Three hours after I post the Case Update saying that there’s nothing new from the US Supreme Court, they come down with a trio of major criminal decisions.  They’re mostly pertinent to those who handle Federal criminal cases, but there’s some overlap into state law.  I’ll tackle the biggie today, and the other two later this week. 

Back in 2005, when the Supreme Court made the sentencing guidelines advisory instead of mandatory, it left the circuit courts with the task of deciding whether a particular sentence was “reasonable,” without giving much indication of what that meant.  The result was that 85% of sentences still fell within the guidelines range, and a majority of the sentences outside that range were overturned on appeal.  The Court seemed to take a further step along that path with the decision earlier this year in Rita v. US, in which it held that the circuit courts could apply a presumption that a sentence within the guidelines was “presumptively reasonable.” 

The flip side of that question is whether a sentence outside the guidelines is presumptively unreasonable, which is exactly what many of the circuits had held.  That was supposed to be decided at the same time as Rita, but the defendant in that case got himself killed in a botched robbery attempt a few weeks before the decision was to come down, mooting the case.  The substitute case presenting that issue was Gall v. US, which came down yesterday.

When Gall had been in college, he’d been part of an “enterprise” which trafficked in Ecstasy, sometimes in quantities as large as 10,000 pills.  He’d withdrawn from the conspiracy after seven months, and in the three and a half years before his arrest and subsequent plea hadn’t sold any drugs, had graduated, and had gotten steady employment.  Although the guidelines called for a sentence of between 30 and 37 months, the judge felt that three years probation was sufficient, since his withdrawal from the conspiracy and conduct since then showed he wasn’t a threat. 

The 8th Circuit had reversed.  That Circuit, and some others, have basically used a “proportional” test in reviewing out-of-guideline sentences:  the greater the departure, the more ”extraordinary” the circumstances must be to justify that departure.  It found that the circumstances in Gall’s case weren’t sufficient to justify what it held amounted to a 100% departure from the guidelines.

In a 7-2 decision, the Supreme Court reversed that, and in rather sweeping language.  Although it agreed with the essence of the proportionality test advocated by the the 8th Circuit, it rejected the idea that any sort of mathematical precision should be employed, i.e., that a 30% departure should necessarily be viewed more stringently than a 20% departure.  Much more to the point, it held that circuit courts could only review an out-of-guidelines sentence under the far more deferential abuse of discretion standard, and found that the decision of the district judge here were “reasoned and reasonable.”  Somewhat remarkably, instead of remanding the case back to the circuit court for further consideration under that new standard, the Court simply reinstated the sentence.

I think it’s hard to overstate the significance of Gall.  One of the key provisions in Federal sentencing law is what’s known as the “parsimony provision”:  18 USC 3553(a), which provides that a sentence should be “sufficient, but not greater than necessary,” to achieve the various purposes of sentencing.  Defense lawyers have sought to argue all kinds of factors under that, and that was indeed the gist of Gall’s argument:  given that he was now a law-abiding and productive citizen, putting him in prison didn’t accomplish anything.  In Rita, Justice Breyer had written that the Guidelines had already taken 3553(a) into consideration:  if, for example, the Guidelines suggested a sentence of 70 to 81 months, then it should be assumed that the Sentencing Commission had determined that that sentence was “sufficient, but not greater than necessary.”  Gall pretty much obliterates that line of reasoning.  In fact, the district judge’s decision was entirely based on consideration of 3553(a) factors.

That, plus the abuse of discretion review standard for out-of-guidelines sentences, gives defense attorneys a lot to play with in sentencing.  Rita had let judges know that if they handed down a sentence that was within the guidelines, it would probably be deemed reasonable.  (Even before Rita, most circuit had accorded that presumption to sentences that were within the guidelines.)  As a number of commentators mentioned at the time, given that judges generally don’t like to be reversed, that was a great incentive to stick within the guidelines.  Knowing that they have a much lesser chance of being reversed now if they don’t makes it that much more likely that they will.