While he was already on probation for another offense, Monroe Setser was arrested for trafficking in meth. The arrest led to three separate criminal proceedings: a revocation of Setser’s probation in state court and fresh prosecutions in both state and federal court. (One wonders why our law-enforcement authorities have nothing better to do with their time than pile on the charges in these sorts of redundant prosecutions. Oh, to overturn the Supreme Court’s regrettable decision in Bartkus v. Illinois!) The federal prosecution reached the sentencing stage first, and the district court decided that it should rule on whether the 151-month federal sentence should be served consecutively to or concurrently with the anticipated state sentences. The court split the difference, determining that the federal sentence would be consecutive to the sentence for the probation violation, but concurrent with the sentence for the fresh state charge. Then — wouldn’t you know it! — the state court made the federal sentence a logical impossibility by ordering the two state sentences to run concurrently with one another.
On appeal, Setser argued unsuccessfully that the district court lacked authority to make a concurrent/consecutive decision relative to a state sentence that had not yet been imposed. In Setser’s view, it was up to the Bureau of Prisons to make the call, based on its authority under 18 U.S.C. § 3621(b) to decide whether federal sentences are to be served in a state or federal facility. The Fifth Circuit rejected this view, and the U.S. Supreme Court affirmed in a 6-3 decision earlier this spring.
The majority opinion by Justice Scalia and dissenting opinion by Justice Breyer both engage in a fair bit of (inconclusive, in my view) parsing of statutory language. What strikes me as a bit more interesting is the playing out, in another legal context, of the running argument between Scalia and Breyer over bureaucratic sentencing — an argument that has done much to animate the long line of cases following Apprendi v. New Jersey.
Consider Breyer’s argument in Setser. In his view, the key consideration was that the district court was not in a position to make a consecutive/concurrent decision that would best implement the aims of the sentencing guidelines:
In a word, the sentencing judge normally does not yet know enough about what will happen in the sentencing-proceeding-yet-to-come to be able to construct a sentence that meets the Guidelines’ instructions and which, in doing so, helps to assure that different individuals who engage in the same criminal behavior will typically receive roughly comparable sentences. (5)
[A] sentencing judge typically needs detailed information when constructing a multiple-count or multiple-conviction Guideline sentence. The fact that the future sentence has not yet been imposed means that information will often be lacking, and that in turn means that the exercise of such authority would risk confusion and error. A sentencing judge who believes, for example, that the future conviction will be based upon different relevant conduct (and consequently orders a consecutive sentence) could discover that the second conviction rests upon the same relevant conduct (warranting a concurrent sentence). Mistakes of this kind increase the risk of sentencing disparity and, insofar as the first judge guesses wrong, they can mean a less honest sentencing process as well. (7)
[A] more practical solution to potential problems presented by a future sentencing proceeding lies closer at hand. The BOP has the statutory authority to effect concurrent service of federal and state sentences and is well situated to take into account both the intent of the first sentencing judge and the specific facts developed in the second sentencing. (9-10)
Breyer’s reasoning reflects a bureaucratic approach to sentencing in at least three respects. First, it adopts as an overriding value the bureaucratic imperative of treating like cases alike. Second, it embraces the particular way of achieving uniformity that is embodied by the (bureaucratically promulgated) sentencing guidelines. Third, it relies on a bureaucratic agency, the BOP, to make the key consecutive/concurrent decision instead of a judge.
All of this calls to mind Breyer’s extended rearguard action against the Scalia-led Apprendi revolution — an action that was intended by Breyer to preserve the bureaucratic federal sentencing guidelines system. Indeed, in his concurring opinion in Apprendi, Scalia derided what he called “Justice Breyer’s bureaucratic realm of perfect equity.” Apparently immune to the ridicule, Breyer continues to push precisely the same vision of sentencing in his Setser dissent as he did twelve years earlier in his Apprendi dissent.
In the Apprendi line of cases, Scalia consistently sought to contrast Breyer’s vision with what he characterized as the “common-law ideal of limited state power” (to quote his opinion for the majority in Blakely v. Washington). Paradoxically, the Apprendi decisions purported to vindicate the traditional power of the jury, but (as all sensible observers recognized) the real effect of the decisions was to increase the power of the judge.
Scalia’s majority opinion in Setser also invokes the common-law tradition, but more forthrightly associates that tradition with judicial sentencing discretion:
It is fundamental that we construe statutes governing the jurisdiction of the federal courts in light of “the common-law background against which the statutes . . . were enacted,” New Orleans Public Service, Inc. v. Council of City of New Orleans, 491 U. S. 350, 359 (1989), and the same approach is appropriate here, where the issue concerns a matter of discretion traditionally committed to the Judiciary. Judges have long been understood to have discretion to select whether the sentences they impose will run concurrently or consecutively with respect to other sentences that they impose, or that have been imposed in other proceedings, including state proceedings. (4)
Also echoing his Apprendi opinions, Scalia sounded the theme of separation of powers in his response to Breyer’s reasoning:
The basic claim of Setser, the Government, and the dissent is that when it comes to sentencing, later is always better because the decisionmaker has more information. That is undoubtedly true, but when that desideratum is applied to the statutory structure before us here it is overwhelmed by text, by our tradition of judicial sentencing, and by the accompanying desideratum that sentencing not be left to employees of the same Department of Justice that conducts the prosecution. (10-11, citation and footnotes omitted)
To the extent that one sees Setser as a replay of an old argument on the Court, it is interesting that all of the Justices who joined the Court post-Apprendi lined up with Scalia. Put alongside last term’s decision in Pepper v. United States, which was authored by Justice Sotomayor, Setser seems to signal that there is much support on the Court right now for judicial sentencing discretion, which may have important implications for the future direction of “reasonableness review” of federal sentences.
Speaking of which, Setser itself considered the reasonableness of the district court’s consecutive/concurrent decision. Setser argued that it was unreasonable because the state court’s subsequent decision to run the state sentences concurrently rendered the federal sentence a logical impossibility.
In addressing this claim, the Court assumed for the sake of argument that Booker reasonableness review applies to the consecutive/concurrent decision. However, the Court held that later events cannot render an otherwise reasonable sentence unreasonable.
So what is to be done with Setser’s impossible sentence? The Court dropped the problem in the lap of the Bureau of Prisons:
This is where the Bureau of Prisons comes in—which ultimately has to determine how long the District Court’s sentence authorizes it to continue Setser’s confinement. Setser is free to urge the Bureau to credit his time served in state court based on the District Court’s judgment that the federal sentence run concurrently with the state sentence for the new drug charges. If the Bureau initially declines to do so, he may raise his claim through the Bureau’s Administrative Remedy Program. See 28 CFR §542.10 et seq. (2011). And if that does not work, he may seek a writ of habeas corpus. (13)
In other words, the Supreme Court may not have seen the last of Monroe Setser.