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April 4, 2008

Another doozy dissent from Judge Merritt as Sixth Circuit affirms a long guideline sentence

Dq A long day at the end of a long week kept me from noting earlier that the Sixth Circuit has issued another notable split sentencing opinion in United States v. Jeross, No. 06-2257 (6th Cir. Apr. 4, 2008) (available here), with Judge Merritt providing another spirited dissent about the modern state of modern sentencing.  Though I suspect Judge Merritt sometimes feels like he is tilting at windmills, I will close the work week by setting out the first two paragraphs of his dissent in Jeross so he knows that at least someone is paying attention:

This is another drug case in which our system of criminal law has imprisoned for many years two more lives and torn up two more families by grossly excessive sentences imposed in the “War on Drugs.”  There are many reasons that our federal system of punishment has turned in this direction, not the least of which is the advent during the last 20 years of our irrational set of sentencing guidelines that judges apply by rote on a daily basis.  We are constantly adding new prisoners like these defendants with long periods of incarceration to the more than two million men and women now incarcerated in the hundreds of prisons and jails around the country.

These sentencing guidelines hold that mitigating factors like family ties, mental illness, education, and the likelihood of rehabilitation are simply “not relevant” in the sentencing process.  Judges’ minds are closed down and sentences ratcheted up by applying convoluted conversion formulas like the one just recited in the majority opinion.  The recent Blakely-Booker-Cunningham line of Supreme Court cases has given judges an opportunity to rid the system of some of the worst aspects of guidelinism, but we judges soldier on by applying the old mandatory system as though nothing of significance had happened.  The cost to the taxpayers and in human lives has become enormous and shows no signs of change.

April 4, 2008 at 05:10 PM | Permalink


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» A Scathing Dissent From Judge Merritt, 6th Circuit from Simple Justice
Via Doug Berman, Gilbert Stroud Merritt, Senior Circuit Judge in the Sixth Circuit, has apparently had enough. [Read More]

Tracked on Apr 5, 2008 8:44:37 AM


Judge Merritt cares about this issue and thinks a lot about it, but I think he's wrong.

First, this isn't a particularly good case for emotional appeals about the human cost of the war on drugs. As I read the opinion, the 2 defendants here were responsible (actually responsible, not just technically responsible under the law of conspiracy) for distributing about 100,000 Ecstasy pills. One defendant personally sold several thousand to undercover agents and the other was apparently in charge and financed the operation. This isn't the poor schmuck who had weed in his pocket when the police pulled him over for speeding or the guy who got caught the one time he decided to sell crack to help him pay his rent that month.

Second, Judge Merritt doesn't seem to get Blakely-Booker-Cunningham-etc. The key to those cases is the statutory maximum and the idea that someone who breaks the law exposes him/herself to the potential of getting the statutory maximum punishment is s/he pleads guilty or is convicted by a jury. The majority opinion also has a good rejoinder to the dissent along those lines at pp. 15-16 (mostly 16).

The part of Judge Merritt's argument that I'm sympathetic to is the idea that 3553(a) (as reconstructed by the Booker remedial majority) is a manifesto for activism (not in the pejorative sense) and should inspire more judges to use their "personal sense" of justice more often--in other words, be less of a rubber stamp with the Guidelines. He's probably right that judges have a lot of power that they're not using, but then again most judges probably find most sentences much less objectionable than Merritt does. The stuff in his dissents is great material for a speech to make at meetings and conferences, but he's wrong--in my view--when he says that the judges who disappoint him on that score have committed reversible error.

Posted by: | Apr 4, 2008 6:41:35 PM

See also Judge Merritt's footnote 1. He's simply wrong when he says that "The cases state repeatedly, as quoted above, that the 'statutory maximum' for sentencing, factfinding purposes is not the highest sentence that could possibly be imposed under the statute but rather the highest sentence called for by guidelines based on the facts corresponding
to the jury verdict or guilty plea, i.e., before the sentencing judge begins any process of enhancement by finding new facts like a larger drug quantity or a management role in the offense."

The quotes in his opinion from cases that refer to the top of the Guideline range as the statutory maximum do so only because, at the time, the Guidelines were mandatory. Now that they're advisory, the statutory maximum is the statutory maximum. Perhaps I'm missing something, because as I understand it, this isn't just a difference of opinion--rather, Judge Merritt is simply wrong on the law.

Posted by: | Apr 4, 2008 6:46:44 PM

Judge Merritt addresses this ("statutory maximum") in the very next paragraph following his footnote 1 where the talks about the Booker remedial opinion..

Great dissent. The problem is simply that the Constitution doesn't apply to drugs. It's the "drug exception" to the Constitution. If there were no drug exception, there would have to be a constitutional amendment to ban/control drugs, like there was to ban the sale of alcohol (and that, nor the Volstead Act which implemented the 18th Amendment, even prohibited mere possession of alcohol!). The 6th Amendment doesn't apply to drug prosecutions, so Booker simply does not apply to the defendants here as they were charged with Ecstacy distribution.

Posted by: bruce | Apr 4, 2008 8:06:39 PM

It's hard to know why anyone would take anything Judge Merritt has to say seriously, given his embarassingly bad reasoning in Getsy. Merritt appears to have issues with how we sentence people for drugs in America. Fine. Let him run for office and vote for laws that would make drug sentences more lenient. Until then, he should refrain from such political invective.

And Merritt's reference to the 2 million incarcerated is particularly egregious. Merritt should have limited his diatribe to the federal system. Instead, by using a number that includes state prisoners, this federal judge is overstepping some boundaries.

Merritt is a liberal hack who needs to go.

Posted by: federalist | Apr 7, 2008 5:39:12 PM

It's hard to know why anyone would take anything Judge Merritt has to say seriously, given his embarassingly bad reasoning in Getsy

Oh, I don't know... assuming you're right about Getsy, every judge has a few bad opinions and even the uber-liberal judges who chafe at applying the law occasionally stumble upon something that the conservatives are screwing up.

Judge Merritt has a point here. It's overstated, and his opinion should be a reluctant concurrence rather than a dissent, but his opinions on this subject are worth reading.

Posted by: | Apr 7, 2008 10:35:10 PM

The problem with Merritt's opinion, or at least the quoted paragraphs is not his point of view, but the intemperateness and the fuzzy thinking. If you're going to complain about the federal guidelines, then don't talk about state prisoners. If you deride the Guidelines as irrational, then deal with the unfairness that arises based on luck of the draw with judges. If you hate the "War on Drugs", then explain why government shouldnt try to prevent things like heroin etc. from getting to kids. (By the way, it's interesting to me how liberals want corporations held accountable for giving us what we want, but want to let drug dealers off the hook. Sue McDonalds for greasy food, but decriminalize the sale of meth . . . .)

Merritt also tried to interfere with the Sedley Alley execution by holding a hearing in his house hours before the execution. This is a bad judge. A hack.

Posted by: federalist | Apr 8, 2008 2:59:01 AM

I think that Merritt highlights some important concerns about federal sentencing. But the way he presents them -- long, drawn out, hyperbolic and overstated dissents -- unfortunately does nothing but make people roll their eyes at him and refuse to take him seriously. He's deeating his own argument with his rhetoric. That said, be sure to check out a sentencing case that the SAME panel decided UNANIMOUSLY ... US v Highgate, No. 06-1447, recently published. They remanded for resentencing, finding that the sentence was substantively unreasonable. That's not an easy conclusion to reach given the standard of review in these cases!

So although Merritt always takes the same position and issues the same dissent over and over again, the Highgate case suggests that the other judges actually review each case on its merits.

Posted by: attorney | Apr 8, 2008 10:11:19 AM

With respect, "attorney," at 10:11, if you at the case more carefully, you will see that the panel in fact concluded that the sentence was procedurally unreasonable because the district court did not fully understand its ability to vary downwards from the Guidelines. The opinion states that the district court may (even though it probably won't) apply the same sentence again.

"Hack" is about the kindest thing that can be said for Merritt. The Alley case showed that he is willing to igore procedure to get the result he wants. The Getsy case shows that he is willing to ignore AEDPA to get the result he wants. Now, these latest screeds on his sentencing case show that he is willing to keep on dissenting even though published panel decisions on reject his novel theory that "statutory maximum" means "guidelines range." A published opinion is supposed to bind all the members of the court, but Merritt feels that as a platonic guardian of sentencing, such rules need not apply to him.

Posted by: Random Clerk | Apr 8, 2008 11:54:18 AM

Trying to find Judge Merrit's son , does anyone have the judges email?

Posted by: Mike josephson | Jun 3, 2008 9:49:32 PM

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