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December 14, 2006

Shouldn't express statutory text trump perceived policy?

I have now read the interesting opinions concurring and dissenting from the Eleventh Circuit's decision not to hear en banc a crack sentence ruling (available at this link).  Both opinions have lots of good insights, though I am troubled by Judge Black's complete failure (like so many other appellate rulings discussed here and here) to address the parsimony provision of section 3553(a).  (Notably, Judge Barkett stresses the statutory text of 3553(a) in her contrary opinion.)

Judge Black's opinion repeated assails what she perceives to be a "categorical rejection of congressional sentencing policy."  But her opinion, like so many others from circuits since Booker, categorically ignores the express statutory text of 3553(a).  My sense is that even proponents of "active liberty" interpretation would urge judges to attend first to express statutory text before making judgments based on perceived policy.

Tellingly, we are already seeing blogosphere complaints here and here about the Ninth Circuit's mandate recall yesterday that perhaps put policy concerns ahead of the letter of the law.  Will we soon see similar complaints about Judge Black's work from the same quarters?

Also, even if after Booker it is an error for a judge to "categorically reject" the perceived congressional policy, shouldn't such an error be considered harmless on review as long as the sentence imposed is still "not unreasonable"?

December 14, 2006 at 12:00 PM | Permalink


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As I read the opinions...

Judge Black's opinion repeats the Second Circuit's argument in Castillo that there is a statutory basis for his disapproval of categorical rejection of the way the Guidelines treat crack offenses. (p. 12)

Although Judge Barkett mentions the parsimony provision in her dissent, it does not seem to drive her analysis. Rather, she devotes her dissent to arguing (1) that the district court's sentence did consider individual facts about the case and did not base its sentence solely on categorical rejection of the Guidelines' treatment of crack offenders, and (2) that under Booker(and drawing support from Gunter and Judge Michael's concurrence in Eura), a district judge is permitted to disagree with the Guidelines' treatment of crack offenses.

The parsimony provision is important, but I don't think that Judge Black has somehow betrayed whatever principles he holds by failing to cite it.

Posted by: Bill | Dec 14, 2006 1:28:37 PM

Bill, I am struggling to figure out the statutory basis for Judge Black's opinion. The statute through 3553(a)(4) says "consider" not "adopt without question" the guideline range. Of course, 3553(b) said you had to follow the guidelines, but that provision has been excised. Judge Black may not be fond of either the text of 3553(a) or the Booker remedy, but it is hard to see how he is faithful to either.

Posted by: Doug B. | Dec 14, 2006 1:47:43 PM

My point is just that Judge Black examined the statutory text and thinks that he's being faithful to it. If one accepts that there is a viable distinction between giving a below-Guidelines sentence on the basis of individual facts and doing the same thing on the basis of categorical disagreement with the way the Guidelines treat crack offenses, then the former is permissible a permissible way to "consider" the Guideline range, while the latter is not. I think that there are other weaknesses in the argument, but I'm having a bit of trouble understanding the argument that Judge Black has ignored the statutory text.

This may go to the question you raised yesterday as to whether review for reasonableness is really any kind of review at all. The crack cases from the circuits indicate that the appellate courts are looking more at the district court's stated reasons for imposing a sentence than at the substantive reasonableness of the ultimate sentence, the result of which is that the district courts may almost always sentence within the Guidelines, but when they depart they have to be careful about how they explain their decisions.

It's unfortunate, because it makes the Guidelines effectively binding unless the sentencing court uses proper code words. The CA3's Gunter decision more or less says this explicitly with its distinction between treating the crack/powder disparity itself as advisory (allowed) and substituting a different ratio into the sentencing algorithm ("verboten").

Posted by: Bill | Dec 14, 2006 2:05:33 PM

Judge Black has ignored the very first sentence of 3553(a): "The court shall impose a sentence sufficient, but not greater than necessary, to comply with the purposes set forth in paragraph (2) of this subsection." The district judge in both Williams cases seemed to follow this mandate and imposed a sentence high enough (though below the guideline range) to be, in the district judge's view, "sufficient, but not greater than necessary."

Critically, no one has faulted that conclusion except to say that some of the district court's dicta suggests a categorical rejection of some perceived congressional policy. To begin, I am not sure what policy is rejected (that crack sentences be too high to serve any statutory purpose? that guidelines be followed even when all the experts say they are too harsh). And, even if there is some policy being rejected here, shouldn't the statutory text being followed ultimately carry the day?

Posted by: Doug B. | Dec 14, 2006 2:16:37 PM

I think Judge Black would respond that, as he reads subsections (a)(2) and (a)(4), there are permissible and impermissible ways to form a view of what sentence would be "sufficient, but not greater than necessary," and that is why the panel reversed.

It seems plausible to me to say that the second sentence of 3553(a), "[t]he court, in determining the particular sentence to be imposed, shall consider— " supports this notion. "Consider" is rather weak word, but the circuits have read it as denoting something more than merely running the numbers on the Guidelines.

I don't know if I find it convincing or adequately faithful to Booker, but I don't think that the argument elevates policy over statutory text.

Posted by: Bill | Dec 14, 2006 2:36:25 PM

Judge Black is a she.

Posted by: Percuriam | Dec 14, 2006 2:55:53 PM

oops. I sometimes confuse Judge Black in my head with another Eleventh Circuit who is not a "she."

Posted by: Bill | Dec 14, 2006 2:59:16 PM

Double oops on the gender issue. I've corrected the main post. Sorry all, and thanks for the debate Bill. At the end, I guess I can see the argument you are developing, but I'd like to see a circuit judge do this on the record (especially if she is going to trump the importance of following Congress).

I am all for creative statutory intepretations, but we should not have to be creative without the help of those making the rulings.

Posted by: Doug B. | Dec 14, 2006 3:28:54 PM

Prof. Berman, thanks for your responses as well.

Posted by: Bill | Dec 14, 2006 3:36:05 PM

"I think Judge Black would respond that, as he reads subsections (a)(2) and (a)(4),there are permissible and impermissible ways to form a view of what sentence would be "sufficient, but not greater than necessary," and that is why the panel reversed."

But, Bill, I thought Doug's very notion was that what is "permissible and impermissible" ought to be grounded in the statutory text (or some constitutional provision, I suppose), and the courts in these cases point to no such text, merely to a "policy" they have divined. That they have devined it from the non-binding guidelines, thus making them binding in part, seems particularly suspect to me. That is, I know the judge has made up some stuff to justify her view -- I just don't think there's any statutory or other authority for it.

Posted by: David Lewis | Dec 15, 2006 3:23:42 PM

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