Howard Bashman blogged a few days ago about this case, United States v. Menyweather, in which a panel of the Ninth Circuit affirmed a sentence that involved an “eight-level downward departure for mental and emotional condition, diminished capacity, and extraordinaryfamily circumstances[.]” Bashman quoted this passage, from Judge Kleinfeld’s dissent:
Does drawing a district judge whose sentencing philosophy is idiosyncratic make so idiosyncratic a sentence ‘just’? An excessively lenient sentence like this causes cynicism, not only among people in prison, where the luck-of-the-draw sentencing interferes with rehabilitation, but among the law-abiding public. People have second thoughts about doing the right thing when those who do the wrong thing prosper and avoid punishment. Injustice is corrosive. . . .
I wonder if any Prawfsblawggers or readers — Dan? — have had a chance to read and reflect on this sentence. I’m not so interested in whether or not the district court’s sentence should have rejected as “unreasonable”, or as an abuse of discretion, by the Court of Appeals. Instead, I’m curious whether people agree with Judge Kleinfeld that “[a] sentence like the one in this case is just the sort of red flag that makes legislators wonder whether the courts need mandatory minimum sentences to assure protection of the public.”
Posted by Rick Garnett on December 21, 2005 at 02:23 PM
Comments
Rick, I just read this fascinating opinion finally–and saw that it raises issues central to various projects I’m working on and have worked on in the past. I may be biased in part because my old boss signed onto the opinion, but I suspect that as a legal matter, the discretion was available under the convetional sources post-Booker to do what the district court did. On the other hand, I’m sympathetic to Kleinfeld’s critique in large measure, and think that there are (and should be) constitutional constraints (that were not raised) that should bear on the analysis (this is my Luck or Law paper I’m working on, about the fate of equal justice after Booker). Just by way of quick reaction, I think the issue of diminished capacity is the more trenchant basis for departure here, and not the family ties issue, even though some flexibility may appropriate in the sentencing phase of an offense, even if not in the charging/guilt phase. I’m tyring to work these issues out also… To answer your specific question about red flags: I think the blogosphere facilitates the prominence of the red flag more than the court opinion and dissent itself.
Posted by: Dan Markel | Dec 23, 2005 3:28:46 PM
What seems strange is the judge’s reference to the bad effects an overlenient sentence might have on other prisoners’ rehabilitations. I thought the Federal courts had pretty much dropped rehabilitation as a sentencing rationale?
Posted by: Guest | Dec 21, 2005 3:23:28 PM
The public only notices if a someone whose job it is to engage in public relations tells them to notice. The public doesn’t pay attention to sentences. They don’t understand Booker, or the FSG. They don’t read the 9th Circuit opinions – unless the losing party tells them it is “activist.”
What I think is a little zanier about the opinion is how Kleinfeld engages in a personal attack in the lower court judge (which might be justified), and how he frames the question of what the proper sentence is, in what amounts to majoritarian terms. With that view, why don’t we just hold a vote to see how long everyone (convicted or not) should spend in jail?
Posted by: anon | Dec 21, 2005 2:41:21 PM