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January 4, 2009

How much can and will the "tenth justice" influence sentencing jurisprudence?

I have not yet done a "what might be in store" post about sentencing jurisprudence because there are so many uncertain variables.  For example, right now there is the pending Ice Sixth Amendment case awaiting a decision from the Supreme Court (basics here), the latest en banc acquitted conduct federal sentencing ruling from the Sixth Circuit (basics here), and lots cases involving important constitutional challenges to long state prison sentences (see recent examples from Califorinia and Florida and Georgia).

Against this backdrop, I was especially intrigued to see this new Bloomberg reportindicating that two notable academics are on the Obama team's short list for Solicitor General:

The first female deans of the Harvard and Stanford law schools are the top candidates to serve as Barack Obama’s voice at the U.S. Supreme Court, according to people familiar with the selection process. Harvard Law School Dean Elena Kagan, 48, and former Stanford Law School Dean Kathleen Sullivan, 53, are the two leading contenders for the position of solicitor general, a position informally known as the “tenth justice.”

For either, the job ultimately might be a step toward a seat on the Supreme Court itself.  The next solicitor general will preside over an almost-certain shift of the federal government’s position before the high court on terrorism, product-liability lawsuits and other issues.  No woman has ever served as solicitor general on a permanent basis.

“They already have to be on any list of potential Supreme Court nominations for the administration,” said Jeffrey Fisher, a Stanford law professor who argues before the high court. “Having the experience of being solicitor general would only accentuate their portfolio.”

I have great repsect for both Kagan and Sullivan, in part because both have amazing reputations as both academics and as administrators.  In my view, President-elect Obama could not go wrong with either choice (and this nation is long overdue for a female lawyer to be nominated and confirmed as SG).

Responding to the Bloomberg report, I was going to speculate in this post about what Kagan and Sullivan might think about Blakely and Bookerand acquitted conduct and the Eighth Amendment.  But, as I was thinking these matters, a broader question came to mind: how much can and will a new Solicitor General impact constitutional doctrine and federal policies in the sentencing arena? 

Let me make this inquiry concrete with respect to some of the issues flagged above: if a new SG believes that acquitted conduct enhancements are problematic, could and should she urge the Supreme Court to take up an acquitted conduct case and push the Justices to move the existing jurisprudence in favor of criminal defendant?  How about if the new SG finds long mandatory minimum sentences for juvenile or non-violent offenders to be troublesome, could and should she urge the Supreme Court to reconsider some of its old precedents in these area?

Because I have never worked in the SG's office, I have no sense of how much a new SG can or should play an active role in seeking to push the Supreme Court's jurisdiction in new or revised directions.  I hope readers with some experience or thoughts on this front will feel free to share their thoughts in the comments.

January 4, 2009 at 02:44 PM | Permalink


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I can't comment on the solicitor general candidates, but since you mentioned the fascinating Gonzalez case out of California, I would like to mention two aspects of Gonzalez which intrigue me. (in addition to the enjoyable conversation with BruceM a few days ago about recidivist offenses triggering recidivism sentence enhancement.)

First, the opinion says, "The Court offered a four year sentence." In my opinion, judges shouldn't make plea offers to defendants and if they do I think there is a separation of powers constitutional violation as well as a due process violation.

Prosecutors are constitutionally responsible for representing the state in the prosecution of cases and judges are supposed to judge. In my view, judges who put on a prosecutor's hat and try to negotiate plea bargains run afoul of the separation of powers clause.

I also think a defendant should not have to be sentenced in front of a judge who has "offered" the def a 4 year sentence" only to have his or her offer rejected. The judge has already made it clear what he or she thinks is a reasonable offer and therefore, if the jury convicts, the judge already has a preconceived "floor" as to sentencing. I think the judge therefore has a conflict of interest sentencing a def who has already rejected the judge's offer.

I don't have a problem with judges paricipating in pretrial plea conferences with the prosecutor and defense lawyer to see if a case can be worked out. But, if it can't, a different judge should try the case and if there is a guilty verdict, sentence the defendant.
I'm currently litigating this issue in state postconviction with a similar situation where the def turned down the judges's "offer" and then after a guilty verdict got hammered.

The second twist to Gonzalez is California's practice of allowing a judge to "strike a strike". They call it a Romero hearing, in which a judge decides if the DA should be allowed to use a particular prior conviction as a strike for the three strikes law. I don't see how that passes equal protection and separation of powers muster. It is not up to the judiciary to decide on a case by case basis the parameters of punishment for a particular crime. Either the def qualifies for an enhanced punishment under the three strikes law or he doesn't, and in my opinion, judges have no constitutional authority to decide otherwise. And the legislature has no constitutional business delegating such authority to the judiciary.

The second problem with California's Romero proceedings is , in my opinion, it violates the equal protection clause. The US Sup Ct has addressed a facial (as opposed to an as applied) equal protection challenge to a three strikes law on the merits only three times in the last one hundred years. Moore, McDonald, and Graham. (I don't think Oyler v Boyles counts because the holding in Oyler related to notice and the prosecutorial discretion language was dictum). In Moore, McDonald and Graham the Court said the same thing--to pass equal protection muster persons in a similar position must be exposed to similar punishment. I don't see why the romero hearing doesn't violate the equal protection clause. If I got hit with a three strike enhancement in my case and someone in a similar position to me didn't due to a judge's discretion, I would certainly be making an equal protection argument based on a Yick Wo analysis.

Again, Gonzalez is fertile reading on a host of issues.

Bruce Cunningham

Posted by: | Jan 4, 2009 10:54:54 PM

Abovethelaw is reporting that it'll be Kagan.

Posted by: | Jan 5, 2009 11:19:05 AM

Bruce C: I was completely unaware of California's "Romero" hearing, i.e. "striking a strike". While I'd imagine there is a body of caselaw which dictates what prior offenses can be used as strikes and which cannot (as well as when multiple 'strikeable' offenses are committed at or around the same time), you're saying a judge in California two defendants who committed crimes A and B and are on trial for crime C can have two different judges, and judge 1 can decide in a Romero hearing that for his defendant crime A will not count as a strike, but judge 2 can decide for his defendant that crime A will count as a strike? They can decide this on a case by case basis?

I practice in Texas, so I know nothing about the nuances of California 3-strike law. But if it works as you describe (I'm not implying you're lying, i'm just shocked by it) then I don't see how it can survive plain due process, let alone equal protection. At the same time, one alternative is to allow the prosecutor to decide what counts as a strike by allowing them to plead it or not plead it in the charging instrument as an enhancement. Isn't that just as arbitrary? And we surely don't want juries hearing all of a defendant's prior convictions to decide which of them count as strikes and which do not. Either a crime should count as a strike or it sould not. I thought California law was felony = strike. Not nuanced things like "crimes of violence" (where you have a huge body of caselaw deciding what is and is not a 'crime of violence' as you do in federal court vis a vis the USSG).

Of course I am against using prior convictions to enhance the level of a crime at the outset. Use them at sentencing to determine the proper sentence within the statutory range for that crime. But don't use prior convictions to turn a 3rd degree felony into a 1st degree felony. A X degree felony is an X degree felony, whether it's your first felony or your 100th. But if it's your 100th felony you should get a longer sentence (maybe the max) within the range for X degree felonies. As we were talking about the other day, this is particularly problematic when you're talking about using prior convictions to turn a misdemeanor into a felony (e.g. DWI), because then the prior offense becomes a jurisdictional element of the crime, which must be proved to the jury beyond a reasonable doubt (though the defendant can and often does stipulate to it).

On another note, I agree completely with respect to judges acting as prosecutors. In federal court it's pretty clear that judges cannot partake in plea negotiations, and I've never had it happen. But in state court, it is quite common. Gotta move the docket....

Anyway, one thought I had with respect to Solicitor General is Paul Clement. He's by far the best SG we've had in decades, and by far the most competent person Bush appointed during his entire 2 terms. My question is whether Mr. Clement is a partisan hack, or was he just advocating his client's interests to the best of his abilities? I don't know. But if Mr. Clement is NOT a partisan hack, and would be willing to represent the interests of the Obama administration (even if it meant taking contradictory positions to arguments he made as Bush's SG), then I'd like to see Paul Clement as Obama's SG. I don't think there's anyone out there who is a better SCOTUS advocate or who has more credibility with the justices. Why shouldn't Obama appoint the most qualified person able and willing to do the job?

Posted by: BruceM | Jan 5, 2009 11:58:16 AM

BruceM, I practice in North Carolina but I do a lot of habitual felon cases, so I went to DC to listen to the oral argument in Ewing v California, the three strike case. I was pretty surprised when I heard during the argument about some concept in California called "wobblers". That is a crime that could be counted as either a misdemeanor or a felony, as the particular judge decides. At least, that is what I think it means. I couldn't believe it either. It makes no sense that a judge, or for that matter a DA, can decide if a prior conviction counts or doesn't count as a prior conviction for sentencing purposes. Bruce C.

Posted by: | Jan 5, 2009 2:56:06 PM

Bruce C:

It's my understanding that California "wobblers" are crimes that can be either a misdemeanor or a felony, but it's the prosecutor, not the judge, who decides which it will be when charging the crime. Needless to say, they always initially charge it as a felony so they can have more bargaining power when it comes time for working out a plea.

I'd never want to sacrifice prosecutorial discretion for uniformly higher sentences out of a misguided sense of equality. If a prosecutor can enhance a particular defendant with a prior offense but out of prosecutorial discretion decides not to, I'd be the last to complain, so long as no discrimination were taking place, i.e. not enhancing white defendants but enhancing black defendants. This goes for both pre-charge enhancements and at sentencing.

Posted by: BruceM | Jan 5, 2009 9:34:00 PM

BruceM, take a look at Justice O'Connor's opinion for the court in Ewing v California, where she discusss "wobblers". "Likewise, California trial courts have discretion to reduce a wobbler charged as a felony to a misdemeanor either before preliminary examination or at sentencing to avoid imposing a three strikes sentence."

Or, "Thus, trial courts may avoid imposing a three strikes sentence in two ways, first by reducing wobblers to misdemeanors and second by vacating allegations of prior serious or violent felony convictions."

In my opinion, such discretion by judges to avoid the imposition of the three strikes law is flagrantly unconstitutional. It violates so many constitutional provisions it is hard to know where to start.


Posted by: | Jan 6, 2009 11:13:11 AM

BruceC: I completely agree.


Posted by: BruceM | Jan 6, 2009 3:36:10 PM

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