Another View of Rita

I agree with Professor Berman that Rita has something for everybody and that the Court did not speak very clearly in the case. Indeed, the cacophony of voices in the four opinions make it very difficult to determine where the future of the Sixth Amendment lies. What makes it so difficult, as pointed out by Lyle in his post, is that Justice Stevens has written a concurring opinion that does not emphasize the same points as the Court’s opinion.

But I respectfully disagree with Lyle’s point that “the Stevens-Ginsburg contribution is highly important, and in some sense might well be controlling.” A lower court that follows the concurring opinion might well be summarily reversed down the road because the concurring opinion would only be controlling if it were styled as an opinion “concurring in the judgment.” By concurring without reservation, Ginsburg and Stevens unqualifiedly joined the entirety of Breyer’s majority opinion. It is true that the Stevens/Ginsburg opinion might be a prediction of things to come with respect to the Sixth Amendment, but lower courts would be mistaken to read too much into it. I will say as an aside, however, that the Stevens/Ginsburg opinion reads as if it was originally an opinion concurring in the judgment, and that those two were persuaded to join the Court by another member of the majority (perhaps Chief Justice Roberts) so as to avoid interpretive problems for lower courts down the road under the Marks rule.

When the Stevens/Ginsburg opinion is removed from the equation, the Sixth Amendment picture becomes a bit clearer. In this case, I think it is correct at this stage to say that Breyer has perhaps won the war over the Sixth Amendment because Rita moves us closer to a Guidelines sentencing regime. I think Breyer may sum it up the best: “Rita may be correct that the presumption will encourage sentencing judges to impose Guidelines sentences.” There may be the occasional case where district judges deviate from the Guidelines range, as they do now, but the clear incentive created by the majority opinion is to stay within the Guidelines so that a sentence can be deemed “presumptively reasonable.” Although the Guidelines do not quite create a safe harbor, at least as I read the opinion, there is a strong incentive to follow the guidelines, as I will explain further below. Significantly, the presumption even applies, according to Justice Breyer, if the judge has to find certain facts that have not been considered by the jury. Justice Souter is therefore correct to say that the potential implications of Rita include “open[ing] the door to undermining Apprendi itself” and thus that “it seems fair to ask just what has been accomplished in real terms by all the judicial labor imposed by Apprendi and its associated cases.”

What may be difficult to determine, as a practical matter, is whether Breyer’s regime will make sentencing an easier task for the lower federal courts. A rebuttable presumption usually makes the job of the reviewing court easier, insofar as the reviewing court must give deference to the decision of the factfinder. But Breyer is not altogether clear on the substance of the presumption: “[T]he presumption reflects the fact that, by the time an appeals court is considering a within-Guidelines sentence on review, both the sentencing judge and the Sentencing Commission will have reached the same conclusion as to the proper sentence in the particular case.” Later in the opinion, he states that it is “probable” that a within-guidelines “sentence is reasonable.” So we know that a within-Guidelines sentence is presumed to be reasonable, but how much deference does such a sentence get? Is it more like Chevron or Skidmore deference, or is it some other type of deference altogether? I find Breyer’s opinion to be quite cryptic, perhaps intentionally so, on the mechanics of the presumption.

Yet in line with Breyer’s prediction of more within-Guidelines sentences, my guess is that most lower courts will read the presumption as having considerable bite, and the presumption, in turn, will lead to a greater number of within-Guidelines sentences. To further make within-Guidelines sentences attractive, Breyer declares that applying the Guidelines in a particular case “will not necessarily require lengthy explanation,” but hints that a deviation from the Guidelines may make thorough explanation more important. Indeed, he states that a judge needs to “explain why he has” deviated from the Guidelines. No district judge wants to be reversed, and thus there is little incentive to deviate from the Guidelines when a “within-Guidelines” sentence will result in a rebuttable presumption of reasonableness on appeal and requires less work and explanation. The incentives all point to a dominant Guidelines approach in sentencing from now on.

As with Professor Berman, these are just my initial thoughts on the case. It will take several more reads, and even several more days, before I can fully digest the Rita opinions. In the meantime, I will repeat Professor Berman’s take on the case at the end of the post, “Got that everyone?”