Analysis: A difference in emphasis on sentencing
on Jun 21, 2007 at 3:09 pm
Analysis
Federal trial judges, prosecutors and defense lawyers trying to figure out where criminal sentencing in federal cases now stands, in the wake of Rita v. U.S. (06-5754) perhaps should pay the most attention to the eight pages written on Thursday by Justice John Paul Stevens, rather than to the 21-page “Opinion of the Court” authored by Justice Stephen G. Breyer. While Stevens (along with Justice Ruth Bader Ginsburg) does explicitly join the Breyer opinion, the separate opinion speaking for those two appears to emphasize points that are not quite embraced by Breyer.
As a matter of numbers, the Breyer opinion has six votes, but the votes of Stevens and Ginsburg were necessary to make it a majority, in view of the actual dissent of Justice David H. Souter and the near-dissent of Justice Antonin Scalia, joined by Justice Clarence Thomas. Breyer has undoubted support on all points and nuances from Chief Justice John G. Roberts, Jr., and Justices Anthony M. Kennedy and Samuel A. Alito, Jr., none of whom wrote separately. Thus, the Stevens-Ginsburg contribution is highly important, and in some sense might well be controlling.
While the Breyer opinion is content to lay out the principal holding that federal sentences that a trial judge imposes within the range set by the U.S. Sentencing Guidelines may be presumed to be reasonable when challenged on appeal, but with that presumption not binding, Stevens goes noticeably further. “Our opinion today,” he wrote, “makes clear…that the rebuttability of the presumption is real. It should also be clear that appellate courts must review sentences individually and deferentially whether they are inside the Guideline range (and thus potentially subject to a formal ‘presumption’ of reasonableness) or outside that range. Given the clarity of our holding, I trust that those judges who had treated the Guidelines as virtually mandatory…will now recognize that the Guidelines are truly advisory.”
There is a notable difference in emphasis, too, when the opinions by Breyer and Stevens discuss the prospect that trial judges should sometimes be overturned on appeal for imposing “unreasonable” sentences. Breyer says simply that “circuit courts exist to correct such mistakes when they occur.” But Stevens puts special stress on the possibility that “some future unusually harsh sentence” may be pronounced unconstitutional under the Sixth Amendment, anticipating that the future may bring a newly defined “judicial standard of unreasonableness” — a concept Breyer does not even mention.
There is another difference in shading that seems important, in the face of the Scalia complaint that the new ruling allows judges to impose sentences based on facts found by the judge, not by the jury. Scalia argues that such sentences would flatly violating the Sixth Amendment jury trial right that the Court has been bolstering since Apprendi v. New Jersey in 2000. Breyer has never been reconciled to Apprendi or to followup decisions, and in this new opinion appears to be entirely comfortable with Guidelines-based sentencing even if it is based on judge-found facts supposedly condemned in Apprendi. In fact, his opinion in Rita is a sturdy defense of judicial fact-finding as a predicate in federal sentencing, in an apparent response to the Scalia complaint. Stevens does not even mention the issue, and thus offers no response to the threat to Apprendi that the Scalia opinion outlines. (Scalia, seemingly disappointed that neither of the other opinions takes him on fully on the judicial fact-finding issue, includes in his opinions arguments that he thinks could be mounted against him on the point, then refutes them.)
Stevens argues fervently that sentencing judges should look to the convicted person’s “individual characteristics” even though the Sentencing Commission has never tried to articulate such factors in sentencing standards that would affect the range of prison time. Breyer significantly de-emphasizes that aspect of a trial judge’s sentencing discretion, and seems genuinely much more supportive of sentences that reflect directly the findings of the Commission about appropriate punishment.
There is no indication that Stevens is willing to join in any sustained effort to undercut the Court’s past limitations on sentencing discretion, at the federal or state level — limitations that Breyer has been challenging repeatedly in dissents. But Stevens’ separate opinion appears to be necessary to prove that he has not already joined in a Breyer-led effort to diminish the jury role in sentencing while enhancing that of the trial judge, under the dominating force of the federal Sentencing Guidelines (of which Breyer was a principal architect).
One astute observer’s comment, after the Rita decision, that “Breyer may have lost the battle, but has won the war,” might be close to the reality.