Can judge hike sentence to allow time for rehab? U.S. Supreme Court to decide

By Kimberly Atkins The Daily Record Newswire They tried to make Alejandra Tapia go to rehab - by giving her an extra-long sentence so she could complete a prison program. Now it's up to the U.S. Supreme Court to either back the lower court's ruling, or say ''no, no, no.'' The case of Tapia v. U.S. stems from the defendant's conviction for bringing illegal aliens into the country for profit and for jumping bail after her arrest. Tapia had a known drug problem, and she was sentenced to 51 months in prison. The judge noted that the longer sentence was being imposed to allow enough time for Tapia to complete the Bureau of Prison's 500-hour drug abuse treatment program. The defendant appealed, arguing that the judge's speculation about whether and when she could enter and complete the prison rehabilitation program was an impermissible basis for the sentence. The 9th Circuit affirmed in a brief, unpublished opinion, finding no reversible error had been committed. The Supreme Court then granted certiorari. 'Without drug treatment, we can't deter her' Reuben C. Cahn, executive director of the Federal Defenders of San Diego, argued on Tapia's behalf that the plain meaning of the federal sentencing statute, 18 U.S.C. § 3582, makes it clear that a judge may not lengthen a sentence to accommodate a prison rehab stint. ''Judges have the power to sentence defendants to prison, but not to prison programs,'' Cahn said. ''But it is strange, isn't it, that [judges] can take rehabilitation into account for supervised release [but] can't do that for the prison time?'' asked Justice Ruth Bader Ginsburg. ''Supervised release is intended to smooth the transition from prison to true liberty,'' Cahn replied, distinguishing supervised release as a ''specifically rehabilitative vehicle.'' Justice Sonia Sotomayor pointed out that imprisonment and rehabilitation often go hand in hand. ''[Aren't] punishment and rehabilitation often flip sides of each other?'' she asked. ''[W]hat the judge was basically saying, in my judgment, [was] 'Without drug treatment, we can't deter her. And so, this crime, given her background, deserves this kind of sentence.''' ''The problem is the judge has no ability to ensure that the individual gets that treatment if they're sent to prison,'' Cahn replied. When Sotomayor tried to ask a follow-up question, Justice Antonin Scalia jumped in to underscore Cahn's point. ''Your client didn't get it, did she?'' Scalia asked. ''[The judge] just gave her extra years without the treatment, as it turned out?'' But Cahn managed to say little more than ''yes'' before Sotomayor interrupted. ''Well, wait a minute - that's the whole point,'' she said. ''The judge [said] if she doesn't get the treatment, she needs to be in jail for a long time because her crime was serious and she is just going to continue committing crimes.'' Cahn said judges are bound by §3582 to base sentences only on the need for incapacitation, retribution or deterrence - not rehabilitation. ''I think it's a fair reading of [the judge's] statements at the sentencing that in fact, he was lengthening the sentence for the purpose of rehabilitation,'' he said. Matthew D. Roberts, assistant to the Solicitor General, argued on behalf of the government in support of vacating the lower court ruling. He said that in enacting §3582, Congress made a choice to reject rehabilitation as the basis for an extended sentence. When it passed the Sentencing Reform Act, ''Congress was intending to reject the prevailing 'rehabilitation model' of sentencing [where] defendants were kept in prison until they were declared rehabilitated based on their participation in treatment programs,'' Roberts said. Justice Anthony Kennedy asked whether a judge could give a two-year sentence based on the seriousness of a crime, all the while knowing the defendant would also attend a two-year drug rehab program. ''You can have imprisonment and rehabilitation at same time,'' he pointed out. ''But what Congress was trying to preclude was imposing imprisonment for the purpose of providing those programs,'' Roberts replied. 'It makes no sense' Stephanos Bibas, a professor at the University of Pennsylvania Law School, argued as court-appointed amicus in support of the lower court ruling. He asserted that while the Sentencing Reform Act did reject the ''rehabilitation model'' of sentencing, ''it did not, however, forbid treatment programs targeting specific defendants' pathologies such as the drug treatment at issue here.'' Scalia noted that the judge ''has no control over whether this person gets the rehabilitation that was supposedly the purpose of the extended prison term.'' ''It makes no sense,'' he said. Bibas noted that judges also have no control over whether defendants are deterred by their sentences from committing future crimes. ''It does not mean that a judge may not consider deterrence because it's a speculative possibility,'' he said. ''Wouldn't your proposal lead to unevenness in sentencing?'' Ginsburg asked. ''I think nearly half of the people who are incarcerated have a drug addiction. So one judge might say: 'I'm not going to let that person out until they [complete] this program.' And another will say: 'I can't control that.''' ''That's why the Sentencing Reform Act requires statements of reasons, subject to appellate review,'' Bibas replied. ''If judges are varying widely, this Court's case law ... allows appellate courts to harmonize what they're doing.'' ''If rehabilitation can always be a factor, then when and how does a court of appeals determine whether a judge has abused his or her discretion?'' Sotomayor asked. ''The simple answer is [saying] if the judge is imposing the sentence because of rehabilitation, they can't do that.'' A ruling from the Court is expected later this term. Published: Thu, Apr 21, 2011