Argument recap: Bureaucrats, judges, and criminal sentencing

At oral argument last week in Setser v. United States, the Court was considering whether a federal judge may impose a sentence and direct that it be served consecutively to, or concurrently with, a term of imprisonment that is expected to be – but has not yet been – imposed in a state court for a state crime.

Petitioner Monroe Setser was on probation for a state drug crime when he was arrested for possessing (more) methamphetamine.  That drug possession violated both federal and Texas state law.  He was tried first for the federal offense and was convicted.  The federal judge imposing the sentence knew that Setser was likely to receive a state sentence for the same conduct, and was also likely to have his probation revoked.  The judge accordingly directed that the federal sentence would be served consecutively to any sentence imposed as a result of the probation revocation, but concurrently with any state sentence imposed for the drug possession.  The question before the Court last week was whether the judge had the power to issue such a directive.

After his federal sentencing, Mr. Setser was tried by the Texas state system and convicted.  His probation was revoked and he was given an additional sentence for the second instance of drug possession, with those state sentences to run concurrently with each other.  After serving his state sentences, Mr. Setser was placed in federal custody, and he began serving his federal sentence – with no time credited for the years he had served in state custody.

The statute most relevant to the question is 18 U.S.C. § 3584(a), which provides, in relevant part, as follows:

If multiple terms of imprisonment are imposed on a defendant at the same time, or if a term of imprisonment is imposed on a defendant who is already subject to an undischarged term of imprisonment, the terms may run concurrently or consecutively. . . .  Multiple terms of imprisonment imposed at the same time run concurrently unless the court orders or the statute mandates that the terms are to run consecutively.  Multiple terms of imprisonment imposed at different times run consecutively unless the court orders that the terms are to run concurrently.

Setser’s counsel, Jason Hawkins, began the oral argument by making an appeal to plain meaning.  He did not get very far.  Mr. Hawkins had argued that the statute grants district courts the power to order consecutive or concurrent sentences only when “multiple terms of imprisonment are imposed on a defendant at the same time, or . . . a term of imprisonment is imposed on a defendant who is already subject to an undischarged term of imprisonment.”  Because in this case Mr. Setser’s state sentence had not been imposed at the time of his federal sentencing, neither of those two conditions applied.  Accordingly, Mr. Hawkins argued that the district judge lacked the power to order consecutive or concurrent sentences in a case like Mr. Setser’s.

Shortly after he began, however, Justice Sotomayor began the questioning by suggesting that the statute had a plain meaning different from the one Mr. Hawkins was urging.  She focused on the third sentence of the statute in isolation, suggesting that because Mr. Setser’s two sentences were “imposed at different times,” the sentences should be served consecutively.

Most of the questioning of Mr. Hawkins, however, focused not on the text of the statute but on its consequences.  If the federal judge could not make the consecutive/concurrent choice, then someone else would need to do so.  Under Mr. Setser’s reading of the statute, the choice would be made at the time he entered federal custody by the Attorney General, acting through the Bureau of Prisons.  Several Justices – most notably Chief Justice Roberts, Justice Breyer, and Justice Sotomayor – seemed troubled that the consecutive/concurrent determination would not be made by a judge, but rather by a “bureaucrat” in the Bureau of Prisons.  Mr. Hawkins’s principal response – echoed in substance by Assistant to the Solicitor General William Jay, who argued after Mr. Hawkins – was that it was more important to focus on the “when” than the “who.” That is, the consecutive/concurrent determination should be made after the second sentence has been imposed, so that the decision-maker – whether in the executive or judicial branch – would be able to make that determination with the knowledge of what both sentences were.  Anticipatory sentences such as the one imposed in Mr. Setser’s case necessarily are based on incomplete knowledge of what the second sentence will be – or even whether there will be one at all.

Justice Scalia made an attempt to come to Mr. Hawkins’s aid by contending that it would not be so unusual for such power to be exercised by a bureaucrat; he noted that “[b]efore we had the sentencing guidelines, it was up to the Bureau of Prisons whether to give parole or not.”  Justice Sotomayor responded, however, that the Sentencing Reform Act was passed to remove such discretion “from the bureaucrat” and “put it back in the hands of judges.”

The next appearance was by Assistant to the Solicitor General William Jay.  Because the United States government prosecuted Mr. Setser but was supporting his position before the Supreme Court, Mr. Jay was given the unusual designation of appearing “for Respondent, in support of Petitioner.”

Mr. Jay was also subjected to several questions concerning the authority of the Bureau of Prisons to make the consecutive/concurrent determination.  When asked to identify the source of the BOP’s authority, Mr. Jay cited 18 U.S.C. § 3621(b), which requires the Bureau to designate the place of imprisonment.  That place may be one “maintained by the Federal Government or otherwise.”  According to Mr. Jay, the Bureau has long used this authority to designate a state facility as the place where a federal sentence is to be served, thus permitting the prisoner to serve a state and a federal sentence concurrently.  Although Mr. Jay represented this interpretation of the statute as longstanding, several Justices seemed skeptical.  Justice Alito remarked that “the question of how long someone should spend in prison, which is what’s involved in . . . deciding whether  a sentence is going to be served consecutively or concurrently, is very different from determining where . . . a sentence is going to be served.”  And Justice Kennedy went so far as to say that reading Section 3621(b) to confer authority on BOP to make the consecutive/concurrent determination was “an amazing interpretation.”  Chief Justice Roberts and Justice Scalia also seemed hesitant to accept the government’s reading of that statute.

Justice Breyer then asked about what he considered a “practical problem”: the inability of a district judge, on the government’s reading of Section 3584, to impose a consecutive sentence if a state court later determines that it wishes the state sentence to run concurrently with the federal one.  Mr. Jay responded that the judge could make a recommendation at the time of sentencing, and that recommendation would be considered at the time the prisoner was placed in federal custody.  But Mr. Jay agreed that on the government’s reading, the district judge could not require the sentences to be served consecutively.

Arguing in defense of the sentence was Evan Young, whom the Court had appointed as an amicus curiae.  Justice Breyer asked Mr. Young about the “practical problem” involving a federal judge who wants to ensure that a sentence he imposes will be served consecutively to any sentence imposed in the future by a state court.  Aided by a question from Justice Sotomayor, Mr. Young argued that the federal judge’s order could not be binding on the state court, but it could be binding on the BOP.  Thus, when a prisoner entered federal custody, then the BOP could be made to follow the federal judge’s instructions as to the consecutive or concurrent nature of the sentence.

Justice Ginsburg asked about an incongruity in Mr. Young’s interpretation of the Section 3584.  Under that interpretation, a federal judge can order that a sentence be served consecutively to or concurrently with a later-imposed state term of imprisonment, but she may not make such an order if the second term of imprisonment is imposed by a different federal court.  Mr. Young responded that when both terms of imprisonment are imposed by federal courts, some federal judge – an authority of the same sovereign that enacted Section 3584 – is making the consecutive/concurrent determination.  That statute cannot grant any authority to state judges, however.

Mr. Young was next confronted with one of the points raised earlier by Messrs. Hawkins and Jay: timing.  Wouldn’t it be better, Justice Ginsburg asked, to make the consecutive/concurrent determination after the prisoner had served the state sentence, so that the conduct of the prisoner in the state facility could be taken into account.  Mr. Young responded that under 18 U.S.C. § 3582(c), the Bureau can petition the court to modify a sentence.  But the Bureau should have to petition the court, Mr. Young argued, rather than being able to decide itself the “judicial” question of the length of punishment.  As Mr. Young phrased it, the judge, rather than the jailer, should decide the punishment.

Mr. Young then argued that his reading of the statute, far from requiring the consecutive/concurrent determination to be made before all the relevant information is available, gives more information to the state judge imposing the second sentence.  If the federal judge is allowed to order the federal sentence to be served consecutively or concurrently, then the state judge can impose a sentence with that in mind.  If, however, the consecutive/concurrent determination will be made only after the conclusion of the state sentence, then the state judge must impose sentence without knowing how the federal sentence will be served.

In Mr. Hawkins’s brief rebuttal, he suggested that a federal court might be able to make the consecutive/concurrent determination after the conclusion of the state sentence just by waiting to impose sentence until after the state sentence is served.  That suggestion, however, encountered opposition from Justice Sotomayor, who questioned the wisdom of “clog[ging] the judicial system with [an] untold number of Federal convictions that have not been reduced to judgment.”