Patterico's Pontifications


Jury Judge Nullification?

Filed under: Law — DRJ @ 2:35 pm

[Guest post by DRJ]

Following up on Patterico’s nullification posts, I read this non-precedential Fifth Circuit opinion and wondered: Do judges nullify?

“At defendant Jason Dejuan Leatch’s post-Booker resentencing, Leatch sought a downward sentencing departure based on the purported unfairness of the Sentencing Guidelines (“Guidelines”) because 100 times more powder cocaine than crack cocaine was required to trigger inclusion in a given sentencing range. See United States v. Leatch, 482 F.3d 790, 790 (5th Cir. 2007), abrogated by Kimbrough v. United States, 128 S.Ct. 558. After a lengthy discussion with defense counsel how the United States Sentencing Commission’s proposed 20:1 ratio would affect Leatch’s sentence, the district court elected to make a downward departure and impose a below-Guidelines sentence based on its disagreement with the Guidelines’ disparity between crack cocaine and powder cocaine offenses. The court stated:

I’m varying in this case because I think the 100-to-1 disparity between powder cocaine and crack cocaine is inappropriate. I’ve followed with great interest the thoughtful district court decisions that address that. I am not going to attempt to restate on my own the various reasons for that. But for the reasons reflected in those decisions and also reflected in the Sentencing Commission’s determination that the 100-to-1 ratio was inappropriate. . . . [a]ccordingly, I’m going to follow what I understand to be the Sentencing Commission’s recommendation and use a 20-to-1 ratio.”

By using the 20-to-1 ratio, the district court imposed a sentence of 62 months less than the 100-to-1 ratio would yield. In the sentencing appeal, the Fifth Circuit vacated the sentence on the ground that “a sentencing court may not deviate from the 100:1 crack-powder ratio based solely upon its belief that the policies underpinning that sentencing regime are misguided or unfair.”

On appeal from the Fifth Circuit, the Supreme Court remanded in light of Kimbrough and Gall that held sentencing guidelines are not mandatory. In this opinion, the Fifth Circuit remanded the case for resentencing and cautioned the district court judge:

“On resentencing, the district court must take care — especially if it decides to deviate from the Guidelines — to articulate how its sentence satisfies the statutory criteria.”

There was also a slice of humor in this case. Note the defendant’s name from the caption:


Defendant Leatch and his attorney convinced a federal district judge to sentence him to substantially less time than the sentencing guidelines required.

Maybe he does have super powers.


10 Responses to “Jury Judge Nullification?”

  1. The key difference between jury nullification and judge “nullification” is that the judge is an employee of the people through their government. The people are the sole source of political legitimacy in our system.

    The jury system is there for the people to protect themselves against government and jury nullification is one last quality control test of the laws and the processes with which they are executed.

    A judge is appointed (in most cases) and lacks the political authority and legitimacy to change or mis-interpret the law.

    Joseph Somsel (e5cbf5)

  2. Mr. Somsel–this of course does not keep them from changing and interpreting the law.

    Myself, I would have imposed the maximum allowed by the guidelines, the aggravating factor being the illiteracy shown by mispelling his own nickname. Apparently, this guy can’t even read comic books.

    kishnevi (db1823)

  3. Good one, Kishnevi, and I concur.

    DRJ (a431ca)

  4. I see it as a judicial rebellion. Minimums are a new thing in the law. Maximums were the rule until the mid-seventies, with no few minimums. Formulatic sentencing guidelines are, rightly, seen by judges to usurp their judicial function to fashion a sentence in each individual case as may be necessary for the protection of society and the interests of justice.

    nk (8a8387)

  5. And there is, definitely, a racialist component to punishing black people’s cocaine a hundred times more harshly than white people’s cocaine.

    nk (8a8387)

  6. Very few “civilians” will understand this post, unless they are federal prosecutors or public defenders.

    The reality is that the Sentencing Guidelines were enacted to respond to federal Judges who thought that their discretion was unlimited, and thus contributed to the “revolving door” of the criminal justice system wherein some convicted felon was treated like a “catch-and-release” criminal, to prey upon the community again. As I recall, the Supreme Court decision was U.S. v. Mistretta, circa 1994, wherein the Supreme Court informed the Judges that their discretion had been definitely limited by an Act of Congress. Of course, the little tin-gods were OUTRAGED.

    Nonetheless, they whined and bitched and ultimately convinced the Supremes that the Government was an evil and horrible task-master, and their magical power to “catch-and-release” criminals was restored. Viola!

    Nk, your posts are generally well founded and considered, but I cannot agree with you in this case. Yes, this was a judicial rebellion, and mandatory minimum sentences are (in the terms of two centuries worth of jurisprudence) a “new thing,” but ask yourself, Why did this “new thing” come into existence, but for the utter failure of federal judges to apply REAL common sense in the sentencing of criminal thugs who’ve worked real hard to establish their criminal resumes?

    509th Bob (056d31)

  7. I posted before nk’s hydrochloride versus base (“crack”) comment.

    Cocaine base (i.e., “crack”) is demonstrably far more addictive than cocaine hydrochloride (i.e., “powder”).

    Do I think that white defendants who use (or distribute, or possess with intent to distribute) powder cocaine should be treated any differently than those who use, etc., crack? No, I do not. And further more, I think that CELEBRITIES whose conduct indirectly endorses this sort of stupidity should be treated even WORSE than regular defendants.

    Nk, you seem to be a pretty smart person. Look up the history of morphine abuse in this country. There was a point when, if I recall correctly, that 30 percent of the country consisted of morphine addicts. You want those people on the road with you?

    509th Bob (056d31)

  8. 509th Bob,

    I do not quarrel with the legislature determining public policy. Not even determining that crack cocaine is 100 times worse than powder cocaine. I want a safety valve — a judge who will personalize the application of the law.

    Are you familiar with the myth of Theseus? He confronted an ogre, Procrustes, who had an iron bed. Procrustes would waylay tavellers. If they were too short for his bed, he would stretch them until they fit. If they were too long, he would lop off their feet and parts of their legs.

    The law should not be an iron bed in which everyone must fit on pain of torture and death.

    Err, oh yes. Theseus put Procrustes on his own bed and lopped off the part that protruded — his head.

    nk (8a8387)

  9. 509th Bob–The problem with the minimum and maximum sentencing laws is not that they were not enacted as considered judgments on crimes involved. They were enacted so Congress and legislatures could look tough on crime. Political posturing goes way back in human history.

    kishnevi (e6c99e)

  10. Citizens pressuring politicians to enact tough-on-crime laws goes way back in human history, too.

    DRJ (a431ca)

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