Sixth Circuit declares unreasonable way-above-guideline sentence for repeat bank robber

It remains rare for federal defendants to prevail on reasonableness appeals absent a mis-calculation of the guidelines, and thus today's Sixth Circuit panel decision in US v. Payton, No. 13-1242 (6th Cir. June 12, 2014) (available here) is a noteworthy ruling for this reason alone. But the decision's reference and incorporation of recidivism data and brain science makes the ruling extra interesting. Here are some excerpts from the start and heart of the opinion for context:

This is a direct appeal from Arthur Payton’s sentence to serve 45 years in prison for organizing a series of bank robberies in Michigan.  Payton argues that his sentence is unreasonable.  We agree, vacate his sentence, and remand....

Payton turned 46 years old before his sentencing hearing.  Taking into account Payton’s criminal record, the seriousness of his crime, and penchant for recidivism, the presentence report recommended a sentence within the Guidelines range of 210 to 262 months, or between 17 and a half to 22 years.... The government urged the sentencing court to impose a more serious sentence of “at least” 300 months, or 25 years.  Payton’s counsel requested a sentence within the Guidelines range, arguing that even with a Guidelines sentence Payton would be released as an elderly man — somewhere between 63 to 68 years old — who would present little threat to the public.

After hearing each side, the judge sentenced Payton to 540 months, or 45 years in prison. The judge discussed a number of the sentencing factors listed in 18 U.S.C. § 3553(a), focusing on Payton’s brazen recidivism and the threat he posed to the public. The court concluded that the 45 year sentence was “the minimum sentence” that was “reasonable and sufficient but not greater than necessary to accomplish the goals of sentencing for this defendant.”...

Payton’s 45 year sentence is a “major departure,” “unusually harsh,” and one that demands a “significant explanation.”  Gall, 552 U.S. at 51.  A sentence that more than doubles the Guidelines recommendation, stacks twenty years on to the government’s request, and keeps the defendant in prison until he is ninety one years old requires explanation about why such a sentence is “sufficient, but not greater than necessary” to achieve the goals of sentencing. 18 U.S.C. § 3553(a).

We find the district court’s explanation lacking in Payton’s case.  At minimum, the court failed to adequately respond to Payton’s argument that his advanced age diminishes the public safety benefit of keeping Payton in prison an extra twenty years beyond the recommendation of the Guidelines.  Even presuming Payton’s desire to rob banks is insatiable, as the government argues, Payton contends that age will diminish his very ability to rob banks.  This argument attacks the foundations of the government’s support for the imposed sentence, and the court’s reasoning that the threat posed by a sixty-eight-year-old Payton makes a longer sentence not simply prudent but necessary.

The court's discussion to this point is notable, but the opinion then takes an especially interesting turn with this paragraph (in which I have eliminated footnote references):

The Sentencing Commission has observed that “[r]ecidivism rates decline relatively consistently as age increases.” Recent analysis from the Bureau of Justice Statistics considering the recidivism rates of released prisoners in 30 states (including Michigan) from 2005 to 2010 supported the Commission’s conclusion, finding decreased recidivism rates as prisoners age. These statistics suggest that past fifty years old there is a significantly lower rate of recidivism. Both the Guidelines and our Circuit’s cases explicitly acknowledge that a defendant’s age, and specifically old age, is a relevant consideration in sentencing. U.S.S.G. § 5H1.1; United States v. Berry, 565 F.3d 332, 341 (6th Cir. 2009); United States v. Davis, 537 F.3d 611, 616-17 (6th Cir. 2008). And observers of the criminal justice system have long acknowledged the “key” argument “that elderly offenders pose so low a risk to the public that long or otherwise harsh sentences have little to no utilitarian benefit.”  Indeed, they observe that “because of health or other reasons, elderly offenders have the lowest rate of recidivism of all types of offenders; in fact, only about one percent of elderly offenders ever face a second conviction.”   Studies indicate that neurotransmitters affecting aggression supplied at the synapses of brain neurons vary based on age, and may explain the observed decline in recidivism among older prisoners. Such evidence, together with statistical support, suffices to require a sentencing judge to explain carefully why a criminal defendant like Payton remains likely to engage in violent robberies between the age of seventy and ninety.  The district court did not address Payton’s argument on this issue, and therefore did not provide an adequate explanation for imposing such a harsh sentence.

Kudos to the Sixth Circuit for giving some real teeth to reasonable review, and especially for its willingness to bring some empirical research into an analysis of means for a sentence to be "sufficient but not greater than necessary."