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September 18, 2017

Might Justice Gorsuch juice up the SCOTUS sentencing docket ... perhaps starting with IAC case from Arkansas?

The SCOTUS sentencing docket has felt relatively muted to me in recent years, due in part to transition issues after Justice Scalia's unexpected death and due in part to Apprendi and Booker jurisprudence no longer garnering much of the Court's attention.  Of course, the application of Eighth Amendment doctrines after Miller and Graham and vagueness doctrines after Johnson can and will continue to provide grist for the SCOTUS sentencing mill, and it also still seems no SCOTUS Term would be complete without a few capital cases on the docket.  Nevertheless, with SCOTUS soon to have its “long conference” in which the Justices will consider all the cert petitions that stacked up over the summer, I find myself not really expecting exciting cert grants on many (or perhaps any) issues that will rev up sentencing fans.

That said, and as the title of this post suggests, perhaps new personnel at SCOTUS could mean some new juice for the SCOTUS sentencing docket.  As noted in this post from May, Justice Gorsuch has opted out of the cert pool, and I suspect that could lead him to be more engaged with criminal cases that may get short shrift through the cert pool screening process. In addition, as detailed in this prior post, Justice Gorsuch had a remarkable little concurrence in a federal mandatory-minimum sentencing case, Hicks v. US, No. 16-7806 (S. Ct. June 26, 2017) (available here), right before all the Justices left for summer vacation.  Though these tea leaves hardly ensure that the new guy is a vote for cert in all the sentencing cases I find interesting, it remains fun to speculate whether Justice Gorsuch's libertarian-leaning instincts might make him more inclined to vote to review petitions of criminal defendants than some of his colleagues.

If Justice Gorsuch is looking for cert worthy sentencing cases, Carissa Byrne Hessick tees one up in this new post over at PrawfsBlawg, titled "Thompson v. Arkansas and Ineffective Assistance of Counsel at Sentencing."  Here is how that posting gets started:

Earlier this summer, I helped write a cert petition for the US Supreme Court.  The case involves an ineffective assistance claim out of Arkansas.  The petitioner, Mario Thompson, was represented at trial by a lawyer who didn’t do very much on his behalf.  Among other things, the lawyer failed to investigate or prepare any sort of meaningful mitigation case for sentencing.  On collateral attack, a state judge held that the lawyer failed to provide effective assistance of counsel at sentencing. But the Arkansas Supreme Court reversed.

Arkansas has a rule that a defendant who is claiming a violation of her Sixth Amendment right to counsel cannot show prejudice if she did not receive the maximum available sentence.  This rule is inconsistent with the reasoning of Glover v. United States, 531 U.S. 198 (2001).  And although Arkansas is the only jurisdiction to have adopted this particular rule, there is a split over the appropriate prejudice standard for ineffective assistance of counsel at sentencing claims.  The Second, Third, Sixth, and Tenth Circuits have adopted what I think is the correct legal standard.  The courts of last resort in Louisiana, Michigan, and Wisconsin have adopted that same standard.  But Arkansas and the Fifth Circuit have adopted different prejudice standards.  And several federal district courts have started to question how they ought to assess these claims.

September 18, 2017 at 10:08 AM | Permalink


Outside of the capital context, sentencing is very different from guilt.

For guilt, the ultimate question (slightly rephrased) is whether counsel's incompetence made it easier for the State to prove a particular element or elements of the offense. To take a typical one-person homicide, the State has to prove that the defendant shot the victim, that the defendant intended to kill the victim, and that the defendant premeditated -- or the equivalent concept in the particular state. The answer that the fact-finder gives via the verdict is to pick between two options.

Similarly, while it is less element based after the jury finds statutory aggravators, the sentencing decision in a capital case is typically a choice between two options -- life or death. Again, it is easy to identify that the incompetence contributed to a sentence of death.

In the non-capital setting, particularly if the available sentencing range (with or without guidelines) is broad, the decision-maker is not faced with an A or B pick. Instead, the decision-maker is faced with pick one out of ten or fifteen or more with little or no guidance as to what factors point to a particular option. Broad discretion makes it harder to define what acts create a reasonable probability of a different result with a reasonable decision-maker (particularly as the relevant factors are inherently idiosyncratic to the actual decision-maker).

Thus, while the Strickland standard is straightforward for guilt and capital sentencing, it really does not work well in the non-capital context.

Posted by: tmm | Sep 18, 2017 11:18:18 AM

Tmm or Bruce. Is a ruling of IAC a lawyer malpractice per se?

If it is not, what the differences between them?

Posted by: David Behar | Sep 18, 2017 12:51:23 PM

I don't agree with tmm. While deficient performance is more difficult to demonstrate in non-capital sentencing, as I explain at some length here -- https://papers.ssrn.com/sol3/papers.cfm?abstract_id=1373223 -- that should not affect the *legal standard* for prejudice in non-capital sentencing.

Posted by: CBHessick | Sep 18, 2017 4:33:51 PM

"Arkansas has a rule that a defendant who is claiming a violation of her Sixth Amendment right to counsel cannot show prejudice if she did not receive the maximum available sentence."

The sex ratio of criminality is 10:1, male:female. It is frustrating. You lawyers are PC deniers. It sounds really stupid to use the feminine pronoun in a statement about crime. This stupidity is compounded when the real case being discussed is of a claim filed by a male defendant. The false piety makes you lawyers sound really stupid and out of touch with reality.

Posted by: David Behar | Sep 18, 2017 6:14:13 PM

SC has something of a point here.

Posted by: Steve UK | Sep 19, 2017 10:39:11 AM

Hi David Behar:

When I speak about an actual person, I use the gender pronoun for that person. But when I am using a pronoun to refer to a hypothetical person, I use the female pronoun. It isn't false piety (whatever that is supposed to mean). It simply reflects the fact that I'd prefer to use a default gender pronoun of my own gender.

As for whether this makes me look "really stupid and out of touch with reality," I can't say. But I can say that 2 of the 5 Arkansas cases in the cert petition involve female defendants raising this issue.

Posted by: CBHessick | Sep 20, 2017 8:28:49 AM

Behar and his ilk round that sort of ratio to zero, except when figuring their marginal income tax rates.

Posted by: G. B. Robinson | Sep 20, 2017 10:45:53 AM

CB. Would you leave the feminine pronoun unchanged in that sentence, about a general doctrine, not about a specific defendant?

The same practice happens in Contracts, Torts, Con law, where most of the players are male.

False piety is pretending to be politically correct for approval, while being a quack and a crook. A female defense lawyer advocates for feminist causes, while getting rapists released on loopholes.

Posted by: David Behar | Sep 20, 2017 3:53:12 PM

CB. I am advocating for the use of the pronoun belonging to the majority of a class. If you are speaking of bad beauty treatment tort litigation plaintiffs, use the feminine pronoun. If you are referring to rape victims, child sexual abuse victims, neglected nursing home residents older than 80, use the feminine pronoun. If you are referring to rapists, child molesters, prisoners under the age of 40, use the masculine pronoun.

Be real, not supercilious, or as Dan calls it, virtue signaling, for the approval of left wing ideologues, but in defiance of the facts and statistics. Those people whose approval you seek by unreal pronoun use live in wishful universe, not in a real one. Virtue signaling is very annoying, and turns off the ordinary citizen reader. Once you falsely use the feminine pronoun, you have no credibility with me, since you are now promoting a heinous political agenda. You will offend half the people potentially interested in your points.

Posted by: David Behar | Sep 21, 2017 5:13:42 PM

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