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March 15, 2011

Tapia's topic: Can federal judges lengthen prison terms based on treatment programs?

I have not blogged recently on the really interesting federal sentencing case of Tapia v. US, which is to be argued before the Supreme Court next month, because I have had the pleasure and honor of helping Professor Stephanos Bibas prepare an amicus brief supporting the judgment of the Ninth Circuit.  (Professor Bibas was invited to prepare this brief by the Supreme Court because the Solicitor General has adopted the defendant's position on the chief statutory issue, and he kindly invited me to help with the briefing.) 

Here is the question presented in Tapia as set forth by the Solicitor General: "Whether 18 USC 3582(a) precludes a district courtfrom imposing a longer term of imprisonment in order to promote a defendant's rehabilitation."  Via the ABA, all the merits briefing for Tapia is now available at this link, including now this Brief for Amicus Curiae by Invitation of the Court.  And here is a brief portion of the amicus brief to give you a flavor of the argument that Professor Bibas (with my help) has put forward to the Justices:

The Sentencing Reform Act repudiated both the rehabilitative ideal’s effort to reform every inmate’s soul through isolation and prison routine and the Rehabilitation Model’s arbitrary, indeterminate procedures.  It did not, however, bar judges from considering treatment programs that target specific defendants’ addictions or pathologies when imposing determinate prison sentences.

Sentencing judges may, indeed must, consider a defendant’s need for a targeted treatment program as a factor in prison sentencing.  The Act instructs judges to consider programs tailored to particular defendants’ needs, distinguishing those treatments from the amorphous rehabilitative ideal.  Here, the sentencing judge permissibly adjusted petitioner’s prison sentence in part to facilitate treatment of her drug addiction....

In warning against “imprisonment” as a “means of promoting rehabilitation,” Congress cautioned against simply locking an inmate in a cell indefinitely to induce penitence.  That instruction echoes Judge Frankel’s indictment of the “airy nonsense that everyone can be rehabilitated.”...

When a judge tailors a prison term so that a defendant can enter a specific treatment program, it is the program -- not imprisonment itself -- that is the “means of promoting rehabilitation.”  The verb “recognizing” instructs judges to recall to mind and realize the failed history of the rehabilitative ideal, not targeted prison treatment programs.

March 15, 2011 at 10:51 AM | Permalink

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Doug --

The bad news: The Obama Justice Department once again (as with DOMA) refuses to defend established law, trashing its obligations as traditionally understood by previous administrations of both parties.

The good news: You'll be writing the brief DOJ should have written, meaning it'll be better than it otherwise would have been.

Posted by: Bill Otis | Mar 15, 2011 3:35:55 PM

This case involves interpretation of a federal statute, the constitutionality of which is not at issue. It is simply not the case that the DOJ is "refus[ing] to defend established law."

Posted by: DEJ | Mar 15, 2011 6:40:24 PM

"Established law" is not limited to established Constitutional interpretations.

The Department is obligated to defend judgments in its favor concerning federal statutes, not just the Constitution.

Posted by: Bill Otis | Mar 15, 2011 8:01:13 PM

No, Bill, you are wrong. The Department is obligated to defend judgments in its favor that correctly interpret federal statutes, not judgments in its favor that are contrary to the plain language of federal statutes. I would think you'd oppose the Supreme Court re-writing statutes to make policy not found in the statute, which is what Doug's brief urges.

Posted by: ABE | Mar 15, 2011 8:10:50 PM

I do not think it is a fair characterization of the amicus brief, ABE, that it is asking "the Supreme Court [to re-write 18 USC 3582(a)] to make policy not found in the statute." Rather, I would contend that the amicus brief suggests a more nuanced approach to 18 USC 3582(a) than suggested by either the defendant or the SG.

That said, I am glad that DEJ and ABE have called Bill Otis to task for his knee-jerk attack on the Obama DOJ in this setting. The reason this case is before SCOTUS is because the meaning of 18 USC 3582(a) is NOT "established law," but rather is unclear law that has produced a split in the the circuits. Did you read the briefs or even understand what is at issue in Tapia, Bill, before going on attack? To go after the Obama DOJ for its position in this case showcases an ad hominem bias that seems neither justified or helpful to the discussion of the statutory issue in play in Tapia.

In short, Bill, I am surprised and disappointed that you reach/defend a distorted position like this before becoming informed on the matter. You often accuse others of letting bias impact their perspectives on legal issues, but you status as a pot calling other black shows through in this thread.

Posted by: Doug B. | Mar 15, 2011 9:50:31 PM

"The reason this case is before SCOTUS is because the meaning of 18 USC 3582(a) is NOT 'established law,' but rather is unclear law that has produced a split in the the circuits."

The government successfully defended its position in the court below and has now turned its back on it. That is extremely unusual. Historically it has been done only when there is no reasonable argument to be made in behalf of the postion the government won with below. The very fact that a number of circuits have adopted the government's former position is proof positive that it was not unreasonable.

The decision to abandon it is ostensibly based on a re-assessment of the merits, but, like DOMA, is actually based on the ideology of the party in power.

The way DOJ typically defends a switch like this is to say the arguments it is now making are more persuasive than the arguments it formerly made. But even if that is correct, it's beside the point, because it asks the wrong question.

The question, for purposes of deciding which side to take in the Supreme Court, is not whether DOJ can make good arguments for its current posture. The question is whether there is any reasonable argument to be made in behalf of its former posture, and, as noted, without question there is.

The real reason the Department has switched, and the SCOTUS now has to take the extremely unusual (do you disagree?) step of appointing outside counsel, is similar to the reason the Department has backed out of DOMA. The statute doesn't read any differently now than it always has. What's different is the more liberal inclinations of the people running the show at DOJ. But the tradition is that THAT sort of change is insufficient to change sides when the case goes from the circuit court to the Supreme Court.

Stability in the way DOJ applies the law under which it operates is, I would submit, more important than you give it credit for. And, as we all know, if the switch were from a formerly pro-defenant position to a present anti-defendant position, the majority of commenters here would be howling.

For me, the neutral values of consistency and stability from DOJ are to be preferred to result orientation which, I fear, is what's going on.

Posted by: Bill Otis | Mar 15, 2011 11:48:35 PM

Bill,
The trouble with your view of DOJ is that you assume the result; i.e., that it's only natural "interest" in any case is achieving the harshest punishment possible. Thus, a few months ago, I recall you arguing that no one should criticize the DOJ pardon office for never recommending pardons, because that is DOJ's natural inclination (despite that not being its statutory function).
I think in this case your allegations of ideological bias are pretty weakly supported -- if the Obama DOJ were really so pro-run of the mill criminal, it could achieve that end in much more effective ways, such as not prosecuting drug offenders, than in taking this position in a somewhat obscure Supreme Court case, which, however it comes out, is unlikely to affect all that many defendants. But even if it is ideologically motivated, so what? The DOJ is not the judiciary, or some independent fourth branch of government. Of course it's going to take positions based on policy preferences. It's only by acting as if your own "conservative" preferences are the neutral default that your criticism makes any sense.

Posted by: Jay | Mar 16, 2011 1:31:58 AM

Jay --

"I recall you[r] arguing that no one should criticize the DOJ pardon office for never recommending pardons, because that is DOJ's natural inclination (despite that not being its statutory function)."

Could you please quote the post of mine where I said that? Since it is not the case that DOJ "never" recommends pardons, I doubt I said what you attribute to me, but if you cite the post, I will stand to be corrected.

I believe that my stance on pardons has been (and is) that they should be considered one case at a time, each on its individual facts. Since anyone can write in to seek a pardon, it's not exactly a surprise that, in EVERY administration, the vast majority are turned down, and, no, I don't think this or prior administrations should be criticized for that.

"I think in this case your allegations of ideological bias are pretty weakly supported -- if the Obama DOJ were really so pro-run of the mill criminal, it could achieve that end in much more effective ways, such as not prosecuting drug offenders..."

Which is exactly what it's doing by not prosecuting "medical marijuana" cases in California, in contrast to its more conservative predecessor (and thus putting on the shelf, in that setting, the federal CSA, which does not recoginze "medical" marijuana).

But non-prosecution is hardly the only means to an ideologically determened end. The administration could, for example, encourage Congressional reductions in crack sentences, which in fact it also did by supporting the FSA.

It's the political realities of a center-right country, and not the present DOJ's inclinations, that tamp down its more ambitious aims on the criminal law front.

Oh, and do you really think what DOJ is doing with the DOMA is not a result of ideology? Really?

"But even if it is ideologically motivated, so what? The DOJ is not the judiciary, or some independent fourth branch of government. Of course it's going to take positions based on policy preferences."

I agree with that, within limits. Suppose, though, that the "policy preference" is not merely that crack sentences should be lower, but that crack prosecutions are thuggish and therefore will not be undertaken at all, ever.

Is that OK? The problem is that it amounts to an executive branch repeal of an important part of the CSA -- otherwise known as usurpation.

The area is more complex than you portray it. Shifts in emphasis in enforcement are fine; de facto repeal of entire statutes, by their non-enforcement, isn't. Repeal is for Congress.

The present situation is much closer to the line. As I said, and you do not dispute, it is extremely unusual for DOJ to renounce its prior, and successful, litigating position in the court of appeals when the case gets to the Supreme Court. That by itself should set off alarm bells.

Let's put the shoe on the other foot. Suppose toward the end of Obama's term, the Fourth Circuit strikes down some civil rights statute that most Democrats voted for (and passed) and most Republicans opposed. Other courts of appeals had upheld the statute (or the interpretation or scope of it that the Fourth Circuit axed). A reasonable argument can be made that the Fourth Circuit is wrong.

The incoming Republican administration withdraws the cert petition and says it will not contest the Fourth Circuit's gutting of the civil rights law.

Is that OK with you? Well, maybe. Your analysis is insufficiently precise for me to tell. But if it's not OK with you, and you'd criticize it, should I say that it's only by acting as if your liberal preferences are the neutral default that your criticism would make any sense?

Or would it be more balanced to say that legitimate considerations of stability, consistency and predictablility -- and not just your liberal outcome preferences -- might animate your views?

Posted by: Bill Otis | Mar 16, 2011 5:01:46 AM

Bill, I am grateful you have now provided more explanation for your criticism of the Obama DOJ and for your broader concerns that the Obama DOJ puts its policy commitments above "the neutral values of consistency and stability." But I still wonder whether you have actually read the briefs in Tapia and whether your broader concerns are as germane here as in the other settings you stress.

The key in the Tapia context is that we are dealing with the administration/interpretation of a sentencing statute, not a constitutional defense of that statute or failure even to apply a statute. I think is harder to make a strong argument that DOJ ought to defend what it now considers an incorrect statutory interpretation in the name of consistency and stability: indeed, I would think that DOJ as a kind of agent of Congress ought NOT to persist in supporting what it ultimately concludes is the WRONG interpretation of a federal statute, because by doing so it could/would be perpetuating a mis-application of what Congress wants to happen. Similarly, we are not dealing with de facto prosecutorial nullification though a failure to enforce a federal criminal prohibition (and, even in that context, I would be surprised if you think every new DOJ has to persist with the prosecutorial priorities of a prior administration).

Tellingly, in a much higher profile setting --- i.e., crack sentencing and now the application of the new crack statute --- the Obama DOJ is elevating the apparent concerns you stress over its own oft-state policy views concerning just outcomes. Obama's DOJ went to Congress asking for a 1-1 fix two years ago, but kept supporting the 100-1 law in sentencing courts and on appeal until Congress made its changes in Aug 2011. And even though Congress only went to 18-1 (not even close to the 1-1 deemed just by DOJ), Obama's DOJ has been defending that new law and even contending that the old law ought to keep applying as long as possible.

If the Obama DOJ was really in the business of "trashing" what you say is its obligation to defend existing law, we would be seeing a MUCH different approach to crack cases (both before and since the passage of the FSA). That we haven't (and that your attack on the Obama DOJ is not tempered by this important reality) is why your attack in the much less consequential Tapia setting is so very off-putting.

Posted by: Doug | Mar 16, 2011 7:20:37 AM

Bill--

I gather you selectively forgot a time in 1990 when another radical solicitor general "trashed his obligation" to defend an FCC affirmative action program before the Supreme Court in 1990. Based upon administration "ideology" too. (Unless you're willing to suggest that the fact that GHW Bush was President had nothing to do with the decision...)

By the way, that SG's name was John Roberts, now Chief Justice of the United States. The FCC still won the case by filing its own brief defending the program.

Posted by: Res ipsa | Mar 16, 2011 8:55:15 AM

Res ipsa --

What, are you in a bad mood?

1. Roberts was never Solicitor General. He was Deputy SG and might, for a time, have been acting SG -- I'll take your word for it if you say so.

2. Do you really think I "selectively" forget who, 21 years ago, argued a civil case having nothing to do with me or my assignments in the USAO? I had no idea until I read your post right now that any such case existed. Why would I? And it still rings absolutely no bell with me. What's your basis for accusing me of sneaking around something I never heard of?

3. Nor have I taken the position, which you implicitly attribute to me, that it is NEVER proper for the government to reverse field in the SCOTUS. It is DOJ's tradition to defend, in the Supreme Court, the reading of an act of Congress that it sought in the court below unless no reasonable argument is available to make that defense.

Do you dispute that?

In this case, the reading reached by the Ninth Circuit is in accord with the readings of at least two other circuits. The idea that there is no reasonable argument to be made in its defense is absurd.

4. Although I know zip about this FCC unnamed case you bring up, I do know that the FCC is not Congress and that its homemade affirmative action rules are not Acts of Congress.

5. I also see you have nothing to say about DOMA. Wanna tell us that the administration's about-face there is anything but political?

Posted by: Bill Otis | Mar 16, 2011 10:45:50 AM


Doug --

I read DOJ's opposition to cert, and then its motion for vacatur. I have not read any other briefs in the case. The reason I haven't is that I view the underlying substantive issue as not all that important in the scheme of things.

"I think is harder to make a strong argument that DOJ ought to defend what it now considers an incorrect statutory interpretation in the name of consistency and stability..."

I agree that the argument is not as strong as in the Constitutional context, yes. But it has a number of common features.

"...indeed, I would think that DOJ as a kind of agent of Congress ought NOT to persist in supporting what it ultimately concludes is the WRONG interpretation of a federal statute, because by doing so it could/would be perpetuating a mis-application of what Congress wants to happen."

But there's not a wisp of an indictation of which I'm aware that Congress was unhappy with the result reached by the Ninth Circuit here, or with similar results by other circuits in earlier cases. Nor do I see any indication that the present Congress would urge or has urged the administration to take the position it has.

"Similarly, we are not dealing with de facto prosecutorial nullification though a failure to enforce a federal criminal prohibition (and, even in that context, I would be surprised if you think every new DOJ has to persist with the prosecutorial priorities of a prior administration)."

No, I don't think such persistence is required. I should also say, however, that I think it's problematic that DOJ is taking an ANNOUNCED pass on the medical marijuana cases in California. There are a number of reasons for that. One is that it is, indeed, a de facto DOJ nullicicaiton of a portion of the CSA. The second, and at least equally important reason in my mind, is that, given the AG's stated reasons for his medical marijuana stance (deference to state judgment), it raises alarming federalism issues. Should DOJ have deferred to "state judgment" about Jim Crow laws and then not enforced the CRA? I was unable to detect in DOJ's rationale any limiting principle that would NOT also give carte blanche to Jim Crow -- or to other perverse state law that is inconsistent with federal law. That's not the way it worked in the USAO when I was there under either Clinton or Bush.

Now you may get even more discomfited with me for saying this (on the other hand, you have a pretty independent turn of mind and might agree with it): I'm pretty sure that both the medical mariuana decision and the DOMA decision were driven primarily by politics rather than law. Obama's constituencies are much more favorable to pot and gay marriage than the national norm.

The question, as ever, is how far you go. To me, doing a flip-flop IN THE SUPREME COURT on an issue you won in the court below, and a few other courts below, sets off alarm bells.

I can't, in a quick-hitter legal blog, spell out the distinction between a proper and an improper shift in DOJ positions based on the fact that a new administration's views differ from the old administration's views. That's a whole law review article. I would only say that an improper shift has the aroma of politcs engulfing law in a way that threatens stability and predictability, those being among the hallmarks, and great advantages, of the rule of law itself.

Finally, it was not my intent to be off-putting. If you go back to my original entry, I believe you'll see that I intended to convey a compliment, not a complaint.


Posted by: Bill Otis | Mar 16, 2011 11:28:24 AM

Doug --

Just one more thing, if it helps. I'll withdraw the "trashing" phrase, which I agree is overcooked language, and substitute that the administration's stance "raises non-trivial questions about the extent of its adherence to important DOJ traditions about reversing field in the Supreme Court," when it could plausibly, if not easily, defend the position it took below in the instant and numerous prior cases.

Posted by: Bill Otis | Mar 16, 2011 11:43:04 AM

Bill--

No, not in a bad mood at all--just wanted some good-natured sparring from someone whose intellect I respect. And besides, wasn't it Reagan who said that a person who agrees with me 80% of the time is my friend?

You are correct that Roberts was the acting SG at the time...my bad.

What I was reacting to more than anything else was what I saw to be the unwarranted and hyperbolic "trashing" phrase, which I'm glad you have withdrawn. Just to lay my cards on the table, I think DOMA was both unnecessary and stupid--and I think the federal recognition provision should be unconstitutional (I also think there are currently 5 votes on the Supreme Court to say that based upon internal Supreme Court practice). That said, I think the Obama administration should defend it nonetheless, because that's what the executive should do.

I saw as implicit in your characterization that somehow the Obama Administration was the only administration making nakedly political legal decisions. Yet Roberts made one in 1990, presumably with the blessing (order?) of Bush I. Reagan refused to enforce certain statutory provisions until two separate federal appeals courts slapped him down. Bush II expressed an intent to not enforce certain statutory provisions with signing statements (admittedly it's unclear if he followed through with that intent), which prompted an ad hoc ABA committee to study the issue and issue a report--a committee to which I contributed.

Maybe I was just reading too much into your statements (I wouldn't be the first, right?)--and if so, my apologies for unwarranted snarkiness. What I was reacting to was what I perceived to be rhetoric (which I have heard before) that Obama is somehow unprecedentedly abdicating a sworn duty. He may be abdicating a duty, but he's not the first, and certainly won't be the last.

Posted by: Res ipsa | Mar 16, 2011 1:16:51 PM

Let's just say that I was very involved in the Third Circuit's decision in Manzella, which basically reinvogorated the circuit split on this issue. There is a reason the government is no longer defending the position it advanced in that case: it is contrary to the plain text and the purpose of the statute. I say this despite the yeoman's work that Professors Bibas and Berman did at the Court's request. But as I think is evident from that brief, it is quite a struggle to defend the government's former position on this issue.

Posted by: Someone | Mar 16, 2011 1:16:58 PM

Res ipsa --

OK, I'll take the 80%. Not a problem. As I've said before, I wish you'd post here more often. I did think you were going a bit hard at me when you said I was selectively forgetting the FCC case (whose name I still don't know).

On some other points:

"I think DOMA was both unnecessary and stupid--and I think the federal recognition provision should be unconstitutional (I also think there are currently 5 votes on the Supreme Court to say that based upon internal Supreme Court practice). That said, I think the Obama administration should defend it nonetheless, because that's what the executive should do."

I'm pretty sure the enactment of DOMA was more a political (or perhaps ideological) statement than legislation as ordinarily understood. And I'm even more sure that DOJ's now turning away from it is also an ideological statement. I guess my major point is that there are features of law important to protecting long term and neutral values like predictability, and those values are put at risk by ideologically-driven DOJ flip-flops.

Presidents have used signing statements for a very long time, and I never noticed much grousing about them until the Bush administration -- and even then not much until Bush became unpopular in about 2006, when it dawned on people that he was in a war he didn't know how to either win or end.

Anyway, as I was saying to Doug, the line between proper and improper changes of legal position from one administration to the next is worth a law review article, and can't be done on a blog. In general, as you might have noticed, I'm a rule-oriented person rather than a discretion-oriented person, because discretion is too prone to morph into outright willfulness, and willfulness is the opposite of law. Civilization developed law for a reason, and the reason was to overcome the willfulness (and soon enough, the brutality) of the strong -- or, as it's sometimes known, the law of the jungle.

Thus you will notice a certain consistency here. I'm for mandatory gudelines, against jury nullification, against executive branch usurpation, and against DOJ reversals absent overpowering reason (which it lacks in this instance).

You disagree with me on a lot of that, maybe all of it. And it's true without doubt that rule-orientation has drawbacks. What gets missed is that the alternative ALSO has drawbacks, and I'm quite firmly convinced they're worse. Indeed, I would argue that history shows they're MUCH worse.

Posted by: Bill Otis | Mar 16, 2011 2:14:31 PM

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