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April 17, 2011

Off to DC to get a front-row view of Tapia argument as second chair

As noted in this prior post, I had the pleasure and honor of helping Professor Stephanos Bibas prepare an amicus brief supporting the judgment of the Ninth Circuit in the SCOTUS case of Tapia v. US.  (Professor Bibas was invited to prepare this brief by the Supreme Court because the Solicitor General has adopted the defendant's position on the chief statutory issue, and he kindly invited me to help with the briefing.)

Tapia is being argued tomorrow morning, and I am heading out to DC now to attend the argument as co-counsel to the appointed amicus.  Consequently, I likely will be blogging little or none for the next 24 hours.  In the meantime, folks can read up on the Tapia case via this SCOTUSblog post providing an argument preview.  That post is titled, "'Recognizing' rehabilitation in sentencing" and provides this effective one-sentence summary:  "In Tapia v. United States, the Court will consider whether the federal Sentencing Reform Act prohibits courts from factoring rehabilitative goals into the length of a defendant’s prison sentence."  The recent history and briefing in the Tapia case is available at this SCOTUSblog page.

April 17, 2011 at 05:45 PM | Permalink


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If both sides agree as to the issue, how is there an Article III actual case and controversy? It seems like the Court is keeping an issue alive that neither party supports. That seems odd and (shudder) activist. (I hate that word)

Posted by: Scott Forster | Apr 17, 2011 7:04:54 PM

Doug --

Good luck. I think that one theme of argument to which the Court might be receptive is that its decided trend in the wake of Booker, Kimbrough (especially), Gall, Spears and others has been to emphasize that robust discretion has been restored to the district courts, and that if the Court finds the statutory interpretation question close, as I do, the nod should go in that same direction. This would not necessarily run afoul of the rule of lenity, since the chance to participate in a rehab program, even if conducted in prison rather than outside, should not per se be considered a bad thing for the defendant. Over the long haul, it could be a good thing. This is precisely the sort of question that, in the Booker and post-Booker trend, SCOTUS has tended to leave to the district courts' discretion.

Posted by: Bill Otis | Apr 17, 2011 10:00:00 PM

I think it's not moot in the Article III sense because the judgment below still exists, and the Court must decide whether to disturb it or not. Saying it was moot would produce the odd result that the result neither party agreed with would be locked into place. Just because the two parties decide they both feel the same way about an issue after a court has already ruled for one of them doesn't mean there was no case or controversy in the first place.

Posted by: Jay | Apr 17, 2011 10:59:01 PM

I think Jay right in the context of this case where the party who prevailed below is the one who changed his mind. A different situation is presented when the party who lost below decides he doesn't want to appeal. See Comer v. Schriro, 480 F.3d 960 (CA9 2006) (en banc).

Posted by: Kent Scheidegger | Apr 18, 2011 10:55:28 AM

Doesn’t the law provide an opportunity for both parties (within a reasonable interval) to petition a court to set aside its judgment, where both agree the judgment was incorrect? That strikes me as a better way of dealing with these cases than appointing an amicus to argue an abandoned position in the Supreme Court. The amici “lose” about 95 percent of the time, by the way.

Another option is for the Court is to summarily vacate the judgment and remand for further proceedings in light of the government’s changed position. I cannot think of another situation in the law where a court hears arguments on a position supported by none of the parties to the case. And it’s a strange waste of the Court’s resources, given that the appointed amici seldom prevail.

Posted by: Marc Shepherd | Apr 18, 2011 2:36:32 PM

To refine/simplify what I said earlier, it's not moot because the defendant/petitioner is still imprisoned under the sentence he's complaining about.

I agree with Marc that it could be resolved by jointly petitioning the court of appeals to vacate its ruling, but I don't think that's necessary in order for the Supreme Court to have jurisdiction.

Posted by: Jay | Apr 18, 2011 2:42:47 PM

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