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June 8, 2009

Judge Easterbrook on barbarity and the summum bonum of federal sentencing

A Seventh Circuit panel opinion authored by Judge Easterbrook in US v. Bartlett, No. 08-1196 (7th Cir. June 8, 2009) (available here), is this week's first must-read for sentencing fans. The ruling, which covers lots of issues, gets off to this poetic start:

The distance between civilization and barbarity, and the time needed to pass from one state to the other, is depressingly short.  Police officers in Milwaukee proved this the morning of October 24, 2004.

The opinion also includes a number of other profound observations, ranging from "Thrusting a pen into a person’s ear canals is torture by any definition." to "The old regime of 'departures' is defunct."  And, as this latter sentence highlights, the Bartlett opinion is full of notable sentencing talk.  Here are just a few passages of sentencing note (with emphasis in original):

But there is more to §3553 than §3553(a)(6).  A judge must respect all of the statutory criteria in order to mete out a sentence “sufficient, but not greater than necessary, to comply with the purposes [of sentencing] set forth in paragraph (2) of this subsection.” 18 U.S.C. §3553(a).  The Court held in Kimbrough, and reiterated in Spears, that a judge need not accept the Sentencing Commission’s penological framework.  The court may adopt its own.  It follows that §3553 permits a judge to reduce one defendant’s sentence because of another’s lenient sentence — not because of §3553(a)(6), but despite it.  Avoiding “unwarranted” disparities (as the Sentencing Commission or a court of appeals defines them) is not the summum bonum in sentencing.  Other objectives may have greater weight, and the court is free to have its own policy about which differences are “unwarranted.”...

Although the judge need not use the Guidelines as the fulcrum of analysis, the court still needs to understand the relation between the Guidelines and the ultimate sentence.  Both Rita and Gall say that the court must construct a Guideline range accurately.  A sentence is procedurally unreasonable if the judge thinks it within the range, but it isn’t — either because the range was not determined accurately in the district court, or because the judge misunderstood what that range was.

June 8, 2009 at 02:25 PM | Permalink


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"Thrusting a pen into a person’s ear canals is torture by any definition."

John Yoo disagrees.

Posted by: . | Jun 8, 2009 2:50:07 PM

A lovely bunch of guys. I'd nominate them for 1-dead.

And nice to finally see a judge who realizes that such abuse of authority really does deserve a higher than guideline sentence. Would have been interesting to see how the guideline calculations were made though, what departures were made for instance before the variance was applied.

Posted by: Soronel Haetir | Jun 8, 2009 4:03:00 PM

Jun 8, 2009 2:50:07 PM --

1. Could you please cite (or better yet, quote) the source for your statement that John Yoo does not believe that thrusting a pen in someone's ear is torture? I'm pretty sure your statement is an out-and-out falsehood, but I will stand to be corrected if you can produce the evidence.

2. When you respond, would you please sign your actual name? For as much as you might hate Yoo, at least he signed his real name to the memos he wrote.

Posted by: Bill Otis | Jun 8, 2009 4:21:54 PM

Why are you so hung up on people using real names?

Posted by: Buffalo Bill | Jun 8, 2009 5:08:23 PM

"Buffalo Bill" -- I prefer that people use their real names because writers should be willing to take public responsibility for what they say. Not a few people who post here do exactly that.

Why are you so hung up on hiding behind an alias?

Posted by: Bill Otis | Jun 8, 2009 6:27:47 PM

"Not a few people who post here," or hardly anywhere, on Internet message boards or blog comments would do that that at all. Look at almost any blog or message board anywhere. Pseudonym use is a common practice on the Internet. I don't think I have ever heard anyone call someone out for not using their real name in all the years of my Internet use. I see the value of some bloggers who do this professionally in using their actual names. But, you know, most people don't. John Yoo has to put his name down because he's professionaly responsible for his legal arguments. The Internet, however, is not a court docket. Its strength (far more than its weakness, although I'll acknowledge it can also be a weakness) is based on the uninhibited flow of ideas.

Bill, it doesn't matter to me who you are, and I don't assign more weight to your opinion than, say, an anonymous user like "federalist." Or even just someone going by "anon." I'm more interested in what a person says, than who says it.

Oh, and it's more amusing. I'd get more amusement if you called yourself "Bill Hickock," or "Bill the Cat," or "Bill and Ted's Excellent Adventure." My name allows me to not-so-discreetly promote my favorite sports team.

Posted by: Buffalo Bill | Jun 8, 2009 8:01:17 PM

Latin in a legal utterance violates the Establishment Clause, by endorsing the foreign language of a church.

Posted by: Supremacy Claus | Jun 8, 2009 8:31:09 PM

And all you left wing wackos who want to end English as the language of this country, tacete up already. This assertion has nothing to do with the English First movement. The First Amendment prohibits the endorsement of a religion by the government, not by people. Feel free to debate, gossip, text, scream during lovemaking, and adopt Latin as your first language spoken at home to your children.

Posted by: Supremacy Claus | Jun 8, 2009 8:37:32 PM

This case seems unremarkable. Weird that all the libs, who constantly whine about fairness, are silent here. Personally, I think the sentences are far too lenient.

Posted by: federalist | Jun 8, 2009 11:20:06 PM

1. This opinion has some excellent, semi-dicta language about the dangers of unreliable eyewitness identification which I think will get a lot of use from the defense bar (with that "(Easterbrook, J.)" notation making a nice, subtle point that it is not only liberal judges who recognize this evidentiary infirmity...).

2. I get confused, but wasn't the "pain on the level of organ failure or death" standard for torture brought to us by John Yoo? If so, I think it is a reasonable deduction that Yoo does not think the pen-in-the-ear treatment is torture. (I mean, I am assuming that organ failure really, really, *really* hurts.)

3. Bill Otis: I sometimes use another moniker on this site, however I am actually getting a perverse enjoyment out of posting anonymously here, because I know it irrationally irritates you :) If I have to endure multiple threads rehashing at length the same argument about anonymity vs. accountability, at least I have my petty comforts.

Posted by: Anon | Jun 9, 2009 11:23:49 AM

What kind of pen?

Posted by: Michael Drake | Jun 9, 2009 1:00:06 PM

There is also a great section at the end of the opinion where Easterbrook explains that requiring an objection to preserve an issue for apellate review is not the same as requiring an "exception," which is not required. Many courts (including the 10th Circuit, for one) frequently confuse these concepts.

Posted by: prairie dog | Jun 9, 2009 1:02:44 PM

Anon -- If you have nothing better to do than spend time -- any time -- irritating me, get help.

Posted by: Bill Otis | Jun 9, 2009 2:06:28 PM

Bill: Another option would be for you to get help -- so you're not so easily irritated.

Posted by: me | Jun 9, 2009 3:10:34 PM

Back to the opinion for a moment--I believe the proposition that "the old regime of 'departures' is defunct" is unique to the 7th Cir. Outside the 7th, it still makes sense to treat USSG-based departures (up or down) as part of calculating the advisory Guidelines range, before moving on to 3553(a).

Doug, if you or any of the posters are aware of other circuits following the 7th on this, I'd be interested to know.

Posted by: Def. Atty. | Jun 9, 2009 5:13:22 PM

As one who took a course in Latin 45 years ago I am always impressed by someone who employs bits and pieces of the dead language to impress the rest of us. Anyone who goes to a Catholic or Episcopal Church gets a fair share of it. The purpose is the keep us in awe. I was afraid that the use of the words "summum bonum" meant what the kids on the playground said it meant back in sixth grade, but alas my dictionary says it means the "chief good". There are fewer letters in the words "chief good" so why not employ the King's English. Chief Good was not such a bad leader. But getting to the point.

The objection which I have to the sentencing guidelines is that Congress is telling a co-equal branch how to be judges. Next Congress will tell judges to employ Latin, or to observe states rights and ignore lynchings. When the Senate grills the current nominee, some nut will get up and ask her about the right of privacy. If she replies that it is groudned in the Ninth Amendment they will be perplexed and move on to the next assault on her judicial activist background. The state legislature in Missouri for example has dictated that the so-called death penalty and execution shall consist of strapping a human being down to a board and injecting he/she with poison until the person is killed. For the likes of judges who bow and scrape to the wisdom of legislators this is perfectly fine and woe unto any judge who might say it was a bit cruel or a mit unusual. If Congress declaimed that a fit mode of execution was to assemble a mob of persons and stone the defendant to death in the town square for the offense of adultry it would be just fine with some members of the judiciary. They would hate to be called judicial activists. If they were to declare an 8th Amendment violation for public stoning they would be branded as "judicial activists". The better practice is to remain sub silentio. (I would italicize the latin but this program does not provide for it).

Posted by: mpb | Jun 10, 2009 10:12:24 AM

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