SCOTUS takes on problem of consecutive future sentences

The Daily Record Newswire

In a case considering whether federal judges have the authority to impose a sentence to run consecutively with a state court sentence that hasn't yet been imposed, the government and the defendant both urged the Supreme Court to rule in the negative. But at oral arguments on Wednesday the justices seemed skeptical.

The case of Setser v. U.S. involves the sentencing of Monroe Ace Setser. Setser pleaded guilty in federal court to drug possession with intent to distribute. He was also set to be charged in state court on drug charges from the same incident, and he was on parole for a previous state offense, and therefore faced parole violation charges.

The federal district court judge sentenced Setser to 151 months of imprisonment to be served concurrently with any subsequent state court drug offense sentence, but consecutively to any sentence imposed for his parole violation.

The state court later sentenced him to five years in prison for the parole violation and 10 years in prison for the drug charge, to be served concurrently with the parole sentence.

The defendant appealed his federal sentence, arguing that the district court lacked the authority under the Sentencing Reform Act of 1984 to impose a sentence to run consecutively to a state sentence that had not yet been handed down.

But the 5th Circuit disagreed, holding that the sentence was not unreasonable.

The U.S. Supreme Court granted Setser's petition for certiorari. The federal government filed its petition in Setser's favor, urging the court to reverse the 5th Circuit ruling and hold that the federal judge didn't have the authority to issue anticipatory consecutive sentences. The Court then appointed an amicus to argue in support of the 5th Circuit's decision.

'Federal bureaucrats' making sentencing decisions?

Jason D. Hawkins, an assistant federal public defender from Dallas, argued that allowing federal judges to impose sentences to run consecutively with yet-to-be-determined state sentences robs federal prison officials of their ability to adjust federal sentences to reflect such things as time off for good behavior.

In this case, "the difference [in sentence] is one year, six months and 23 days that we believe that he is entitled to credit for," Hawkins said.

But Chief Justice John G. Roberts questioned whether sentencing decisions are better left to prison bureaucrats than federal judges.

"Doesn't it seem strange that you've got a federal bureaucrat sitting ... somewhere and deciding whether a defendant ... ought to serve another 10 years or [saying]: 'I think he's done'?" Roberts asked.

"The bureaucrat that you are talking about [will] only be making that determination after having the complete information which the federal judge had," Hawkins said.

"I know, but it's a big deal to be sentenced [to] another 10 years in prison," Roberts said. "I don't care how much information the bureaucrat has."

"In our estimation the question is not the who, but the when," Hawkins said. "And at the time the federal judge did not have the complete information to make the proper judgment in this case."

William M. Jay, assistant to the solicitor general, stressed the point that, while federal judges have always decided the length of the sentence, the manner and place where the sentence is served has always been within the purview of the Justice Department via the Bureau of Prisons.

But Justice Stephen Breyer pointed out that, in cases like the current one, when a state court imposes concurrent sentences, but a federal court has already imposed a sentence to run concurrently with one and consecutively with the other, it's impossible to do both.

"It's a problem," Breyer said. "It's a practical problem."

'Single behavior gets a single sentence?'

Evan A. Young, as associate in the Austin, Texas, office of Baker Botts who was appointed by the Court to argue in support of the 5th Circuit ruling, argued that the judge was within his authority to impose the sentence.

"Under our constitutional system, the right to impose the punishment provided by law is judicial," Young said.

"The government says that the federal courts never had that power anyway, so that nothing is being restricted," Justice Antonin Scalia said.

"The government and Mr. Setser have provided zero cases" to support that contention, Young said.

Breyer said he had trouble reconciling the amicus's argument with the basic tenet that the last sentencing judge has the say on consecutiveness, and "a single behavior gets a single sentence and a different behavior is going to be sentenced consecutively, presumptively."

"But you just can't do that where the state court hasn't yet acted," Breyer said. "The state court judge [could] see what you did and may decide, 'I don't want it to be consecutive.'"

Young said federal sentences run last, so the federal judge had the authority to decide.

"What the state judge could not do is to say: 'I want this state sentence, which is going to be served first, to run concurrent to the federal sentence,'" Young said.

Published: Thu, Dec 8, 2011