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Thursday, December 13, 2007

Late to the Sentencing Party. When Did the Rule of Law Leave?

I finally had the chance to sit down Tuesday night and read the SCT's opinions regarding Derrick Kimbrough and Brian Gall.  Yesterday morning I caught up with some of the blogospheric reactions to the cases.  Here are some links to the very good posts which I read by Michael O'Hear (both here, here and on Scotusblog); Doug Berman (SLP); Carissa Hessick and Andy Hessick (Scotusblog); and Frank Bowman (Scotusblog).

As someone who has been preoccupied with other projects the last two years, I have to say I'm somewhat chagrined that I haven't yet finished my monograph-length manuscript that I've talked about here in the past, Luck or Law? The Constitutional Case Against Indeterminate Sentencing.  I hope to pick this project up again in about six months, but let me take the issuance of the two opinions to share some of my untutored reactions. As some of you may recall from this post (where I registered some differences with Doug Berman), my initial response to Booker's remedy was: yikes, what a disaster for those of us care about rule of law values. Indeed, what inspired what I call the LOL project was the fear that Booker's remedy augured a return in the federal system to Williams v. New York's judicial lawlessness.

That fear was misplaced. 

Not only because it was mistaken to single out the federal system for criticism--after all, the pathologies of Williams are extant in the majority of jurisdictions that still invest judges with wildly uncabined sentencing discretion (see, e.g., here).  It was also misguided because, considering the terrain of the sentencing landscape, the post-Booker advisory federal scheme still provided more granular guidance than virtually every other jurisdiction in the country, a point that became more salient every day as decisions appeared from the "counter-revolutionary" federal courts of appeal, which tried to rein in district court discretion after Booker.

After Kimbrough and Gall, that spirit will be chastened, if not dashed entirely--it depends on how much equivocation one reads into the majority's opinions. (It strikes me that the writing is on the wall for the "counter-revolutionary" spirit but Michael's posts suggest otherwise.)  To my mind, that chastening is entailed by the Booker remedy opinion, as I suggested more than a year ago here. But from a perspective that exhibits concern for equal justice under law, framed either as a constitutional or policy matter, these cases raise and aggravate the same anxieties I had immediately after Booker because now the SCT (7 of them no less) are saying, go ahead, district court, check out the guidelines, but in the end do what you want and we'll back you up so long as you make sure you can deftly invoke some plausible sentencing purposes language somewhere in your opinion. Federal judges have no special competence and now, post Booker-Kimbrough-Gall, no real measure of accountability, either to appellate courts or other bodies. It's not that judges want to always screw things up. They work hard and struggle with the decisions they face. The problem is they each see a different forest because they only look at one different tree at a time.

In that vein, I give props to Justice Thomas for recognizing in his two dissents that what's going on in these cases is legally misbegotten, born under a bad moon. On the other hand, since the stare decisis issue is statutory and not constitutional, I might have felt compelled to recognize the force of precedent worked by the Booker remedy, screwy and unprincipled as it is, since Congress can fix it, even if they might end up making the situation worse.  I may have some other reactions or questions to share later (e.g., how come McConnell's concurrence in Pruitt enjoys such love?), but I'd like to invite other prawfs to consider in the comments how they might have voted on these fascinating and, for now, quite important cases. 

Since these decisions may end up triggering legislative reaction, here are my two cents. I think it would be much better for Congress to satisfy the 6th Amendment issue by drafting the guidelines in a way that makes them mandatory, more lenient for most crimes (and emphasizing alternatives to incarceration), and insistent on putting all the non-admitted facts necessary for a given punishment before a jury to decide beyond a reasonable doubt. The discretion afforded to district courts and the leash placed on the counter-revolutionary circuit courts will invariably lead to inexplicably disparate sentences based on morally irrelevant considerations such as where the case was held and which judge one drew to hear the case. Pace yesterday's NYT editorial, we don't serve justice in a system guided by the rule of law by allowing random (or worse, arbitrary or discriminatory) acts of sentencing kindness (or harshness). At least that's the claim I'm trying to develop.

Posted by Administrators on December 13, 2007 at 01:22 AM in Dan Markel | Permalink


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or perhaps an all out bar brawl??? that might be fun...

Posted by: Jim Green | Dec 14, 2007 11:40:59 AM

See, now I'm torn. On the one hand, I'm fully engaged in this conversation, and have lots more to say (including much that we agree upon). On the other hand, I think we may be at the limits of electronic communication. So, discretion (no pun intended) being the better part of valor, I am going to save more of this for another venue--perhaps comments on your draft, workshopping, a phone call, etc.

Posted by: Hillel Levin | Dec 13, 2007 10:23:17 PM

Hillel, thanks for this.
a) i) what makes police or prosecution-driven disparities "deeper" or "structural"--I'm not following what you're driving at here?
ii) expending all these energies to fix durational disparity seems like a good idea especially if the other ones are harder to get at. But to be clear, the idea of this being a "distraction" seems unpersuasive. I'm not suggesting that we forbear from looking at other places where unwarranted disparities exist. If we can reduce problems there without impeding other important values and practices, then let's go after them. Are you assuming it's a zero sum game? If so, I'm not sure why. It shouldn't be problematic to start *somewhere* unless we know that this is futile or dangerous to other supervening values.

b) I'd be grateful if you can point me to even three instances where judges were "publicly shamed" (or even exposed in national media reports) on account of durational disparities. Judges who buck the federal guidelines are routinely lauded by the press for their "humanity". Another problem with that claim is that few people today believe that durational disparity is based on invidious intent. It's unconscious bias and even more, the product of random distributions of judges in different areas. Shaming suggests conduct worth blaming. But in the vast number of essentially indeterminate sentencing jurisdictions, judges are doing nothing wrong when they struggle in conscience or tap their belly and elicit a sentence that is "appropriate."

Here's the sum: Yes, there will be some dispositional disparities based on failure of resources (among other things). But when the state knows about the crimes (ie., they can achieve findings of guilt by offenders through pleas or trials) there should be some decent effort made to harmonize the penalties similarly situated offenders face based on facts proven beyond a reasonable doubt that are morally relevant to the punishment they face. There will be inevitable disagreements about what makes a defendant similarly situated to another, but that's something that can be resolved through agency study and democratic deliberation; it's not something that, to my mind, can justifiably be left to have decided one by one by one judge.

I will leave this conversation on a note I find troubling and maybe you can help me figure this out. Notwithstanding what I take to be the egalitarian (and constitutional) imperative to resolving this problem, I'm aware that my own views run counter to what I might crudely call the Stith-Cabranes pro-discretion line of thinking. Indeed, if one thinks of Tom Tyler's work on procedural justice and Michael O'Hear's incorporation of that work into the criminal justice context, it's very possible that most people would prefer a chance to persuade a judge who's willing to listen to them tell their story and then sentence them with wide discretion over a scheme in which a judge is willing to listen to them tell their story but say, look, here's what the guidelines say you should get. In other words, there might be lots of (incurable?) preferences for radically individualized/randomized justice. And I'm not entirely sure how to overcome those except to say that I think a constitutional democracy should not be in the business of distributing penalties in our name in such an ad hoc way.

Posted by: Dan Markel | Dec 13, 2007 7:50:22 PM

Thanks Dan. Some brief responses to each of your arguments. You don't have to answer these questions now, but I hope they'll be addressed in the paper, which I look forward to reading!

a. These are empirical questions. Further, since I think it is likely that the most meaningful disparities arise from policing and prosecution, spending all of these energies on "fixing" the judiciary distracts from the deeper structural problems.

b. I'm not sure that the politics that revolve around policing and prosecuting provide better accountability than the public shaming that judges receive as a result of gross disparities. Further, the only likely politics here are the ones that lead to "lock him up longer." Third, there are structural reasons that there will be disparities for cops and prosecutors: cops are more likely to police certain areas rather than others; prosecutors have political agendas that differ, depending on geography. (Mind you, these things aren't necessarily BAD.)

c. I agree with you that disparities are inevitable. My question is, why do we think that limiting the discretion of judges is a good way of eliminating only one kind of disparity? Is it because judges are the most visible, so we can go after them? Is it because in law schools we tend to think that judges matter more than everyone else? Is it because judges aren't politically accountable (with a strict definition of "politically" here, since they are accountable in other ways), so we think they need more reigning in? In other words, the frank recognition that there ARE going to be disparities seems to me an argument against what you are proposing, not an argument in favor.

The strongest argument I can think of in your favor goes something like this:
Yes, there will be disparities. But judges are not institutionally competent to determine what those disparities should be. Cops and prosecutors are more competent. So by limiting discretion of the judges, we may leave others' discretion intact, or we may even enhance it--but that would be more desirable than giving it to judges.

I'm not sure I buy that, but it seems like it may be worth considering.

Posted by: Hillel Levin | Dec 13, 2007 1:24:58 PM

I too think we've discussed this before. And since I plan on discussing this at length later in the piece, I beg your patience for a satisfying answer. Here's an inadequate start at a few possible answers of varying strength:
a) when the guidelines were essentially mandatory prior to Booker, did we think that situation worsened equal protection values vis a vis cops and prosecutors in the fed scheme more than pre 1987, before the guidelines? What was being driven underground during that period that didn't already exist before then? Is the pre-1987 period some golden era in which equal protection values flourished in the context of police and prosecutorial discretion? Doubtful. So the idea of improving inequities in the context of durational disparities seems like a gain to me even if we can't eliminate all dispositional disparities.

b) cops and prosecutors can be made accountable to superiors and political forces; independent judges cannot. That doesn't mean we've done an adequate job of ensuring such accountability, but the structure is there in which rules like "file the most serious readily provable charge" (e.g. the Ashcroft Memo) or "give ten percent discounts" to those who cooperate against other offenders can guide discretion of prosecutors.
c) Sentencing involves a state-driven deprivation of liberty following conviction. The Court has committed itself to substantive and procedural due process review of punitive damages in a line of cases deeply in tension with Kimbrough and Gall's dicta. Punitive damages are also state-enforced deprivations of property following determinations of liability. Not all cases warranting punitive damages are brought (lots of type II errors, much like the concerns of discretion in the police and prosecutorial context) and yet the Court's basically embraced the notion (in that context) that predictability, anti-arbitrariness, proportionality, even-handedness across similarly situated defendants are values that guide the review of punitive damages. Similar values are repeated in the admin law canon, as I recall. It's quite stunning to me that we would see some reason to step back from the significance of such values when the state does what it does to offenders in all our name. It's no excuse to let cops and prosecutors run rampant (to the extent they do; there actually are lots of extant curbs and we could place far more). But these are good questions, and I intend on giving better answers in the Luck or Law project.

Posted by: Dan Markel | Dec 13, 2007 9:33:10 AM


What do you really mean by equal protection in sentencing? Even with mandatory guidelines, the police have discretion in what geographic areas to police and how to build and pursue cases, and prosecutors get to decide how to charge and plea bargain. So don't mandatory sentences just push imbalances further underground? In other words, how does taking discretion away from judges and giving it to police and prosecutors help? Why would this represent a greater commitment to the rule of law?

I have a vague recollection that we've discussed this before, but. . . .

Posted by: Hillel Levin | Dec 13, 2007 1:38:43 AM

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