{"id":6405,"date":"2009-08-02T14:46:37","date_gmt":"2009-08-02T19:46:37","guid":{"rendered":"http:\/\/law.marquette.edu\/facultyblog\/?p=6405"},"modified":"2009-08-10T10:51:28","modified_gmt":"2009-08-10T15:51:28","slug":"seventh-circuit-criminal-case-of-the-week-when-sentencing-dont-just-split-the-difference","status":"publish","type":"post","link":"https:\/\/law.marquette.edu\/facultyblog\/2009\/08\/seventh-circuit-criminal-case-of-the-week-when-sentencing-dont-just-split-the-difference\/","title":{"rendered":"Seventh Circuit Criminal Case of the Week: When Sentencing, Don’t Just Split the Difference"},"content":{"rendered":"

\"seventhSplitting the difference is a tried and true tactic for resolving disputes.\u00a0 I use this tactic all the time\u00a0when I mediate conflict between my kids. \u00a0I also used it with great success\u00a0to settle cases in practice.\u00a0 But is splitting the difference an acceptable way for judges <\/em>to resolve disputes?\u00a0 <\/p>\n

On the one hand, we have grown accustomed to think of judges as case managers.\u00a0\u00a0We want them to dispose of cases efficiently, and splitting the difference is often the quickest way to get to a result that everyone can live with.\u00a0 On the other hand,\u00a0we also think about the court system as a place where objective truth is sought in an uncompromising way.\u00a0 This\u00a0ideal is connected, I think, to the common metaphor of judge as umpire.\u00a0 In a baseball game, we would be shocked if an umpire began to award “half-strikes” for close pitches.\u00a0 Or — a better comparison still — imagine a football game in which it was unclear whether a receiver cleanly caught or merely trapped a low pass in the end zone.\u00a0 The ref announces, “I could take a look at the replay, but that would be a lot of trouble and probably wouldn’t provide a good angle on the play anyway, so I’ll just split the difference and call it a field goal.”\u00a0 We would think such a call fundamentally inconsistent with the integrity of the game and\u00a0a proper understanding of the referee’s\u00a0role.\u00a0 Should we feel any more comfortable when a judge simply splits the difference, rather than resolving a disputed\u00a0question of fact?<\/p>\n

The Seventh Circuit addressed this question last week in United States v. Dean<\/a> <\/em>(No. 08-3287).\u00a0 A jury convicted Jeffery Dean of conspiring to distribute methamphetamine.\u00a0 In a special finding, the jury found that the weight of the meth was less than 500 grams.\u00a0 However, for purposes of determining the appropriate sentencing range under the federal\u00a0guidelines, the sentencing judge is not bound by jury findings.\u00a0 In preparing a presentence investigation report, the probabation officer\u00a0found that Dean should actually be held responsible for more than 150 kilograms of meth.\u00a0<\/p>\n

The difference between the jury’s finding of 500 grams\u00a0and the probation officer’s finding of 150 kilograms was a very significant one.\u00a0 If the judge accepted the jury’s view, then Dean’s maximum <\/em>sentence under the guidelines would be 121 months, but if the probation officer’s finding prevailed the minimum <\/em>sentence would be\u00a0235 months.\u00a0<\/p>\n

Rather than expressly resolving the dispute over quantity, the judge stated that she would simply “split the difference.”\u00a0 Dean then received a sentence of 156 months.<\/p>\n

The Seventh Circuit (per Judge Ripple)\u00a0held that this was an improper way to resolve the dispute and remanded for fact-finding on quantity.<\/p>\n

In general, I am sympethetic to the view that judges ought to resolve disputes in a more principled fashion than by splitting the difference.\u00a0 My own sense of the judge’s proper role is closer to the umpireal than the managerial, which leaves me with\u00a0real doubts about the legitimacy of difference-splitting adjudication.<\/p>\n

Still, two aspects of the result in Dean <\/em>give me pause.\u00a0 First, the federal sentencing guidelines have been merely advisory, and not binding on judges, since 2005.\u00a0 The judge could have almost certainly imposed a sentence of 156 months regardless of the quantity of meth involved.\u00a0 The legitimacy problem with difference-splitting adjudication seems rather less when the adjudication is not outcome-determinative.\u00a0<\/p>\n

To go back to the football hypo: if the dispute was not about whether the ball was cleanly caught, but about whether the receiver caught the ball with one hand or two, we would not care how the dispute was resolved — it just doesn’t matter in any way that is significant to the outcome of the game.\u00a0 Arguably, fact-finding disputes under the federal sentencing guidelines\u00a0should now be seen as\u00a0equally inconsequential.\u00a0<\/p>\n

Indeed, the Seventh Circuit itself indicated earlier this year in United States v. Sanner <\/em>that sentencing judges need not resolve all factual disputes and are free, in the words of Jon Deitrich,\u00a0to “skip to the chase.”\u00a0 (Jon’s insightful post on Sanner <\/em>is here<\/a>.)\u00a0 There seems some tension between Dean <\/em>and Sanner.\u00a0 <\/em>They might be reconciled, however, on the ground that the judge in Dean <\/em>did not say that the fact-finding on quantity was irrelevant.\u00a0 Perhaps the lesson for sentencing judges is this: you can skip unnecessary fact-finding, but if you choose to resolve a factual dispute and treat the fact-finding as important to the outcome, then you better find the facts on some more principled basis than splitting the difference.<\/p>\n

Second, Dean <\/em>implicates one of the enduring and powerful criticisms of the federal sentencing guidelines: the guidelines authorize judges to override jury fact-finding.\u00a0 Thus, for instance, Dean would have faced the exact same sentencing range if the 150 kilos were found by a jury beyond a reasonable doubt as if they were found by a judge using the lower preponderance-of-the-evidence standard.\u00a0 This approach seems to devalue the constitutional rights of criminal defendants to jury fact-finding beyond a reasonable doubt.\u00a0 For this reason, there have been repeated calls for the guidelines to be modified so that judges cannot override jury determinations.\u00a0 A compromise approach would, in effect,\u00a0split the difference: judges could find facts inconsistent with jury verdicts, but such facts would be given reduced weight in the guidelines calculus.\u00a0 (This approach has been suggested, for instance, by former Chief Judge Jon Newman of the Second Circuit —\u00a0one of the most knowledgeable authorities on\u00a0sentencing\u00a0on the federal bench.)\u00a0<\/p>\n

The record in Dean <\/em>is not entirely clear, but it may be that the sentencing judge was trying to\u00a0implement just such a weight-reduction concept.\u00a0 (The judge stated, “It seems reasonable to me to make an adjustment in light of [the jury’s] finding.”)\u00a0 If so, then the judge split the difference not as a matter of convenience, but based on a principled belief about the best way to show respect for important constitutional values in the sentencing process.\u00a0 Put differently, the judge was making a policy decision, not a decision about historical fact.\u00a0 (It may seem odd for a judge to make a policy decision, but this is now a permissible aspect of the judge’s sentencing authority under the Supreme Court’s\u00a02007 holding in Kimbrough v. United States.<\/em>)\u00a0 If such was the sentencing judge’s intent, then we might think about her decision to “split the difference” in very different terms.\u00a0 After all,\u00a0splitting the difference is a common and accepted way of making policy.<\/p>\n

The other new Seventh Circuit opinion in a criminal case last week was:<\/p>\n

United States v. Hurt <\/a><\/em>(No. 08-2986) (Bauer, J.) (affirming conviction and sentence in drug case).<\/p>\n","protected":false},"excerpt":{"rendered":"

Splitting the difference is a tried and true tactic for resolving disputes.\u00a0 I use this tactic all the time\u00a0when I mediate conflict between my kids. \u00a0I also used it with great success\u00a0to settle cases in practice.\u00a0 But is splitting the difference an acceptable way for judges to resolve disputes?\u00a0<\/p>\n","protected":false},"author":7,"featured_media":0,"comment_status":"open","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"ocean_post_layout":"","ocean_both_sidebars_style":"","ocean_both_sidebars_content_width":0,"ocean_both_sidebars_sidebars_width":0,"ocean_sidebar":"","ocean_second_sidebar":"","ocean_disable_margins":"enable","ocean_add_body_class":"","ocean_shortcode_before_top_bar":"","ocean_shortcode_after_top_bar":"","ocean_shortcode_before_header":"","ocean_shortcode_after_header":"","ocean_has_shortcode":"","ocean_shortcode_after_title":"","ocean_shortcode_before_footer_widgets":"","ocean_shortcode_after_footer_widgets":"","ocean_shortcode_before_footer_bottom":"","ocean_shortcode_after_footer_bottom":"","ocean_display_top_bar":"default","ocean_display_header":"default","ocean_header_style":"","ocean_center_header_left_menu":"","ocean_custom_header_template":"","ocean_custom_logo":0,"ocean_custom_retina_logo":0,"ocean_custom_logo_max_width":0,"ocean_custom_logo_tablet_max_width":0,"ocean_custom_logo_mobile_max_width":0,"ocean_custom_logo_max_height":0,"ocean_custom_logo_tablet_max_height":0,"ocean_custom_logo_mobile_max_height":0,"ocean_header_custom_menu":"","ocean_menu_typo_font_family":"","ocean_menu_typo_font_subset":"","ocean_menu_typo_font_size":0,"ocean_menu_typo_font_size_tablet":0,"ocean_menu_typo_font_size_mobile":0,"ocean_menu_typo_font_size_unit":"px","ocean_menu_typo_font_weight":"","ocean_menu_typo_font_weight_tablet":"","ocean_menu_typo_font_weight_mobile":"","ocean_menu_typo_transform":"","ocean_menu_typo_transform_tablet":"","ocean_menu_typo_transform_mobile":"","ocean_menu_typo_line_height":0,"ocean_menu_typo_line_height_tablet":0,"ocean_menu_typo_line_height_mobile":0,"ocean_menu_typo_line_height_unit":"","ocean_menu_typo_spacing":0,"ocean_menu_typo_spacing_tablet":0,"ocean_menu_typo_spacing_mobile":0,"ocean_menu_typo_spacing_unit":"","ocean_menu_link_color":"","ocean_menu_link_color_hover":"","ocean_menu_link_color_active":"","ocean_menu_link_background":"","ocean_menu_link_hover_background":"","ocean_menu_link_active_background":"","ocean_menu_social_links_bg":"","ocean_menu_social_hover_links_bg":"","ocean_menu_social_links_color":"","ocean_menu_social_hover_links_color":"","ocean_disable_title":"default","ocean_disable_heading":"default","ocean_post_title":"","ocean_post_subheading":"","ocean_post_title_style":"","ocean_post_title_background_color":"","ocean_post_title_background":0,"ocean_post_title_bg_image_position":"","ocean_post_title_bg_image_attachment":"","ocean_post_title_bg_image_repeat":"","ocean_post_title_bg_image_size":"","ocean_post_title_height":0,"ocean_post_title_bg_overlay":0.5,"ocean_post_title_bg_overlay_color":"","ocean_disable_breadcrumbs":"default","ocean_breadcrumbs_color":"","ocean_breadcrumbs_separator_color":"","ocean_breadcrumbs_links_color":"","ocean_breadcrumbs_links_hover_color":"","ocean_display_footer_widgets":"default","ocean_display_footer_bottom":"default","ocean_custom_footer_template":"","ocean_post_oembed":"","ocean_post_self_hosted_media":"","ocean_post_video_embed":"","ocean_link_format":"","ocean_link_format_target":"self","ocean_quote_format":"","ocean_quote_format_link":"post","ocean_gallery_link_images":"on","ocean_gallery_id":[],"footnotes":""},"categories":[30,28,74,23],"tags":[],"class_list":["post-6405","post","type-post","status-publish","format-standard","hentry","category-criminal-justice","category-criminal-law-process","category-federal-sentencing","category-seventh-circuit","entry"],"_links":{"self":[{"href":"https:\/\/law.marquette.edu\/facultyblog\/wp-json\/wp\/v2\/posts\/6405","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/law.marquette.edu\/facultyblog\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/law.marquette.edu\/facultyblog\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/law.marquette.edu\/facultyblog\/wp-json\/wp\/v2\/users\/7"}],"replies":[{"embeddable":true,"href":"https:\/\/law.marquette.edu\/facultyblog\/wp-json\/wp\/v2\/comments?post=6405"}],"version-history":[{"count":0,"href":"https:\/\/law.marquette.edu\/facultyblog\/wp-json\/wp\/v2\/posts\/6405\/revisions"}],"wp:attachment":[{"href":"https:\/\/law.marquette.edu\/facultyblog\/wp-json\/wp\/v2\/media?parent=6405"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/law.marquette.edu\/facultyblog\/wp-json\/wp\/v2\/categories?post=6405"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/law.marquette.edu\/facultyblog\/wp-json\/wp\/v2\/tags?post=6405"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}