Gall v. United States--2nd Essay--Supreme Court's Decision of 12/10/07

The Supreme Court decided 7-2 (opinion by Stevens; dissent by Thomas and Alito) that the IA district court judge had not abused his discretion when he sentenced Mr. Gall to 36 months probation for conspiracy to distribute ecstasy, where the presumptive sentence according to the Federal Sentencing Guidelines was between 30 and 37 months of imprisonment. This essay summarizes the majority opinion.

First, a digressive paragraph. Occasionally the Supreme Court makes decisions with rather strange bedfellows occupying the same bed. When you see a non-unanimous opinion authored by Stevens (the most liberal and senior member of the Court), concurred in by Chief Justice Roberts (the youngest and, to many, one of the more conservative members of the Court), you know that something is "up." The thing that is "up," I believe, is that Justice Scalia, also in the majority, has become the prime spokesman for "jury rights" or questioning of the mandatory nature of sentencing guidelines in the last seven years (since Apprendi in 2000), and that his perspective on this issue has fractured the imposing conservative coalition on the Court, at least on sentencing issues. Thus, the Court will, in my judgment, tend to "err on the side" of juries or, in sentencing issues, on district court judges in making determinations of sentences, even if they depart from the Guideline ranges. I suppose we will also see this approach if the latter depart "upward," too, but that isn't the issue of this case. Here, we had a significant downward departure.

The Opinion in Gall

Justice Stevens began by stating that when a sentence inside or outside the Guidelines range is given, courts of appeal must review the sentences under a deferential "abuse of discretion" standard. Such a standard is important to articulate because it minimizes the role of the appellate court. Well, if the appellate court will have a circumscribed role, what is the role of the district court judge? S/he must consider the extent of any departure from the Guidelines and must explain the appropriateness of any unusually lenient or harsh sentence with "sufficient" justifications. The court of appeals may, to be sure, take into consideration the extent of deviation from the Guidelines, but it may not require "extraordinary" circumstances to justify, as in this case, an "extraordinary" departure from the sentencing Guidelines. Such a requirement would result a "rigid mathematical" formula (and you should know, dear reader, how much most lawyers detest math!). There shouldn't be two standards of review based on a sentence within and outside of the Guidelines.

How should the district court then go about its sentencing process? It should start by correctly calculating the applicable Guidelines range. Thus, even though the Guidelines are not mandatory anymore, they are to be the starting point. But they are not the only consideration. Both parties need to be able to argue for a particular sentence, but the judge should consider all the factors in 18 USC sec 3553(a) to determine whether the support either party's proposal. Then, upon making his/her decision, the judge must give adequate reasons to allow appellate review. Upon review, the appellate court must make sure that the district court made no signficant procedural errors and then consider the sentence's "substantive reasonableness" under the abuse-of-discretion standard. In doing this, the appellate court is to consider the "totality of the circumstances," including the extent of departure from the Guidelines range, but it must give due deference to the district court's consideration of the sec. 3553(a) factors. What if the appellate court would have reached a different conclusion from the district court if it had been the trier of fact? Does this justify reversal? No way. The appellate court is to defer to the district court, unless the lower court abused its discretion or, in other words, unless the lower court's decision was "unreasonable."

Criticism/Dissent

You can easily see the initial appeal of the Stevens opinion as well as why some justices might want to dissent from it. After all, people went through a lot of effort to craft these criminal sentencing guidelines. If the Court simply wants to make everything, or almost everything, a matter of district court discretion, why even have the Guidelines? But that is perhaps an extreme position. Guidelines can give "general advice" while, at the same time, allow judges to vary their sentence based on their "read" of the situation. Thus, the integrity of the process of judging, as well as the individuality of the defendant, are honored. One might say that the "big losers" in the process are the appellate courts and the concept of uniformity. But in any situation like this, you have to have winners and losers--primarily because you have two different approaches to sentencing people who have committed criminal acts.

And, I would hasten to add, the biggest factor that may shape our current approach to sentencing issues is not necessarily the facts of a case before us but the history in which we find ourselves enmeshed. If rampant federal judge discretion had led to early releases of big-time criminals who went on more criminal rampages, there not only would be an effort to increase sentences but to take away the discretion of district judges. Now that sentencing seems to be "under control," the Supreme Court is giving the district court judges the privilege of "relaxing" a bit and getting back to what they are supposed to do best--use their wisdom and experience to judge and assess different fact patterns. That, indeed, is the historical moment in which we find ourselves as a result of this case.

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