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February 10, 2007
A medley of clips from Medley
Tenth Circuit Judge Michael McConnell probably earned his place in my Sentencing Hall of Fame with his strong recent article entitled "The Booker Mess" (discussed here). But his place surely is secured by his amazing concurrence in the Tenth Circuit's Medley decision (discussed here). Here are just a few of the many terrific insights from Judge McConnell's work in Medley:
[T]here are reasons to think that our current system of sentencing has a systematic bias in favor of higher sentences on remand from successful appeals, even successful appeals by the defendant. If so, this presents troubling questions of fairness and possibly even of due process, wholly apart from any "actual vindictiveness" on the part of district judges.
In any complex system — and the Sentencing Guidelines surely qualify — there is a not-insubstantial chance that those who administer the system will make mistakes, overlooking potentially applicable adjustments and enhancements. Odds are that most of these mistakes are to the benefit of the defendant, because the vast majority of Guidelines provisions relate to upward enhancements rather than downward adjustments....
It follows that, if those who administer the system have occasion to scour the Guidelines a second time with respect to a particular defendant, they often will discover reasons why the advisory Guidelines range should be increased. Whenever a sentence is appealed and reversed, such an occasion will present itself. That is what happened here: on appeal, and then after remand, the government re-examined the PSR calculations, objected to the errors, and obtained a higher sentence. This suggests that, after reversal on appeal, many defendants will end up worse off even though they were the victors in the appellate court.
If these speculations are valid, defendants may be wary of appealing lest, on remand, the probation office and the prosecution revisit the Sentencing Guidelines calculations and calculate a higher range. This opportunity for sentence recalculation is effectively a tax — payable in months or even years of additional prison time — on taking an appeal. This strikes me as unfair to the defendant and bad for the system. Appeals serve an important function, and we should not create disincentives for criminal defendants to appeal when they have meritorious grounds for doing so.
At this point, however, the existence of such a "tax" on appeals is purely speculative. The Sentencing Commission, which is statutorily charged with keeping relevant statistics for the purpose of improving sentencing, 28 U.S.C. § 995(a), does not collect or analyze data on changes in the length of sentencing after remand. I urge it to do so. If my hunch that there are systematic tendencies toward increases is correct, it would also be useful to know whether these are the product of recalculations by probation officers, objections by the prosecution, or exercises of Booker discretion by district courts. Empirical study of these matters by academic researchers would be illuminating.
February 10, 2007 at 02:54 PM | Permalink
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To take another view, this concurrence shows that Judge McConnell has some academic habits that weaken his judging.
1. Judge McConnell asks for an empirical study. (Whoopee! An empirical study! That's what the law really needs.)
2. Judge McConnell uses academic jargon. In this case, from the Chicago School of Law & Economics, Judge McConnell refers to unanticipated outcomes in a case on remand as "tax" -- when it is no such thing to an ordinary person, and the use of the academic jargon obscures the ordinary meaning of the judge's argument.
3. Judge McConnell's concurrence is half-baked. ("Hey, I've got a theory that might work -- Court of Appeals judges should try limited remands in sentencing cases.") Will Judge McConnell's "law of the case" theory work against defendants on remand to the same extent that Judge McConnell wants it to work against prosecutors? This is a pretty important question that is not discussed by Judge McConnell, possibly because it would undermine his "it's not fair to win an appeal and get a worse outcome on remand" personal preference. The law is not a graduate seminar where ideas are "thrown out there" to see what sticks; a judicial opinion should explain the parameters of the rule espoused and, particularly, determine whether the legal rule is mutual in cases going forward.
4. Judge McConnell is selective in his use of authority to support his argument, and his argument is overly simplistic. (To be clear: it's ok for for a professor or other partisan advocate to argue at a level of specificity that serves their personal or clients' ends; it's bad for a judge to write opinions in this vein.) The "law of the case" doctrine has so many caveats and exceptions in our existing law ("illogical outcomes" and "non-waiver of secondary issues" being two easy and important ones) that Judge McConnell should have dealt with these aspects of the doctrine; the absence of consideration of these topics -- present in numerous existing cases -- shows an unfortunate shallowness of legal analysis.
5. Judge McConnnell's concurrence shows a disdain for the law itself. ("Hey, the law requires a certain result here, but I don't like that result personally, so I'm going to try to create a theory that can be used to circumvent the law to suit my personal tastes.") The basic assumption of Judge McConnell's concurrence is that the trial court should make its decision on remand based on "the law of the case" instead of THE LAW ITSELF. If "the law of the case" is not lawful, then "the law of the case" is wrong and should not be followed by anyone. Courts of appeals -- whose primary purpose is to make sure that the trial courts follow the law -- should not be in the business of undermining the law by trying to get lower courts to make decisions without regard to what the law actually requires. Yet this is the preferred outcome underlying Judge McConnell's concurrence.
6. Judge McConnell's argument elevates personal theory over important historical and institutional principles. Appeals courts don't review lower courts' reasoning; they review lower courts' JUDGMENTS for misapplication of the law. If a court's judgment is legally wrong, then it needs to be corrected BASED ON WHAT THE LAW REQUIRES. If the court's initial judgment is legally incorrect because of TWO misapplications of the law, the trial court on remand is able to correct all of the legal mistakes in its judgment -- not just the ones that the court of appeals wants it to correct in order to achieve the outcome that the court of appeals desires on remand.
7. Judge McConnell's concurrence minimizes the importance of the role of the lawyer. One of the key jobs of the appellate lawyer is to advise the client regarding the risks and benefits of the appeal. One key risk in sentencing cases is ALWAYS that the client can get a longer sentence on remand -- for foreseeable and for unforeseeable reasons. No one, not even the appellate court, has the power to foresee all the risks of taking an appeal. By trying to mis-use the "law of the case" doctrine to try to minimize these risks, Judge McConnell is blind to the fact that a reliance on the "law of the case" doctrine will actually often increase the risk to the client, because a subsequent trial or appellate court can (and, often, will) easily circumvent the "law of the case" doctrine to hammer a client (and I'm not even talking about Booker discretion). It does little good for a lawyer to say, "Boy, I didn't expect that outcome. Too bad. Judge McConnell doesn't like it when stuff like this happens." The lawyer has to explain the risks -- both foreseen an unforeseeable -- to the client, and the "law of the case" doctrine theorized by Judge McConnell does not change that job (in fact, it makes it harder). Instead of respecting the role of the lawyer (to exercise judgment and advise clients well, while respecting their decisions regarding risk), Judge McConnell treats the practice of law as a sort of glorified gamesmanship, where the prosecutor gets "caught" in failing to object to an error of the trial court that becomes "the law of the case," while defense counsel can raise (and win) one legal point on appeal without having to worry about all the implications of that "win."
I like Judge McConnell, and I believe that he has the makings of a fine judge. But this concurrence is worse than amateurish.
Mark
Posted by: Mark | Feb 12, 2007 12:48:24 PM
