Friday, June 22, 2007
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)
Thursday, 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?