Mimesis Law
17 July 2019

Consistency and the Speedy Sentence

May 25, 2016 (Mimesis Law)—Consistency is not really a lawyerly virtue. We’re taught in law school that the answer to the question is not nearly as important as the analysis of the question. The reason for this is fairly obvious: lawyers are hired guns, and as part of the zealous advocacy for our clients, we could end up taking either side of any issue, depending on the circumstances. And regardless of which side we take, we have to argue it effectively.

Sometimes this happens pretty close together, like the morning I argued in back to back sentencing hearings that the judge should certainly give serious weight to the letter Client A’s girlfriend had written (because it showed that she wasn’t afraid of him and didn’t want him in prison), but should definitely NOT give much weight to the letter Client B’s girlfriend had written (because I couldn’t cross examine a piece of paper). See how that works?

Sometimes this happens to prosecutors, as in U.S. v. Sokolow, in which the defendant was stopped because he supposedly fit the “profile” of a drug dealer. Justice Marshall’s dissent pointed out the profile’s “chameleon-like way of adapting to any particular set of circumstances”:

Compare, e.g., United States v. Moore, (suspect was first to deplane), with United States v. Mendenhall, (last to deplane), with United States v. Buenaventura-Ariza, (deplaned from middle);

United States v. Sullivan, (one-way tickets), with United States v. Craemer, (round-trip tickets),

United States v. McCaleb, (nonstop flight), with United States v. Sokolow, (case below) (changed planes);

Craemer, supra, (no luggage) with United States v. Sanford, (gym bag), with Sullivan, supra, (new suitcases);

United States v. Smith, (traveling alone), with United States v. Fry, (traveling with companion);

United States v. Andrews, (acted nervously), with United States v. Himmelwright, 551 F.2d 991, 992 (CA5), cert. denied, 434 U.S. 902 (1977) (acted too calmly). [edited for clarity]

That said, consistency is definitely a judicial virtue. The law, at its core, is a set of rules, and the whole point of having a legal system is that we know what the rules are in advance, and that they’re enforced accordingly. That includes those times when one of the parties makes a mistake.

Take the Oklahoma forcible sodomy case. The prosecutor screwed up by overcharging the case, and the Court of Appeals dismissed, even though it potentially meant letting the defendant walk. Another example is the sentencing of Dwight and Steven Hammond, in which the judge went imposed sentences below the statutory minimum, and got slapped down.

Sometimes, though, it’s the defense that screws up. Andrew King recently wrote about the recent Supreme Court opinion in Betterman v. Montana. Betterman pled guilty to a felony, but wasn’t sentenced to prison until 14 months later. Since he was already serving a different felony sentence in Montana’s Department of Corrections, by Montana rules,  he didn’t get credit for the 14 months that he awaited sentencing. In other words, the 14 months was “dead time,” which had the practical effect of adding that time to his sentence.

Andrew does a good job of laying out the arguments and the opinion, so go read his post. The tl;dr version is that The Nine Eight (unanimously) held, in essence, that the Sixth Amendment protects the right to a speedy trial, not a speedy sentencing.

There’s another part of the Constitution that might apply, though: the Fifth and Fourteenth Amendments guarantees to due process of law. In other words, even if Betterman didn’t have a Sixth Amendment right to be sentenced promptly, he did have a Fifth/Fourteenth Amendment right not to lose over a year of his life because the sentencing court couldn’t get its ass in gear.

The majority opinion and both concurrences both alluded to this. Justice Ginsburg, for the majority:

For inordinate delay in sentencing, although the Speedy Trial Clause does not govern, a defendant may have other recourse, including, in appropriate circumstances, tailored relief under the Due Process Clauses of the Fifth and Fourteenth Amendments. Petitioner Brandon Betterman, however, advanced in this Court only a Sixth Amendment speedy trial claim. He did not preserve a due process challenge. We, therefore, confine this opinion to his Sixth Amendment challenge.

Justice Thomas, concurring:

We have never decided whether the Due Process Clause creates an entitlement to a reasonably prompt sentencing hearing. Today’s opinion leaves us free to decide the proper analytical framework to analyze such claims if and when the issue is properly before us.

Justice Sotomayor, concurring:

As the majority notes, however, a defendant may have “other recourse” for such a delay, “including, in appropriate circumstances, tailored relief under the Due Process Clauses of the Fifth and Fourteenth Amendments.” The Court has no reason to consider today the appropriate test for such a Due Process Clause challenge because petitioner has forfeited any such claim.

So what happened? Going deep into the weeds, in the oral arguments transcript there are a couple of exchanges between Sotomayor and Fred Rowley, Betterman’s lawyer, in which Sotomayor asks, twice, whether Betterman was waiving the due process claim. He replies that he is. The due process claim was argued in the Montana Supreme Court and also denied.

Inexplicably, though, Rowley’s cert petition makes no mention of due process; and when Sotomayor gave Rowley the opportunity to make the due process argument, he didn’t take it. The result might not have any been any different if the Court had addressed the issue, but given that RBG, Thomas, and Sotomayor all mentioned it, it’s less likely that Betterman would have lost 8-0.

Returning to the original point…people make mistakes, whether in sentencing, charging, or choosing which argument to push. But ultimately, it isn’t the destination that matters. It’s how we get there.

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