The Sentencing Matters Substack Interview: Recent SCOTUS Fellow Sam J. Merchant
Today, we introduce a new feature to this Substack: Sentencing Matters – Interviews.
It turns out there are some really interesting people working on sentencing law, policy, and practice, in State government, in the Federal government, in private practice, in academia, and elsewhere. From time to time, we will interview one of them and share a little of their story and their thoughts on sentencing.
We begin today with Sam Merchant. Sam is Visiting Assistant Professor of Law at the University of Oklahoma College of Law. I first got to know Sam during his time as a Supreme Court Fellow during the October 2022 Supreme Court term. He is a thoughtful lawyer and academic and a reflective analyst on all things sentencing.
Sam was born and raised in Oklahoma, and after graduating from the University of Central Oklahoma, he had a career in business and as an entrepreneur before deciding to go to law school. He graduated from the University of Oklahoma College of Law, clerked for Judge Jodi Dishman in the Western District of Oklahoma, and then served as a Supreme Court Fellow in Washington, where he split time at the Court and at the U.S. Sentencing Commission.
Sam was drawn to teaching when he was an undergraduate and at the same time a lecturing teaching assistant. During his clerkship, he taught a class at the University of Oklahoma’s law school, and that’s when he caught the sentencing bug. His academic focus now is sentencing, constitutional law, and criminal procedure.
I spoke with Sam in early August. The interview was lightly edited for clarity and brevity.
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Jonathan: Thanks for sitting down to talk with me, Sam. I was fascinated to learn that you were having a successful business career when you decided to go to law school. Why did you decide to go to law school?
Sam: I’m delighted to be here, and I love the insightful Substack that you, Doug, and Steve have started. To answer your question, back then, I went through some needed introspection. I had a successful career, but I didn’t find it very fulfilling. I tried to think about what I liked to do in my free time, and whether there was possibly a more fulfilling career in those areas. I found that basically in all my free time, I was researching law, politics, religion, things like that, and I was reading, watching debates, and consuming information about these topics. And so, it just struck me one day, I like these areas, and I wondered how can I refocus my career so that I’ll be able to engage with them. For me, that was either getting a PhD in philosophy and teaching and writing in philosophy or going to law school.
I don’t regret my decision to attend law school, and I’ve enjoyed every second of the legal career I’ve had so far. And I get to engage in philosophy often enough that it’s sort of the best of both worlds for me.
Jonathan: What were the highlights of your fellowship at the Supreme Court?
Sam: The Supreme Court fellowship is largely modeled after an academic fellowship. Experientially, you also learn about the various agencies within the judiciary from behind the scenes, with the hope that you then spread that knowledge and increase awareness of the great work of the judiciary. Academically, having the time and the resources in D.C. to do some really interesting research was a special treat – whether it was at the Supreme Court Library, the Library of Congress, the National Archives, Mount Vernon, the Sentencing Commission, etc. I was able to complete several different projects that I wouldn’t have had the time to do otherwise.
The four fellows are also typically able to attend all of the SCOTUS oral arguments that their schedules will allow. And when you attend multiple oral arguments, you really start to see some trends in the tactics, styles, and strategies that work and those that don’t work. You also notice when a justice might make a subtle reference to something that came up in an argument weeks before; unless you saw both, you probably wouldn’t catch it. It’s like their own inside jokes or inside references.
And there are a lot of nonverbal things that happen that don’t get picked up in the audio, which was interesting to see. Smiles, glances, raised eyebrows, side discussions, that kind of thing. I would often compare my notes from oral argument with the final opinion to see how closely my predictions would match – or not. “EK and BK side convo.; both laugh? Bad for Pet.?” The empirical part of my brain wants to go back and code these one day when I get the time. We were also able to spend time with the justices at lunches, dinners, and other events. You start to learn more about them and what’s compelling to them.
Finally, you get to know the Court staff, the engine behind the scenes that keeps the Court operating, which was not on my radar before; but they are doing some very critical and fascinating work. There is certainly a little bit of time for fun there, though. One clear highlight was the opportunity to play basketball in the “highest court in the land” above the SCOTUS courtroom, and, notwithstanding my lighthearted trash talk, getting regularly and handily beaten by people like the Counselor to the Chief Justice and the Reporter of Decisions.
Jonathan: What were some highlights from your time with the Sentencing Commission?
Sam: It was a very interesting time to be there because there had not been a quorum at the Commission in several years. Around the time I arrived, seven new commissioners were confirmed all at once. And so, they’re meeting each other, figuring each other out, and learning about the duties of job.
I really enjoyed seeing the deliberation and the compromises, the “sausage” getting made among the Commissioners, and how they ultimately resolve issues. I also loved getting to know the dedicated staff, who are working on important issues that they are passionate about.
Seeing a full amendment cycle from start to finish was also quite fascinating. It’s interesting to see draft amendments and options get published for public comment, and then see all of the different stakeholders’ positions on those drafts. Chair Reeves often publicly says “when you speak to the Commission, you will be heard.” And that is very true from my experience there. Staff read all of the public comments – what incarcerated individuals are saying in their letters, what judges or legislators are saying, what academics are saying – and compiles all of that for the Commissioners to then read. It is quite fascinating to see the care and dedication that goes into the process.
Jonathan: Could you talk about your paper you titled, A World Without Sentencing Guidelines?
Sam: The issue for that paper got on my radar while I was clerking. In Oklahoma, the courts handle a lot of Indian Country cases that involve crimes that, in many other jurisdictions, are handled in state court. A little bit of history is probably needed here. At the founding of the country, there were relatively few Federal crimes. As Joseph Story wrote about at the time, this is an obvious problem if criminal conduct is committed on exclusively Federal land, like much of Indian Country, but no Federal statute deems it a crime. So, at Story’s urging, Congress passed the Assimilative Crimes Act. It says, basically, if a crime is committed on a federal enclave, and there’s not a federal statute covering that offense, federal courts can “assimilate” the relevant state offense and try that offense in federal court.
Fast forward 200 years and we now have the Federal Sentencing Guidelines. But the Guidelines don’t cover any of these assimilated crimes, because they are state offenses. I kept seeing these cases while I was clerking, and I kept seeing judges struggle with them, because they were so used to sentencing federal offenses that have sentencing guidelines.
I was curious, as I was working through these cases, what do the sentences in these cases look like in relation to each other? Are the sentences more disparate than the core federal sentences that we’re used to seeing in federal court? The Sentencing Commission doesn’t publish data on these types of cases. So, I wanted to dig into some of the data to see what’s going on, and to hopefully also help the system by clarifying this complicated area of sentencing law. So that’s how this project started.
As I dug into the project, I found that for these offenses, sometimes judges applied sentencing guidelines, and sometimes they sentenced without reference to any guidelines. A light bulb went off in my head: I can use these cases as a type of natural experiment to see what sentences are like for the same offenses when judges have guidelines and when judges don’t have guidelines. We can use this to reciprocally analyze both judicial discretion and the sentencing guidelines. While most federal sentences are imposed using guidelines, these cases allow us to explore a sort of counterfactual world without federal sentencing guidelines. Perhaps that world is preferable.
Jonathan: And how would you summarize the core findings about cases where judges used guidelines versus cases where they didn’t use guidelines?
Sam: At least for the most common of these offenses, I found that judges tended to be harsher when they did not use guidelines. This surprised me because most of the existing scholarship criticizes the Guidelines as being unnecessarily harsh, or harsher than what judges might otherwise do. I also found that without sentencing guidelines, there was much more variability in sentences imposed; the range of those sentences was much more extreme. For the exact same type of offense conduct, some offenders might receive one year, and some offenders would receive 15 years. It was the exact thing that the Sentencing Guidelines were created to avoid.
I think this suggests that judges need some form of guidance in sentencing, either guidelines or data that can create a heartland of sentences. With that, at least they will know whether their case or their proposed sentence is going to be an outlier from something that grounds the majority of these types of sentences. They can then give valid reasons for extreme deviations, or they risk reversal on appeal – assuming the appeal wasn’t waived.
Jonathan: Given the fact that so many of the cases you studied occur in Indian Country, what broader conclusions can we draw from the study?
Sam: The crimes I studied occur in Indian Country, but they also occur in other federal enclaves like national parks, military bases, places like that. But I’m careful in my article not to extrapolate to all federal offenses. I don’t argue that these offenses are necessarily reflective of all federal offenses, I just contribute this information to the broader discussion.
I was talking with a federal district judge recently, and he has a practice that I know some other judges engage in: when he gets a sentencing file on his desk, before reading the guideline calculation from the Probation Department or parties, he thinks about what a fair sentence would be without any reference to guidelines. He will write that number or range down and only then read the guideline calculation. He said that now that he’s been on the bench for years, he knows pretty much what the guideline range is going to be as soon as he reads the offense conduct. So, it’s much harder for him to dissociate from the Guidelines, and to think: “if I were in a world with no guidelines, how would I sentence?” That’s what I think makes the cases in my dataset so interesting. There never were any guidelines for these offenses. While it’s not perfect, we can still get a glimpse into what judges might do if they are completely untethered by guidelines or any anchoring effect.
Jonathan: There’s another article you’ve written about the Guidelines and sentencing that I found really interesting. It has to do with plea agreement practices in the federal system and how those practices impact sentencing outcomes. Could you describe that research a little bit and also your findings?
Sam: Sure. I found that in my work on the paper we just discussed, my first inclination was to blame judges for some of the disparate sentences I saw within my data set. As I dug a little bit deeper into the case files, though, I found that in a not insignificant number of these cases, the parties actually agreed on the sentence to be imposed, either through binding or non-binding plea agreements. So, the parties are agreeing on some of these disparate sentences, it’s not all on the judges.
We all know that 97 to 98% of sentences are imposed based on a guilty plea, and the Commission’s data shows that around 71% of those involve a written plea agreement. Whether it’s binding or a non-binding plea agreement, I wanted to explore the extent to which parties are really driving sentences.
My tentative conclusion is that parties drive more of federal sentencing than Congress, the Commission, or judges. Plea practices happen in the shadow of the Guidelines, for sure. But the parties can negotiate around “soft” or “harsh” guidelines or statutes to get the sentence they want. I explore whether we want that in our system. Do we want Congress or the public and the voters to have more of a say, or are we okay if the parties drive sentencing?
Jonathan: What do you think?
Sam: For now, I mostly conclude that we need to collect more data at the sentencing stage on the real reasons for sentences and who is driving them. Right now, so long as a sentence is within the guideline range, the Sentencing Commission doesn’t collect much data on the reasons for the sentence. If the judge deviates from the guideline range, the Sentencing Commission wants to know why from the Statement of Reasons form. But as long as it’s within the guideline range, little data is collected. Given that, parties can confabulate sentences to fit within guideline ranges and no one inquires into the reasons, at least, not in an empirical way. Yes, the judge must still give reasons on the record, but doesn’t record those anywhere and send them to the Commission. If we really want to know what’s going on with sentences, we should start collecting reasons for the sentence, even when it is within the guideline range. Then we can start to understand better what’s going on. So, this paper serves as a bit of a clarion call.
There’s another part to that, though, which is the other half of the title of the article: suspending disbelief. As a descriptive matter I think it’s plausible that society doesn’t really want to know much more detail about what’s going on. Maybe there is a sense that the system’s working acceptably well and enough of us are content. If we start peeling back the layers, we might not like what we see, or we might be forced to make some difficult reforms. A part of the current functioning is not really knowing the reasons for the sentence and letting the parties agree on what they think is reasonable. I don’t know that I agree with it, but I think that this might describe our system.
Jonathan: I really want to talk a bit about the book you’re writing, which is not directly about sentencing. We just finished a really historic Supreme Court term in July. As I read the cases, it seemed to me that all nine justices are, to one extent or another, grappling with originalism. All of them are spending a lot of time looking at the history behind the Constitution and the amendments to it, whether that’s in relation to the 2nd Amendment, the 14th Amendment, the 8th Amendment. It seems like we’re genuinely all originalists now. And I know that your book is about constitutional law and the history behind the development of the Constitution. Could you describe this work and what the book will be about?
Sam: Sure. I was fortunate enough in my fellowship to have the time to work on this other project in the constitutional history space.
I think you’re correct that we are in this world now where it seems we all must engage in originalism from time to time, whether it’s your sole interpretive approach, or whether it’s a component of a more robust interpretive approach. After Rahimi, maybe that now includes the “principles” from the Founding Era to try to see how a Founding Era principle can guide constitutional interpretation. I think this makes it especially important to accurately understand history and tradition and to counter the problem of reaching out in history and finding your friendly anecdotes, which I see often in Supreme Court advocacy, Supreme Court opinions, and constitutional interpretation in general. People will find a favorable founder or quote and then just say, “all of the founders believed this. Q.E.D.”
The book is called Revolution and Redline: The Iterative Journey of the U.S. Constitution. In the book, I compile the documents that led to the Constitution, starting with Magna Carta, and compare them to analyze the throughlines. Then for the founding documents, I compare key drafts to the final versions and show the changes in a modern day “redline” format so that readers can see the changes that the founders made. Finally, in the margins, I show the framers debating the reasons for the changes. My goal is to situate each document contextually, in relation to other texts, traditions, and discourses.
So, for example, the founders debated whether we should have one president, three, five, etc. You can see in the book what the arguments were that were made for and against a plural executive versus a singular executive. Do we want the President to serve for life, for seven years, or for four years? Should they be required to own property? All this was debated, too, and the options make appearances in drafts and in prior documents. Many founders thought that the rejected ideas were great ideas – there was rarely unanimity.
One interesting modern example was in the Trump disqualification case, where there were efforts to disqualify the former President under Section 3 of the 14th Amendment. One of the arguments that some on his side made was that the disqualification clause only applied to insurrectionists who were involved in the Civil War. Out of curiosity, I looked at my book manuscript because I have drafts of prior versions of the 14th Amendment, and I compare them to the final version. I saw that one of the earlier drafts included a clause saying that insurrectionists engaged in the “late insurrection” would be disqualified from holding office. But that was stricken from the final version. So, the drafters pretty clearly did not want to limit the clause to just Civil War insurrectionists, or they would have kept that clause in. These are some of the things that you can glean from looking at drafts and the final version, and understanding the debates around how the drafters arrived at the final versions.
Jonathan: Where do you see this project going? And when is the book coming out?
Sam: So, the book will hopefully be out in December. Honestly, the book started as a selfish project for me to learn as much as I could about the Constitution as quickly as possible, and a jumping off point for future projects. Then I thought, “well, this could be a nice supplement for students.” But as I showed drafts to more and more people, more and more wanted a copy. And so, I thought, “I’ll just make a book out of it.” I am happy that Carolina Academic Press has picked it up for publication.
In the future, I anticipate a similar work on state constitutions and how they inspired the U.S. Constitution. Which provisions of the federal constitution were borrowed from the states, which were rejected, and why?
There are already a lot of works that compile drafting history and legislative history for certain topics, but not many that concisely go back throughout history, show the context, track the inspiration, and then pair that with the key points of the drafting history. And even fewer present the material in an engaging way for modern readers – most are in prose or just copy excerpts from legislative history. So, I hope to continue this theme.
Jonathan: I know you’re aware that Judge Reeves, after Bruen was handed down, raised the possibility of hiring an historian to apply the Second Amendment to various gun restrictions. It seems your book would have been a great resource for him.
Sam: Oh yes, Bullock. I will say on that point that I certainly also had judges in mind for this book. I have tried to identify the consensus view of the relevant history, the accurate versions of key drafts, and the correct final versions, the latter of which turned out harder than expected. As I discuss in the book, there is actually still debate about which version of the U.S. Constitution is the binding one. There is the engrossed or written version, several early typeset copies, and all of them have interesting variations between them.
But yes, I do see this as a great starting place for judges and advocates. If you have a matter that deals with a due-process protection, for example, you can go to the book and see the history, drafts, and the different changes from the drafts to see if that information really tells you anything about how to understand that clause. Did we copy it from the Articles of Confederation? From the English system? You can obviously trace a lot of American criminal protections through English documents to the Magna Carta and even before. All of that is concisely contained in one place. Those with the E-book can also click on any image in the margin of the people who were debating the changes, and you will be taken directly to the primary source of that information where the debate was taking place. It’ll be a great starting place for judges, advocates, scholars, etc.
Jonathan: I can’t wait for the book to come out. Thank you so much, Sam, for sitting down with me and sharing just a bit about your work. We look forward to seeing more of that work, on sentencing and the constitution, in the years ahead.
Links:
A World Without Federal Sentencing Guidelines: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4811335
Plea Agreements and Suspending Disbelief: https://papers.ssrn.com/abstract=4922697
Revolution in Redline: The Iterative Journey of the U.S Constitution: https://cap-press.com/books/isbn/9781531031756/Revolution-in-Redline