« Isn't it finally time for Congress to do something about lethal injection problems? | Main | Recapping the capital year »

December 14, 2006

What wrong with equitable Booker retroactivity in the Ninth Circuit?

Last year, after a Ninth Circuit panel in US v. Crawford, No. 03-30263 (9th Cir. Aug. 24, 2005) (available here), recalled its mandate to allow resentencing in a case that became final before Booker, I suggested that the court was essentially adopting "a policy of equitable Booker retroactivity."  And now, with the fascinating decision in Carrington v. US, No. 03-30263 (9th Cir. Dec. 13, 2006) (available here), that policy takes on new and broader life in the Ninth Circuit.

Orin Kerr seems troubled by Carrington and apparently thinks the Supreme Court will be, too.  But why?  Carrington does not declare Booker retroactive (even though perhaps Booker should be), and it is not clearly unlawful. 

What is unlawful are the constitutionally problematic sentences still being served by the defendants involved in Carrington. The dissenter in Carrington and Orin and others may not be troubled by defendants still serving unconstitutional prison sentences, but what's so wrong with the Ninth Circuit seeking to provide a remedy that is permissible under the law?

Of course, finality is an important value, but this value is always balanced against other values.  If the Ninth Circuit panel in Carrington decides to strike the finality-fairness balance this way after Booker, why should the Supreme Court really care much?   

This issue would be a lot different if the Ninth Circuit were overturning long-ago state convictions based on its own questionable view of constitutional rules.  But, in Carrington, the Ninth Circuit is merely allowing reconsideration of on-going federal sentences based on the Supreme Court's constitutional rules.  Perhaps the Ninth Circuit en banc will seek to balance federal sentencing fairness and finality differently than the Carrington panel majority; but I do not see why the Supreme Court should be eagerly interested in keeping a federal district court from having a chance to reconsider an unconstitutional (and still on-going) federal sentence.

UPDATE: I fill out my perspective on Carrington in this post and in the comments, but I want to further address one commentor's concern that the Ninth Circuit has created a doctrine that unfairly turns on whether a "defendant [was] lucky enough to draw a vocal opponent of the Guidelines."  I share this worry, though it was not often expressed as a critique when this was the standard being used by most circuits when addressing Booker plain error.  In the 1st, 5th, 8th, 10th and 11th Circuits, defendants still on direct appeal would not get a chance to be resentenced right after Booker unless the district judge had been "a vocal opponent of the Guidelines."  (And, of course, the Supreme Court denied cert on all those defendants objecting to this rule.)

Why are folks worried about unequal justice when it might help some defendants, but not when it hurts them?  To paraphrase a famous quote from Justice Brennan, I wonder why we fear too much justice.

December 14, 2006 at 10:43 PM | Permalink


TrackBack URL for this entry:

Listed below are links to weblogs that reference What wrong with equitable Booker retroactivity in the Ninth Circuit?:

» More on Judge Pregerson's Opinion in Carrington v. United States: from The Volokh Conspiracy
Over at Sentencing Law & Policy, Doug Berman has an interesting post on Judge Pregerson's opinion yesterday in [Read More]

Tracked on Dec 15, 2006 12:36:51 PM


What's wrong with it--other than the fact that the court has acted in blatant disregard for precedent--is that it would force the government to expend scarce resources to determine which people it needed to keep locked up etc.

Posted by: federalist | Dec 15, 2006 8:54:19 AM

Two questions, Federalist:

1. What precedent is disregarded? The panel finds "extraordinary circumstances" for recalling the mandate (as an earlier panel did in Crawford on a Booker issue). You may not like this application of the Crawford precedent, but I do not see a "blatant disregard."

2. Isn't it a waste of "scarce resources" to keep people locked up longer than needed? As Justice Scalia has said, giving defendants lawyers and jury trials and appeal rights costs "scarce resources," but the founders thought those expending those resources was more important than absolute government power. Do you disagree?

Posted by: Doug B. | Dec 15, 2006 9:05:34 AM

While Carrington did not declare Booker retroactive legally, it seems to have done so functionally. The question is really the same: should prisoners serving sentences declared "unconstitutional" by Booker have a right to be resentenced under the advisory guidelines?

Regardless of one answers that question, trying to distinguish between retroactivity and recalling the mandate seems rather flimsy. It would be odd to have two rules, one saying Booker is not retroactive, and another saying the mandate can be recalled to resentence a defendant.

I can understand the argument for making Booker retroactive, although I also see the other side. What I can't understand is any principled distinction between recalling the mandate and a 2255 petition that would allow an end-run around the Supreme Court's eventual Booker retroactivity decision.

So I think Professor Kerr is right that the Supreme Court will take notice if it thinks that this opinion undermines (if not directly contradicts) the Court's decision to make Booker nonretroactive, assuming that's how the Court goes.

Posted by: law clerk | Dec 15, 2006 9:20:39 AM

Law clerk: the key and critical distinction is that the 9th Circuit is requiring Booker PLUS something more to recall its mandate. Carrington states that a Booker claim alone is NOT enough, which means there is a difference here.

Now one may argue that the PLUS being required is so "flimsy" that this is an end-run around the retroactivity issue. (That's what the dissent is arguing.) But isn't retroactivity doctrine itself and end-run around the principle of equal justice?

And, to repeat, the question here is not whether Booker is or should be retroactive. Rather, its whether the 9th Circuit out to have its own form of equitable relief under these circumstances. Perhaps SCOTUS wants to say the 9th can't do this, but I have a hard time seeing what interest is served that has national importance (especially since other circuits, like the 6th, has said it does not want to give relief in these cases).

Posted by: Doug B. | Dec 15, 2006 9:37:38 AM

Prof. Berman - I love your site and usually agree with you, but I think that you're off on this one for a number of reasons, many of which are powerfully made in Judge Callahan's dissenting opinion. For one thing, the panel majority has really mucked up the governing recall-of-the-mandate inquiry. The Supreme Court said pretty clearly in Calderon (and once again in a slightly different context in Bell v. Thompson) that recalling the mandate is a last resort, and that the "extraordinary circumstances" standard has some teeth to it. Here, a district judge's frustration with the sentence that he/she had to impose about 15 years ago counts as an extaordinary circumstance. (A more technical problem, and one that I don't know the answer to, is how one three-judge panel of the 9th can recall the mandate from a 15-year old direct appeal when at least one judge on that panel (Callahan) wasn't even on the court then). If that passes muster, then any defendant lucky enough to draw a vocal opponent of the Guidelines in post-Booker or other post-conviction proceedings would be entitled to resentencing.

Second, your point about the difference between the 6th and 9th circuits cuts precisely the other way. If there is to be some form of uniformity in federal sentencing after Booker - and the cert grants in Rita and Claiborne suggest that the Supreme Court wants there to be - then a defendant's entitlement to a concededly "extraordinary" form of resentencing should not turn on the vagaries of where he or she was tried and convicted.

The third point echoes the concern about retroactivity made by other commenters. Either defendants who got draconian sentences under the guidelines get to benefit from Booker or they don't. There's nothing particularly appealing about a random rule under which, depending on the district court judge on your case, the circuit you're in, and the appellate panel you draw, you get relief but your similarly situated cellmate doesn't.

So, whether or not the Supreme Court or the en banc court are interested in Carrington, they very well should be.

Posted by: LT | Dec 15, 2006 9:56:18 AM

I think it's fair to characterize the opinion as "blatant[ly] disregard[ing]" Calderon v. Thompson, even though the panel did purport to find extraordinary circumstances. Calderon notes that the power to recall the mandate is to be "held in reserve against grave, unforeseen
contingencies." It's not unforeseen that later Supreme Court cases might announce a new constitutional rule, or that earlier cases might be inconsistent with that rule -- Miranda and Mapp demonstrate that easily enough. Nor do I think a sentence judge's anticipation of a future constitutional rule should matter, both because there's no way to tell how many other judges held similar views (but chose not to state them -- out of a sense of propriety, or whatever), and because his anticipation was not the applicable rule at the time.

As to Professor Berman's point that the retroactivity doctrine is an "end-run around the principle of equal justice," I think this depends on how one defines the class. If the relevant class is all defendants whose cases are non-final at a particular time, then it is equal justice. We can debate whether this is an appropriate classification, of course, but there are at least good arguments for it.

Posted by: | Dec 15, 2006 9:57:42 AM

Is there anything unconstitutional about the sentences in Carrington? Were the defendants' sentences based on facts neither admitted nor found by a jury? Or, as was the norm with all pre-Booker sentences, did the district court simply lack the discretion to depart from the Guidelines?

In mind, with respect to retroactivity and "equitable retroactivity" (as you call it), there is a huge difference between the constitutional rule announced in Booker and the remedy. The Ninth Circuit's decision becomes much more defensible (though I still disagree with it) if the sentences imposed violated the Sixth Amendment -- that is, if the district court found facts that led to the defendants' sentences. It is impossible for me to accept the invalidation of a sentence, 15 years after it became final, simply because the sentencing regime under which it was imposed could lead to an unconstitutional sentence.

Simply put, a defendant should be required to show that her sentence violated the Constitution, not simply argue that the regime under which she was sentenced led to unconstitutional sentences.

Posted by: Anonymous | Dec 15, 2006 10:09:43 AM

Excellent point, Anonymous. The facts discussed in Carrington intimate that the defendants' sentences were enhanced by judicial fact-finding, and I agree that this is a very important issue that should not get overlooked in the debate.

Posted by: Doug B. | Dec 15, 2006 11:37:39 AM

Back to first principles. Imagine the sentencing was done in some abstract jurisdiction, say 18th C. England, for those of you who went to law school and have that odd reverence for cases from that era. You read that the trial judge railed against the sentence, but felt compelled for doctrinal reasons - which exist for pragmatic, even political reasons - to impose it. He didn't feel like he was able to do his job - effect justice. Another defendant a few years later gets a case that says the judge was correct. Wouldn't you expect that judge to order relief for the first defendant? Wouldn't you want to if you were the judge?

Fast-forward to 2006: the judge can't order relief because of still more doctrinal/pragmatic/political reasons. All of these roadblocks are getting in the way of doing justice, so his superiors order relief. What's wrong with this picture? I'm with Doug on this one. The courts are to do equity and justice when legalistic procedural rules capriciously muck things up.

Posted by: txjeansguy | Dec 15, 2006 1:26:12 PM

The major problem with Carrington is in its application. In Carrington, it was fairly easy to determine that the sentencing court was deeply troubled by the result application of the USSG had on the sentence imposed. A large number, if not the majority, of federal judges have chafed at one point or another at the restrictions placed on sentencing by the mandatory guidelines. How does an appellate court determine the extraordinary circumstances exist in a particular case? Would it count if the sentencing judge at some point in some case expressed dissatisfaction with the mandatory guidelines and then, unlike Sisyphus, discontinued so doing? How is an appellate court to know when faced with that situation that the sentencing court would have imposed a lower sentence in another case had the USSG been advisory? Can the appellate court assume that a more lenient sentence may have been imposed even where it was not stated on the record, e.g., a minimum guideline sentence (if above a minimum it seems to me highly unlikely a judge would impose a lesser sentence)? What are defense counsel expected to do–mine the records to determine whether the judge who imposed the sentence at some time in some way was critical of the mandatory guidelines? Or does only someone who fits factually within the four-corners of Carrington get relief?
What procedure is followed? Must it start in the sentencing court with an untimely § 2255 motion or may a motion to recall the mandate be filed directly in the appellate court? What about the defendant who did not appeal or was precluded from appealing by a plea bargain and there is no mandate to recall: should that defendant nonetheless be compelled to serve an “unconstitutional” sentence? Carrington proves true the adage I learned more than three decades ago: hard cases tend to make bad law. Justice, dispensed by mankind, is and always will be somewhat imperfect. As I used to try to impress on first year law students when I taught introduction to law many years past: justice is a very nebulous term and, like beauty, often times in the eyes of the beholder–what is one person’s justice may very well be another’s injustice.

Posted by: Thomas Yerbich | Dec 18, 2006 1:20:34 PM

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