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June 25, 2010

A notable Sixth Circuit concurrence lamenting Dillon and modern severity

Concurring in a Sixth Circuit panel decision today in US v. Robinson, (6th Cir. June 25, 2010) (available here), Judge Merritt assails the Supreme Court's crack retroactivity ruling in Dillon last week and broadly laments current federal sentencing realities.  Here is a snippet of Judge Merritt's separate opinion:
The Sentencing Commission has the authority, according to United States v. Dillon, No. 09-6338, June 17, 2010, by mandatory rule, to entirely repeal individualized sentencing in such cases.  For the reasons stated by Justice Stevens in his dissent, I would reach the opposite conclusion, if I could, and apply the principle that under § 3582(c) a federal court should consider the “no-greater-than-necessary” principles of § 3553(a).

In addition, I would point out that 18 U.S.C. § 3661, unmentioned by the Court in Dillon, says:

No limitation shall be placed on the information concerning the background, character, and conduct of a person convicted of an offense which a court of the United States may receive and consider for the purpose of imposing an appropriate sentence. (Emphasis added.)

This is a flat-out, general, statutory prohibition against restraining judges when they must pronounce sentence from considering the injustice of Dillon’s sentence or any injustice in Robinson’s sentence in this case. The Sentencing Commission’s rigid rule that continues in place overly harsh sentences gives no consideration to this statutory requirement.  So we continue on without hope for change with a sentencing system that Justice Stevens accurately describes as... "an exceptionally, and often mindlessly, harsh federal punishment scheme."

This “mindlessly harsh federal punishment scheme” is, as Justice Stevens says earlier in the opinion, now so bad that it should be regarded as “on dubious constitutional footing.”  In outlawing another such mindlessly harsh form of punishment more than 50 years ago — expatriation — the Warren Court said that our constitutional system “must draw its meaning from the evolving standards of decency that mark the progress of a maturing society.”  Trop v. Dulles, 356 U.S. 86, 101 (1958).  In a concurring opinion, Justice Brennan pointed out:

In recent years we have seen such devices as indeterminate sentences and parole added to the traditional term of imprisonment. Such penal methods seek to achieve the end, at once more humane and effective, that society should make every effort to rehabilitate the offender and restore him as a useful member of that society as society’s own best protection. Id. at 111.

Justice Brennan referred to the effort to get rid of these values by using the punishment of expatriation as nothing “other than forcing retribution from the offender — naked vengeance.” Id. at 111-12.  The same thing is happening now once again.  We have eliminated rehabilitation and the parole system from the penal system through the sentencing guidelines, and both judges and administrators (other than the Sentencing Commission) have lost all authority to later adjust a sentence that is too harsh.  The guidelines themselves do not take into account rehabilitation, “maturing standards of decency,” and other values like age, disability, marital status, and parenthood.  Perhaps one of these days an American political institution will recognize what we have created and begin again to make some adjustments, as the Warren Court did in the 1960’s and 1970’s.  But for the time being, we just have to live with a “mindlessly, harsh federal punishment scheme.”

June 25, 2010 at 10:07 AM | Permalink


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At least he followed the law as announced by the Supreme Court of the United States, whether he likes it or not.

Posted by: Soronel Haetir | Jun 25, 2010 11:12:39 AM

questionable that Dillon says what he says it says. i think Dillon just says courts are not required to not treat 1B1.10 as mandatory -- despite Justice Stevens' interpretation.

Posted by: = | Jun 25, 2010 12:31:02 PM

Let me say first off that I agree with Judge Merritt that the Sentencing Guidelines for certain types of offenses (child pornography, drugs, fraud) are in many cases, as Justice Stevens put it, "mindlessly harsh" punishments. However, I think Judge Merritt gives short shrift to retribution as a legitimate goal of punishment and seems to forget that the rehabilitative model collapsed shortly after the Warren Court era came to a close.

Judge Merritt assumes that retributive sentences are, as a categorical matter, too harsh, but that is not necessarily the case. As Judge James Gwin, who like Judge Merritt was appointed by a Democrat, wrote in this piece (http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1556347&download=yes):

"Because retributive sentencing focuses on discrete acts and the punishment that should follow these discrete acts, it more likely leads to shorter sentences, is more effective in directly punishing criminal conduct, displays greater respect for the victim, and, most importantly, better reflects society’s values than sentencing that focuses on deterrence, incapacitation, or rehabilitation."

Professor Paul Butler has also written an excellent article titled Retribution, For Liberals, 46 UCLA Law Review 1873-1893 (1999), in which he argues that retribution would demand less severe punishment for nonviolent offenses, particularly drug offenses, which account for such a high percentage of the federal prison population.

So, I think that Judge Merritt is absolutely right to be outraged by the severity of many federal sentences, but he shouldn't blame it on the concept of retribution; rather, it's Congress and the Sentencing Commission's version of retribution that is the more appropriate culprit.

Posted by: Steve K. | Jun 25, 2010 1:31:08 PM

And one more thing: in the recent survey of federal district court judges, 75% of those judges who responded to the survey said that the current advisory guidelines system best achieves the purposes of sentencing, while only 8% said that they would prefer the pre-Guidelines practice of sentencing/parole that Judge Merritt champions.


Posted by: Steve K. | Jun 25, 2010 1:37:07 PM

Soronel writes: "At least he followed the law as announced by the Supreme Court of the United States, whether he likes it or not."

Spoken like a true authoritarian. The system might benefit enormously from a little rebelliousness.

Steve K writes: "in the recent survey of federal district court judges, 75% of those judges who responded to the survey said that the current advisory guidelines system best achieves the purposes of sentencing..."

Seventy-five percent, isn't that about the percentage of federal judges appointed by conservative Republican presidents over the past four decades? Wasn't the Rube Goldberg Justice Dispensing Machine(sentencing guidelines) the brainchild of grandstanding, get-tough, right-wing Republicans jonesing to cut "liberal judges" out of the loop?

Judges who prefer a contrived, formulaic, deeply flawed system to their own wise assessments probably shouldn't be judges at all.

Posted by: John K | Jun 26, 2010 11:40:36 AM

John K: as of approximately July 31 2009 (about four months before the survey was sent out), 59% of federal district judges were Republican appointees, not 75% (http://www.law.com/jsp/law/LawArticleFriendly.jsp?id=1202432541517).

Also, you seem to forget that Ted Kennedy and Stephen Breyer were principal architects of the Guidelines, and neither can be described as "grandstanding, get-tough, right-wing Republicans."

Posted by: Steve K. | Jun 26, 2010 1:54:30 PM

John K --

As Steve K. points out, your figures are off. Let me briefly elaborate.

Over the last 40 years, Republicans have held the White House for 26, or 65% of the time. Thus you'd expect the judges appointed in that period to be 65% Republican, not 59%.

Steve K. is also correct in pointing out the Teddy Kennedy was a co-sponsor, with Strom Thurmond, of the SRA of 1984, which created the Setencing Commission and, in turn, the guidelines. The SRA was adopted by a fat, bi-partisan vote.

"The system might benefit enormously from a little rebelliousness."

A little rebelliousness is fine in a 14 year-old on the camping trip. It is unacceptable in a judge, who has a duty (and an oath) to uphold the law, not do his own thing.

Let's say we had a judge in a non-death penalty state who personally believes in the DP. A particularly vicious killer gets convicted in his courtroom. Would you applaud his "rebelliousness" in ordering, contrary to law, a death sentence?

The problem with "rebelliouness" in the law is that you don't know who the rebel is going to be, or what he's rebelling about. Nor of course do the litigants, who have a right to a stable and relatively knowable body of rules over impulsiveness and the luck of the draw.

Posted by: Bill Otis | Jun 26, 2010 7:01:49 PM

OK, Steve K, but without a breakdown of respondents (raw numbers, not just percentages, and information about respondants' political pedigrees) it's hard to say whether the 75 percent-support figure is meaningful or skewed.

Anecdotally, most of the complaints I've seen over the past several years have come from judges who felt the guidelines are (were? are?) too harsh and inflexible. So there's some dissonance with a 75 percent lockstep-support number as well.

My recollection of the number of Republican federal judges was based on something I'd read in Catherine Crier's book, "Contempt; How the Right is Wronging American Justice." She noted that as of 2005, Republican appointees controlled ten of the 13 appeals courts. She also cited a National Law Journal report projecting that by 2008, nearly 85 percent of appeals court judges would be Republican appointees.

Not all of them are wingnut kooks, to be sure, but against that backdrop a 75 percent support number is sufficient to make the survey result, at the very least, controversial.

Consider, too, that big-wig "architects" like Kennedy and Breyer seldom enter the trenches to hammer out details on projects like the guidelines. Republicans controlled the Senate while the guidelines were being concocted. One person who WAS in the trenches, clawing and gouging to make punishments especially TOUGH was Victoria Toensing, a right-wing, authoritarian Republican if every there was one.

And of course even Ms. Toensing, all these years later, has made it clear she regrets her role in creating the fire-belching justice-dispenser machine we see before us today.

Posted by: JohnK | Jun 26, 2010 7:25:38 PM

John K:

First off, Breyer was on the original sentencing commission, so certainly he was in "the trenches" and "hammering out details" on the original guidelines.

Secondly, the reason why I mentioned that 75% of the responding district court judges prefer the current system of advisory guidelines to the pre-1987 non-Guidelines era was to challenge Judge Merritt's assertion that we are worse off now with advisory guidelines, or even with mandatory guidelines, than we were when sentencing was, as Marvin Frankel (an appointee of LBJ) put it, "Law Without Order". Judge Merritt's opinion gave me the impression that he believed the pre-Guidelines era was preferable to the one we are currently in, and I thought that fact that a good number of district court judges, certainly not all of whom are "right-wing, authoritarian Republicans" disagreed with him was an important point. In fact, more of the responding judges would chose to return to mandatory guidelines that complied with the Sixth Amendment than would go back to pre-Guidelines sentencing. My point was simply that the pre-Guidelines era style of sentencing isn't all that Judge Merritt seems to think it is. He should ask defendants in Texas whether they think judges having more discretion is a good thing.

But my broader point was that there is nothing wrong with retribution as a basis for criminal punishment, and that retributive sentences are not necessarily extremely harsh sentences. There is a reason why the rehabilitative model of sentencing that Judge Merritt seems to love so much failed and was replaced by the Guidelines. I happen to think that rehabilitation is a perfectly legitimate goal, but it is far better accomplished in, for example, drug treatment programs than in prison.

Posted by: Steve K. | Jun 26, 2010 10:25:03 PM

One thing worth noting in this debate is that there really are not all that many federal district court judges who actually were on the bench for any significant period of time prior to the guidelines. So in one sense, for many of them to say that they prefer some sort of guideline system....mandatory, advisory, whatever.....is much to say they simply prefer the known to the unknown. In my experience, and it is in most respects pretty limited simply because i have only practiced in one district since the guidelines were inaugurated in 1987, the judges who were on the bench both before and after the guidelines preferred the old system to the new one, though I am sure even they prefer the guidelines as advisory rather than mandatory.

Posted by: Grotius | Jun 27, 2010 4:56:04 PM

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