Last month, Chief Judge Mark Bennett of the United States District Court for the Northern District of Iowa made comments at a forum at Drake Law School in which he criticized other judges for engaging in judicial activism. According to the Des Moines Register:
Chief U.S. District Judge Mark Bennett, in a public forum at Drake University on the judiciary and the media, responded to a question on judicial activism by blasting conservatives, who have used the phrase to describe a myriad of recent court decisions, on issues from affirmative action and campaign-finance reform to the definition of marriage and abortion rights.
“I will say this, and it’s not going to be popular, but I believe it to my core: There’s more judicial activism from the conservative judges than any liberal judges. There’s no question about that in my mind,” Bennett said.
“I’ll debate anybody, anywhere, anytime on that issue about who the judicial activists are in the federal judiciary. They’re not the Clinton appointees or the so-called liberal justices, I’ll guarantee you that.”
(By way of context, Judge Bennett is a 1994 Clinton nominee.)
Judge Bennett’s comments are particularly interesting in light of his most recent opinion in United States v. Saenz, which has been receiving lots of attention in the blogosphere thanks to coverage by Doug Berman and Dan Filler.
Saenz involved a resentencing on remand from the Eighth Circuit, which had vacated Judge Bennett’s initial sentence on the ground that Judge Bennett had abused his discretion by departing downward too much. Saenz had assisted the government, and therefore deserved a substantial assistance departure that would lower the sentence below the 63-78 month guideline range. The question is, how low could the district court go? In the initial sentencing, Judge Bennett had concluded that a 20 month sentence was appropriate. The Eighth Circuit disagreed in a unanimous opinion by Judge Colloton joined by Judges Wollman and Bowman:
The appropriate degree of sentencing reduction cannot be calculated with mathematical precision, and there is a range of reasonableness available to the district court in any given case. On this record, however, we conclude that the district court’s analysis was flawed by its conclusion that timely and truthful cooperation always warrants a reduction of more than 50 percent, and that the degree of reduction was excessive and unreasonable under the circumstances of this case. Accordingly, the judgment of the district court is vacated, and the case is remanded for resentencing consistent with this opinion.
United States v. Saenz, 428 F.3d 1159, 1164-65 (8th Cir. 2005).
On remand, Judge Bennett held that the Eighth Circuit’s decision was incorrect. He had not abused his discretion at all, in his informed opinion. Judge Bennett was particularly opposed to the Eighth Circuit’s standards for when a departure is “extraordinary,” and thus requiring special justification. The Eighth Circuit’s cases seem to measure that as a matter of law, focusing on the percentage of the sentence that was cut. Judge Bennett believes that the standard should be measured based on the facts of what kinds of departures are common or uncommon nationwide. Rejecting the Eighth Circuit’s suggestion that a 50% departure was extraordinary, Judge Bennett wrote:
There is, in my view, no basis for such a benchmark in federal statutory law, federal common law, the United States Sentencing Guidelines themselves, the realities of federal sentencing, or basic concepts of fairness, mercy, and justice. Indeed, recent data compiled by the United States Sentencing Commission demonstrate that labeling a 50 percent reduction for substantial assistance “extraordinary” is at odds with the facts and so deeply troubling that the Circuit Court should reevaluate its position.
Having rejected the Eighth Circuit’s legal position, Judge Bennett proceeded to resentence the defendant to the same 20-month sentence that the Eighth Circuit had vacated. (He did add some new factual findings to support his view that the defendant’s assistance was “extraordinary” even under the Eighth Circuit’s misguided view of the law, although they come off as a fairly unconvincing basis for the departure, at least to me.)
Anyway, stay tuned. My guess is that it’s only a matter of time before the judicial activists on the Eighth Circuit reverse Judge Bennett again. For more on Judge Bennett and controversies surrounding his sentencing decisions, see this post at While Collar Crime Prof Blog.