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June 16, 2011

A few (too quick and too biased?) reactions to SCOTUS' work in Tapia

I have now had a chance to read quickly the Supreme Court's work in Tapia v. US (available here), the one major sentencing ruling handed down this morning with a group of interesting criminal justice decisions (basics here).  My reactions to the Court's opinion are necessarily biased by the fact that I helped Professor Stepohanos Bibas put together the amicus arguments rejected by the Court.  (Like every committed advocate I became convinced we should prevail, even though I was pretty sure we would not.)  Thus, my quick reactions/perspectives here are not as objective as on other issues.  With that caveat, here are some thoughts:

1. Justice Kagan's opinion for the Court is really engaging and effective: it is easy (dare I say fun?) to read with lots of cool (but not off-putting) terms, all the while making basic points crisply but not laboriously.  (The use of words like "aficionados" and "loosey-goosey" and "ditto"  and "armchair legislators" leads me to believe Justice Kagan aspires to a writing approach and style most akin to the Chief and also her hunting partner, Justice Scalia.)

2. The Court's opinion does not take on directly what I had always considered the best counter-argument to its holding, an argument based on a very technical canon-of-construction statutory argumenbt based on a comparision of the text and structure of the provisions of 18 USC §3582(a) versus §3583(c).  I will not rehearse this argument here, but I do think it notable that this very technical argument is not directly rebutted (though, this is understandable given that the argument was not stressed or developed at extensive length in the amicus brief).

3.  The Court's opinion, quite usefully in my view, keeps its holding narrow by adding this important coda:

A court commits no error by discussing the opportunities for rehabilitation within prison or the benefits of specific treatment or training programs.  To the contrary, a court properly may address a person who is about to begin a prison term about these important matters.... So the sentencing court here did nothing wrong — and probably something very right — in trying to get Tapia into an effective drug treatment program.

I was eager to help the amicus in this case driven mainly by a (misguided?) concern that a broad ruling  might in other cases dissuade sentencing judges from being candid about their interests in helping defendants get needed treatment or from giving appropriate thought to sentencing advocacy that sounded in rehabilitative terminology.  This coda (and the overall approach of the opinion) would seem to alleviate any such concern.

4.  The Court's opinion, quite tellingly and appropriately in my view, dodges what might eventually be a follow-up issue with this notable footnote:

The Government argues that “Congress did not intend to prohibit courts from imposing less imprisonment in order to promote a defendant’s rehabilitation.” Brief for United States 40 (emphasis added). This case does not require us to address that question, and nothing in our decision expresses any views on it.

I suspect the Court's opinion might not have been unanimous if it had spoken to this issue, though it makes sense that it left this issue for future resolution in a case raising it directly.

June 16, 2011 at 05:12 PM | Permalink


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Being too tired/lazy to read the actual opinion, I'm curious if the opinion or briefs addressed the fact that successful RDAP participants can receive time off their sentence for completing the program? As far as I know, RDAP is the only way an inmate can reduce his sentence, beyond the 54 days/year for good behavior. I'm wondering to what extent the district judge increased the sentence to offset this reduction? I have seen at least one judge grousing about the fact that drug addicts get time off their sentence while non-addicts don't have the same opportunity.

And, for a little bit of context, here are some of the issues that are swirling around the RDAP program:

The limitations on the sentence reduction for completing RDAP are many: inmates with sentences below some number (I think it's 30 months) will never get into the program to begin with, simply because of logistical problems in making sure they can complete the sentence by the time they are designated to a BOP facility. Inmates whose convictions involve the possession of firearms, even if the firearms were never used or threatened to be used, do not qualify for a reduction in sentence. Non-US citizens with immigration detainers, including lawful permanent residents, do not qualify for a reduction. Defendants convicted of sex offenses, I believe, cannot get into the program.

Defendants are well aware of the RDAP program by the time they approach their sentencing date. The really informed ones know that they need to start emphasizing their drug or alcohol problems early and often, and they make sure to bring these problems up during their interview with the probation officer preparing their presentence report. Suddenly, defendants who don't really drink much become "heavy drinkers." People who smoke a joint now and then are suddenly "addicted to marijuana." I imagine that these "dependencies" become part of the statistics illustrating how many criminal defendants suffer from drug and alcohol abuse problems.

I'm sure the RDAP program is as successful as other drug abuse programs (i.e., not much), but it has become much more of a sentencing tool than just an opportunity for that elusive goal of rehabilitation.

Posted by: Anonymous | Jun 17, 2011 12:55:11 AM

Plus of course, you are talking about criminals, a population that for the most part is looking for the quick score or the next scheme. Talking up drug and alcohol problems to get into such a program and get a sentence reduction would seem to fit in with that general personality quite well.

Posted by: Soronel Haetir | Jun 17, 2011 8:55:21 AM

As amici we discussed the RDAP credit, Anonymous, but the Supreme Court did not.

Posted by: Doug B. | Jun 17, 2011 10:12:48 AM

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