June 23, 2008
Supreme Court vacates in Greenlaw and Rothgery
Here's an early report from SCOTUSblog on the two criminal justice opinions released by the Supreme Court this morning:
The Court has released the opinion in Greenlaw v. United States (07-330), on whether a federal court of appeals may increase a criminal defendant’s sentence in the absence of a cross-appeal by the government. The ruling below, which increased the defendant’s sentence, is vacated and remanded. Justice Ginsburg wrote the opinion. Justice Alito dissented, joined by Justice Stevens and joined in part by Justice Breyer....
The Court has released the opinion in Rothgery v. Gillespie County (07-440), on the point at which adversarial proceedings have been initiated against an individual for purposes of triggering his Sixth Amendment right to appointed counsel. The ruling below, which found for the state, is vacated and remanded. Justice Souter wrote the opinion. The Chief Justice and Justice Alito wrote concurring opinions. Justice Thomas dissented. We will provide a link to the decision as soon as it is available.
A link to the decision in Greenlaw, which has a particularly interesting line-up of Justices, is now available here. A link to the decision in Rothgery is now available here. Commentary on these rulings will follow later today.
SCOTUSblog reports that the next release of opinions will be Wednesday morning, and the folks there also sensibly speculate that Justice Scalia is going to be the author of the majority opinion in the Heller Second Amendment case.
June 23, 2008 at 10:12 AM | Permalink
TrackBack URL for this entry:
Listed below are links to weblogs that reference Supreme Court vacates in Greenlaw and Rothgery:
It's quite interesting that these justices did not line up the way they were "arranged." Hopefully the Supreme Court is able to look at the criminal justice system in this country and take a good hard look at the injustices done to minorities, particularly in urban areas, with regard to the death penalty.
Posted by: JT | Jun 23, 2008 10:39:05 AM
Greenlaw seems, to me, to be just another example of ceding sentencing power to the government and away from the courts.
Posted by: Steve | Jun 23, 2008 11:39:46 AM
How so? Are you really arguing that it is “ceding” power to the government to hold that if the government doesn’t appeal, the court of appeals lacks the power to increase a sentence?
The Supreme Court doesn’t take “a look” at criminal justice. It looks at cases one at a time, based on the questions presented.
Posted by: S.cotus | Jun 23, 2008 12:14:07 PM
S.cotus, what I'm arguing is that, as seems so often to be the case, the government--not the courts--has the power to control sentencing issues. A court must, with very limited exceptions, await the government's motion under Rule 35, in order to grant a sentencing reduction. The government gets to decide whether to move for the additional one-point reduction for acceptance of responsibility.
Where, as in Greenlaw, the district court makes an obvious error, the Court of Appeals now is at the whim of the government in correcting that error.
Posted by: Steve | Jun 23, 2008 12:33:14 PM
Steve, Two general points:
1. The CTA would never have the power in the First place to touch the sentence unless either party appealed.
2. All this opinion means is that the CTA can’t increase the sentence unless the government appeals. It can order a decrease in the sentence if the defendant appeals.
3. By increasing the sentence, the court did second-guess a political decision by the executive to NOT appeal it. Sure, this sounds like "ceding" power to the government, but at some level, the government has the absolute power NOT to prosecute some people, and it also has the power to not appeal things. But, these things end up helping individual defendants (though maybe hurting future defendants in general).
I would only read this opinion as a lesson in appellate procedure, and maybe some general observations about the proper role of District Court judges.
Posted by: S.cotus | Jun 23, 2008 12:44:56 PM
S.cotus, I appreciate your remarks, and I agree with your two general points. Nonetheless, vis-a-vis your third point, while I agree that the government has the authority to prosecute or not prosecute, if courts are to have authority over sentencing, once a prosecution has been initiated (and culminated in a guilty verdict), the government should no longer be in the position to dictate the length of the actual sentence imposed. I do not know why the district court did what it did in this case, but it appears that the government knew that the law on 924(c) offenses was that each additional conviction mandated an additional 25 years, consecutive. Knowing this, the government chose both to charge Greenlaw with multiple 924 offenses and proceed to trial against him. Its change of heart in choosing not to press the issue via appeal is, I would argue, a usurpation of the authority of the courts to sentence the defendant as the law provides.
Posted by: Steve | Jun 23, 2008 1:05:40 PM
Steve, courts exist to deal with disputes among parties. If a judgment arises, and the parties are happy with a piece of it, then, in the absence of a dispute, the courts should leave it be.
Posted by: federalist | Jun 23, 2008 1:28:34 PM
federalist, while your statement may have some worth with respect to civil cases, I disagree with its application to criminal cases. Unlike most civil lawsuits, a criminal case is generally brought by a government on behalf of its constituents, to enforce laws written by a government on behalf of its constituents. Thus, the repercussions of the cases are significant not merely for those parties involved, but also for society as a whole.
Posted by: Steve | Jun 23, 2008 1:47:00 PM
Unlike most civil lawsuits, a criminal case is generally brought by a government on behalf of its constituents, to enforce laws written by a government on behalf of its constituents.
Right. And if the government, on behalf of its constitutents, waives the right to appeal part of a district court's order, why should a judge second-guess that?
Posted by: krs | Jun 23, 2008 2:41:01 PM
"The Supreme Court doesn’t take 'a look' at criminal justice. It looks at cases one at a time, based on the questions presented."
Correct in all respects.
Posted by: Bill Otis | Jun 23, 2008 4:00:34 PM
krs, because Congress prescribed a specific penalty for those offenses, and the US Attorney's office knew those penalties and proceeded with the trial, then for some reason decided it didn't want the defendant to actually get sentenced in accordance with the law. If the US Attorney's office didn't want the defendant to face all of the consequences of his actions, it shouldn't have charged him like it did.
Posted by: Steve | Jun 23, 2008 4:12:27 PM
Steve, I really wasn’t getting what you were saying until your last remark. Now, I think I understand where you are coming from. Essentially, you are arguing that “silence” by the government is a form of discretion by obtaining an indictment and then prosecuting them, but a failure to appeal shows some degree of hypocrisy that should be remedied by the courts. Your argument seems to be that allowing the government to engineer results this way places too much discretion in the hands of the government.
The reason I disagree with you here, is that decisions to appeal or not to appeal are generally made by different people in the government for different reasons. Decisions to prosecute individual defendants are usually about facts, witnesses, resources, etc. (Yes, there might be some politics in there, too.) However, when the government appeals, the result of the appeal will be far reaching. It must now ask itself whether this given case has such “bad facts” that the resulting law will be “bad” too. (This is why Congress made sure that the SG and not just an US Attorney are involved.) Or, it might ask itself whether it is “worth the trouble” to appeal a sentence. After all, some sentences might be wrong, but on appeal the practical result won’t change. Whatever the case, the government needs to take a considered decision to appeal.
Your references to civil matters raise an interesting issue. In area of practice where the government is the defendant, it is usually quite easy to see which lower courts decisions the government “acquiesces” to (i.e. states that although not necessarily bound, it will follow) and which ones from lower court decisions it will regard as wrong unless it is specifically bound by them, leaving the rest to the courts. This level of formality doesn’t exist in criminal proceedings, so the best we have is a considered decision from the SG to appeal.
Mr. Otis, Amazing how you can understand me when you agree with me.
Posted by: S.cotus | Jun 23, 2008 4:40:53 PM
I can understand you when you write two short declarative sentences.
Posted by: Bill Otis | Jun 24, 2008 7:39:12 AM
S.cotus, that is a good point, although in my mind it doesn't "absolve" the US Attorney's office of responsibility for consistency. Nonetheless, I realize the effect of Greenlaw will be quite limited, and especially so in light of the enhanced sentencing discretion now afforded to courts since Gall, but I do think it is still eroding the authority that courts have to correct errors in sentencing.
Posted by: Steve | Jun 24, 2008 8:30:33 AM
The prosecutor was not silent at the district court level: he objected to the district court judge's error at sentencing.
Posted by: Booker fan | Jun 24, 2008 1:46:16 PM