Argument preview: “Recognizing” rehabilitation in sentencing

When the Court takes up Tapia v. United States on Monday, it will engage in a straightforward exercise of statutory analysis.  At issue will be the Sentencing Reform Act of 1984, which overhauled federal criminal sentencing.  Specifically, the Court will consider whether the Act permits a trial court to consider “rehabilitation” when determining the length of a defendant’s prison sentence.

 The case arises from the December 2008 conviction of Alejandra Tapia for smuggling two illegal aliens across the Mexican border and into the United States.  Tapia had argued for a 36-month sentence – the mandatory minimum – while pointing to the physical and sexual abuse she had suffered as a reason to reduce her punishment. 

 The district court acknowledged the abuse but still imposed a 51-month sentence, which was at the upper end of the sentencing guidelines for a person convicted of Tapia’s crimes and with her history.  The court explained that it opted for the longer sentence because it wanted to ensure that Tapia would spend enough time in prison to be able to enroll in the Residential Drug Abuse Program (RDAP), which is a 500-hour drug treatment program for federal inmates.  The court acknowledged that it could only recommend – and not require – that Tapia enter RDAP; that decision would ultimately rest with the Bureau of Prisons.  Tapia did not object to the sentence at that time. 

 Tapia subsequently appealed to the Ninth Circuit.  She argued that the imposition of a longer sentence to allow her to enroll in RDAP violated the Sentencing Reform Act by basing the length of her sentence on a rehabilitative goal.  The Ninth Circuit rejected this argument and denied her appeal.  It deemed itself bound by its 1994 decision in United States v. Duran, in which it had interpreted the Sentencing Reform Act as allowing district courts to consider rehabilitative goals when determining the length of a defendant’s sentence.

 Tapia filed a petition for certiorari in which she argued (among other things) that the Ninth Circuit’s interpretation of the Sentencing Reform Act conflicted with that of other courts of appeals.  In its brief in opposition, the federal government agreed with Tapia’s interpretation of the Sentencing Reform Act, but it nonetheless argued that certiorari was not warranted in her case for two reasons:  (1) Tapia had failed to object to the sentence in the district court and would not be able to prevail on a “plain error” standard of review; and (2) the conflict among the circuits could eventually go away on its own because the government was “in the process of informing the Ninth Circuit and other courts of appeals of the government’s interpretation” of the Sentencing Reform Act. 

 The Court granted certiorari on December 10, 2010, and, in light of the government’s position that Tapia’s interpretation of the Act was the correct one, appointed University of Pennsylvania law professor Stephanos Bibas to brief and argue the case as an amicus in support of the judgment below.  The government, for its part, filed a merits brief in which it asks the Court to vacate the Ninth Circuit’s decision and remand the case for it to consider whether Tapia can demonstrate that the district court’s decision is a “plain error” warranting reversal.

 All three briefs marshal historical evidence to support their interpretations of the statute.  Tapia and the government focus primarily on the history of the Sentencing Reform Act, arguing that Congress expressly rejected the idea of using imprisonment for rehabilitative purposes.  By contrast, Bibas focuses more broadly on the history of American correctional policy.  But before it even considers that evidence, the Court will start with the plain language of the statute, and in particular Section 3582(a) of the Act, which reads:

 “The court, in determining whether to impose a term of imprisonment, and, if a term of imprisonment is to be imposed, in determining the length of the term, shall consider the factors set forth in section 3553(a) to the extent that they are applicable, recognizing that imprisonment is not an appropriate means of promoting correction and rehabilitation.”

 Both Tapia and the government argue that the plain, unambiguous meaning of this section is that trial court judges are prohibited from considering “rehabilitation” when determining a defendant’s sentence length. 

 Bibas’s brief, like the Ninth Circuit’s interpretation, finds more nuance in the statute.  Most critically, he argues that the use of the word “recognizing” does not impose a unilateral ban on considering rehabilitation, but instead serves merely as a “reminder and warning to judges” that rehabilitation should not be the sole focus of their sentencing decisions. 

 In addition, the parties disagree over what exactly is restricted by Section 3582(a).  Bibas tries to distinguish between the act of “imprisonment” itself, as compared with “targeted treatment programs in prison,” and he contends that Section 3582(a)’s “recognizing” clause applies only to the former.  Moreover, the RDAP program at issue in Tapia’s case can be considered a form of “targeted treatment program.”  Tapia counters that this is a meaningless distinction and that the term “targeted treatment program” is not found anywhere in the Sentencing Reform Act itself.

 The final significant point of disagreement arises over the reference in Section 3582(a) to Section 3553(a) of the same statute, which provides four principles that are intended to guide sentencing decisions generally, including sentences of probation, fines, or imprisonment.  Bibas points out that one of Section 3553(a)’s four principles is “to provide the defendant with needed education or vocational training, medical care, or other correctional treatment in the most effective manner.”  From Bibas’s perspective, the RDAP program is precisely the type of “correctional treatment” anticipated by Section 3553(a). 

Tapia and the government respond to this argument by noting that Section 3553(a) applies not only to imprisonment decisions but also to the imposition of probation and fines.  Thus, although “correctional treatment” may be appropriate when considering the latter two forms of punishment, when district courts are making imprisonment decisions, the more specific language of Section 3582(a) precludes them from using rehabilitation as a sentencing factor.