Argument recap: Promoting rehabilitation through sentencing

On Monday, in Tapia v. United States (No. 10-5400), the Court considered whether a federal judge can impose a longer sentence on a defendant to promote “rehabilitation.”

The petitioner in the case, Alejandra Tapia, was convicted of alien smuggling.  Although she argued for a sentence of thirty-six months, the district court instead sentenced her to fifty-one months in prison, explaining that the longer sentence would ensure that she would spend enough time in prison to enroll in a 500-hour drug treatment program for federal inmates. But the judge acknowledged that he could only recommend, not require, that Tapia enter the program.

 

On appeal, Tapia argued unsuccessfully that Section 3582 of the Sentencing Reform Act of 1984 prohibited a judge from basing the length of her sentence on a rehabilitative goal. That provision provides: “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.”

Appearing on behalf of Alejandra Tapia, attorney Reuben Cahn relied on the text of Section 3582 to argue that the plain meaning and structure of the Act clearly prohibited a judge from lengthening a sentence to promote rehabilitation. Cahn noted that the Act stripped federal judges of their power to require federal prisoners take part in specific prison programs, such as the drug treatment program. “That structure makes sense only because Congress intended that defendants should no longer be sent to prison for purposes of rehabilitation,” Cahn said.

 

Several Justices asked Cahn how a reviewing court can tell whether a judge merely lengthened the sentence that he would have otherwise given based solely on rehabilitation, or whether the judge instead simply mentioned rehabilitation but in fact sentenced the defendant based on factors such as deterrence, incapacitation, and punishment. For example, Justice Sonia Sotomayor questioned whether the district court’s comments in sentencing Tapia could be interpreted in this light; Cahn countered, however, that the judge’s comments were clear.  Sotomayor also asked whether Tapia’s rule was tantamount to requiring a judge to use “talismanic words” to make clear the court would have imposed the same sentence without regard to rehabilitation.

Assistant to the Solicitor General Matthew Roberts argued on behalf of the United States, which urged the court to vacate the Ninth Circuit’s ruling and remand the case for that court to consider whether – in light of Tapia’s failure to object to the sentence at sentencing – the district court’s decision constituted plain error warranting reversal.  The Chief Justice asked Roberts about a hypothetical judge who said that he was not considering rehabilitation but nonetheless appeared to be sentencing defendants to different sentences based on their eligibility for potential treatment programs. “Does the defendant have the right to raise arguments and inquire into that in – in every case?” he said.

 

Roberts responded that a defendant would find it hard to obtain appellate relief under those circumstances. When the Chief Justice noted that the government would find it hard to defend that decision, the government’s attorney added that district judges are required to give their reasons for imposing the sentence, and that the government “presume[s] that district courts honestly give their reasons for imposing the sentence” – as the district court did in this case.

Defending the decision below was University of Pennsylvania law professor Stephanos Bibas, whom the Court invited to brief and argue the case as an amicus. Bibas argued that Congress, in passing the Act, distinguished between the outmoded idea of prison as rehabilitation – that is, the “eerie nonsense that everyone can be rehabilitated simply by throwing them in prison” – and specific rehabilitative programs that take place in prison, such as the drug treatment program. Drug treatment programs have a diagnosed pathology, a measurable criterion for success, and a fixed limited time period, Bibas explained, and district judges can consider such programs in sentencing.

 

Some Justices, however, broached the fact that district judges cannot require a defendant to complete a drug treatment program in prison. By contrast, judges do consider rehabilitation in imposing terms of supervised release – but with supervised release, a judge can require a defendant take part in a rehabilitative program.

Bibas emphasized that the drug treatment program at issue in this case is provided to ninety-three percent of eligible defendants. Although Tapia did not enter the program, that was only because she refused to participate. He observed district judges must make predictions when they sentence a defendant, such as whether a given sentence will actually deter him; this was a comparable prediction that the defendant would actually receive treatment.

 

But Justice Anthony Kennedy asked whether Bibas’s answer would be the same if the federal government only offered the program to ten percent of the inmates for whom sentencing judges had recommended the program, adding “wouldn’t your interpretation of the statute then be very difficult to sustain?”

Bibas responded that the strong likelihood that a defendant would receive a particular rehabilitative program was “an important factor,” and that sentencing judges should give less weight to the rehabilitative effects of specific programs when the likelihood a defendant would receive a particular program would be low. But, he continued, courts could deal with this through the ordinary appellate review process.