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January 21, 2009

An insider's reaction to the SCOTUS summary reversal in Spears

I asked Professor Mark Osler, who was counsel of record for the defendant who secured a surprise summary reversal win from the Supreme Court today in Spears, to write up his immediate reaction to the decision for posting.  Here was his thoughtful reply:

While today’s Spearsopinion at times reads like a WWE Sentencing Smack-down hosted on the Food Network, with the majority’s description of the Eighth Circuit’s opinion as “a smuggled-in dish that is indigestible” and the dissent’s reference to the “bitter medicine” of summary reversal, the Court’s clarification of Kimbrough may end up having real significance.

Fundamentally, the Court’s opinion makes very clear that Booker requires that judges be allowed to categorically reject sentencing guidelines with which they disagree on policy grounds. In so doing, the Spears majority encourages judges to articulate personal sentencing guidelines in a sense, by concretely defining the alternatives they are choosing. The Court properly and succinctly recognized that unless sentencing judges are allowed to define their alternative scorings categorically and honestly, there are only two possible outcomes: Either the guidelines are essentially mandatory, or judges lie about their reasoning, which is “institutional subterfuge.”  As the Court asserted, “Neither is an acceptable sentencing practice.”

This newly clarified principle may have a few very immediate uses.  First, this principle will quickly be tested outside crack cases.  For those of us in Texas, for example, Spears invites strong challenges to the 16-point enhancement for an aggravated felony in an illegal re-entry case, since that enhancement is no more “scientific” than the 100-1 powder/crack ratio.  Judges can, and perhaps should, develop categorical alternatives to this enhancement.

Second, and just as importantly, Spearsshould encourage the Obama administration to pro-actively use its power of commutation to lessen the sentences of those who are serving unduly harsh crack sentences.  This would especially include those who were sentenced under the wrong interpretation of Kimbroughembraced by three circuits, which was rejected today. It is not flaming liberals who would provide the moral impetus to these commutations.  Rather, it would be Justice Scalia, who likely authored Spears and at the least joined in the majority.  Through Spears, Scalia urged not only that categorical alternatives be allowed, but that this be made known “at once,” and that the Eighth Circuit’s interpretation needed to be removed from the debate “promptly.”  Seemingly, this urgency was one reason the case was decided per curiam.  If Justice Scalia feels that justice must be done in this area with alacrity, certainly President Obama should agree and warm up the essential executive commutation power President Bush had left out in the cold.

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January 21, 2009 at 06:59 PM | Permalink


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"In so doing, the Spears majority encourages judges to articulate personal sentencing guidelines in a sense...."

In other words, the crack-powder ratio, and hence the sentence for a crack defendant, depends on the random chance of which judge the defendant draws.

That is an exemplar of the arbitrariness the Sentencing Reform Act of 1984 was enacted to correct.

Congress needs to overhaul this system. Soon.

Posted by: Kent Scheidegger | Jan 21, 2009 8:40:45 PM

I disagree Kent. I think that if you read the whole line of cases carefully the Court's intent is not to return to the "bad old days" of the 1970s when it was district judge vs district judge. Rather, the SC wants the *Appellate* courts to set the outer boundaries. For Scalia and others, the controversy between localism and nationalism is resolved in favor of regionalism. I don't honestly know if that is the best result for a public policy point of view, but it is clearly the result that a majority on the Supreme Court wants. And you know what, it's worth a try as an experiment. Which is why I have been so supportive of the court in this area and why I remain sick to my stomach about the appellate courts refusal to take up the new role the SC has fashioned for them.

Posted by: Daniel | Jan 21, 2009 9:31:51 PM

I agree, Kent, by enacting the Booker dissenters' remedy (have the jury find guideline factors - at least offense-related ones - BRD).

Posted by: AFPD | Jan 21, 2009 9:33:58 PM

That's a possible solution, AFPD, but I think it would require a simultaneous simplification of the factors.

Posted by: Kent Scheidegger | Jan 21, 2009 10:58:09 PM

Which would be a great idea, too, Kent.

Posted by: AFPD | Jan 21, 2009 11:56:47 PM

I cannot get over C J robert's closing paragraph, criticizing the majority for correcting the Eighth Circuit too quickly with this agricultural maxim:

"As has been said, a plant cannot grow if you constantly yank it out of the ground to see if the roots are healthy."

Excuse me, Chief Justice, but the problem in the Eighth Circuit has not been yanking the plaint out of the ground to see if the roots are healthy, but rather, repeatedly flooding the plant with manure.

Posted by: hd | Jan 22, 2009 12:02:31 AM

I cannot get over C J robert's closing paragraph

Keep trying, it shouldn't be that difficult.

I disagree with CJ Roberts on the merits, but his general point about how doctrine develops and how the Supreme Court should deal with the lower courts is reasonable. Blakely and Booker turned a lot of things upside down and raised a lot of questions. Each successive case has raised as many questions as it has answered, and it's not unreasonable to suggest that the Supreme Court should just back off and let things settle a bit more. In this case, though, I think the majority was right and that Spears will help. But who knows?

I think the problem started in Booker, where Justice Ginsburg's unexplained flip-flop caused the only opinion I'm aware of where the dissenters from the merits holding got to decide the remedy. The Apprendi principle is a nice clean rule that's easy to administer. Unfortunately, not everyone on the Court believes in it, and sometimes the unbelievers are unable to set aside their disbelief when they decide how Apprendi should apply.

All that aside, Spears is great for allowing district judges to explain their sentences honestly. The "policy disagreement with the Guidelines" vs. "disagreement with the particular Guideline sentence in the particular case" distinction sounds great in the abstract, but when you get to the point of deciding actual cases, it doesn't do a lot of good. Under that rule, affirmance or reversal of a non-Guidelines sentence basically depends on the district judge's writing skills.

Posted by: | Jan 22, 2009 8:08:05 AM

Can we appoint Kent and AFPD to co-chair a post-Booker sentencing reform task force?

They're both right that the ball is in Congress' court. Since our sentencing scheme is statutory, it is the legislature's to fix. We do not have judge-made criminal laws, and sentencing review should not be an exception. Appellate judges are not sentencing commissioners. (Except for the few that actually serve as, well, sentencing commissioners.)

Posted by: Def. Atty. | Jan 22, 2009 9:39:55 AM

It's going to be interesting to see how much traction there really is behind the policy difference argument. Given the number of times the court has pointed out how crack/powder is different because the USSC basically abdicated its usual role I can easily see the courts of appeal already disposed toward reversing below guidelines sentences latching onto that branch.

Posted by: Soronel Haetir | Jan 22, 2009 10:00:11 AM

"Appellate judges are not sentencing commissioners."

And what is your *constitutional* basis for saying that? Because Apprendi Booker etc are all saying that's exactly what they are.

Posted by: Daniel | Jan 22, 2009 10:11:47 AM

The Sentencing Commission's web page does not list any appellate judges as commissioners.


Posted by: | Jan 22, 2009 11:23:05 AM

Def. Atty: I accept!

Posted by: AFPD | Jan 22, 2009 12:30:19 PM

I wouldn't be as quick as Mr. Osler to assume that the Court's clarification about what it said in Kimbrough applies across the board to any and all other Guideline provisions (i.e., those that are either directed by Congress or have not received the same sort of withering criticism as the crack-powder ratio).

For instance, I seriously doubt that a district court could go from 188 months (the minimum sentence in a Guidelines range driven by a career offender finding) down to 60 months based on a categorical belief that the Guideline range is too harsh. The Judge still has to deal with the statute that ordered the Commission to set the range near the statutory maximum.

Posted by: Da Man | Jan 22, 2009 4:26:43 PM

I think you are right that the career offender enhancement does raise an additional issue. However, that's in part why I chose the 16-point enhancement for re-entry cases as a possible extension-- that is more analogous to the crack/powder issue.

Posted by: Mark Osler | Jan 22, 2009 4:35:47 PM

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