Judge Speaks His Mind, Sends a Message

What was the key factor in Gov. George H. Ryan's granting clemency in 2003 to the entire Illinois death row population?

There is no simple answer. But I certainly believe that one crucial element was that he was not a lawyer. People who work for a long time within a system - such as lawyers and judges in criminal law - may become inured to the problems that surround them on a daily basis. From all accounts, it appears that Ryan was genuinely outraged by the injustices he saw in the imposition of the death penalty in Illinois. Sometimes it may take an outsider to really become outraged about the emperor's lack of apparel.

I thought of this when I read a recent concurrence by Judge Michael W. McConnell of the 10th U.S. Circuit Court of Appeals in U.S. v. Pruitt, 487 F.3d 1298 (10th Cir. 2007). McConnell has been a judge for less than five years. Prior to his appointment, he spent 17 years as a nationally prominent professor of constitutional law, both at the University of Chicago and at the University of Utah. I think the fact that he is a relative newcomer to the bench may have influenced his thoughts about the case.

There is nothing that stands out about Terri Pruitt. She is a 42-year-old woman who pleaded guilty to distribution of 5 or more grams of methamphetamine. Because she had three prior convictions for selling drugs, the district judge sentenced her as a career offender pursuant to section 4B1.1 of the U.S. Sentencing Guidelines to a term of 292 months in prison. (Since 2005, federal courts treat the federal sentencing guidelines as discretionary rather than mandatory. U.S. v. Booker, 543 U.S. 220 (2005).) She appealed the sentence.

The U.S. Supreme Court in Booker instructed the federal appeals courts to review sentences for ''reasonableness.'' Like the 7th Circuit, the 10th Circuit goes beyond this by extending a rebuttable presumption of reasonableness to any sentence imposed within the confines of the now-discretionary guidelines. See U.S. v. Mykytiuk, 415 F.3d 606, 608 (7th Cir. 2005). After reviewing the district judge's reasoning, the 10th Circuit affirmed the sentence.

For McConnell, this case may have been the proverbial straw on the camel's back. He begins by stating, ''[A]fter watching this court ... affirm hundreds upon hundreds of within-guidelines sentences, it seems to me that the rebuttability of the presumption is more theoretical than real. ... [I]t might be better if we were more candid in acknowledging this.'' At 1310.

He then turns to the facts of Pruitt's case. He notes that her prior drug convictions all involved small quantities of narcotics. All her offenses, including the current one, were nonviolent. If this had been her first offense, her sentencing range would have been 51 to 63 months. But under the career offender guideline, she received 292 months.

McConnell continues, ''Except, perhaps, to judges numbed by frequent encounters with the results of the sentencing guidelines, Pruitt's is an exceptionally long sentence.'' At 1311. A second-degree murder conviction merits a range of 235 to 293 months. In light of this, McConnell asks ''whether a guideline that treats a defendant who has committed a series of relatively minor and nonviolent drug crimes more severely than a murderer'' can in any way be considered just. Id.

McConnell then discusses the relationship between Congress and the Sentencing Commission - the group responsible for the guidelines. He admits that Congress through a statute allows for the possibility of extended sentences for three-time offenders. But he notes that Congress gave the Sentencing Commission authority to adjust the definitions of which types of offenses should trigger the three-time offender rule. McConnell reasons that if Congress gave the commission discretion in this area, then a fortiori sentencing judges must also have this discretion. And a sentencing judge's failure to exercise this discretion could be found ''unreasonable'' under the appellate standard of review.

McConnell analogizes the kind of discretion that sentencing judges have to an ''as-applied'' challenge to the constitutionality of a statute. An as-applied challenge concedes that a statute may be constitutional in many of its applications, but contends it is not so under the circumstances of the case at bar. So, too, a sentencing judge post-Booker can admit that the three-time offender extended sentence may very well be appropriate in a large number of cases, but find that the particular facts of the case at bar make it inappropriate here.

As McConnell expresses it, ''[D]istrict courts should not be overly shy about concluding that particular defendants, even if third-time drug sellers, do not have the profile Congress and the commission had in mind when they directed that sentences for career drug offenders be set at or near the top of the statutory range.'' At 1315-16.

What is the national picture like? McConnell says that of the thousands of within-guidelines sentences reviewed by all the circuit courts since Booker, only one sentence has ever been found substantively unreasonable. He analogizes the work of these sentence reviews as a legal ''snipe hunt'' - the legendary search for a creature that does not exist.

McConnell concludes that Pruitt's sentence was ''wildly excessive.'' At 1320. Yet he still concurred in affirming it. Why?

McConnell's argument is not that appellate courts should put a heavy thumb on the scale in reviewing sentences.

''If appellate courts were to become more aggressive in reviewing within-guidelines sentences,'' he explained, ''they would in effect supplant the national guidelines with regional sets of common-law sentencing principles.'' At 1318.

Rather, he argues that district judges must be more assertive in considering sentencing variances - as in the case at bar. McConnell reminds the district judges that the presumption of reasonableness is an appellate standard only. It does not mean that it is presumptively unreasonable for a district judge to use a variance.

In a nutshell, McConnell is encouraging district courts, not appellate courts, to exercise more power.

Interestingly, about two weeks after McConnell wrote his concurrence, the U.S. Supreme Court handed down its decision in U.S. v. Rita, 127 S.Ct. 2456 (2007). The Supreme Court held that it was proper for federal courts of appeal to extend a presumption of reasonableness to sentences that were within the guidelines - thus, upholding the rule in both the 7th and 10th circuits.

Yet it is clear that McConnell's recent concurring opinion had an effect on the Supreme Court. Echoing McConnell, the majority opinion said, ''We repeat that the presumption before us is an appellate court presumption. ... [T]he presumption applies only on appellate review. ... [T]he sentencing court does not enjoy the benefit of a legal presumption that the guidelines sentence should apply.'' At 2465.

Even more remarkable is the fact that Justice John Paul Stevens' concurring opinion actually quotes McConnell's concurrence in Pruitt even though it had been filed a mere 17 days before. Stevens, quoting McConnell on the point that the ''presumption of reasonableness'' has resulted in no review at all, pointedly noted that ''presumptively reasonable does not mean always reasonable; the presumption of course must be genuinely rebuttable. ... I trust that those judges who had treated the guidelines as virtually mandatory during the post-Booker interregnum will now recognize that the guidelines are truly advisory.'' At 2474 (Stevens, J., concurring). Thus, it appears that Stevens sees a greater role for the appellate courts than McConnell does.

Federal sentencing issues continue to vex the courts. On Oct. 2, the U.S. Supreme Court heard two more cases with federal sentencing issues: Gall v U.S., No. 06-7949 (review of a sentence below the guidelines range); Kimbrough v U.S., No. 06-6330 (review of the 100-to-1 crack-to-powder cocaine ratio).

But McConnell's concurrence reminds us of the power of a single conscientious judge to raise important legal issues.