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Carrington v. United States:
A lot of people have talked about the Supreme Court's small docket; Judge Harry Pregerson of the Ninth Circuit is actually doing something about it. He handed down an opinion today in Carrington v. United States that has "Destination: One First Street" written all over it.

  This consolidated case involves two defendants, Carrington and Tillitz. Carrington was sentenced in 1990, and Tillitz in 1998, both by Judge Robert Bryan, a district court judge in Seattle who, like many trial judges, really didn't like the federal Sentencing Guidelines that at the time were binding law. At the sentencing hearings for both defendants, Judge Bryan expressed the view that the Guidelines were bad. In 1990, he said that they were "bad law" because they diminished his "authority" to sentence as he saw fit, and in the 1998 hearing he added that he thought the Guidelines were unconstitutional (for reasons not explicit).

  After the Supreme Court ruled in Booker that the Guidelines were not mandatory, each defendant filed a motion before Judge Bryan requesting a new sentencing hearing without the binding effect of the Guidelines. Judge Bryan denied relief, but then sent the cases to the Ninth Circuit with an unusually personal opinion asking the Ninth Circuit to let him resentence these two defendants. Judge Bryan wrote to the Ninth Circuit:
  Trial judges, more than anything, want to do the right thing. We understand our obligation to follow the law, but deeply—and even desperately—hope that the law will lead to justice. If we are part of an injustice, we want to set it right, even if it involves a great deal of extra work. To quote Gerry Spence: "[S]ometimes a judge doesn't know how to get justice. . . . [T]he judge has to just sit up there and watch justice fail right in front of him, right in his own courtroom, and he doesn't know what to do about it, and it makes him feel sad. . . . Sometimes he even gets angry about it." Gerry H. Spence, Of Murder and Madness: A True Story, 490 (1983). This judge, sad and a little angry, would welcome an opportunity to resentence these defendants to a constitutional and legal sentence.
  In the decision handed down today, Judges Pregerson and Noonan (with Callahan dissenting) ruled that Judge Bryan's feelings about these cases created "extraordinary circumstances" that should allow Judge Bryan to reopen the cases and resentence the defendants without the sentencing guidelines. Specifically, Judge Bryan had expressed "frustration" at the guidelines at the original sentencing, and also had made an "impassioned plea" — even quoting famed trial lawyer Gerry Spence! — to be able to resentence the defendants in his 2005 opinion. According to Judge Pregerson, this combination was sufficient to reopen the old cases and permit resentencing:
  These two cases have weighed on Judge Bryan's conscience eight years and sixteen years, respectively, after the original sentences were imposed. They compelled him to the point that he would sua sponte request that this court recall its mandates and that he would voluntarily assume the additional responsibility involved in re-sentencing these defendants. We believe that the number of cases in which a district court will feel so strongly about the need to resentence is small, making these cases truly extraordinary.
  Our interest in the finality of judgment is not so strong that we would not allow a district court judge the opportunity to remedy what the judge considers to be an "injustice" and to re-sentence a defendant to a sentence that is just and proper.
  I can understand why Judge Bryan wants to resentence these defendants, and I can understand why Judge Pregerson would want to let him do so. But there are lots and lots of cases like this in the pipeline, and whether they should be reopened would seem to a question of whether Booker is retroactive rather than whether a trial judge's opinions are strongly-enough expressed to make that particular sentencing "extraordinary." Surely it can't be the law that a defendant is entitled to resentencing decades later if the trial judge really wants to resentence him.

  George Will recently commented that "[t]here should be two Supreme Courts, one to reverse the 9th U.S. Circuit Court of Appeals, the other to hear all other cases." With the one Supreme Court running low on business these days, I'm sure they will appreciate the chance to take a closer look at this one (assuming the full Ninth Circuit doesn't get there first).

  Thanks to Howard for the link. (Update: I have fiddled with the end of the post a bit in response to comments.)
AF:
Excellent opening.
12.13.2006 2:44pm
Hattio (mail):
I think you are mischaracterizing the case a bit. It's more than the judge really really wants to resentence. It's that the judge really really wants to resentence because the original sentence was handed down under an unconstitutional scheme which tied the judge's hands, and which the judge recognized at the time was at least possibly unconstitutional and which the judge clearly recognized was unjust. Isn't this the perfect example of a non-"activist" judge doing everything he can within the law and upholding his oaths to create justice. Why is this guy being criticized? He should be praised, he has done everything that conservatives would hope for in a judge who disagrees with the law.
12.13.2006 2:59pm
OrinKerr:
Hattio,

To be clear, I'm not criticizing Judge Bryan. I certainly sympathize with his position. As the Spence quote suggests, he feels that the law forced him into a box, and on policy grounds he may be right. However, the issue here is whether Judge Pregerson's application of the standard to reopen an old case is proper, and it seems pretty clear it is not. Or do you think Judge Pregerson was correct on the law? If so, I'm certainly interested in hearing why.
12.13.2006 3:10pm
MikeC&F (mail) (www):
12.13.2006 3:15pm
AF:
Isn't it arguably an extraordinary circumstance when a sentencing judge states at the time of sentencing that the sentence he is required to impose is unconstitutional and unjust, and the Supreme Court later finds that he was not in fact required to impose that sentence? Prior to Blakely, how often did that happen? Given that the power to recall a mandate is an equitable power, where is the equity in refusing to recall a mandate in this circumstance?
12.13.2006 4:00pm
Sasha Volokh (mail) (www):
MikeC&F: Indeed, sarcasm isn't an argument. But there's nothing with using sarcasm as part of an argument, and Orin's argument is right there in the paragraph beginning "I can understand why Judge Bryan wants to resentence these defendants."

AF: Lots of defendants were convicted and sentenced under unconstitutional, and possibly unjust, regimes. Think of everyone convicted before Miranda based on confessions they made without knowing their rights; everyone convicted before the Fourth Amendment exclusionary rule based on evidence gathered after an unreasonable search; everyone sentenced before Apprendi based on facts not found by a jury; etc.

Should all these guys get relief? Maybe and maybe not, but that's what the voluminous literature on retroactivity of new procedural rights is all about. The time to raise it is on habeas, and if the new rule is non-retroactive, then you never get to raise it, which sucks, but a rule of full retroactivity would be a total nightmare. But I don't see what the sentencing judge's expressed opinion on the constitutionality of the system should have to do with it.
12.13.2006 4:20pm
AF:
I agree that this is related to Booker retroactivity. But there's a big difference between invalidating every single federal sentence since 1987 and invalidating only those which the sentencing judge declared to be unjust at the time of sentencing. The latter is akin to actual innocence.
12.13.2006 4:23pm
James R Dillon (mail):
AF,

I'm sympathetic to your point, and to the larger one that courts should generally invoke their equitable authoritiy to correct injustice wherever they see it, but I don't see why the fact that the judge stated his disagreement with the guidelines on the record in this particular case (or the two cases consolidated in the Carrington opinion) takes them outside the realm of general retroactivity jurisprudence. How many cases have there been in which the sentencing judge might have felt that the guidelines-imposed sentence was too harsh, and would have said so on the record if he had any reason to think it might make a difference at any point, but didn't do so simply because it would have appeared futile at best, and arguably unprofessional? We'll never know, of course, but I know from my own clerkship experience that some judges quite frequently felt compelled to impose what they viewed as an unjust sentence because of the guidelines. I can't see why the relatively few cases in which a district judge stated his reservations on the record should be exempt from the general principles of retroactivity on that basis alone.

In other words, if the court is going to permit resentencing here, it really should do it for every case between 1987 and 2005. There might be very appealing reasons for doing just that, but as Sasha points out it would become a logistical nightmare that would eat up a massive amount of the courts' resources.
12.13.2006 4:41pm
MikeC&F (mail) (www):
MikeC&F: Indeed, sarcasm isn't an argument. But there's nothing with using sarcasm as part of an argument, and Orin's argument is right there in the paragraph beginning "I can understand why Judge Bryan wants to resentence these defendants."

I like - no, make that love - sarcasm. And I also believe that sarcasm can an argument - at least if we define argument broadly. By being sarcastic, the writer is allowing the reader to infer what his argument really is.

Whether it's effective or not is another issue. (It usually isn't, for reasons Orin noted in the post I linked to.)

I think my comment, btw, was only mildly sarcastic.
12.13.2006 4:55pm
JonC:

Isn't it arguably an extraordinary circumstance when a sentencing judge states at the time of sentencing that the sentence he is required to impose is unconstitutional and unjust[?]


AF, the problem there is that the district court judge's comments were directed at the federal sentencing guidelines in general, and not these particular defendants' sentences. The judge actually denied one of the defendant's requests for a downward departure, and even acknowledged in his most recent statement to the 9th Circuit that the original sentences "may have been appropriate." (See Judge Callahan's dissent, slip op. at 11). It seems like he just wants to take a mulligan.
12.13.2006 5:07pm
PersonFromPorlock:
OK,

So what's your point? Fiat justitia ruat caelum so long as it doesn't involve extra paperwork?
12.13.2006 5:09pm
AF:
James Dillon, it seems to me the same argument you make could be used against the actual innocence doctrine. There are a lot of cases where we don't know whether the guy was innocent, but he might have been. Therefore, the argument would go, any exception to default or retroactivity must apply to everybody, not just the actually innocent.

The reply is that there's a difference between possible innocence and actual innocence. It's impractical and dangerous to free everyone who might be innocent (but most of whom are probably guilty), and for that reason, some innocent people may remain in jail. But that is no reason not to free the people that we know are innocent.

Similarly, it's impractical to resentence everyone who might have got a different sentence, but that's no reason not to resentence the people we know would have got a different sentence.
12.13.2006 5:09pm
RS (mail):
Is there anything in the record that indicates that these sentences are unconstitutional? Or do the merely violate the remedy portion of Booker because the district court lacked the discretion to depart from the guideliness?

There is nothing unconstitutional about a pre-Booker sentence that was based on facts found by a jury or admitted by the defendant.
12.13.2006 5:10pm
Nobody (mail):
How can a constitutional decision not be retroactive (barring an amendment to the constitution)?
12.13.2006 5:14pm
arbitraryaardvark (mail) (www):
I do not know the facts of the case,and I'm no expert on Booker. I don't see why it's likely to be accepted for cert. If the court wants to make a statement that Booker is not retroactive, they could find some other case, unless they just wanted to emphasize the point by taking the strongest case for the losing proposition. Politically, the court has more to gain by letting this one slide. I think Roberts is less likely than Rehnquist to want to focus on a case like this. High profile cases with an appearance of putting rules rules before justice may not play well in a Senate that is hesitating to confim any Bush nominees for judgeships. I don't know to what, if any, extent the court takes political considerations into its grants of cert. I do understand that courts tend to be more concerned with docket control than case by case justice. If the court takes the case, what is the likely vote count? Which 4 justices will want to take the case?
12.13.2006 5:15pm
JonC:
Arbitraryaardvark: you don't think that A) the creation of a circuit split, B) the fairly clear misreading of the law, and C) the potential for a flood of litigation from every pre-Booker convict in the 9th Circuit who wants a crack at re-sentencing make this seem at all likely that four Justices would vote for cert.?

Of course, before it gets that far, this could always be fixed en banc, but the 9th is notoriously bad at cleaning up after itself.
12.13.2006 5:27pm
Ejote (mail):
arbitraryaardvark: The issue isn't whether Booker is retroactive, though that *is* an interesting question. The retroactivity issue arises on habeas. What happened here was that the Ninth Circuit recalled the mandate in their original appeals, in effect reopening the original (pre-habeas) criminal proceedings. That can be done only in extraordinarily rare circumstances (at least in part, I presume, to avoid an end-run around retroactivity doctrine). The seminal case in the area is Calderon v. Thompson, in which the Supreme Court reversed the Ninth Circuit for recalling the mandate on facts much more compelling than those at issue here.
12.13.2006 6:11pm
Bored Lawyer:
Altogether now:


Feelings, nothing more than feelings,
Trying to forget my feelings of love.
Teardrops rolling down on my face,
Trying to forget my feelings of love.

Feelings, for all my life I'll feel it.
I wish I've never met you, girl;
You'll never come again.

Feelings, wo-o-o feelings,
Wo-o-o, feel you again in my arms.

Feelings, feelings
Like I've never lost you
And feelings like I've never
Have you again in my heart.

Feelings, for all my life I'll feel it.
I wish I've never met you, girl;
You'll never come again.

Feelings, feelings like I've
Never lost you
And feelings like I've never have you
Again in my life.

Feelings, wo-o-o feelings,
Wo-o-o, feelings again in my arms.
Feelings...
12.13.2006 6:22pm
JunkYardLawDog (mail):
I'm no criminal law guy, but I always thought that state court trial judges retained the right/plenary power to haul somebody back into court that was sentenced to prison, for example, and give them a lesser sentence or change their sentence to probation, etc. I know lawyers who have had this done in decades past for clients. I could understand a rule that prevents a judge from giving a harsher sentence, but always thought the trial court retained authority to alter the sentence given to a more lenient sentence.

Am I wrong about state court judges and this power? I don't see a problem with federal court judges having the same power. I don't agree that sentencing guidelines should NOT be mandatory, but if a judge has given a sentence that could have been more lenient I don't see a problem with the judge rethinking the situation and altering the sentence later.

Says the "Dog"
12.13.2006 6:42pm
Jake (Guest):
Full constitutional retroactivity is only a logistical nightmare if the Supreme Court routinely makes sweeping changes in the landscape of constitutional rights with no basis in the text or past decisions. Oh, wait...
12.13.2006 7:48pm
AppSocRes (mail):
I think RS has an important point here. if the sentence was based on jury findings then US v. Booker probably does not apply.

IMHO a significant minority of activist judges made the sentencing guidelines inevitable and a matter of justice. Before the guidelines essentially identical cases heard before an extremely lenient federal judge and an extremely severe one often resulted in gross sentencing disparities. From my perspective, it was "liberal" judges handing out "slap on the wrist" sentences that created the movement to standardize federal sentencing.

Judge Bryan sounds like the best kind of judge. Carrington and Tillitz sound like the kind of non-violent offenders who are taking up space that would be better occupied by more dangerous criminals. It's a shame that they and many others are paying the price for past liberal excesses.
12.13.2006 8:00pm
Visitor Again (mail):
Nobody wrote:

How can a constitutional decision not be retroactive (barring an amendment to the constitution)?


For an alleged nobody, you pose the real question, in my view. You see, even in the view of the staunchest originalists, the Constitution isn't what it always was because most new constitutional rules are not applied retroactively. Retroactivity was a huge issue in the Sixties, when decisions like Mapp and Miranda came down. How could one of the amendments in the Bill of Rights be applied retroactively to reverse the conviction of the defendant before the Court (either on appeal or on habeas corpus) and yet be announced inapplicable to those similarly situated to the fortunate one? Either the Constitution was what it was or it wasn't, but be consistent about it.

Things have gotten considerably worse since then, of course, by virtue of both decisions from the Supreme Court and acts of Congress. The Bill of Rights is one thing for defendants on direct review and fortunate enough to draw a fair consideration of their case, but entirely another for those not fortunate to get certiorari granted on direct review (at a time when the Court is taking fewer and fewer cases) and who have to turn to habeas corpus review, no matter how staunchly they have insisted on their constitutional point throughout their cases.

How many Constitutions are there out there? I'd say three or four, perhaps half a dozen, depending on the procedural posture of the case. Disgraceful. The Court could have handled any serious problem merely by declaring certain decisions not affecting fairness of the trial nonretroactive as of the date of the decision. Now the Court simply does not address the issue at all--principles have not been plainly declared and their applications have not been plainly unreasonable--and fairness matters not at all.

All grist for lawyers, of course, but not for common sense, fairness or justice.
12.13.2006 8:31pm
Stephen Aslett (mail):
Poor Ninth Circuit, so misunderstood. I think it needs its own motivational poster.
12.13.2006 8:33pm
Visitor Again (mail):
Mr. Aslett, is that sarcasm or what, a cheap shot?
12.13.2006 8:42pm
Stephen Aslett (mail):
Just a joke. It's not a commentary on the correctness or incorrectness of the Ninth Circuit's opinions. I'm just pointing out in a humorous way that despite whithering criticism, the Ninth continues to produce controversial opinions. (The other posters on the site are in the same vein.)
12.13.2006 9:04pm
JonC:
Visitor again: it isn't really the case that "principles have not been plainly declared" for retroactivity. Griffith v. Kentucky, 479 U.S. 314 (1987) held that new constitutional rules are retroactive not only for the parties before the court, but to all similarly situated parties to whom the (now-unconstitutional) conduct occurred previously whose cases are still pending on direct review (i.e. non-habeas cases in which the appeals proceess is not finalized).

This is actually a slightly more liberal standard than SCOTUS's old "almost wholly prospective" approach to retroactivity. For example, when Miranda came down, the only one who got the benefit of the new rule was Miranda. Defendants in Miranda-like cases were out of luck.
12.13.2006 9:41pm
Visitor Again:
Mr. Aslett wrote:

Just a joke. It's not a commentary on the correctness or incorrectness of the Ninth Circuit's opinions. I'm just pointing out in a humorous way that despite whithering criticism, the Ninth continues to produce controversial opinions. (The other posters on the site are in the same vein.)

Your "humorous way" fooled me despite the fact that you say other posters "are in the same vein." Perhaps because of my 63-years of slow decline, I could have sworn they were serious when in these and numerous other threads they were not joking in a humorous way about the Ninth Circuit and Stephen Reinhardt.

The Ninth Circuit will continue to survive "whithering criticism," as you put it, and the reason is because there is a serious dispute in this country about what federal court justice--well, let's just say justice without the federal qualifier, means. The battle is not over; it has only begun. It's easier to join the scoffing crowd on the VC, of course, but there are people of integrity and courage who believe that a great deal of what the Ninth Circuit does is fair and just and right.

Scoff, if you want. It is the refuge of those who are arrogant enough to believe they have won the battle over principles, that they need not even debate with any seriousness anymore.

Let me tell you, my friends, you have not won yet, and you will not in the end.

With cheers to all,

Peter
12.13.2006 9:52pm
Visitor Again:
JonC wrote:

Visitor again: it isn't really the case that "principles have not been plainly declared" for retroactivity. Griffith v. Kentucky, 479 U.S. 314 (1987) held that new constitutional rules are retroactive not only for the parties before the court, but to all similarly situated parties to whom the (now-unconstitutional) conduct occurred previously whose cases are still pending on direct review (i.e. non-habeas cases in which the appeals proceess is not finalized).

This is actually a slightly more liberal standard than SCOTUS's old "almost wholly prospective" approach to retroactivity. For example, when Miranda came down, the only one who got the benefit of the new rule was Miranda. Defendants in Miranda-like cases were out of luck.


Sorry I did not go into all the intricacies of retroactivity, coupled with the complexities of direct review versus habeas corpus review, but this is a blog comment. And I also had reference to the Congressional modification of habeas corpus relief, which in my view was plainly unconstitutional.

After reading your amplification, my reaction is whoop-de-do in terms of justice and fairness and consistency and virtually every other value of decency known to humankind.

JonC, I went straight from Harvard Law School to work on Charcoal Alley in Watts as a poverty lawyer as soon as I was admitted to practice in January, 1969. My heart has been broken in terms of what I once saw as the promise of our fabled justice system, and now I'm so much older and find people taking comfort in the meanest of niceties, I wonder what on earth has become of us and where we failed our sons and daughters. My generation made this system what it is now. May the great universal power forgive that generation for what it has wrought.
12.13.2006 10:23pm
JonC:
Visitor Again: Do you mind if I ask what your preferred approach to retroactivity would be? Assuming that the rule were complete retroactivity for every new pro-defendant constitutional rule, aside from the obvious massive costs on judicial resources that would entail, couldn't such an approach perversely lead to fewer pro-defendant decisions in the future? In other words, if judges, perhaps less humanitarian-minded than yourself, are concerned in the back of their heads about opening up floodgates of litigation if they issue a wholly retroactive pro-defendant ruling, wouldn't that make the less likely to issue such rulings, at the margin?
12.13.2006 11:07pm
JonC:
that should be "make them less likely to issue such rulings, at the margin."

One last point: you speak of "values of decency" in the law. Does the law not place a certain value on finality? Do victims' families?

I'm not trying to be combative here; just trying to highlight what I think are some important countervailing concerns.
12.13.2006 11:12pm
PGofHSM (mail) (www):
Those were some awesomely lame statistics from George Will. "Last term, more of the Supreme Court's caseload -- 18 of 82 cases (22 percent) -- came from the liberal 9th Circuit, based in San Francisco, than from any other circuit" ... ignoring that the 9th Circuit has about 20% of the U.S. population.
12.14.2006 1:01am
Dave N (mail):
Amplifying on Jon C's point--if all new rules were retroactive, the strain on the criminal justice system would be astronomical. That is one fear surrounding the potential retroactivity of Crawford v. Washington--and the averted chaos that would have ensued had Apprendi v. New Jersey been declared retroactive.

If a court is disobeying Supreme Court precedent, it should be slapped down. If, on the other hand, a court is faithfully following Supreme Court precedent--as they were with hearsay rules in the old Ohio v. Roberts days--then society should not be punished because they were faithfully doing their jobs.

I am sorry Another Visitor--my concept of justice includes MORE than the criminal defendant, it also includes the entire justice system--including the victims of crime and society as a whole.
12.14.2006 10:17am
James R Dillon (mail):
JonC,
The judge actually denied one of the defendant's requests for a downward departure, and even acknowledged in his most recent statement to the 9th Circuit that the original sentences "may have been appropriate."

I don't think the fact that the court denied a downward departure indicates that it necessarily thought that a guidelines sentence was appropriate. It simply means that there were no permissible factors that it could say in good faith took the case out of the sentencing heartland. As someone else pointed out, this is a good example of a judge following the law in good faith even while believing that its application led to an unjust result. Again relying on my own clerkship experience, I don't think it's especially unusual for a judge to feel that a guidelines sentence is too harsh while nevertheless denying a downward departure when that departure is not warranted by the facts of the case.
12.14.2006 10:29am
James R Dillon (mail):
DaveN,

How do crime victims or society as a whole benefit from the fact that a criminal defendant is sentenced under a scheme later held to be unconstitutional? I don't think that either victims or society have a legitimate interest in violating the constitutional rights of criminals. I agree with your pragmatic point that we just don't have the resources to go back and retry or resentence every defendant who was affected by some aspect of the criminal justice system later held to be unconstitutional, but we should nevertheless recognize that fact as an unfortunate but necessary deviation from ideal justice, not as something to be affirmatively desired.
12.14.2006 10:43am
Dave N (mail):
My comment was based more on "Visitor Again's" apparent belief that ALL new rules should be retroactive. However, having read the opinion, I also think Judge Callahan has the better argument in her dissent.
12.14.2006 10:54am
Dave N (mail):
PGofHSM wrote:

Those were some awesomely lame statistics from George Will. "Last term, more of the Supreme Court's caseload -- 18 of 82 cases (22 percent) -- came from the liberal 9th Circuit, based in San Francisco, than from any other circuit" ... ignoring that the 9th Circuit has about 20% of the U.S. population.

The fallacy of this point is that the Supreme Court's jurisdiction extends beyond reviewing the various Circuit Courts of Appeal. It also has authority to review a variety of other courts, including state supreme courts.

By comparison last term, California, which has approximately 15% of the nation's population, had exactly one case--Samson v. California--come from the state courts and decided by the Supreme Court. This particular case came from the California Court of Appeal, not the California Supreme Court.

I recognize that the Supreme Court takes more cases from the Circuit Courts of Appeal than it takes from state appellate courts--but by PGofHSM's reasoning, the second highest number of cases should come from the Fifth Circuit, which includes Texas. I have not counted but I do not believe this is so.
12.14.2006 11:22am
JonC:

[B]y PGofHSM's reasoning, the second highest number of cases should come from the Fifth Circuit, which includes Texas. I have not counted but I do not believe this is so.


Dave N: according to SCOTUSblog, in last year's term the Supreme Court reviewed 18 cases from the 9th, which accounted for 22% of the caseload. Tied for second place were the 2d and 6th Circuits, with 7 cases (about 8.5% of the total) apiece. The 5th Circuit only had 3 cases reviewed by SCOTUS last year (less than 4% of the total caseload).
12.14.2006 1:50pm
M. Simon (mail) (www):
So logistics trumps justice.

Interesting.
12.16.2006 10:24am
M. Simon (mail) (www):
Did anyone copnsider the savings from reducing the prison population?

Of course that wouldn't actually happen.

Drug prohibition provides an unending supply of prisoners.
12.16.2006 11:05am
M. Simon (mail) (www):
BTW don't judges take an oath to defend the Constitution?

Shouldn't that come before finality? Or even judicial precedent?

I guess I'm old fashioned.
12.16.2006 11:12am