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.
Orin, I’m confused. I don’t read the judge’s opinion as disregarding Eighth Circuit law. Rather, he simply writes that CA8 law should be changed. Is it judicial activism to criticize (but nonetheless apply) circuit precedent in a judicial opinion?
Also, although he gives the defendant the same sentence as before, the CA8 panel has itself to blame for that. They, after all, wrote: “On this record, however, we conclude that the district court’s analysis was flawed by its conclusion …” The judge butressed the record and provided more analysis.
Now, you might not be buying this. But I do, and here’s why: The Eight Circuit wants to have pliable standards rather than rules. If the rule was that a 50% substantial-assistance departure was unreasonable, then you would be correct that the judge here was activist. But I read the panel’s opinion as providing a standard rather than a rule. That is, a 50% departure is almost always unreasonable.
If I’m wrong that the panel has provided a standard rather than a rule, please correct me.
Mike,
I don’t think I understand your confusion. As I understand it, Judge Bennett concludes that the Eighth Circuit was wrong on the law. He claims that he is not bound by the Eighth Circuit’s legal analysis because he has a better understanding of sentencing practice, but it’s hard to see how he has the legal authority to reach that conclusion.
You are right that Judge Bennett adds in some more facts to try to argue (in the alternative) that his sentence is consistent with the Eighth Circuit’s legal analysis, if the Eighth Circuit panel is not inclined to change the law on appeal. However, it seems to me that Judge Bennett’s new facts are a fairly flimsy cover. I’m curious — do you agree with Judge Bennett that Saenz’s assistance was “extraordinary” under Eighth Circuit law based on the facts in the new opinion?
In addition to Mike’s good points, Orin, I wonder if you’d characterize the Eighth Circuit’s decision as activist?
On remand, I think Judge Bennett makes a pretty strong case on the facts that a 50% substantial-assistance departure is ordinary, not extraordinary. Doesn’t the work of the 8th Circuit in this case support Judge Bennett’s more general views of who’s more activist?
[OK Comments: Thanks for your comment, Doug. I don't think it is, based on prior Eighth Circuit precedents defining what makes a departure "extraordinary." As I understand it, "extraordinary" is a legal standard in the Eighth Circuit, not a factual question to be determined by the trial judge. Given that, the Eighth Circuit's decision seems to be a pretty routine application of Circuit precedent.]
From a former AUSA:
In the SDNY, a 50% substantial assistance reduction was hardly “extraordinary” for a cooperator. Indeed, for some judges, it would be considered a harsh sentence.
While Mark Bennett needs no defense for his opinion in Saenz (or otherwise), because he is my friend, and more importantly, a great judge, he shall get it. It is absolutely true that Bennett took head on the Court of Appeals rule that a departure of 50% or more must be based upon extraordinary cooperation. (E.g., slip op. at 10-25.) But it is equally true that Mark accepted that rule as binding. (E.g., slip op. at 1-2.) Then, Mark found new facts that justified, in his opinion, treating the defendant’s cooperation as truly extraordinary assuming the 50% rule was correct. (Slip op. at 46.) This approach–using an opinion to have an intellectually honest conversation with the Court of Appeals over a point of disagreement while strictly adhering to the judicial hierarchy required by Article III –is how the common law evolves. In short, I respectfully suggest that your “judicial activism” criticism of Judge Bennett is unfounded, and more importantly, not helpful to the rational development of the law after Booker.
Orin,
You can answer the question about extraordinariness yourself, to decide if the 8th Circuit is correct. Would you consider a student of yours, who got 50% of the answers right on a test, to be extraordinary? Or would you be thinking that if it was more along the lines of 90%?
I’ll withhold too much comment on the case, since it’s early in the morning and I haven’t read it yet. However, just from your description and from the above comments, I’m inclined to side with the district court and not the circuit.
[OK Comments: I don't think your hypo works, Bryan, as it assumes that I have the power to construe the meaning of "extraordinary" as I wish. To use an example, let's imagine that the question is whether a person has a "reasonable expectation of privacy" under the Fourth Amendment. The Supreme Court has decided many cases on when an expectation of privacy is constitutionally reasonable. It seems to me that lower courts are bound by those rulings, even if they disagree with when an expectation of privacy would be "reasonable." Similarly, I think that Judge Bennett is bound by the Eighth Circuit's construction of when a departure is "extraordinary," whether the higher court's reasoning is persuasive or not.]
Orin, here (from page 46) is what I consider to be the “money quote”:
I thus see the judge as saying two things. First, the Circuit Court’s precedent establishing that a 50% DD is extraordinary, is wrong. Second, this wrong precedent can nonetheless lead me impose my original sentence in light of a more robust record. Third, if the Circuit Court, on appeal, bases its rule of extrordinarness on actual data rather than a priori “knowledge,” his sentence will not just be right, it will be super-right.
Now, you might (reasonably) think the judge is fudging. But I don’t think his opinion is activist. “My” definition of judicial activism incorporates AEDPA standards: Did the judge fail to apply, or unreasonably apply, clearly-established binding precedent? I don’t see that here.
Contrary to Judge Knopf’s inference, I did not read your post as criticism of Judge Bennett’s judicial activism. I thought the post was artfully, and evenhandedly, ambiguous (heh heh).
And I certainly don’t see how the post is “not helpful” to anything.
Prof Kerr -
I have to agree with Judge Bennett. He explicitly acknowledges that he is bound by the ruling of the appellate court. He initially believed (and apparently still does, though he does not use it as his analysis) that any defendant who timely cooperates should have a 50% reduction. The appellate court called this “extraordinary,” and reversed.
The resentencing opinion goes on two tracks – 1) why 50% is not “extraordinary,” and 2) even so, the defendant’s cooperation was “extraordinary;” therefore an “extraordinary” departure was warranted. As far as track one, you’re right – it would be completely inappropriate for an inferior court to disregard the holding from the Circuit Court as to the meaning of the word “extraordinary” as 50%. This is the law in the Circuit. (Although the Judge performs a strong analysis on how this 50% precedent is based on very shaky grounds.)
Luckily, Judge Bennett does no such thing, rather, while 95% of the opinion is Judge Bennett voicing his (quite convincing) disagreement with the Circuit Court; but in the second track, he follows the Circuit Court in the left over 5%. I do not think it is accurate for you to say the Judge: “claims that he is not bound by the Eighth Circuit’s legal analysis because he has a better understanding of sentencing practice, but it’s hard to see how he has the legal authority to reach that conclusion.” Rather he states his disagreement and his reasoning, and then goes and applies the law he has been given.
The Judge analyzes facts presented in the hearing and weighs them, finding that the assistance provided to the authorities was “extraordinary.” By the Circuit Court’s own reasoning, the “extraordinary” cooperation allows for an “extraordinary” departure. A shrewd way to keep the previous sentence in place, perhaps; a piece of activist indifference to the appellate court’s ruling, no way. One can agree or disagree with his facts and the weight he affords them (or whether post sentence activities or previously unheard testimony of threats and intimidation should have been considered on remand), but it is unfair to claim he did not apply the law, admittedly in the context of chastising the Circuit Court for its incorrect decision. This fact is highlighted in the fact that any appeal would center on his proper weighing of the facts to create an “extraordinary” cooperation circumstance justifying an “extraordinary” departure (almost certainly an “abuse of discretion” review) rather than a de novo review on his definition of “extraordinary.” Even if his facts are “flimsy cover,” the point he was reversed on was his de facto rule regarding 50% departures, an approach he abandoned to follow the appellate court’s holding.
[OK Comments: As I noted elsewhere in this thread, Judge Bennett does not agree that he is bound by the 50% rule. He believes that he is not bound by it, see slip op. at 43, and applied that rule only in the alternative. In any event, I would be curious if any commenters actually agree with Judge Bennett's alternative holding that Saenz's cooperation was "extraordinary."]
Judge Kopf,
I appreciate your comment, but I don’t think I read the opinion quite the same way as you do. You state:
I don’t think that’s right. It is true that Judge Bennett states at the beginning of the opinion that he is bound by the Eighth Circuit. But later on, he seems to change his mind. From page 43 of the slip opinion:
That’s the problem, I think. Unless I’m missing something, Judge Bennett’s opinion concludes that he is not bound by the Eighth Circuit’s legal standard for when a reduction is “extraordinary.” That’s why I think Judge Bennett’s opinion is troubling.
Professor Kerr,
Judge Bennett also wrote, at page 46 of his opinion, that, “where the record now firmly establishes that Edwards’s assistance was ‘extraordinary,’” a big departure was justified “even assuming that 50 percent is the benchmark for an ‘extraordinary’ substantial assistance reduction.” Hence the premise for my earlier comments that brother Bennett was not thumbing his nose at the standard declared by the Court of Appeals. Rather, he applied the rule, but he also explained why he thought the rule was nuts.
In the end, you are correct to say that we read Judge Bennett’s opinion differently. With that in mind, perhaps we should simply agree to disagree on this point, and call it a day. Take care.
“bound” and “constrained” are two different words. Presumably, the judge agrees that he is bound by a higher court’s statement of the law, as a general matter. But that does not mean he is “constrained” to reach the same result as the higher court in the event he finds additional facts which justify a different result.
[OK Comments: No one questions whether the judge can can reach the same result as the higher court. The question is whether the judge is "constrained" by the Eighth Circuit's legal analysis; it seems to me that the meaning of "extraordinary" is a legal question. ]
In any event, I would be curious if any commenters actually agree with Judge Bennett’s alternative holding that Saenz’s cooperation was “extraordinary.”
Okay, I’ll take the Orin Kerr Challenge. No, I don’t think the defendant’s cooperation was extraordinary, at least insofar as prior cases define the term.
Judge Kopf,
Thanks again for commenting.
Best,
Orin Kerr
Orin, I’m curious what definition of “activist” you’re using.
Perhaps Bennett is unusually unwilliing to follow 8th Circuit sentencing precedents. Why does that make him an activist judge?
“Orin, I’m curious what definition of “activist” you’re using.
Perhaps Bennett is unusually unwilliing to follow 8th Circuit sentencing precedents. Why does that make him an activist judge?”
If it is true that he is unwilling to follow the binding authority of precedents directly on point (and in fact directly ruled on in his own case) than he is activist by pretty much any reasonable definition of the word. You don’t have to perfectly define the outer contours of the word “activist” to conclude that a judge who is unwilling to follow binding precedent from a higher judicial authority is a judicial activist.
Sebastian, I disagree. The term “activist judges” was coined in reaction to the Warren Court and usually refers to judges who are willing to declare new rights that didn’t previously exist. Disobeying precedent is neither a necessary or sufficient condition to being an “activist”: it’s perfectly ordinary to declare new rights without disobeying precedent, and to disobey precedent without declaring new rights. Would a lower court that upheld Congress’s “partial birth” abortion ban — thus disobeying Supreme Court precedent — be called “activist”?