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June 7, 2008

A terror-filled debate over substantive reasonableness

As detailed at How Appealing and in this AP article headlined "Court orders new sentence for al-Qaida member," the Fourth Circuit on late Friday afternoon "rejected a 30-year prison term and ordered a new sentencing hearing for Ahmed Omar Abu Ali [based on prosecutors' claim] that the judge improperly deviated from federal sentencing guidelines that called for life in prison."

The final 20 pages of the majority opinion in US v. Ali, No. 06-4334 (4th Cir. June 6, 2008) (available here), as well as the entire 20-page partial dissent by Judge Motz, is focused on the substantive reasonableness of the district court's sentencing decision.  All these pages make for a very interesting reading, and spotlight the essential challenges (and perhaps the inevitable disagreements) over substantive reasonableness review in the wake of Gall and Kimbrough.

June 7, 2008 at 04:31 PM | Permalink


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You really have to wonder what Diana Gribbon Motz was smoking when she penned her goofy dissent. It's written as if she's outraged by the idea that this terrorist may not be free someday. A Clinton appointee, why am I not surprised?

Posted by: federalist | Jun 8, 2008 10:48:13 AM

federalist, perhaps she's upset because the majority entirely ignores Gall? But I guess ignorning the law is okay in the war on terror.

Posted by: 6:28 | Jun 8, 2008 11:24:01 AM

Not sure that the majority is "ignoring" Gall . . . .

By the way, her "analysis" of the majority's tossing of "character" is pretty weak. "Characteristics" ain't character.

Posted by: federalist | Jun 8, 2008 12:30:37 PM

Twenty pages spent discussing X is not "ignoring" X, and twenty pages spent discussing Gall is not ignoring Gall.

Judge Traxler, who was with Judge Wilkinson in the majority, was also a Clinton appointee, incidentally.

Posted by: Bill Otis | Jun 8, 2008 1:20:15 PM

The court of appeals (2-1) defers to the district judge's finding that this 21-year old was not tortured by the Saudis (and I'll sell you a bridge real cheap), yet says this same judge was wrong in thinking that a 30 year sentence was reasonable. Thirty years not enough? Give me a break. I think the dissent has the better view.

Posted by: Michael R. Levine | Jun 8, 2008 1:41:44 PM

Michael R. Levine:

And how much of a sentence would you have imposed on this terrorist.....ummm, I mean marginalized youth? Six months and a good, stern lecture from the judge?

If and when you state what sentence you would have preferred, it would be interesting if you would describe why a sentence of, say, three months less than that would not also have sufficed.

Posted by: Bill Otis | Jun 8, 2008 2:26:19 PM

Bill, so is it your position that you do not "ignore" the law as long as you pay lips service to it?

The majority's reasoning is absurd. The district court went through each of the factors. The fact that the lower court technically said more words discussing one factor does not mean that factor was the prime motivation for the sentence. Indeed, even the GOVERNMENT does not argue this. And as the dissent rightly points out, how else was the district court supposed to consider similarly situated defendants without considering the two that she did? Under the majority’s absurd reasoning, the district court was better off not even considering that factor. There was no clear weighing error here.

Posted by: 6:28 | Jun 8, 2008 2:27:40 PM

Bill, you show exactly why you are wrong in your last post. The majority, like yourself, would not have given this defendant this sentence. You, like the court of appeals, would have "preferred" a longer sentence. But the court of appeals does not have de novo review here and that's not their job. They're supposed to figure out if the district court gave a reasonable sentence and heavily defer to the district court's judgment given its expertise in sentencing. A 30-year sentence along 30 years of supervised release is reasonable, in light of everything the district court said.

Posted by: 6:28 | Jun 8, 2008 2:31:23 PM

Bill Otis,

A fairly conservative federal judge determined that 30 years was an approriate sentence. All I'm saying is that, in the circumstances, that does not seem unreasonable to me.

Posted by: Michael R. Levine | Jun 8, 2008 7:12:28 PM

Mr. Levine:

Judge Lee is not a conservative in any sense of the word. If you have actual evidence from cases over which he presided estblishing that he's conservative, I'd love to see it.

P.S. Not being Nancy Gertner is not enough to qualify a judge as "conservative."

Posted by: Bill Otis | Jun 8, 2008 9:04:31 PM

Mr. Otis:

You are right. Judge Lee is not "fairly conservative." I would say he is "fairly liberal." I would fire my research assistant; except I would have to fire myself. Nevertheless, my conclusion remains the same: under the circumstances of the case, 30 years of incarceration is enough.

Posted by: Michael R. Levine | Jun 9, 2008 11:56:57 AM

I like to call people “liberal” or “conservative” to serve my political agenda. Sometimes you are talking to an audience who, because of their upbringing and genetic makeup, are unable to read source materials. When you talk to these people, it is better just to say “liberal” or “conservative.” There is no other way to communicate with them.

Posted by: S.cotus | Jun 9, 2008 1:17:21 PM

Mr. Levine:

Thank you for acknowledging the error and not beating around the bush about it. It's a breath of fresh air. My congratulations and thanks.

My problem with saying that 30 years is "enough"
lies in not knowing what standard is being employed to arrive at that conclusion. I'm not talking here about the Gall/Kimbrough standard of deference to the district court; I suppose we'll find out from the en banc court, or the Supreme Court, whether the panel majority was right about that.

What I'm talking about is deciding what's "enough" in the lay sense in which I believe you are using that word. If 30 years would be enough, wouldn't 29? Or 28? Or 25? By what criteria are we to say that one number is "enough" but the next one "isn't enough?"

Posted by: Bill Otis | Jun 9, 2008 2:37:49 PM

Mr. Otis:

You raise interesting questions. I can only answer this way. When I say that 30 years is enough, I think I mean that given what the 21-year old was convicted of doing, it is not an unreasonably short sentence to incarcertate him for "only" 30 years. I might have imposed the same sentence--maybe more depending on the arguments of counsel and how he allocuted. Maybe I would have given him life. I don't know.

But Mr. Otis, consider this: leaving aside good time, which he may or may not earn, a 30 year sentence amounts to this defendant's entire youth and much of his middle-age. He'll be over fifty upon his release (and still subject to supervised release for many years after that). He will have missed 30 years of fresh air, of flowers, of the stars in the heavens, of music, of wonderful foods, of movies, of love, of dogs and cats (I wouldn't miss the cats part). He will have missed the delights of family, friends, relationships; he will have missed marriage, children, grandchilren. He will have grown very old prematurely and will look like 75 when he is released. When sick he will receive substandard medical care if any at all.

Entirely apart from what he will miss, however, will be what he is subject to for the next 30 years. He will probably spend most of that time in isolation, as the BOP tries to protect him (if it does) from attacks by other inmates, from sexual predators who will rape him repeatedly. If he thought he was subject to torture he Saudi Arabia, wait till he sees what awaits him in the federal prison system.

All in all, I repeat: 30 years is enough.

Best regards,

Michael R. Levine

Posted by: Michael R. Levine | Jun 9, 2008 6:54:44 PM

Is prison rape a serious problem in the federal system--I always thought that it was mostly a state prison issue.

Terrorists should pretty much get life sentences--if they're not executed. Why let these people go?

Posted by: federalist | Jun 9, 2008 7:41:42 PM

Mr. Levine:

I don't think you answered the question, but you explained pretty well why it's hard to answer and why you think as you do. So I appreciate your response.

Death penalty proponents (of whom I am one) have a similar problem when they say that, in some cases, only execution is justice. This depends on an intuitive sense of things that cannot be proven in any scientific sense.

One may make analytical and empirical arguments for the death penalty based on deterrence studies, incapacitation, historical practice, the views of well-respected leaders and jurists, etc., but at the end of the day, the basic rightness (or wrongness) of it lies deep within. So I see where you are coming from.

Posted by: Bill Otis | Jun 9, 2008 8:23:39 PM

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