A lot of people have talked about the Supreme Court's small docket; Judge Harry Pregerson of the Ninth Circuit is actually doing something about it. He handed down an opinion today in Carrington v. United States that has "Destination: One First Street" written all over it.

  This consolidated case involves two defendants, Carrington and Tillitz. Carrington was sentenced in 1990, and Tillitz in 1998, both by Judge Robert Bryan, a district court judge in Seattle who, like many trial judges, really didn't like the federal Sentencing Guidelines that at the time were binding law. At the sentencing hearings for both defendants, Judge Bryan expressed the view that the Guidelines were bad. In 1990, he said that they were "bad law" because they diminished his "authority" to sentence as he saw fit, and in the 1998 hearing he added that he thought the Guidelines were unconstitutional (for reasons not explicit).

  After the Supreme Court ruled in Booker that the Guidelines were not mandatory, each defendant filed a motion before Judge Bryan requesting a new sentencing hearing without the binding effect of the Guidelines. Judge Bryan denied relief, but then sent the cases to the Ninth Circuit with an unusually personal opinion asking the Ninth Circuit to let him resentence these two defendants. Judge Bryan wrote to the Ninth Circuit:

  Trial judges, more than anything, want to do the right thing. We understand our obligation to follow the law, but deeply—and even desperately—hope that the law will lead to justice. If we are part of an injustice, we want to set it right, even if it involves a great deal of extra work. To quote Gerry Spence: "[S]ometimes a judge doesn't know how to get justice. . . . [T]he judge has to just sit up there and watch justice fail right in front of him, right in his own courtroom, and he doesn't know what to do about it, and it makes him feel sad. . . . Sometimes he even gets angry about it." Gerry H. Spence, Of Murder and Madness: A True Story, 490 (1983). This judge, sad and a little angry, would welcome an opportunity to resentence these defendants to a constitutional and legal sentence.

  In the decision handed down today, Judges Pregerson and Noonan (with Callahan dissenting) ruled that Judge Bryan's feelings about these cases created "extraordinary circumstances" that should allow Judge Bryan to reopen the cases and resentence the defendants without the sentencing guidelines. Specifically, Judge Bryan had expressed "frustration" at the guidelines at the original sentencing, and also had made an "impassioned plea" — even quoting famed trial lawyer Gerry Spence! — to be able to resentence the defendants in his 2005 opinion. According to Judge Pregerson, this combination was sufficient to reopen the old cases and permit resentencing:

  These two cases have weighed on Judge Bryan's conscience eight years and sixteen years, respectively, after the original sentences were imposed. They compelled him to the point that he would sua sponte request that this court recall its mandates and that he would voluntarily assume the additional responsibility involved in re-sentencing these defendants. We believe that the number of cases in which a district court will feel so strongly about the need to resentence is small, making these cases truly extraordinary.
  Our interest in the finality of judgment is not so strong that we would not allow a district court judge the opportunity to remedy what the judge considers to be an "injustice" and to re-sentence a defendant to a sentence that is just and proper.

  I can understand why Judge Bryan wants to resentence these defendants, and I can understand why Judge Pregerson would want to let him do so. But there are lots and lots of cases like this in the pipeline, and whether they should be reopened would seem to a question of whether Booker is retroactive rather than whether a trial judge's opinions are strongly-enough expressed to make that particular sentencing "extraordinary." Surely it can't be the law that a defendant is entitled to resentencing decades later if the trial judge really wants to resentence him.

  George Will recently commented that "[t]here should be two Supreme Courts, one to reverse the 9th U.S. Circuit Court of Appeals, the other to hear all other cases." With the one Supreme Court running low on business these days, I'm sure they will appreciate the chance to take a closer look at this one (assuming the full Ninth Circuit doesn't get there first).

  Thanks to Howard for the link. (Update: I have fiddled with the end of the post a bit in response to comments.)