Another Sea Change in Sentencing?

United States v. Presley | 14-2704

September 2015

In the world of criminal sentencing, much has been in flux over the last decade, from the evisceration of the Sentencing Guidelines, to the new found discretion of Booker and its progeny, to supervised release issues. In United States v. Presley, 14-2704, the Seventh Circuit appears to have opened a new chapter in sentencing reform. Presley was a career offender whose multiple convictions had failed to dissuade him from continued criminal conduct. He was convicted of multiple drug and gun offenses. The district court sentenced him to 440 months in prison. By BOP estimates, he will be released from prison at almost 64 years of age.

In a truly provocative opinion, Judge Posner affirmed the sentence imposed but encouraged future litigants to raise issues such as incapacitation of the specific defendant from committing future crimes (especially considering statistical evidence that violent crime is “generally a young man’s game”), general deterrence to others of lengthy sentences, and the costs of incarceration (especially of an aging prison population). In the words of Judge Posner, “[a] sentence long enough to keep the defendant in prison until he enters the age range at which the type of criminal activity in which he has engaged is rare should achieve the aims of incapacitation and specific deterrence.” Conversely, Judge Posner suggested that there are outlier cases that would require a substantially longer sentence than one would normally expect to be necessary under the circumstances. The Court encouraged litigants to provide sentencing courts with the type of relevant data to help inform the court as to what sentencing length achieves these identified goals.

We expect that Presley will be the impetus for continued substantive transformation of the sentencing process in federal courts.