Consideration of Rehabilitative Factors for Sentencing in Federal Courts: Tapia v. United States, 131 S. Ct. 2382 (2011)

• Publication year: 2021

92 Nebraska L. Rev. 404. Consideration of Rehabilitative Factors for Sentencing in Federal Courts: Tapia v. United States, 131 S. Ct. 2382 (2011)

Consideration of Rehabilitative Factors for Sentencing in Federal Courts: Tapia v. United States, 131 S. Ct. 2382 (2011)

Note(fn*)

TABLE OF CONTENTS

I. Introduction .......................................... 405

II. Background ........................................... 406
A. The Decline of the Rehabilitative Model ............ 406
B. Implementation of the Federal Sentencing Guidelines ........................................ 409
C. Summary of Relevant Sections of the Sentencing Guidelines ........................................ 411
1. 18 U.S.C. §3553............................... 411
2. 18 U.S.C. §§ 3582-83.......................... 412
3. 18 U.S.C. §§3562, 3572........................ 413
D. The Prior Circuit Split ............................ 413

III. Integrating 18 U.S.C. §§3553, 3582 in Tapia v. United States ................................................ 416

IV. Analysis of the Circuit Split Resolution ................ 418
A. The U.S. Supreme Court's Interpretation Is Consistent with Congressional Intent .............. 419
B. Rehabilitation Is Appropriately Considered in Sentencing Other Than Imprisonment ............. 420

1

C. There Is a Place for Rehabilitation in Prison After Tapia ............................................. 425

V. Conclusion ............................................ 429

I. INTRODUCTION

The United States has the highest rate of incarceration in the world.(fn1) In 2010, one in forty-eight adults were on probation or parole, and one in 104 adults were in correctional custody.(fn2) Once convicted, between 70%(fn3) and 89%(fn4) of criminal defendants are sentenced to imprisonment. Since 1986, the number of people imprisoned in the United States has grown from approximately 746,000(fn5) to more than 2.2 million in 2010.(fn6)

These exceedingly high numbers show a trend of increasing imprisonment, starting in the 1980s.(fn7) Frustrated by the perceived failure of the criminal justice system, the nation almost completely rejected rehabilitation as a goal of sentencing.(fn8) Congress passed the Sentencing Reform Act of 1984,(fn9) which implemented determinate sentencing and excluded rehabilitative goals from a federal judge's consideration when imposing a term of imprisonment.(fn10)

For a time after Congress passed the Act, the circuits split over rehabilitative factors being considered after imposing a term of imprisonment to influence the judge's determination of an appropriate sentence length.(fn11) The U.S. Supreme Court in Tapia v. United States held that considering rehabilitative factors to determine whether to

2

impose a sentence of imprisonment or the length of that sentence was impermissible.(fn12)

This Note will primarily focus on the policy implications of the Court's decision, as well as possible future directions. In Part II, this Note will outline the history leading up to the Sentencing Reform Act and its implementation. Part II also describes the prior circuit split, while Part III depicts the Court's holding in Tapia.(fn13) Part IV of this Note argues the outcome of the circuit split resolution is beneficial and necessary because it is both the correct interpretation of the statute and provides an opportunity for rehabilitation to be redefined by evidence-based principles,(fn14) not presumed as inherent to imprisonment. Finally, Part V concludes by emphasizing rehabilitation is not a hopeless aspiration for our criminal justice system if policy implementation is informed by scientific knowledge from psychological research.

II. BACKGROUND

A. The Decline of the Rehabilitative Model

There are four common justifications for punishment: retribution, incapacitation, deterrence, and rehabilitation.(fn15) Each theory has its own consistent proponents, while its national popularity has vacillated over time.(fn16) Retribution is the oldest theory and is often described as the "delivery of justice."(fn17) Proponents assert it is just to punish a person who has injured another.(fn18) While this theory is criticized as being retaliatory and, therefore, morally indefensible,(fn19) it also receives significant support as a means to engender respect for the law and prevent private citizens from engaging in acts of retaliatory violence.(fn20)

3

The other three primary theories of punishment are often classified together as utilitarian justifications.(fn21) Incapacitation justifies society imposing imprisonment or execution to defend itself against future acts of persons who, through their criminal record, have shown a willingness to injure others.(fn22) This theory is criticized because future criminality is difficult to predict accurately and incapacitation is largely limited,(fn23) as most prisoners will be released eventually.(fn24)

There are two types of deterrence: specific and general.(fn25) The rationale underlying specific deterrence is that exposing a criminal to an unpleasant experience will deter that criminal from future criminal behavior.(fn26) Critics attack this theory by citing the high recidivism rate in our country.(fn27) However, the effect of specific deterrence is immeasurable; we have no way of knowing what the recidivism rate would be without punishment.(fn28)

General deterrence similarly reasons the public is deterred from engaging in criminal behavior after observing criminal punishment.(fn29) Critics of this theory claim deterrence is not possible for some crimes(fn30) and punishment is only one of many factors preventing law-abiding citizens from engaging in criminal conduct.(fn31) Empirical support for general deterrence is also nearly impossible to establish, as there is no way to control for all the factors influencing behavior and no comparable group without a system of punishment for criminal behavior.(fn32)

For the rehabilitative model, the offender is given treatment in hopes of reducing recidivism.(fn33) This ideology is less a justification for punishment, as the objective is not to inflict suffering, and more a theory of behavior modification.(fn34) Major criticisms include that this

4

model treats offenders condescendingly by attempting to manipulate them(fn35) and is not successful overall.(fn36) Critics also assert it risks great injustice to offenders because effective methods of penal rehabilitative treatment are still relatively uncertain and the model requires they be treated differently based on their perceived needs, rather than their criminal conduct.(fn37) Proponents assert most management of offenders, even when labeled "rehabilitative," in actuality is not,(fn38) which likely accounts for its perceived lack of success.(fn39)

While each theory had its own proponents, and alternated in predominance for particular cases,(fn40) rehabilitation was generally favored for the majority of the twentieth century.(fn41) However, by the 1970s, the nation had developed growing concerns about the fairness and effectiveness of rehabilitative priorities.(fn42) Judges had wide discretion to address rehabilitative needs, which resulted in significant sentencing disparities that critics perceived as arbitrary and an abuse of state power.(fn43) With no noted change in recidivism rates,(fn44) the public also lost confidence in the rehabilitative capacity of the criminal justice system and "the ability of parole boards and correctional officers to determine when reformation ha[d] been achieved."(fn45) This left "the rehabilitationist rationale . . . and [its sentencing] differences . . . seen as irrational and indefensible."(fn46)

These concerns laid the groundwork for the sentencing reform movement of the 1970s, which included changes like sentencing guidelines, truth-in-sentencing, mandatory penalties, and a limited role for parole boards.(fn47) Proponents credit the greater deterrence and inca

5

pacitation from these major changes for the recent decreases in crime rates.(fn48) There undoubtedly has been an increase in incapacitation, as the number of prisoners in the U.S. has increased by more than 700%, from about 196,000 in 1970 to 1.4 million in 2001.(fn49)

B. Implementation of the Federal Sentencing Guidelines

In 1984, Congress passed the Sentencing Reform Act.(fn50) Previously, the sentencing of an offender involved all three branches of government: Congress set the maximum, the judge set a sentence within the statutory range, and the parole officials, representing the executive branch, could change the sentence by allowing an earlier release.(fn51) One of the major changes of the Act was to transfer the powers of the judicial and executive branches to the Sentencing Commission the Act created.(fn52)

The President, with the advice and consent of the Senate, appoints the Commission's seven voting members and one nonvoting member.(fn53) The Commission was to establish guidelines that reflect the aim of sentencing as retributivistic, deterrent, incapacitating, and rehabilitative, and to measure the guidelines' effectiveness in meeting those ideals.(fn54) The Act also charged the Commission to promote certainty and fairness by preventing sentencing disparities, unless justified by individual factors, and to incorporate "advancement in knowledge of human behavior as it relates to the criminal justice...