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March 16, 2010

New scholarship complaining that reasonableness review is now quite unreasonable

Now appearing on SSRN is this notable forthcoming article discussing the mess that is reasonableness review of federal sentences in the circuits.  The piece is titled "When ‘Reasonableness’ is Not so Reasonable: The Need to Restore Clarity to the Appellate Review of Federal Sentencing Decisions after Rita, Gall, and Kimbrough," and here is the abstract:

Judges, like anyone else who works for a living, need standards.  Judges need to know what rules to apply, when to apply them, and who to apply them to.  And judges, just like you or I, want to know how their work will be reviewed.  Unfortunately, in many circuits, federal district court judges do not know how, or even if, their work will be reviewed by appellate courts in the context of criminal sentencing decisions.

Booker completely changed the sentencing landscape in the federal court system, but it left many questions as to what standards appellate courts would apply in reviewing sentencing decisions.  The Supreme Court issued three opinions in 2007, Rita, Gall, and Kimbrough, in an attempt to resolve several of the circuit splits that resulted when the Supreme Court repealed the mandatory sentencing guidelines in Booker.  Practically speaking, these decisions failed to clarify what authority appellate courts wield in the sentencing process, and how appellate judges should exercise that authority.

This Article examines how the contradictory language from Rita, Gall, and Kimbrough not only failed to provide clarity, but created new inter- and even intra-circuit splits.  This Article argues that these problems can only be resolved by articulating clear and practicable standards that prioritize the sentencing factors contained in 18 U.S.C. § 3553(a), rather than continuing to weigh them all equally.  Specifically, the Supreme Court could require district court judges to take advantage of the wealth of sentencing data being collected by the U.S. Sentencing Commission to justify particular sentences for defendants by reference to those given to similarly situated defendants across the nation.  This solution has the potential to achieve the balance that has thus far eluded the Court between both Congress’ legislative intent behind the original enactment of the mandatory sentencing guidelines, and the Court’s Sixth Amendment concerns raised in Booker.

March 16, 2010 at 01:06 PM | Permalink


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"Judges, like anyone else who works for a living, need standards."

But why? I think that is a statement that needs to be defended! Is the law nothing but the legal version of NIST? Nonsense. One of the things I like about Gall etc is that it puts the defenders on "standards" on the defense. So I'm glad to see all of this academic huffing and puffing. it's good to know the truth is getting under their skins.

Posted by: Daniel | Mar 16, 2010 3:08:51 PM

"This Article examines how the contradictory language from Rita, Gall, and Kimbrough not only failed to provide clarity, but created new inter- and even intra-circuit splits."

Good. Working as intended.

Posted by: Daniel | Mar 16, 2010 3:10:15 PM

Appellate lawyers would like standards too. This area of the law is a complete mess.

Posted by: law123 | Mar 16, 2010 3:22:49 PM

Once the Supreme Court held the Guidelines "advisory only," the notion of clarity was over with. You can have either a discretion system or a rules system, but you can't have both.

Posted by: Bill Otis | Mar 16, 2010 3:30:36 PM

I agree, Bill. The Booker remedy was wrong from the get go. The guidelines should still be mandatory, but the jury should find sentencing factors --with a beyond-a-reasonable-doubt standard, evidentiary protections, etc.

Posted by: law123 | Mar 16, 2010 4:03:22 PM

I agree that having juries find sentencing factors, with the Guidelines being mandatory in the sense of setting an upper limit on the sentence, would better balance the Constitutional concerns and the purposes of the Guidelines and sentencing. I do think that the sentencing judge should be able to depart/vary downwards for history and characteristics of the defendant, which may be one aspect of sentencing difficult to present to a jury.

While some Guidelines issues would be easy to present to a jury for decision, such as whether the defendant possessed a firearm, others, like role in the offense, would be more difficult. However, juries are capable of deciding complex questions on proper instructions. For example, what's the real difference between a criminal fraud jury deciding amount of loss and a civil fraud jury determining the amount of damages?

Posted by: Webb Wassmer | Mar 16, 2010 4:34:07 PM

Webb: Agreed. As Prof. B. proposed long ago, juries should decide offense facts; the judge should decide offender facts. Bill O. would be happy b/c disparity would no longer be an issue, and defenders would be happy b/c the offense-related fact-findings would be far more reliable than they are now. Plus, sentencing appeals would make sense again.

Posted by: law123 | Mar 16, 2010 4:59:46 PM

Appellate review should require that all sentences (within and outside the Guidelines) are well-reasoned and supported by the record with explanation. And substantive reasonableness review should entail one question: can the record support the sentence. If it can, then it's not an abuse of discretion; if they can't, then reverse as an abuse of discretion.

(NOTE: This whole idea of "re-weighing" is contrary to Gall and Kimbrough, and the article's idea about prioritizing (a)(6) would require Congressional amendment. I couldn't imagine this Court imposing such a legislative-like correction (although, then again, the Booker remedy itself is a legislative-like correction).)

This is not a "rubber stamp" review. It would force a district court judge to explain the sentence and support it in every case. Reversals under such a review would (and currently do) occur:

See United States v. Friedman, 554 F.3d 1301 (10th Cir. 2009) where the Circuit reversed a non-Guideline, downward variance sentence: “We note the undeniably sparse record in this case certainly bears on the question whether Friedman's sentence is substantively reasonable. To compound matters, the district court did not undertake to explain, in even a limited fashion, why” the guideline was not followed. Id. at 1308 n.10. The Circuit lamented that its substantive reasonableness review must be conducted “against the backdrop of an exceedingly limited record and an almost complete absence of explanation on the part of the district court.” Id. On four different occasions, the panel stressed that “there is simply nothing in the record” to support the sentencing judge’s decision.
See also United States v. Bueno, 549 F.3d 1176, 1180 (8th Cir. 2008) (extensive development of the record and explanation on remand led the court to affirm a sentence that it had previously concluded was unreasonable”); United States v. Pinson, 542 F.3d 822, 837 (10th Cir. 2008) (noting that a sentence is substantively reasonable only when the “district court’s proffered rationale, on aggregate, justifies the magnitude of the sentence”). See also United States v. Lente, 323 F. App’x 698, 709-11, 717 (10th Cir. 2009) (Holmes J., concurring) (reversing an upward variance as substantively unreasonable because the district court failed to provide “meaningful insight” into its reasoning, and did not adequately state its findings; nor did it articulate how much “weight” it assigned to the facts it did find relevant).

Such a system would also provide standards to district court and appellate judges, as well as practitioners. And, in doing so, we would avoid the rigidity of the mandatory Guideline system.

The only objection would be from people like Bill who would hyperbolize the practical consequences of this type of substantive reasonableness review and the disparity it would create. I admit that, obviously, mandatory guidelines and/or "re-weighing" substantive reasonableness review would result in greater compliance with the guidelines. But look at the data. Only 15% of cases since Gall/Kimbrough have resulted in a non-govt. sanctioned variance. (Note: And even some of those weren’t opposed by the govt. but the USSC doesn’t have a category for “un-opposed” variance or “objected to but didn’t really care” variance). This isn’t run-away discretion; and this isn’t run-away unwarranted disparity. And if it actually gets as bad as Bill says it really is now, then Congress can easily fix it.

In the meantime, allowing district court’s to impose more just sentences (and requiring them to explain why that is so) is the best system.

Posted by: DEJ | Mar 16, 2010 10:22:25 PM

Here is the bottom line. Coarse-grain sentences are unreasonable because they mix apples and oranges in a single train of thought. The Federal system is coarse-grained. Fine-grain sentences may be reasonable or unreasonable, depending upon how they are structured. Separate trains of thought stand on their own.

Posted by: Tom McGee | Mar 16, 2010 11:17:03 PM

It is not uncommon to vary thoughts and preception from one person to another or one judge to another on any case or matter. Judging a case is not like applying formula of 2+2=4.

Posted by: Goreto | Apr 9, 2010 9:21:50 PM

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