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January 11, 2008

Great Sixth Circuit dissent laments “guidelinitis”

Describing a disease that likely puts more fear in the hearts of defendants than SARS or bird flu, Judge Merritt issues an amazing dissent today in US v. Sexton, No. 05-6412 (6th Cir. Jan. 11, 2008) (available here), that laments "the problem of guidelineism, or 'guidelinitis,' the inability of most federal courts to break their habit of mechanically relying just on the guidelines alone."   Here is the start of Judge Merritt's dissent from today's must-read case:

Except for those judges and lawyers who prefer to continue routine conformity to the old pre-Blakely-Booker process of guideline sentencing, there is widespread disapproval of the present muddled system. This is because, in the main, the old system is just continuing on as though nothing had happened — continuing under the pretext that the guidelines are only “advisory” instead of being considered only as a starting point against the backdrop of the more sensible and humane penalogical goals set out in § 3553(a), Title 18.  This case is one more example of the continuing problem, the problem of guidelineism, or “guidelinitis,” the inability of most federal courts to break their habit of mechanically relying just on the guidelines alone.

By ratcheting up the sentence, as is typical under the guidelines, piling aggravator on aggravator, the District Court, (as though Booker had never been decided), simply restored its old guideline sentences of 20 years in prison for Sexton, 16 years in prison for Legg, and 12 years in prison for Romans — all for a victimless drug crime.

Such harsh sentences are par for the course under the guidelines. The sentencing court imposed a harsh sentence without seriously considering mitigating family and personal factors or rehabilitation possibilities — all in line with the U.S. Sentencing Commission rules against the consideration of such individual factors in Chapters 5H and 5K of the Guidelines.1 This refusal to seriously consider individual factors, including rehabilitation, has been the most important characteristic of the work of the Sentencing Commission. From the beginning, the guidelines have emphasized collectives, not individuals; and individualized sentencing by federal judges, the weighing of aggravators and mitigators through a process of dialectic reflection and reconciliation, has become a relic of the past. The creation of these guidelines involved the breakdown of behavior into smaller and smaller parts and categories of aggravators or enhancements without consideration of other important individual factors.

January 11, 2008 at 12:47 PM | Permalink


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One wonders what is so "great" about a dissent that so flagrantly ignores existing Supreme Court precedent on how the Guidelines are to be calculated. Would a dissent ignoring other parts of Gall, Kimbrough, and Rita be met with such applause?

Furthermore, I find it ironic that foes of the Guidelines cloak many of their objections under the concept of judicial discretion. But read this dissent closely, and you see that its real beef is with the length of the sentence, not the degree of discretion afforded to the district judge. One is free to think that the Guidelines are too harsh, but that argument should be made directly, and not in the cloak of judicial discretion.

Posted by: Defender of Congress | Jan 11, 2008 4:46:01 PM

Why does this dissent merit attention? Because (yet) another court of appeals judge doesn't feel bound by the Supreme Court? This dissent implies that all Rita and Gall require for a PROPER calculation of the appropriate guidelines range is a calculation based upon the jury's factual findings alone. Not surprisingly, Judge Merritt cites nothing in either of those opinions to support his position. Before considering whether a defendant deserves a non-Guidelines (or 3553(a)) sentence, the district court must properly calculate the Guidelines range. To properly do so entails engaging in (at present) constitutionally permissible judicial fact-finding (e.g., determining the amount of drugs, etc.). After completing that process and determining the CORRECT guidelines sentence, the district court judge may then turn to the 3553(a) factors to determine whether the defendant deserves a different sentence.

Judge Merrit's dissent is also not novel in that it calls for the Supreme Court to more squarely decide if the type of sentcing frowned upon in Blakely applies to the federal system. And there is certainly nothing new in his implicit call for the Supreme Court to revisit its earlier rulings that judicial factfinding that increases a sentence beyond that which would be supported by the jury's verdict is constitutionally suspect EVEN under a system with non-mandatory Guidelines.

Judge Merritt's opinion is nothing more than a blowhard op-ed. He should save it for the next time he testifies before Congress or the Sentencing Commission.

Posted by: Alex | Jan 11, 2008 5:50:42 PM

I suggest a re-reading of Blakely and Booker is in order for the commentators above. And the footnotes of Judge Merritt's opinion. And, while they are at it, Judge Merritt's dissent itself. Paragraph 2, for example, contains his dissatisfaction with the length of the sentences. Direct, clear, unequivocal -- just what the commentators asked for. When someone, anyone on any court or anyone anywhere for that matter, persuades me that two decades of time is an appropriate sentence for a victimless drug crime(a punishment that costs us taxpayers over a half a million dollars), then I will join those who believe that Judge Merritt's opinion (and the many other opinions similar to it in the past and yet to come) is a blowhard op-ed.

Posted by: Dennis Terez | Jan 11, 2008 10:27:10 PM

"Defender of Congress": why do you think the dissent "flagrantly ignores" SCOTUS precendent rather than try to give it deep meaning, especially since the Supreme Court in Gall and Kimbrough --- by essentially an 8 to 1 vote --- held that circuit courts had been flagrantly ignoring Booker by giving the Guidelines too much emphasis?

Indeed, Justice Thomas technically dissented in Gall and Kimbrough because he was even more troubled than Judge Merritt with the judicial fact-finding that's been going on after Booker. Do you think, Alex, that Justice Thomas in Gall and/or Justice Scalia in Rita were each guilty of writing a dissent that's "nothing more than blowhard op-ed"?

It seems that both Defender and Alex want to convince themselves that they are more faithful to principle than Judge Merritt. But their criticisms show, in my opinion, how blinded they are by their own result-oriented views.

Posted by: Doug B. | Jan 12, 2008 4:07:25 PM

Doug B:
1. You didn't take issue with my primary point that Judge Merritt was ignoring the holding in Rita/Gall with his renewed view on how to correctly, as a matter of procedure, determine Guidelines ranges. That was my basic point.

2. Judge Merritt's dissenting opinion was a blowhard editorial because he is complaining, effectively, that these sentences are too long. Had the district court judge in this case simply said under 3553(a) I think that these individuals deserve long sentences, would Judge Merritt have dissented again? If so, that would reveal his results-orientated approach to sentencing (it would also suggest that he doesn't really believe in Gall).

3. I didn't comment on whether the sentences these defendants received were too long or too short. So your commment about my "results-orientated" views makes no sense. Judge Merritt's dissent suggested that the district court judge did little more than do a few calculations and plug and chug a few numbers to determine the guidelines sentence and then didn't think too much about whether this was the appropriate sentence or not in light of 3553(a). He didn't cite anything from the district court's proceedings to support this view. Indeed, were I the district court judge, I would find his dissent especially insulting because it implied that I didn't take the process of sentencing seriously.

Dennis Terez:
Read what I wrote. I asked why does this dissent "merit attention"? There's nothing new here. Judge Merritt complains about judicial fact-finding - check - Scalia has been doing so for years (as well well as other judges). Judge Merritt complains about the ridiculous costs associated with incarcertating non-violent drug offenders -- check - plenty of pundits both on and off the bench have been complaining about that. Judge Merritt complains that district court judges feel tied to the guidelines -- check again -- dissenting court of appeals judges before Gall were making the same complaints. Like I said, there's nothing new here, so why does this dissent merit attention?

I am not saying I approve or disapprove of Congress' approach to dealing drug offenders. What I am saying is that Judge Merritt doesn't like that the district court judge faithfully applied the law in imposing harsh sentences (again, let me emphasize this does not mean I approve of the law's substance or policy aims). His dissent is then effectively nothing more than a blow-hard op-ed -- he identified NO legal errors that the district court judge made. And he asked for changes in the system that others have already sought (including, I am sure Judge Merritt himself) -- which takes us back to the first observation -- there's nothing special about this dissent.

Posted by: Alex | Jan 12, 2008 5:16:18 PM

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