Supreme Court Weighs Whether to Hear Possible Sentencing Law Blockbuster

This Friday, the Supreme Court will decide whether to grant certiorari in Demma v. United States.  Demma raises two questions under the Supreme Court’s Sixth Amendment sentencing doctrine: (1) the extent to which judges can sentence outside of the Federal Sentencing Guidelines based only on a policy disagreement with the Guidelines, and (2) how much appellate courts must defer to the substantive sentencing decisions of district court judges.

These are two incredibly important questions that arise because of how the Supreme Court decided United States v. Booker.  Previous cases had said that mandatory sentencing systems violate the Sixth Amendment if they require judges to make factual findings before increasing a sentence.  The Federal Sentencing Guidelines required such factual findings, and so the Booker Court held that they were unconstitutional.  But then something unusual happened—although she formed part of the 5-4 majority that found the Guidelines unconstitutional, Justice Ginsburg joined the four dissenting Justices who then fashioned a strange remedy.  Rather than saying that mandatory sentencing facts have to be proven to a jury beyond a reasonable doubt, the remedial majority said that the Guidelines would no longer be mandatory, they would instead be “advisory.”

Since Booker was decided in 2005, the Supreme Court has heard a whole bunch of cases that seek to clarify this remedy.  It is clear that judges still have to find facts and calculate a sentence under the Federal Sentencing Guidelines.  It is also clear that judges have at least some authority to give a non-Guidelines sentences.  And it is clear that appellate courts are supposed to review sentences to make sure that they are both procedurally and substantively reasonable.  But it is entirely unclear how much authority district court judges have to sentence outside of the Guidelines, and it is also unclear what the appellate review of those non-Guidelines sentences is supposed to look like.

Just last week, the North Carolina Law Review hosted a symposium on the Supreme Court’s Sixth Amendment sentencing doctrine.  The first of the Court’s Sixth Amendment sentencing cases, Apprendi v. New Jersey, was decided in the year 2000, and so the symposium marked the 20^th anniversary of the doctrine.  We had an amazing group of speakers at the symposium—Judge Stephanos Bibas, Doug Berman, Will Berry, Frank Bowman, Judge Nancy Gertner, Nancy King, Susan Klein, Kate Stith, and yours truly.  The law review will be publishing papers from the symposium.

Coincidentally, my paper (which is not quite in shape to be shared right now!) addresses both of the questions that are before the Supreme Court in Demma.  I argue that two Supreme Court cases—Blakely v. Washington and Cunningham v. California—require allowing district court judges to impose sentences based only on policy disagreements.  Blakely contained the following explanation of its holding:

“Whether the judge’s authority to impose an enhanced sentence depends on finding a specified fact (as in Apprendi), one of several specified facts (as in Ring), or any aggravating fact (as here), it remains the case that the jury’s verdict alone does not authorize the sentence. The judge acquires that authority only upon finding some additional fact.” 

If district court judges may not base their sentences on policy reasons alone, then they will have to base sentencing decisions on facts.  The Blakely Court told us that those facts, if necessary, have to be submitted to a jury.  If judges have to point to particular facts or circumstances in a case that justify a non-Guidelines sentence, rather than being able to simply articulate a policy disagreement, then the Supreme Court will have to overrule Blakely.

The appellate review question arises from some contradictory language in Gall v. United States.  Gall instructed the courts of appeals to “take into account the totality of the circumstances” when reviewing sentencing decisions, and it also suggested that this review should be conducted no differently for sentences inside the Guidelines range and outside of the range.   But this even-handed language was undercut elsewhere in the opinion.  In stating that appellate courts should consider the totality of the circumstances, the Gall Court mentioned only a single circumstance—“the extent of any variance from the Guidelines range.”   It also said “it uncontroversial that a major departure should be supported by a more significant justification than a minor one.”

Both of the legal questions raised by the Demma petition are important.  And frankly, I am surprised that the Supreme Court has yet to resolve them in favor of district court discretion to sentence outside of the Guidelines.  I suspect that the Court hasn’t clarified these issues because it wants judges to impose Guidelines sentences in most cases.  And while the Court’s Sixth Amendment sentencing doctrine doesn’t allow the Court to accomplish that directly, it has tried to do so indirectly through allowing the courts of appeals to take different approaches on these questions.

But I find that decision—the decision to allow different legal standards for sentencing—troubling.  The Supreme Court ordinarily prides itself on resolving legal disagreements between the circuits.  And it seems especially ironic to allow different courts of appeals to have different legal standards when it comes to sentencing.  After all, the remedial majority in Booker said that it was creating an advisory Guidelines system because it wanted to promote uniformity in sentencing.  Different legal standards in different circuits is hardly likely to lead to uniformity.

And we don’t have sentencing uniformity right now.  Instead we have sentencing practices that vary wildly depending on the circuit.  Because different circuits have different sentencing case law, judges in some circuits are far more likely to sentence outside of the Guidelines than judges in other circuits. 

For example, according to 2018 U.S. Sentencing Commission data, judges in the Fifth Circuit follow the Guidelines when imposing sentence 84.3% of the time.  In contrast, judges in the Second circuit follow the Guidelines only 55.3% of the time.  It should come as no surprise that these two circuits take different legal approaches to the questions presented in the Demma petition.

The chances that the Court will grant cert in Demma look pretty good.  The Court called for a response from the Solicitor General (who had initially waived response).  The Court also relisted the petition after an earlier conference.

I really hope that the Justice vote to grant cert in this case.  And I hope that they resolve these questions in a way that vindicates the Sixth Amendment right that they first acknowledged in Apprendi.