So says the Third Circuit, reversing a high-end guideline sentence based on the defendant's bare arrest record.
Maximo Mateo-Medina, a Dominican who had long been common-law married to a U.S. citizen, pleaded guilty to reentry after removal. He had two prior convictions (for DUI and passport fraud), and six other arrests. Despite both parties’ recommendation of time served (about six months), the district court sentenced Mr. Mateo-Medina to a year and a day, citing his "extensive" arrest record.
The Third Circuit reversed. The Court agreed with Mr. Mateo-Medina that the district court’s reliance on a bare arrest record to impose a higher sentence violated due process and was plain error. The problem is that, absent further evidence, an arrest does not necessarily indicate criminality (presumption of innocence, anyone?). And it may well simply reflect demographics:
"[R]eliance on arrest records may also exacerbate sentencing disparities arising from economic, social and/or racial factors. For example, officers in affluent neighborhoods may be very reluctant to arrest someone for behavior that would readily cause an officer in the proverbial 'high crime' neighborhood to make an arrest. A record of a prior arrest may, therefore, be as suggestive of a defendant’s demographics as his/her potential for recidivism or his/her past criminality."
The Third Circuit first made this observation in United States v. Berry, 553 F.3d 273 (3d Cir. 2009). In Mateo-Medina, the Court explained that "[s]ince we wrote Berry, substantial research and commentary has only reinforced the regrettable circumstances that we emphasized in disallowing consideration of bare arrest records at sentencing." The Court cited recent studies from the Sentencing Project and criminologists.*
One resource not mentioned by the Third Circuit, but especially relevant to Kansas practitioners is the book Pulled Over, by KU professors Charles Epp, Steven Maynard-Moody, and Donald Haider-Markel. Pulled Over (which was cited by Justice Sotomayor in her Utah v. Strieff dissent) details the results of the authors’ extensive survey of police stops in Wyandotte County. Those results are right in line with the studies discussed in Mateo-Medina: Police contacts may reflect demographics as much as (and sometimes more than) actual criminality.
The same holds true for juvenile police contacts, arrests, and adjudications. See Joshua Rovner, Policy Brief: Disproportionate Minority Contact in the Juvenile System, THE SENTENCING PROJECT (May 2014) (discussing Justice Department data showing that "juvenile justice systems are marked by disparate racial outcomes at every stage of the process").
These are all strong reasons to argue that the "criminal history" of a client within a target demographic may not necessarily reflect that client’s actual criminality (or it may not distinguish that client from other lawbreakers who are not daily targets of police), and that overreliance on the client's history may exacerbate sentencing disparities. This argument should be developed thoroughly in the district court with PSR objections, sentencing memoranda, and even expert testimony.
*The Tenth Circuit has cited Berry favorably, though it has also made it clear that this is an objection that must be well-developed in the district court to get much traction on appeal. See, e.g., United States v. Soto-Arreola, 486 Fed. Appx. 735 (10th Cir. 2012).