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Monday, June 08, 2009

Sentencing Judges, Explain Yourselves

It's always interesting to see a topic one is writing about show up in the advance sheets.  (I suppose "interesting" isn't quite the right word for it when a new case requires a massive rewrite -- as happened to me when the Supreme Court decided Blakely v. Washington -- but fortunately that's not where this post is headed.)  I've been on a procedural justice kick in my scholarship for the past couple years.  First, I took on procedural justice in plea bargaining (e.g., here and here).  Then, I got interested in how the social psychology model of procedural justice might play out in the sentencing context, particularly with respect to the explanation for the sentence provided by the sentencing judge.  The Seventh Circuit had a good decision in this regard a few years ago in United States v. Cunningham, 429 F.3d 673 (7th Cir. 2005), which indicated that judges must provide an express reason for rejecting nonfrivolous arguments made by defendants for a sentence below the recommended sentencing guidelines range.  As I discuss in a forthcoming Florida State Law Review article, however, post-Cunnigham cases, including the Supreme Court's decision in Rita v. United States, 551 U.S. 338 (2007), have largely undermined the robust explanation requirement that was seemingly contemplated by Cunningham.

But a new Seventh Circuit decision from just last week, United States v. Harris, tells us that the Cunningham explanation requirement still has some life left.  


Here's what happened.  David Morrow was sentenced to an eye-popping 504 months in prison for conspiring to sell crack cocaine.  This extraordinary punishment was ordered despite the fact that Morrow was diagnosed with diabetes in 2006 and had a leg amputated a few months later.  At sentencing, counsel identifed Morrow's health concerns as a mitigating factor, as did the presentence investigation report prepared by a probation officer.  Yet, the sentencing judge said nothing about Morrow's health problems in imposing a sentence twelve years above the minimum recommended by the federal sentencing guidelines.

On appeal, the Seventh Circuit vacated Morrow's sentence.  Citing Cunningham, the court held that the sentencing judge did not adequately explain the sentence because the judge failed to address the health argument:

[W]e cannot assure ourselves that the district court weighed Morrow's health complications against other factors when it imposed the 504-month sentence, as we see no indication that the district court considered it.  We therefore remand Morrow's case for resentencing.

Harris is notable for being one of the few post-Rita cases to reverse a sentence for inadequate explanation (the Sixth Circuit also has a couple).  As I discuss in the Florida State article, these decisions generally seem to ignore or misinterpret RitaHarris, though, suggests an interesting basis for distinguishing Rita.  In Rita, the Supreme Court held that the sentencing judge was not required to address the defendant's arguments for a below-guidelines sentence (which, coincidentally, also included arguments based on health concerns).  But, as the Seventh Circuit noted in Harris, Rita's guidelines range (33-41 months) was both much narrower and much lower than Morrow's (360 months to life). 

And, intuitively, these considerations do seem to matter.  That is, Rita does not seem entitled to as thorough an explanation for his 33-month sentence (at the bottom of his relatively low guidelines range) as is Morrow for his 504-month sentence (twelve years above the bottom of his relatively high guidelines range).  This is consistent with the logic of Mathews v. Eldridge, 424 U.S. 319 (1976),  which indicated that the strength of required procedural protections varies according to the magnitude of the individual interests implicated by a government decision -- recalling that the liberty deprivation Rita faced was much less severe than the liberty deprivation Morrow faced.  Additionally, the fact that Rita was sentenced at the bottom of his range at least implicitly reflects consideration of mitigating circumstances, while Morrow's mid-range sentence provides no such reassurance.  In short, I think Harris may be onto something in focusing on the severity of the guidelines range and placement within the range.

By the way, responsiveness to defendant arguments is, I think, only one aspect of what should be included in a good sentence explanation.  I am working on a new paper now that attempts to go beyond Cunningham in identifying additional principles that ought to be employed by appellate courts in reviewing the adequacy of an explanation.  I will present the paper at the Marquette Criminal Appeals Conference on June 16, and I hope to have a draft on SSRN by the end of the month.

Posted by Michael O'Hear on June 8, 2009 at 03:33 PM in Criminal Law | Permalink


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Thanks for bringing this case up, Michael.

Posted by: Dan Markel | Jun 9, 2009 9:56:00 AM

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