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| Markus Funk |
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| Spencer Gottlieb |
In its decision last week in Esteras v. U.S.,[1] the U.S. Supreme Court limited the types of factors that lower courts may consider in imposing prison sentences for supervised release violations.
Those awaiting the court's decision vigorously deliberated the extent to which the court would constrain district judges' ability to sentence supervised release offenders based on past bad behavior, rather than on forward-looking factors.
With Esteras decided, the answer's practical impact is more likely to be a ripple rather than a wave.
The Supreme Court's Decision Summarized
At issue in Esteras was Title 18 of the U.S. Code, Section 3583, which provides that courts may sentence an individual to prison for violating supervised release "after considering [the factors] ... set forth in section 3553(a)(1), (a)(2)(B), (a)(2)(C), (a)(2)(D), (a)(4), (a)(5), (a)(6), and (a)(7)."
As a textual matter, however, that long list does not include Section 3553(a)(2)(A), directing that the sentence should be calibrated "to reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment for the offense."
The court has previously held that those backward-looking factors relate to retribution, rather than to nonretributivist, forward-looking sentencing principles like deterrence, incapacitation and rehabilitation.[2]
The question presented in Esteras was whether — in addition to the enumerated forward-looking factors above — courts may, in the exercise of their discretion, also consider the factors falling on the retributivist side of the sentencing ledger.
Justice Amy Coney Barrett, writing for a 7-2 majority, held that courts may not consider retribution factors, such as the seriousness of the original offense or the need to promote respect for the law, when determining supervised release revocation sentences.
Drawing on a well-known canon of statutory construction, expressio unius est exclusio alterius — from the Latin for "the expression of one thing is the exclusion of the other" — the court reasoned that "Congress's decision to enumerate most of the sentencing factors while omitting §3553(a)(2)(A) raises a strong inference that courts may not consider that factor when deciding whether to revoke a term of supervised release."[3]
In vacating the U.S. Court of Appeals for the Sixth Circuit's holding to the contrary, the court rejected counterarguments that (1) the statute does not explicitly say a district court may consider only the enumerated factors, and (2) "a rule prohibiting a district court from considering [retributive factors] would be unworkable."
The majority held that, in the supervised release context — that is, after a term of imprisonment has been completed, but a defendant has been found to have violated the terms of postincarceration supervised release — it "makes sense that a court must consider the forward-looking ends of sentencing (deterrence, incapacitation, and rehabilitation), but may not consider the backward-looking purpose of retribution."
Justices Sonia Sotomayor and Ketanji Brown Jackson concurred in substantial part, but argued separately that a court should not consider retribution at all when revoking supervised release, even if those retributive principles relate to other factors like deterrence, incapacitation and rehabilitation.
Justice Samuel Alito, joined by Justice Neil Gorsuch, argued in a forceful dissent that the Esteras holding strained credulity: "Today's decision is likely to earn the rank of Exhibit A in the trial bench's catalog of appellate otherworldliness," reinforcing lower courts' perception that "appellate colleagues live in a world of airy abstractions" without forethought as "to the practical effects of their holdings."
The dissent went on to describe the majority's conclusion as requiring mental gymnastics. For example, a court must now consider "the nature and circumstances of the offense," but cannot, under the majority's reading, also "consider 'the seriousness of the offense.'" Justice Alito framed that dual directive as "irreconcilable."
In response, Justice Barrett countered, "We routinely require judges and juries to attend to some considerations while ignoring others."
A Real-World Speed Bump — Not an Earthquake — For Sentencing Judges
It is hard to envision the Esteras decision sending palpable tremors through the world of criminal defense sentencing. It can be fairly viewed as prioritizing textual form over sentencing substance.
To be sure, there is now a new categorical bar on courts' consideration of Section 3553(a)(2)(A)'s retributive factors when making supervised release decisions. That much is beyond dispute.
But the odds are slim that a sentencing court — no matter the court's true perspectives on the seriousness of the original offense, and what that underlying offense conduct says about the offender's present dangerousness and their respect, or disrespect, for the rule of law — will be materially constrained by the Esteras decision. Instead, litigants and courts will reframe the language they use to justify the same requests or the same rulings.
Put another way, given the unavoidable substantive overlap between the sentencing factors, it is difficult to see the decision delivering the panacea of positive impacts some advocacy groups had hoped for. In practice, it is unlikely to allow for shorter and less punitive revocation sentences, provide defendants with a greater range of appellate arguments, or lead to more consistent sentencing practices due to the constraints imposed by a narrower set of permissible statutory factors.
True, federal courts around the country will, from now on, formally articulate their supervised release revocation sentencing decisions using the language of deterrence, both general and specific; public safety; and rehabilitation. Enhanced punishment based on the nature and severity of the underlying crimes of conviction will, at least officially, be off the table.
But judges are, of course, not blind to the realities of the defendants before them. Human nature, as well as the logical convergence of the sanctioned and now-prohibited factors, render it reasonable to speculate that a judge charged with sentencing two different supervised release violators — say, a first-time tax cheat and a high-level gang kingpin — will continue to factor in the seriousness of the offenders' underlying offense of conviction and the need to promote respect for the law.
After all, how does that judge render a meaningful assessment of the violator's ability to be deterred from future crime, ongoing threat to public safety and amenability to being rehabilitated without also letting the seriousness of the violator's original offense sneak into their thinking?
Although revocation sentencings will, for textual and descriptive reasons — which, of course, are highly relevant — no longer include explicit discussions of retributive factors, as with other aspects of the law, the rulings will, in the end, likely be the same after Esteras as they were before the court handed down its decision.
Put differently, courts will almost certainly still consider the retributive factors, but will do so more carefully so that they fall within the bounds established by the Esteras majority.
Given the substantive overlap between permissible and impermissible factors, the likely outcome is that prosecutors working in federal circuits that permitted the use of retributivist factors will simply refashion their stock sentencing memoranda, checklists and any boilerplate language to create a more appeal-proof sentencing record.
Judges, in turn, will articulate their findings in terms of deterrence, protection of the public and rehabilitation, rather than by explicitly referencing the underlying offense and the need to uphold respect for the law.
An Opening for Improvements
None of this is to say that the Esteras decision will not have some lasting, substantive impact on criminal sentencing. It just is not likely to be the one that advocates for the ruling were hoping for.
First, the decision betrays a surprising level of agreement among the justices that "the seriousness of the offense," "respect for the law" and "just punishment for the offense" can be appropriately described as retributive. Arguably, those factors could easily be slotted into other, equally defensible categories, like deterrence.
And a healthy majority of the court also seems to place significant stock in the moral and philosophical merit of signaling what trial judges can and cannot do at sentencing, even if, as the government contended, that signaling results in little more than "substance-free reverse magic words."
From a systemic perspective, though — where descriptive accuracy matters — Esteras does add a healthy dose of clarity.
Second, the opinion announces an improbable but nearly ironclad set of circumstances that could make for a promising defense appeal. If a defendant fails to object to a judge's consideration of retributive factors, any appeal will be governed by a more demanding plain-error review standard. But if a defendant does object and the court refuses to remedy its error, then "the court of appeals should vacate the court's order and remand for the court to apply the correct standard."
Even then, however, defense counsel would have to hope, against all odds, that the court on remand would somehow reach a different conclusion. That remote possibility exists, at least in theory. We also note that, because the ruling clarifies the proper interpretation of federal sentencing statutes rather than creating a new rule, it will likely be considered a substantive change in the law so that it can be applied to cases that are still on direct appeal or not yet final.
Finally, Esteras illustrates the court's increasingly warm embrace of deference to legislative intent. Justice Barrett acknowledges the federal statute's ambiguity and agrees that Congress could have more artfully written it. But, she counters, "Congress cannot anticipate (much less account for) every future statutory skirmish — and even if it could, courts have no authority to hold Congress to a 'perfect as we see it' standard of drafting."
In that respect, the court's ruling shows a deference and fidelity to legislative authority that has come to characterize the conservative majority's recent approach to many high-profile cases, including its overturning of the Chevron administrative delegation doctrine in its decision last year in Loper Bright Enterprises v. Raimondo.
Esteras will have some impact at the margins, and is of symbolic and expressive significance. Still, it would be naive to think that it will have a significant impact on criminal sentencing, as some advocates anticipated.
What those who view the Esteras ruling as a landmark decision overlook is judges' tried and tested ability to deliver identical outcomes by reshaping their rulings to the new mold the Supreme Court has fashioned.
is a partner at Perkins Coie LLP. He previously served as an assistant U.S. attorney in the U.S. Attorney's Office for the Northern District of Illinois.
is counsel at Perkins Coie.
The opinions expressed are those of the author(s) and do not necessarily reflect the views of their employer, its clients, or Portfolio Media Inc., or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.
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[2] , 564 U.S. 319, 325 (2011).
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