« Professor Becker and Judge Posner examine mass incarceration in the US | Main | US Sentencing Commission releases fourth quarter of FY 2011 federal sentencing data »

December 5, 2011

Ninth Circuit applies Tapia rule to supervised release revocation sentences

It is possible (probably?) that only hard-core federal sentencing fans will understand either the title of this post or the significance of the Ninth Circuit's work today in US v. Grant, No. 10-10245 (9th Cir. Dec. 4, 2011) (available here). With luck, these final substantive paragraphs from the Grant (with footnote cites removed) opinion will explain in more detail what this post is all about and why this issue might be of interest to at least a few folks beyond hard-core federal sentencing fans:

Two of our sister circuits have divided on whether Tapia applies to imprisonment on revocation of supervised release.  The First Circuit held in United States v. Molignaro that courts are not permitted to consider rehabilitation when they are revoking a term of supervised release, just as they are not permitted to do so when they initially sentence a defendant to prison or lengthen his prison sentence.  Molignaro takes special note of the incapacity of the sentencing court to require the Bureau of Prisons to enroll a prisoner in a particular rehabilitation program after revocation of supervised release, the same reason that Tapia noted in the context of an initial sentence.  The Fifth Circuit in United States v. Breland goes the other way, noting that the supervised release statute directs a court to certain Section 3553 factors, including rehabilitation, and does not include the “recognizing that . . .” prohibition.

We think that the First Circuit has the better of the arguments.  The point in Molignaro about the incapacity of the revoking court to order what it considers to be appropriate rehabilitative measures outweighs the cross-referencing argument in Breland.  The “recognizing that . . .” phrase does not limit itself, by its words, to initial sentencing, but appears to embrace all sentences of imprisonment.  We recognize that sentencing judges may have a hard time following Tapia’s command: “Do not think about prison as a way to rehabilitate an offender.” “[R]etribution, deterrence, incapacitation, and rehabilitation,” the “four purposes of sentencing,” sound more distinct than they really are.  A judge may reasonably think that retribution and incapacitation will most effectively rehabilitate the criminal being sentenced.  Punishment for wrongdoing is “classical conditioning whose effects we ordinarily identify as conscience,” so the verbal difference between punishment and rehabilitation may obscure the fact that they are often the same thing.  We make a child behave by telling him to go to his room, and we make an adult behave by telling him to go to his room, only his room has bars.  Hopefully both the child and the adult will internalize a sense of wrongdoing attached to whatever conduct caused their confinement.

Nevertheless, Tapia is the controlling statutory construction.  So prison, whether as an initial sentence or on revocation of supervised release, can be imposed and the duration selected only for purposes of retribution, deterrence, and incapacitation, not rehabilitation.  When a judge imposes prison, he may wisely believe that it will have rehabilitative benefits, but those benefits cannot be the reason for imposing it.  On revocation of supervised release, district judges must make and articulate their imprisonment decisions in terms of the other legitimate sentencing criteria.  This rule applies both when determining whether to impose imprisonment and when determining the length of the prison sentence.

December 5, 2011 at 04:51 PM | Permalink


TrackBack URL for this entry:

Listed below are links to weblogs that reference Ninth Circuit applies Tapia rule to supervised release revocation sentences:


Post a comment

In the body of your email, please indicate if you are a professor, student, prosecutor, defense attorney, etc. so I can gain a sense of who is reading my blog. Thank you, DAB