Welcome to The Briefcase

Commentary and analysis of Ohio criminal law and whatever else comes to mind, served with a dash of snark.  Continue Reading »

×

Super Monday - Part I

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  He'd withdrawn from the conspiracy after seven months, and in the three and a half years before his arrest and subsequent plea hadn't sold any drugs, had graduated, and had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.

Search

Recent Entries

  • July 21, 2017
    Friday Roundup
    Computers and sex offenders, civil forfeiture, and phrases that should be put out to pasture
  • July 20, 2017
    Case Update
    A look at the Ohio Supreme Court's decision in State v. Oles, and did you know that Justice Ginsburg has a .311 batting average with runners in scoring position? Oh, wait...
  • July 18, 2017
    What's Up in the 8th
    Judicial bias, RVO specs, 26(B) stuff, waivers of counsel... And more!
  • July 17, 2017
    No more Anders Briefs?
    I have a case now in the 8th District where I came close to filing an Anders brief the other week. It's an appeal from a plea and sentence. The plea hearing was flawless. The judge imposed consecutive sentences, and...
  • July 13, 2017
    Sex offenders and the First Amendment
    Analysis of the Supreme Court's decision in Packingham v. North Carolina
  • July 12, 2017
    Removing a retained attorney
    What does a judge do if he thinks a retained attorney in a criminal case isn't competent?
  • July 11, 2017
    What's Up in the 8th
    The court does good work on a juvenile bindover case, and the State finally figures out that it should have indicted someone in the first place
  • July 10, 2017
    Case Update
    SCOTUS ends its term; the Ohio Supreme Court issues another opinion, and likely the last one, on the trial tax
  • June 28, 2017
    Plea Bargaining -- The defendant's view
    A look at the Supreme Court's decision last week in Lee v. United States
  • June 27, 2017
    What's Up in the 8th
    A worrisome decision on expert funding, and, mirabile dictu, a court's dismissal of a case for a discovery violation is upheld