 3-part test). On the Government’s appeal, the Circuit found that sufficient facts supported the district court’s findings on (1) and (2), but concluded that the evidence was insufficient to support (3) — the often-elusive causal connection prong — and remanded for further fact-finding on this point.

On remand, of course, Judge Gleeson will be freed from the departure standards of the mandatory Guidelines regime; in the post-Booker world, he can simply impose the same sentence not as a downward departure but as a “non-Guidelines sentence” (in Crosby parlance) under 18 U.S.C. § 3553(a) (and especially 3553(a)(1), to account for the defendant’s tragic history). And given the Circuit’s relatively deferential reading of Booker‘s reasonableness standard of review, as well as the relevant facts, it is hard to imagine that such a sentence would be deemed unreasonable on a subsequent appeal (assuming the Government would even bother with one).

Indeed, the Court specifically cautions in concluding that the district court’s error in granting the departure “would not necessarily render Brady’s sentence unreasonable” under the Booker scheme. Op. at 19. As it explains, “Our conclusion [here] is based on the fact that we are reviewing a mandatory Guidelines sentence, and intentionally leaves open the possibility that a different analysis may be warranted upon review of a non-Guidelines sentence.” Op. at 19-20; see id. at 13 (“[W]e note that it is not the case — and could not be in light of Booker, see 125 S. Ct. at 794 (Scalia, J., dissenting — that ‘every sentence outside an applicable guideline’ is per se unreasonable, Crosby, 397 F.3d at 115.”).

Finally, and in any event, it has always puzzled this reader why a causal link between the defendant’s horrific past experiences and her commission of the crime — always difficult to demonstrate — must be present to justify a lower sentence. Why isn’t this simply classic mitigation evidence? In the death penalty context, for instance, a frequently proffered mitigator at the penalty phase is the physical and other abuse the defendant suffered as a child. No causal link to the offense of conviction is required; the idea being that maybe this person deserves a break because he’s already suffered so much, or because the past experiences have somehow made him who he is now, without requiring a tight causal connection between those experiences and the crime of conviction. Similarly, a downward departures can be given on the basis of the defendant’s past charitable works or other instances of good behavior. The animating idea is not that this past experience somehow makes the defendant less culpable in committing the offense of conviction, but that maybe this defendant deserves a break in his punishment because of the good that he previously did.

This case of course does not get rid of the causation requirement. But in overturning the district court’s departure decision even in light of such compelling mitigating evidence, perhaps the Court has inadvertently done one better: It may have consigned the § 5H1.3 departure to the dustbin of history altogether. After this case, and in light of Booker, what district judge in his or her right mind would bother with justifying such a sentence by resort to the traditional downward departure mode of analysis, which is both difficult to satisfy and easily overturned on appeal, when the same outcome could be justified as simply a “non-Guidelines” sentence under Section 3553(a)? The latter approach is far simpler, more appeal-proof, and, yes, more reflective of our basic intuitions about fairness and justice.

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