Wednesday, February 18, 2015

Is leniency "substantively unreasonable"?

The long, painful journey of United States v. Robinson achieved another milestone today, having traveled from district court to the Sixth Circuit to the Supreme Court to the district court and now back to the Sixth Circuit. (Phew.) The result is an opinion that politely suggests that district courts should never impose non-custodial sentences for certain defendants no matter what those defendants' personal characteristics are (at least not child-porn defendants), and should instead put the greatest emphasis on the severity of the crime (as designated by Congress and our collective indignation at this particular offense).

Factually, the district court had sentenced Mr. Robinson to one day of imprisonment with five years of supervised release. The Sixth Circuit found that to be substantively unreasonable in United States v. Robinson, 669 F.3d 767 (6th Cir. 2012). On remand, the defendant put forth considerable post-conviction mitigation evidence and new psychological evidence showing that he suffered from severe mental illness when he committed his offense. The district court resentenced him to one day of imprisonment, but increased his supervised release period to ten years. The Sixth Circuit not only disagreed but was "dismayed" at the resentencing. It vacated the sentence and reassigned the case to a new judge with tacit orders to put the defendant in prison.

For the defender community, there is more weeping and gnashing of teeth to be done over this opinion, but for now the opinion certainly raises a few unanswerable questions:

1. What the heck is substantive unreasonableness? The Sixth Circuit is one of the few that actually rules based on substantive unreasonableness, but statements like the following sure make it seem a lot like procedural unreasonableness: "The deficiency of the district court's analysis of potential unwarranted sentencing disparities on a national level contributed to the imposition of a substantively unreasonable sentence."

2. Does a "serious offense" always mean that a custodial sentence is required? The court takes pains to remind us that possession of child pornography is a "serious offense," which is no doubt true. But so are many other crimes that result in non-custodial sentences on occasion. Does this mean bank robbery could never be punished by a non-custodial sentence? Drug trafficking? Fraud? The court puts great weight on the 10-year maximum sentence, but that is hardly uncommon in the federal criminal code.

3. If a court ever wants to impose a non-custodial sentence, how could it address the general-deterrence element of Section 3553(a)? The district court here made substantial findings regarding the defendant's need for specific deterrence, then noted that this case had not generated any publicity that would affect the general-deterrence calculus. That was not enough, the opinion suggests, because general deterrence is "a goal that this Court has found particularly salient in the child pornography context."

4. Does the court intend to move the goalposts on "seriousness" by claiming that possession of 7,000 images is a "staggering number"? It would be interesting to test this number empirically, but an informal poll suggests that it is more "about average" than "staggering."

5. Would a significantly above-guidelines sentence face the same scrutiny regarding sentencing disparity? The court notes that 96.6 percent of child-pornography defendants face time. Does that mean that an above-guidelines sentence that only occurs 3.4% of the time is necessarily substantively unreasonable?

6. What weight should courts afford post-sentencing mitigation evidence, as compared to the seriousness of the offense? The court here simply states that "[a]lthough the mitigating evidence appears significant, its presence in the record cannot cure the defects in the district court's analysis...." Disregarding the fact that this still sounds like procedural unreasonableness, is the court suggesting that such mitigating evidence could never outweigh the general seriousness of an offense? (Somewhat remarkably, even the government agreed that the mitigating evidence was powerful enough that the defendant should be sentenced to only a below-guidelines three-year sentence. Would that be severe enough for the court? In other words, this opinion emerges from a dispute over an incredibly small sentencing range of between zero and three years.)

The opinion's reference to and reliance on the Sixth Circuit's prior Bistline opinion strongly suggests that this opinion, like Bistline, will be finding its way in and out of the courts for some time to come. Godspeed, Robinson.

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