Tapia v. U.S.: Need for Rehabilitation not Proper Factor in Determining Sentence
By: Houston Criminal Lawyer John Floyd and Paralegal Billy Sinclair
The concept of penal rehabilitation began at the end of the 19th century in this country. Historically criminal sentences in America have been imposed for four reasons: deterrence, retribution, incapacitation, and rehabilitation. Although rehabilitation has been a subject of controversy as a reason for punishment, the State of Texas adopted it as a reason to punish through criminal sentencing. The U.S. Congress, however, has long dispensed with rehabilitation as a basis for criminal sentencing in federal courts. This was evidenced by a recent U.S. Supreme Court decision, Tapia v. United States, which declared that a federal district court judge abused his discretion by lengthening a defendant’s sentence in order to fulfill rehabilitation objectives.
The Tapia decision is indeed significant as is the court’s examination of the history of federal criminal sentencing. The background facts of the case are fairly simple: Alejandra Tapia was convicted of smuggling illegal aliens into the United States. At her sentencing hearing, the judge determined that the U.S. Sentencing Guidelines called for a sentence of 41 to 51 months. The judge elected to impose the high end 51-month term because he felt the defendant had a drug problem and he wanted her to spend enough time in the federal prison system to complete a 500 hour drug treatment program called Residential Drug Abuse Program (RDAP).At Tapia’s sentencing hearing, the judge specifically stated:
“The sentence has to be sufficient to provide needed correctional treatment, and here I think the needed correctional treatment is the 500 Hour Drug Program … Here I have to say that one of the factors that—I am going to impose a 51-month sentence … and one of the factors that affects this is the need to provide treatment. In other words, so she is in long enough to get the 500 Hour Drug Program, number one.”
While the judge said he was imposing the maximum recommended term “to deter her from committing other criminal offenses,” he strongly recommended to the U.S. Bureau of Prisons that Tapia “participate in [RDAP] and that she serve her sentence at” the Federal Correctional Institution in Dublin, California where “they have the appropriate tools to help her, to start to make a recovery.”
The problem with the judge’s stated reasons for sentencing to achieve a stated rehabilitative objection is that 18 U.S.C. § 3582(a) guides sentencing judges with the instruction that “imprisonment is not an appropriate means of promoting correction and rehabilitation.” Pointing out that there has been an ongoing conflict among the federal circuits as to whether a sentencing judge could lengthen a prison sentence in order to encourage rehabilitation, the Supreme Court resolved the conflict by saying that since § 3582(a) prohibits rehabilitation as a purpose for federal sentencing, a prison sentence should not be lengthened in order to promote that penal objective.
Prior to the Sentencing Reform Act of 1984 (SRA), the Federal Government employed a “system of indeterminate sentencing” as pointed out by the Supreme Court in Mistretta v. United States. This system gave federal judges “almost unfettered discretion” in deciding what sentences to impose on federal offenders. The judge could either “suspend” the sentence or impose a prison term allowing for parole eligibility after one-third of the term was served. The primary purpose of this sentencing scheme was rehabilitation. The Mistretta court specifically pointed out that discretion allowed “the judge and parole [authorities] to [base] their respective sentencing and release decisions upon their assessments of the offender’s amenability to rehabilitation.” It was generally accepted that an offender could be safely returned to society upon “the successful completion of certain vocational, educational, and counseling programs within the prisons.” In effect, the completion of these programs was definitive proof to the parole authorities that the offender was rehabilitated and posed no future risk to society upon release.
“But this model of indeterminate sentencing fell into disfavor,” as the Tapia court observed. “One concern was that it produced ‘serious disparities in [the] sentences’ imposed on similarly situated defendants. Another was that the system’s attempt to ‘achieve rehabilitation of offenders had failed.’ Lawmakers and others increasingly doubted that prison could ‘rehabilitate individuals on a routine basis’—or that parole [authorities] could ‘determine accurately whether or when a particular prisoner had been rehabilitated.’”
But the SRA did not produce the fair and equitable sentencing scheme intended by Congress and hoped for by determinate sentencing proponents. With SRA’s abolishment of parole, federal prisons increasingly began to fill up with inmates serving particularly harsh determinate sentences. Besides necessitating the need for more federal prisons and expansions of existing ones, judges and criminal justice experts became increasingly disturbed by the same disparate sentencing under SRA as existed prior to its enactment. Some judges were imposing sentences at the high end of the recommended Sentencing Guidelines while others were imposing sentences at the lower end, based more on how the judge felt about a particular offense than individual behavior associated with that offense. Criminal defense attorneys were faced with a “crap shoot” at federal sentencing hearings depending upon which judge their client’s case was assigned.
As we pointed out in a 2008 post, the inflexibility of the Sentencing Guidelines adopted in the wake of SRA was dealt a stunning blow by the Supreme Court in Booker v. United States which declared unconstitutional the determinate sentencing provisions of the Act. The court remedied the constitutional dilemma spawned by the SRA by holding that its Guidelines are only one factor federal judges must consider in sentencing. The court concluded the Guidelines are advisory only and, therefore, federal judges have the discretion to impose a sentence more appropriate than one mandated by the Guidelines.
Since Booker, the federal courts have established a three-step methodology in the determining the appropriate sentence in a criminal case. First, apply the Guidelines to determine the advisory sentence range which normally begins with the PSR and its interpretation of the Guidelines; second, determine if a Guidelines departure applies, e.g., departure based on substantial assistance to Government; and, third, determine if a non-Guideline sentence, frequently referred to as a “variance,” is appropriate following consideration of the sentencing factors set forth in 18 U.S.C. § 3553(a). This begins with the premise that a Guidelines recommended sentence cannot be presumed reasonable, as clearly pointed out by the Supreme Court in 2007 in Rita v. United States. And regardless of whether the district court decides to impose a sentence above, below or within the applicable Guidelines range, the sentencing judge must make findings for his/her reasons in imposing the ultimate sentence.
While the district court must adhere to the foregoing sentencing methodology, the Supreme Court one year after Rita, in a pair of cases Kimbrough v. United States and Gall v. United States, made it abundantly clear that a sentencing judge nonetheless retains considerable discretion in fashioning the appropriate sentence in each given case. As the court pointed out in Kimbrough, “there need not be “extraordinary circumstances to justify a sentence outside [the Guidelines] range;” that the court is free to reject after due consideration the advice of the Guidelines; and the court is free to make its own reasonable application of the § 3553(a) factors.
In the wake of these three decisions, the Fifth Circuit, in United States v. Mondragon-Santiago, held that “’the district court must make an individualized assessment based on the facts presented,’ and may deviate from the Guidelines based on policy considerations or because the Guidelines fail to reflect the § 3553(a) factors. The district court should consider the factors in § 3553(a) in light of the parties’ argument, and may not presume the Guidelines range is reasonable. The district court must adequately explain the sentence ‘to allow for meaningful appellate review and to promote the perception of fair sentencing.’”
To achieve this end, the sentencing judge must consider all the factors enumerated in 18 U.S.C. § 3553(a) and impose a sentence that is sufficient but not greater than necessary based on the facts of each individual case. As the Supreme Court noted in Rita, this imposes upon the court a duty to subject each sentence to a “thorough adversarial testing contemplated by the federal sentencing procedure.” This reasoning is supported by 18 U.S.C. § 3661 which provides that “no limitation shall be placed on the information concerning the background, character, and conduct of the person convicted of an offense which a court of the United States may receive and consider for imposing an appropriate sentence.” In the wake of Booker, Gall, Kimbrough and Rita, the Third Circuit Court of Appeals, in United States v. Olhovsky, said that sentencing judges must focus on both the offense and the offender with the caveat that it is not “severe punishment that promotes respect for the law, it is appropriate punishment.”
To reach a determination about the “appropriate punishment,” the sentencing judge must consider the following § 3553 factors:
- The sentence must reflect the seriousness of the offense, promote respect for the law, and provide just punishment for the offense;
- The sentence must afford adequate deterrence to criminal conduct;
- The sentence must protect the public from further crimes by the defendant; and
- The sentence must provide the defendant with needed educational or vocational training medical care, or other correctional treatment in the most effective manner.
As the Supreme Court pointed out in Tapia, these factors encompass the purposes of criminal sentencing—retribution, deterrence, incapacitation, and rehabilitation—and the sentencing judge must “fashion a sentence ‘to achieve these purposes … to the extent that they are applicable’ in a given case.” But the Tapia Court also stressed that, under 18 U.S.C. §§§§ 3562, 3572, 3582 & 3583, the intent of the SRA qualified these four sentencing purposes to “apply differently, or even not at all, depending on the kind of sentence under consideration.”
For example, under § 3583, a sentencing judge could not consider retribution when imposing a sentence of “supervised release.” Likewise, under § 3582(a), the sentencing judge is restricted when determining what, if any, term of imprisonment should be imposed as stated below:
“The Court, in determining whether to impose a term of imprisonment, and, if a term of imprisonment is to be imposed, in determining the length of the term, shall consider the factors set forth in section 3553(a) to the extent that they are applicable, recognizing that imprisonment is not an appropriate means of promoting correction and rehabilitation.”
Under 18 U.S.C. § 3551 and the SRA, a sentencing judge can impose at least one of the following sanctions: imprisonment (often followed by supervised release), probation or a fine. And while the judge may not be able to use the retribution factor when considering supervised release (or probation and fine), he likewise cannot consider “rehabilitation” when determining a term of imprisonment or its conditions as illustrated in the Tapia decision. In effect, against the backdrop of Tapia, Booker and its progeny have been reduced to a “Guidelines sentence” review only, i.e., whether a sentence imposed inside or outside the recommended Guidelines range is reasonable.
Federal judges, both before and especially after Booker, have routinely considered rehabilitation as a legitimate factor in determining not only the length but conditions of confinement. The sentencing judge in Tapia had probably done this hundreds of times before sentencing this defendant. He believed that rehabilitation should be used as a factor in determining whether to impose a high end sentence or a low end one. Likewise, criminal defense attorneys in sentencing memos have routinely stressed both the prospect for and need of rehabilitation to the judge for him/her to consider in fashioning what the Third Circuit called an “appropriate punishment.
Tapia will now certainly insert a strange chill in the federal sentencing process because the issue of rehabilitation has been limited the sentencing hearing debate, at least as to determining the length of imprisonment. A sentencing court can discuss the possible rehabilitative programs available, and even suggest placement in a particular program, but the court cannot consider “rehabilitation” in determining the length of the sentence. Defense attorneys can still raise the issue of rehabilitation in their sentencing memos and arguments but with the understanding that the judge cannot consider it as a factor for the proper length of sentence.
By: Houston Criminal Lawyer John Floyd and Paralegal Billy Sinclair
John Floyd is Board Certified in Criminal Law by the Texas Board of Legal Specialization