June 23, 2007
Circuit splitting headaches after Rita
In this post last year, I noted four major circuit splits on basic and fundamentally important post-Booker issues. Ironically, the opinion for the Court in Rita did not resolve the one circuit split that the case seemed poised to address, but the opinion does indirectly suggest resolution of two other splits. Let me review:
1. The presumption of reasonableness: As discussed here and here, Rita declared permissible a non-binding appellate presumption that within-guideline sentences are reasonable. But Rita did not demand, or even suggest, that circuit must apply such a presumption. Rita also arguably added confusion about how the presumption should operate and how it can be rebutted on appeal.
2. The persistence of Rule 32(h): The circuits are nearly evenly split on whether Rule 32(h) requires a district court to give advance notice before varying from the advisory guidelines range. Though Rita does not formally address this issue, the opinion cites Rule 32 when asserting that, post-Booker, sentencing decision-making should be subject to "the thorough adversarial testing contemplated by federal sentencing procedure." The Rita opinion also cites Burns , saying it recognizes the "importance of notice and meaningful opportunity to be heard at sentencing." Thus, it seem that the Rita Court favors the view of circuits applying Rule 32(h) to variances.
3. The role of "traditional" departures: As previously noted here, Rita suggests the continued validity of "traditional" departure analysis after Booker, and thus casts serious doubt on the Seventh Circuit's repeated assertion that departures are obsolete after Booker. As I long ago discussed here and here, this is practically a very important issue that needs to settled in order to have a uniform and consistent federal sentencing system.
4. The applicable version of the guidelines: Rite does not address directly or even indirectly the Seventh Circuit's view (discussed here and here) that, after Booker, district courts should apply the most recent version of the now-advisory guidelines even when they recommend a longer sentence than the guidelines applicable at the time of the defendant's crime. Other courts and litigants have been operating under the pre-Booker rules for using the guidelines applicable at the time of the crime.
There have been, of course, lots of other post-Booker splits in the district courts about crack sentencing, fast-track policies, acquitted conduct, burdens of proof and other large and small issues. These specific substantive issues are not addressed at all in Rita (though such issues may arise indirectly in the Court's forthcoming work in Gall and Kimbrough).
In short, Rita clearly resolved very few issues that have embroiled lower courts after Booker, and yet arguably it did stir up some still-simmering debates. It will be very interesting to see how different circuits come to integrate Rita into their existing post-Booker jurisprudence. I suspect most circuits will find ways to read Rita to confirm and ratify their particular circuit's chosen post-Booker doctrines.
June 22, 2007
Any reports from the DC Crime Summit (or Rita reactions)?
As discussed here and here and here, Representative Bobby Scott, Chairman of the House Subcommittee on Crime, Terrorism and Homeland Security, has been leading a "Summit on Crime Policy" over the last two days. Entitled "Violent Crime — Prevention and Solutions from the Experts," the summit brought together more than three dozen leading voices from a broad array of organizations, (although absent was anyone from the Justice Department).
I would be grateful if any reader who attended might report on the event. I am especially eager to know if there was any discussion of possible inside-the-Beltway reactions to Rita (from Congress or DOJ).
UPDATE: A kind reader sent in this terrific report from the Sentencing Lawapalooza:
I attended two of the four panels at Bobby Scott's crime summit, and from what I saw, it was great. A few of the panelists mentioned Rita, but not in depth. Even Lisa Rich, the panelist from the Sentencing Commission, focused on other issues - namely, the crack/cocaine disparity. And I wouldn't worry about the absence of the DoJ: Scott framed the summit as a way for him to get ideas for new legislation, and since most of the panelists proposed reining in the DoJ and reducing the federalization of crime, I doubt the DoJ would have added much to the conversation....
Anyway, it was interesting to hear what issues are at the top of the advocates' agendas, and Scott and Conyers seemed enthusiastic. Many people expressed interest in getting copies of the panelists' testimony, and it sounded like Scott's staff was trying to figure out a way to make it available to the public.
AFDA webcast on Rita
As detailed on this page, Gregory Nicolaysen, the founder of the Association of Federal Defense Attorneys (AFDA), has organized an audio webcast for this Monday (June 25) at 12noon EDT to allow me to discuss Rita and its possible aftermath. (Unlike other groups seeking big bucks for such webcasts, the AFDA only charges a nominal fee for participating and the webcast is made available free to all federal court personnel, federal public defenders, and full-time law professors and students.)
Though I plan primarily to recap and expand upon much of the Rita commentary already appearing on the blog, I'd be grateful if readers might use the comments to note any issues that seem particular important for me to cover during this webcast.
NPR report noting the Lewis Libby and Victor Rita parallels
Today's broadcast of NPR's "Morning Edition" included this great segment by Nina Totenberg entitled "High Court Sentencing Vote May Bode Ill for Libby." Here's is the web summary:
I. Lewis "Scooter" Libby, former chief of staff to Vice President Cheney, is appealing his sentence of 30 months in prison for lying and obstructing an investigation into the leak of a CIA operative's identity. But the situation isn't looking good, after the U.S. Supreme Court voted 8-1 to uphold the sentencing decision of a North Carolina man who was convicted of charges similar to Libby's.
Some recent related posts:
More strong Rita analysis at SCOTUSblog
All the post-Rita analysis at SCOTUSblog yesterday was fantastic, and the strong insights continue to flow today with new posts from Jeff Fisher and from Carissa Byrne Hessick and F. Andrew Hessick. These paragraphs from the Hessick's effectively spotlight some particularly important appellate realities after Rita:
Rita does not say that the circuits have to adopt the presumption of reasonableness. Indeed, the Court appears to have been careful in its phrasing, stating that the question was whether a court of appeals "may apply a presumption of reasonableness" to a district court sentence that reflects a proper application of the Sentencing Guidelines and that the presumption is "nonbinding" --- which seems to mean that a circuit that has adopted the presumption need not follow it.
This seems a little odd. Certiorari is usually granted to resolve differences in the circuits; but Rita appears to endorse differing treatment in different circuits. The differing treatment also seems at odds with the goal of uniformity under §3553(a). Basically everyone agrees that the presumption will result in more guidelines sentences in the district courts located in circuits that have adopted the presumption (Souter's dissent says this is bad; Breyer's majority says that it is good). By contrast, guideline sentences will be less common in those circuits without the presumption. It seems entirely possible that sentences for similarly situated individuals may vary depending on whether the sentencing court is in a presumption circuit.
Added to this foreordained split and potential for disparate sentences is Rita's failure, as David Stras observes, to explain what the presumption of reasonableness means. Given the Court's statements that the presumption is not binding, something akin to Skidmore deference seems to be the best candidate. But we can't be sure. All that can be gleaned from Rita is that the presumption means that circuits have the option of concluding --- without conducting much analysis --- that within guideline sentences are lawful. The lack of guidance plus the potential for disparity seems a good recipe for future Supreme Court intervention.
A few other related Rita analysis posts:
Whither (or wither) Apprendi-Blakely rights in coming constitutional sentencing fights?
One (of many?) reasons why the Supreme Court's Sixth Amendment jurisprudence has been so quirky and unpredictable has the the fact that the Court has been, from the very beginning and even in all state cases, shadow-boxing about the validity, viability, virtues and vices of the federal sentencing guidelines. Ever the persistent cutman, Justice Breyer has managed through the Booker remedy and his Rita opinion to keep the federal guidelines standing in round after round of the (now decade-old) modern Sixth Amendment jurisprudential bout. (And, because of their procedural posture and facts, it seems very unlikely that Gall or Kimbrough could deliver a constitutional knock-out blow to the federal sentencing guidelines).
But, as evidenced by rulings like Cunningham, Justice Breyer has limited ability to prevent — and perhaps limited interest in preventing — the Court's Sixth Amendment jurisprudence from knocking down other structured sentencing reforms. And yet, even though Cunningham majority opinion had six votes for a seemingly strong view of the Court's Sixth Amendment work, reading all the opinions in Rita gives me the impression that only three Justices (Justices Scalia, Souter and Thomas) are deeply concerned with safeguarding, in Justice Souter's words, "the guarantee of a robust right of jury trial."
In the wake of Rita, I ultimately think we will need to await a district non-federal-guidelines case to know where the Court is prepared to go with its Apprendi-Blakely jurisprudence (e.g., a case dealing with the scope of the prior conviction exception or Blakely's applicability to supervised release revocation or to restitution awards). With the federal guidelines now likely to surviving — even though they may end up significantly bruised after Gall and Kimbrough get in their blows — perhaps Justice Breyer (and others in the Rita majority) will be prepared to spend more time in Apprendi land when the fate of the federal sentencing guidelines do not hang in the balance.
Fifth Circuit channelling Rita majority(?)
Though surely authored before Rita, the Fifth Circuit yesterday released US v. Walters, No. 05-51634 (5th Cir. June 21, 2007) (available here) reversing an above-guideline sentence because "the degree of departure in this case is substantial, and there must be more than mere lip service to the § 3553(a) factors to justify such a departure," and "the court did not adequately articulate reasons consistent with the sentencing factors to support the reasonableness of this sentence."
Some empirical realities of federal sentencing decision-making
Fortuitously timed in light of the Rita ruling, Max Schanzenbach and Emerson Tiller now have here posted on SSRN an important new paper entitled "Reviewing the Sentencing Guidelines: Judicial Politics, Empirical Evidence, and Reform." Here is the abstract:
This article presents the first large-scale empirical study of federal guidelines sentencing that matches offenders to the sentencing judge. We confirm the widely-held belief that political ideology matters in criminal sentencing – specifically, Republican-appointed judges give longer sentences than Democrat-appointees with regard to certain crimes. More interestingly, we find evidence consistent with positive political theory that such decision making is nested within the broader political-ideological relationship of the sentencing judge and the overseeing circuit court. We find, for example, that Democrat-appointed judges depart from the Sentencing Guidelines to give shorter sentences more often and to a greater degree when the reviewing court is politically aligned (circuit majority Democrat-appointed) than when not aligned (circuit majority Republican-appointed). We then discuss the Supreme Court's evolving sentencing jurisprudence and the likely impact of alternatives to the present system.
We conclude that Guidelines improves sentencing consistency and preserves the benefit of appellate review. We also proposes two potential reforms: first, mandating open access to judge identifiers in sentencing data for researchers to study sources of judicial bias; and, second, mandating ideologically mixed appellate panels for review of criminal sentences to prevent the more extreme instances of ideological alignment that frequently occur between district and circuit court panels that lead to more extreme outcomes in sentencing.
Download it while Rita is hot....
On second read, evidence of Breyer brilliance in Rita
As I re-read Justice Breyer's opinion for the Court in Rita, a particular sentence (at slip op. 18-19) kept drawing my attention:
[The sentencing judge's] reasoned sentencing judgment, resting upon an effort to filter the Guidelines' general advice through §3553(a)'s list of factors, can provide relevant information to both the court of appeals and ultimately the Sentencing Commission.
Because this phrasing sounded strangely familiar, I went back to the amicus brief I primarily authored and found this sentence describing my vision of post-Booker sentencing realities:
Booker thus now requires judges to exercise reasoned sentencing judgment by filtering the Guidelines' advice through the dynamic, multi-faceted, purpose-oriented provisions of §3553(a).
The Rita Court's repeated emphasis on judicial sentencing decisions as "reasoned decisions" (see slip op. at 17-19) leads me to conclude that Rita has largely embraced my vision (as well as my nomenclature) for understanding Booker and how Booker reshaped the federal sentencing universe. A fuller account of this vision appears not only this amicus brief, but also in these recent law review pieces:
- Making Sentencing Sensible, 4 Ohio State Journal of Criminal Law 37 (2006) (with Professor Stephanos Bibas)
- Reasoning Through Reasonableness, 115 Yale Law Journal Pocket Part 142 (2006).
- Conceptualizing Booker, 38 Arizona State Law Journal 387 (2006)
- Beyond Blakely and Booker: Pondering Modern Sentencing Process, 95 Journal of Criminal Law and Criminology 654 (2005)
June 21, 2007
The sweet(?) mysteries of Rita... annotated
A delicious French beer with dinner has not helped me fully understand the Rita opinion for the Court. Here are some of the mysterious passages from Justice Breyer that I hope readers might help me understand:
MYSTERY #1, Rita opinion at slip op. at 7, 11: "For one thing, the presumption is not binding. It does not, like a trial-related evidentiary presumption, insist that one side, or the other, shoulder a particular burden of persuasion or proof lest they lose their case.... [T]he presumption applies only on appellate review."
- Berman's questions: Is there a different between binding and non-binding presumptions that apply on appeal? Are there any other examples of appellate presumptions in the law? Does this mean it is wrong for circuit courts to say, as they often do, that defendants bear the burden of rebutting the presumption of reasonableness or else they lose their appeal of a within-guideline sentence?
MYSTERY #2, Rita opinion at slip op. at 12: "[T]he sentencing court does not enjoy the benefit of a legal presumption that the Guidelines sentence should apply."
- Berman's question: Does this mean a district court has erred (and should be reversed on appeal) if and whenever it says to a defendant that it is following the guidelines because the defendant has failed to provide a good reason not to?
MYSTERY #3, Rita opinion at slip op. at 14: "In sentencing, as in other areas, district judges at time [sic] make mistakes that are substantive. At times, they will impose sentences that are unreasonable. Circuit courts exist to correct such mistakes when they occur."
- Berman's questions: Does this mean that circuit court have to start reversing some within-guideline sentences as unreasonable? In the 2+ years since Booker, not a single district court within-guideline sentence has been found substantively unreasonable on appeal; is SCOTUS suggesting that circuit courts have failed to recognize and correct district courts those (rare? not-so-rare?) "times" when district courts have made substantive mistakes by imposing unreasonable within-guideline sentences?
MYSTERY #4, Rita opinion at slip op. at 20: "Where a matter is as conceptually simple as in the case at hand and the record makes clear that the sentencing judge considered the evidence and arguments, we do not believe the law requires the judge to write more extensively."
- Berman's questions: Does this mean that, in conceptually complicated cases with less clear records, the law requires a district judge to write more extensively to justify a within-guideline sentence? And what might make a case conceptually complicated: intricate guideline calculations, acquitted conduct enhancements, a Sentencing Commission report on point, clever arguments by counsel?
MYSTERY #5, Rita opinion at slip op. at 21: "Rita and supporting amici here claim that the Guidelines sentence is not reasonable under §3553(a) because it expressly declines to consider various personal characteristics of the defendant, such as physical condition, employment record, and military service, under the view that these factors are 'not ordinarily relevant.' USSG §§5H1.4, 5H1.5, 5H1.11. Rita did not make this argument below, and we shall not consider it."
- Berman's questions: What exactly would Rita and his counsel have had to say/assert to make "this argument" below? Might Rita have won at least a remand from SCOTUS if he had made "this argument" below? Did Lewis Libby sufficiently make "this argument" at his sentencing before Judge Walton in order to preserve the issue for consideration on appeal?
if you think you can help solve these mysteries, please first identify in your comments which mystery you are addressing in an effort to help me (and others) obtain Rita clarity.
Rita recap ... for now
Talking to colleagues and thinking about all this stuff more has generated dozens more Rita reactions in my sad little head. But, I now need some time to digest (both ideas and food). So, I'll sign off for a while by encouraging review of this post by Kate Stith and this post by David Stras on Rita at SCOTUSblog and also by recapping my own Rita work so far today:
- Anticipating Rita reactions
- Rita is here and... also the opinion(s) in Rita
- Rita has something for everyone (except Victor Rita)
- The notable Justices not barking in Rita
- When and how will lower court judges construct the post-Rita world?
- Another first view of Rita
- The one circuit indirectly reversed in Rita
- Are within-guideline crack sentences now presumptively unreasonable after Rita?
Are within-guideline crack sentences now presumptively unreasonable after Rita?
As I have stressed repeatedly before (most recently here), the US Sentencing Commission has said officially, repeatedly and emphatically that the current crack guidelines are too harsh and thus "significantly undermine the various congressional objectives set forth in the Sentencing Reform Act." (And, as detailed here and this archive, the USSC has this year put its long-held expert opinion into action by amending the guidelines, effective November 1, to lower all crack guideline ranges across the board.)
In Rita (opinion here), Justice Breyer's opinion for the Court speaks approvingly of arguments from counsel that "the Guidelines sentence itself fails properly to reflect §3553(a) considerations" and/or that "the Guidelines reflect an unsound judgment." The Rita opinion for the Court further explains that "where judge and Commission both determine that the Guidelines sentences is an appropriate sentence for the case at hand, that sentence likely reflects the §3553(a) factors (including its 'not greater than necessary' requirement)."
Adding all this up — and again keeping in mind the USSC's own official, repeated and emphatic assertions that the crack guidelines are "greater than necessary" to achieve serve §3553(a) — shouldn't a circuit court view a within-guideline crack sentences as presumptively unreasonable? Of course, after Rita, a district judge surely would have discretion, in the course of "exercising his own legal decisionmaking authority" to explain why he or she believes that, on the facts of a particular case, a defendant's sentence should be within or even above the current crack range. But, unless and until a district judge explains why it is imposing a sentence that the Commission has officially, repeatedly and emphatically deemed inappropriate, I think that sentence logically ought to be reversed as greater than necessary.
Rita reactions around the blogosphere
Here are some early reactions to the Rita decision from sites on my blogroll:
- Lyle Denniston here at SCOTUSblog
- Mark Osler here at SCOTUSblog
- Steve Kalar here on the Ninth Circuit Blog
- Orin Kerr here at the Volokh Conspiracy
- Peter Henning here on the White Collar Crime Prof Blog
- Kent Scheidegger here on Crime and Consequences
Feel free to comment on the commentary or to note other good blog analysis in the comments.
The one circuit indirectly reversed in Rita
As I first noted here, the Supreme Court's decision in Rita upholds the Fourth Circuit's decision to adopt a presumption of reasonableness for within-guideline sentences, but also indirectly approves of other circuits' decisions to resist adopting this presumption. So, it might seem that all circuit approaches to post-Booker law and practice have been sanctioned by Rita.
But, because the Rita decision suggests the continued validity of "traditional" departure analysis after Booker, one of the Seventh Circuit's post-Booker views has been indirectly reversed. Recall that the Seventh Circuit has said repeatedly that departures are obsolete after Booker, and this seem to be plain wrong after Rita. (Notably, the Ninth Circuit also seemed to agree on this point, though less emphatically and it still have a pending en banc action to sort through post-Booker/Rita realities for its district courts.)
Another first view of Rita
My always very thoughtful colleague Alan Michaels sent me (and allowed me to post) this reaction to Rita:
Having read all the opinions, but once only so far, I think you are completely correct to emphasize the importance of lower-court reaction to Rita.
On the one hand, the Court's opinion, which six Justices joined, makes it clear that within Guidelines sentences will continue to not be reversed easily. The Guidelines thus provide a safe-harbor for district judges, as well as a possible labor-saver, since it seems a within Guidelines sentence requires less explanation by the District Judge. As both majority and dissent acknowledge, this could well encourage within Guideline sentences.
On the other hand, five Justices argue for broad discretion for district judges to go outside the Guidelines (on an abuse of discretion standard or even less review). One can certainly argue that, in some ways, the Stevens opinion is the controlling one, at least to the extent that it empahsizes the scope of district court discretion, since Scalia, Thomas and Souter wanted more. Moreover, even the Court's opinion (perhaps to keep the votes of Stevens and Ginsburg) is careful to disavow any statement that district judges are constrained by the Guidelines. This suggests that a District Judge of a mind to give a sentence above or below the Guidelines will get the leeway to do so.
Whether district judges follow one path or the other will, as you say, determine the significance (though, of course, Gall could give them a push).
When and how will lower court judges construct the post-Rita world?
Because Booker had so many competing parts, its "meaning" only became clear as lower courts constructed a mostly guideline-centric approach to post-Booker sentencing law and procedure. Rita, by my lights, largely approves a guideline-centric approach to post-Booker sentence, but also seems to indirectly approve any reasoned decisions by lower courts to take other approaches to post-Booker sentence law and procedure. Consequently, Rita's "meaning" may only became clear as lower courts revise (or reiterate) their approach to post-Booker sentencing law and procedure.
Notably, the Sixth and Ninth Circuits have on hold en banc actions about reasonableness review which might provide those courts a chance to construct a new post-Rita world. Also, Judges Adelman and Cassell and Gertner and Presnell and other active and speedy district judges will surely chime in before long.
Then again, perhaps everyone will try to tread water until Gall and Kimbrough get decided, even though those ruling are likely at least six month away.
The notable Justices not barking in Rita
Though Rita has something for everyone (and, arguably, nothing for everyone) focused on federal sentencing issues, it has very little for folks deeply interested in figuring the deeper views of particular Justices. Specifically, I am intrigued — and somewhat disappointed as an academic — that Chief Justice Roberts and Justices Kennedy, Ginsburg and Alito are all quiet in Rita.
Rita has something for everyone (except Victor Rita)
Though I am going to have to read all the opinions a few more times to really take stock of what's here, my first reaction to the Rita decision (basics here) is that it has something for everyone except Mr. Victor Rita. Indeed, for an opinion that many hoped could help clarify post-Booker sentencing realities, Rita strikes me as more likely to create continued confusion because everyone will be able to find some passages to their liking. Let me explain:
On the one hand, those circuits that have been applying a presumption of reasonableness to within-guideline sentences now have conclusive authority that they can continue to do so. However, the opinion for the Court in Rita does not say that those circuits which have resisted this presumption have to adopt the presumption (though I would suspect some now might).
But, on the other hand, and perhaps even more importantly as a practical matter, the opinion for the Court in Rita suggests that at least some within-guideline sentences in some cases have to be, at some point, found unreasonable by circuit courts. Justice Stevens makes this point explicitly when he says that the Court's opinion "makes clear ... that the rebuttability of the presumption is real." The fact that the opinion of the Court rejects Justice Scalia's suggestion that reasonableness review is only procedural provides additional fodder for those defendants, on appeal, asserting that their within-guideline sentence is unreasonable.
And yet, the opinion for the Court lauds the Sentencing Commission for its "serious, sometimes controversial" efforts to carry out its mandate "to embody in the Guidelines the factors and considerations set forth in 3553(a)," and it asserts that "it is fair to assume that the Guidelines, insofar as practicable, reflect a rough approximation of sentences that might achieve §3553(a)'s objectives." (It is fair to assume that this sentence, insofar as practicable, might achieve a rough record for the number of qualifiers in an important sentence.)
But still, and perhaps even more importantly as a practical matter, the opinion for the Court suggests it is quite possible to make the argument that a particular "Guidelines sentence itself fails properly to reflect §3553(a) considerations" and that "the sentencing court does not enjoy the benefit of a legal presumption that the Guidelines sentence should apply."
Also, just in case anyone was looking for some procedural clarity, we also are told that "a statement of reasons is important," perhaps especially so if a party "argues that the Guidelines reflect an unsound judgment, or, for example, that they do not generally treat certain defendant characteristics in the proper way." And yet, the "appropriateness of brevity or length, conciseness or detail, when to write, what to say, depends upon circumstances," which sometimes "will call for a brief explanation" and other times "will call for a lengthier explanation."
Got that everyone?
Judge Walton explains his Libby bail ruling
Though I'm focused on the Rita ruling for the rest of today, others folks might be interested to check out Judge Reggie Walton's new opinion explaining why he denied "Scooter" Libby's request for release pending appeal. Howard Bashman has kinds posted a copy of today's opinion online, which you can access it via this link.
The opinion(s) in Rita
Here is the vote breakdown in the Rita opinion (which How Appealing makes available via westlaw at this link):
- Breyer, J., delivered the opinion of the Court, in which Roberts, C. J., and Stevens, Kennedy, Ginsburg, and Alito, JJ., joined, and in which Scalia and Thomas, JJ., joined as to Part III.
- Stevens, J., filed a concurring opinion, in which Ginsburg, J., joined as to all but Part II.
- Scalia, J., filed an opinion concurring in part and concurring in the judgment, in which Thomas, J., joined.
- Souter, J., filed a dissenting opinion.
A very quick read suggests the main opinion is very supportive of the work of district courts, circuit courts and the Sentencing Commission, all of which adds up to a loss for Mr. Rita on appeal (and generally bad news for Lewis Libby and other defendants seeking to challenge within-guideline sentences).
UPDATE: The full 59-page effort is now also at this link. My printer is working overtime, and I'll likely need a few hours to digest what's here. Separate posts on each of the four opinions will follow.