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December 16, 2010

Why the orphaned sentencing argument in Tapia needs a good guardian

Adam Liptak's Sidebar column this week in the New York Times, which is headlined "Court Chooses Guardians for Orphaned Arguments," is all about the SCOTUS practice of appointing counsel to represent arguments/opinions that have been abandoned by the parties. The piece is focused on the Pepper resentencing case argued earlier this month, and the piece is especially timely because it seems the Justices will now need to appoint another party to argue another sentencing position in the newly granted Tapia case from the Ninth Circuit (previously discussed here and here).

As explained in prior posts, the Tapia case concerns whether rehabilitation needs can be used as a factor by a district judge to give a longer prison sentence.  At one time, the US Justice Department had supported district judge to consideration of this factor, but in the Tapia cert briefing the SG expressed the current view of the Government that "the plain language of [18 U.S.C. § 3582(a)] prohibits considering a defendant’s rehabilitative needs as a factor in setting the duration of her prison sentence."   Thus, it seems the Justices will need (and likely will appoint) special counsel to defend the view that rehabilitative needs can be a proper factor when imposing a prison sentence.

Though there is considerable force to the parties view that Congress in the Sentencing Reform Act sought to prohibit consideration of rehabilitative needs as a factor in determining the lengthy of a prison sentence, I believe there are lots and lots of importance nuances to a proper modern interpretation of § 3582(a) in light of both the Supreme Court's Booker jurisprudence and also a number of post-SRA enactments by Congress.  In addition, the sentencing setting and record in Tapia also implicates a number of related issues concerning how speculative a sentencing judge can be when concluding that rehabilitative needs justify a sentencing adjustment.

Put slightly differently, the place of rehabilitative goals and needs in the modern federal sentencing system justifies careful and considerable attention, and I think it is especially important that the Justices hear from engaged advocates in Tapia about all the big theory and practice issues that the case implicates.  Based on the recent record of appointed counsel in similar cases, I am confident that all the issues in Tapia will be well presented.  But, given that SCOTUS rarely takes up these kind of big picture sentencing issues that can prove to be so consequential, I hope counsel and amici in Tapia take extra time to work through all the implicated issues extra thoroughly and thoughtfully.

December 16, 2010 at 12:39 PM | Permalink


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This is the (at least) third case this Term that has been orphaned on which cert was still granted: Pepper, Bond, and Tapia. Does anyone know if this is par for the course or if this Term has a higher number of cert-grants on such "orphans".

Posted by: DEJ | Dec 16, 2010 2:13:24 PM

(law firm)Thank you for explaining this viewpoint. It can sometimes be difficult for those not well-versed in law to understand, and being able to read a well-written blog post on the topic helps.

Posted by: Steve | Dec 16, 2010 4:18:00 PM

I believe the answer to this problem is a recognition that social control plans have to (1) hold offenders accountable and (2) control their risk of reoffending. The extent to which an offender should be held accountable does not change. Accountability should be fixed at the time of sentencing by a judge.

Risk changes over time; i.e., it is variable. No one can say with accuracy how dangerous an offender will be in five years. Rehabilitation and incapacitation are strategies, not objectives. They are used to control risk. Judges at the time of sentencing have no rational way of evaluating an offender’s risk in the future. What’s more, rehabilitation does not work like an assembly line; it evolves in fits and starts when the time is right, if it works at all. An alternative decision mechanism is needed for this purpose, such as a Risk Control Board. I doubt that the Supreme Court can make a sensible decision in this case with the tools they have at hand.

At any given point in time, the most restrictive level of restraint that is needed to hold the offender accountable and control that person’s risk should control. Under some circumstances risk alone will dictate the level of restraint; at other times it will be accountability. But usually both tracks will run in tandem; a tandem social control planning and programing system.

Posted by: Tom McGee | Dec 16, 2010 5:15:53 PM

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