The Bostic Question
Federal criminal procedure regularly struggles with a tension between fairness and finality. The Constitution provides defendants with special privileges and protections designed to prevent injustice,1 but systemic concerns about efficiency, comity, and finality make it impossible to guarantee a perfect and errorless trial to every defendant.2 Given the impossibility of perfection, and the tremendous burden associated with carefully scrutinizing each page of each trial transcript, appellate courts rely on defendants to flag possible errors as they arise. One manifestation of that reliance is the fact that the rigor of appellate review often depends on whether the defendant-appellant objected to the purported error at trial.3
In United States v. Bostic,4 the Sixth Circuit, aiming to facilitate appellate review of sentencing, adopted a prudent procedural rule: the “Bostic Question” (“the Question”).5 Invoking its “supervisory powers over the district courts,” the court of appeals issued the following instructions:
[D]istrict courts, after pronouncing the defendant’s sentence but before adjourning the sentencing hearing, [must] ask the parties whether they have any objections to the sentence just pronounced that have not previously been raised. If the district court fails to provide the parties with this opportunity, they will not have forfeited their objections and thus will not be required to demonstrate plain error on appeal. If a party does not clearly articulate any objection and the grounds upon which the objection is based, when given this final opportunity to speak, then that party will have forfeited its opportunity to make any objections not previously raised and thus will face plain error review on appeal.6
The Sixth Circuit explained that the Question would serve at least two purposes: (1) “permitting the district court to correct on the spot any error it may have made,” and (2) “guiding appellate review” of the sentence imposed.7
This Comment endorses these rationales and also draws attention to a third justification, heretofore unrecognized. The Question promotes what Lani Guinier and Gerald Torres have called “demosprudence”—that is, “a democracy-enhancing jurisprudence” grounded not only in “logical reasoning [and] legal principles” but also in a need to “inform and [be] informed by the wisdom of the people.”8 It does so by inviting oral objections to, and public dialogue about, the sentence imposed by the district court. Further, it tends to “expand the audience for judicial decisionmaking and to engage that audience in democratic deliberation” about criminal law and procedure.9
This Comment aspires to persuade all federal courts of appeals to adopt the Bostic Question as a requirement for the district courts under their supervision. Part I explains why standards of appellate review have become important in the sentencing context and why, as a result, the Question is necessary. Part II first articulates reasons why courts have been reluctant to follow the Sixth Circuit’s lead and then proceeds to a two-part normative case for the Bostic Question: the Question is sound judicial policy that produces real benefits at a minimal cost, and it has the potential to advance demosprudential values.
i. appellate review of sentencing errors
Federal criminal appeals usually fail,10 especially when the reviewing court applies plain-error review, or a similarly deferential standard.11 The standard of review, some judges have stated, “is everything,” and it “more often than not determines the outcome.”12 On plain-error review, in the Seventh Circuit’s words, a decision is reversible only if it “strike[s] [the court] as wrong with the force of a five-week-old, unrefrigerated dead fish.”13
The scope of appellate deference has evolved in the decade since United States v. Booker.14 Before Booker, the statutory Sentencing Guidelines were mandatory, and departures from the Guidelines were reviewed de novo on appeal.15 But Booker shifted power from prosecutors to judges,16 rendering the Guidelines advisory and affording district courts more discretion to depart from Congress’s recommendations. Today, if a defendant timely objects to an error, the standard on appeal is clear: “reasonableness,” a standard essentially coextensive with “abuse of discretion.”17 But if the defendant fails to object, or objects only indistinctly, courts of appeals apply plain-error review to those “unpreserved” claims of error—that is, alleged errors to which the defendant did not make a contemporaneous objection at trial.18 In the particular context of sentencing, some disparity persists, but there is an emerging consensus.19 Unpreserved procedural reasonableness claims receive only plain-error review,20 while substantive reasonableness claims, even if unpreserved, are reviewed through the same abuse-of-discretion lens as preserved claims.21
In the sentencing context, it is increasingly critical to scrutinize these standards of review. After all, in the twenty-first century, American criminal justice is “a world of guilty pleas, not trials.”22 The vast majority of federal prosecutions end in guilty pleas, and therefore the vast majority of defendants appear in open court only for sentencing before a judge—never a jury of their peers.23 Judges are under no obligation to follow whatever sentencing recommendation the government and defendant may have agreed upon,24 and so even defendants who are pleading guilty in exchange for sentencing considerations are exposed to the possibility of judicial error.
When broad judicial discretion is combined with the requirement to lodge objections to preserve errors for appeal, odd situations can arise. Consider a normal federal sentencing hearing. The prosecution and the defense have assembled the Presentence Report; the attorneys have offered their final oral arguments; and the district court, after deliberation and with solemn gravitas, has announced the defendant’s sentence. Haggling with a judge after a ruling is rarely a wise lawyering choice, and yet in this context any competent defense attorney would promptly object.25 Thus, objecting to a freshly imposed sentence is both obligatory and awkward.26 Enter the Bostic Question.
ii. the virtues of the bostic question
The Tenth and D.C. Circuits have dismissed the Bostic Question as “gratuitous superintendence”—unnecessary procedural handholding for lawyers whom the legal system assumes to be “competent professionals.”27 But these courts’ opposition is misguided. As I argue in this Part, the Question has two principal virtues. First, it facilitates efficient, informed, and accurate appellate review, which improves the fairness and finality of criminal sentences. Second, it has the heretofore unrecognized potential to advance demosprudential values and help to create a sentencing regime that emerges from a dialogue involving not only legal elites but also the people and their elected representatives.
A. The Bostic Question and Its Critics
The Bostic Question, in large part, responds to the awkward situation described at the end of Part I.28 In Bostic, the Sixth Circuit noted that the Federal Rules do not penalize a claim with plain-error appellate review if the appellant had “no opportunity” to object below.29 Thus, the court decided it would be prudent to require district courts affirmatively to invite objections after pronouncing a sentence.30 This rule, the court said, would save appellate courts from “the difficulty of parsing a transcript” to determine whether each party had been afforded “a meaningful opportunity to object.”31 The rule would also “serve the dual purposes of permitting the district court to correct on the spot any error it may have made and of guiding appellate review.”32
The Sixth Circuit borrowed the idea for the Bostic Question from the Eleventh Circuit.33 That court has similarly praised the Question’s ability to facilitate appellate review by eliciting “fully articulated objections” and to give the district court an opportunity to correct errors on the spot.34 But other courts, regrettably, have been reluctant to follow suit. Some have offered a lukewarm endorsement of the Question but have declined to require it.35 Others have rejected it outright.36 The Tenth Circuit, for example, directly rejected the idea: “Competent professionals do not require such gratuitous superintendence; as long as there is a fair opportunity to register an objection, ask for an explanation or request factual findings, counsel must take the initiative thereby [e]nsuring that silence is not mistaken for acceptance.”37
The Tenth Circuit’s concern appears to underlie the misgivings of the other courts that have rejected the Question.38 There is such a thing as too much handholding, the argument goes, and district courts should not have to bear an additional burden on top of the “numerous requirements” that already exist in the sentencing context.39 As I explain in the next Section, I find that concern puzzling and unpersuasive, because the Question, applied broadly, will improve efficiency and reduce the burden that resentencing imposes on district courts.
B. Facilitating Efficient and Accurate Appellate Review
Courts of appeals ought to be concerned with generating and preserving as comprehensive a district court record as possible. By affirmatively eliciting objections from the parties—that is, by saying something more specific and solicitous than “Anything further?”40—the district court can (1) make clear when the required “opportunity to object” is at hand;41 (2) help to avert the possibility of a confusing web of standards of review on appeal;42 and (3) spark a dialogue that is likely to clarify further the reasonableness, or lack thereof, of the court’s decision making.43
To be sure, most attorneys who represent criminal defendants at sentencing hearings are competent enough to lodge the objections that could be useful on appeal, so the Bostic Question may indeed be “gratuitous” in certain circumstances. But the annoyance—if any—caused by the Question is insignificant compared to the benefits it can confer.
Consider, as a concrete example, a recent Eleventh Circuit case.44 John Valera was caught paying a friend to use a “skimmer” to steal credit-card information from customers.45 He pleaded guilty to access-device fraud, an offense exposing him to an advisory range of twelve to eighteen months’ imprisonment under the Sentencing Guidelines.46 The district court, having given the defense no notice that it was considering an upward variance,47 imposed a sixty-month sentence48 at a seven-minute sentencing hearing.49 Rather than eliciting objections to the sentence it had just imposed, the court simply asked “Mr. Chang?” and then “directed the courtroom deputy to call the next case.”50
The Eleventh Circuit was palpably frustrated with the consequences of the district court’s haste and had no choice but to vacate and remand. The district court, disregarding Gall,51 had failed to identify the correct Guidelines range,52 had evinced no meaningful consideration of the section 3553(a) factors,53 and had given minimal explanation for its decision to issue a sentence dramatically above that recommended by the Guidelines.54 Consequently, the court of appeals was “unable to determine with any certainty” the rationale behind the district court’s sentencing decision, because the record was “insufficient for meaningful review” of the “procedural errors and abnormalities” that appeared to have occurred.55 Although one cannot know how the Bostic Question would have affected Valera’s first sentencing hearing, there is a reasonable chance that the Question would have prompted a dialogue, or at least a more substantive explanation, for the Eleventh Circuit to review.
A Sixth Circuit case, United States v. Fout,56 illustrates how the Bostic Question can help prevent inefficient and frustrating sentencing appeals like in Valera. Steven Fout pleaded guilty to possessing and distributing child pornography, and his Guidelines range was 151 to 188 months.57 The district court rejected Fout’s arguments for a downward departure and sentenced him to 151 months.58 The district court then asked the Bostic Question, in response to which Fout “objected to certain statements made about his alleged involvement with minors” and to “the court’s use of the online chat transcripts to reach a conclusion about [his] level of functioning.”59 These objections gave the district court an opportunity to clarify that, while it had made an “incorrect reference to involvement with minors,” that reference had not influenced its determination of Fout’s sentence.60 The court also used that opening to explain that, far from ignoring Fout’s mitigating evidence, the court had taken that evidence into account by deciding to impose a sentence at the bottom of the Guidelines range.61 On appeal, the Sixth Circuit—unlike the Eleventh Circuit in Valera—had the luxury of reviewing a clear statement of the district court’s reasoning.62
To be clear, when the Question is properly applied,63 defendants lucky enough to have attentive counsel should not be the only ones to benefit. The focus of the Bostic inquiry on appeal is simply whether the court afforded counsel an adequate opportunity to object—not whether counsel managed to articulate those objections with sufficient clarity to preserve them. If counsel misses or squanders the Bostic opportunity, his client will face plain-error review, but ought to be no worse off in that regard than if the Bostic Question had never been asked at all.
In that vein, the Sixth Circuit, having taken two steps forward by implementing the Bostic Question, subsequently took a step back in United States v. Vonner.64 There, the court signaled that defendants who have already presented section 3553(a) arguments earlier in the hearing must object again on procedural grounds, after the Bostic Question, if they wish to avoid plain-error review.65 The majority reasoned that it would “undermine [the Question’s] effectiveness” if the court did not “impos[e] any consequences on a party’s failure to answer it.”66
This conclusion follows only if one sees the proper effect of the Bostic Question as imposing a formalistic procedural rule upon defendants. Instead, as the Vonner dissenters pointed out, the purpose of the Bostic Question is to add opportunities for objection and colloquy,67 not to wipe the slate clean of procedural objections already raised and thereby penalize defendants with inattentive or incompetent attorneys. To insist otherwise, as did the Vonner majority, is to “create a trap for unwary defendants.”68 It is regrettable that the Vonner majority misinterpreted the Question as a double-edged sword, rather than as a clarity-seeking device that benefits both defendants and courts.
Nor does the “additive” understanding of the Question undermine its ability to promote efficiency. Even if the Bostic Question does not force defendants to renew all their objections at a single spot in the sentencing transcript—thereby requiring appellate judges to search for valid objections in that transcript—the court of appeals is no worse off in that regard than it would be otherwise. And the Question’s purpose is not only to clarify and enumerate the defendant’s objections, but also, where appropriate, to clarify or correct the judge’s reasoning. A district judge’s concise response to a post-sentence objection can be helpful, as in Fout, to a reviewing court that might otherwise have to piece together the judge’s reasoning from statements scattered throughout the hearing transcript.
The Vonner majority also erred in implying that defendants will have no incentive to respond meaningfully to the Bostic Question if they are not obligated to reassert their procedural reasonableness objections.69 To the contrary, defendants will retain a significant incentive to identify sentencing errors promptly, or at least to elicit further explanation about the court’s decision making. When a district court offers an explanation for a harsh sentence that is “recondite at best,”70 no one benefits—neither the defendant nor the appellate judges who are left with precious few “reasons” with which to evaluate “reasonableness.”
For reasons that the Sixth and Eleventh Circuits have articulated, I encourage the Sixth Circuit, as well as its sister circuits, to return to the original conception of the Bostic Question.
C. Fostering Demosprudential Values
In addition to the Bostic Question’s tendency to facilitate efficient and accurate appellate review, there is a second and underexplored argument in its favor: it promotes demosprudential values. “Demosprudence” is a methodological concept borrowed from Lani Guinier and Gerald Torres, who define it as “the study of the dynamic equilibrium of power between lawmaking and social movements.”71 Guinier and Torres distinguish demosprudence, which “focuses on the ways that ongoing collective action by ordinary people can . . . chang[e] the people who make the law and the landscape in which that law is made,” from “jurisprudence, which analyzes the work of judges acting in formal sites such as courts.”72
When I refer to “demosprudential values” in this Comment, I have two broad (and interrelated) concepts in mind: dialogue and participation. By “dialogue,” I principally mean dialogue between legal and nonlegal actors that improves understanding between those two groups, whose ability to communicate with one another is often hindered by the complexity of the law or legal jargon.73 By “participation,” I mean ordinary people’s engagement with democratic processes—not only by voting, but also by effecting political and social change through group mobilization. I consider a law or rule “demosprudential” if it opens up new opportunities for such participation or if it simply tends to motivate and mobilize ordinary citizens. Publicly sourced power often effects more fundamental change than could arise from legal institutions alone. Because the authority and legitimacy of the law and of the courts emanate from the people, the “dynamic equilibrium” that Guinier and Torres envision can withstand stronger shocks when people participate in the process of effectuating change.74
One example of demosprudence that can have an especially potent effect is what Guinier has called “demosprudence through dissent.”75 For example, Supreme Court dissents read from the bench, although without power to alter the Court’s judgment, can serve other functions: telling a “public story” that is “organized around values, critique, or actions” more than pure logic, and speaking to “non-judicial actors” in a manner that invites them to “step in or step up to revisit the majority’s conclusions.”76
Judicial dissents, to be sure, are not the only activities with demosprudential potential. From the perspective of nonlegal actors, “culture shifting” through political activism and mobilization might have more demosprudential potential than “rule shifting.”77 And from the perspective of legal actors, one might view as demosprudential any activity that tends to invite the public to exert influence on the law or the bounds of legal decision making, or to ameliorate ordinary individuals’ understanding of the law and legal institutions. The jury is an obvious example. Jury service not only allows ordinary citizens to express the public’s conception of justice with respect to an individual case, but also informs jurors about the contours of the law and encourages them to respond democratically if they wish to change the status quo.78
The Bostic Question, viewed from a broad and systemic perspective, also has potential to foster these demosprudential values. In one sense, the Question invites “dissent”: it encourages advocates to lodge objections to the sentence imposed by the court. In another sense, the Question invites dialogue: it encourages the court to offer clarification and further explanation of its reasoning and decision-making processes—just as occurred in Fout.79Viewed through either lens, the Question tends to provide the public with more information about the dynamics of sentencing decisions and to encourage more publicly accessible discussion of the statutory and discretionary factors that dictate sentencing outcomes. And if one accepts the premise that participation is desirable in the sentencing context—that “the demos” can, and should, contribute to the development of both criminal law and legislative sentencing guidelines—then one ought to support a procedure that provokes discussion not only between legal elites but also between the court and a wider public audience.80
To understand this function of the Bostic Question more concretely, consider another Sixth Circuit case, United States v. Thomas.81 Kenneth Thomas was convicted of bank robbery and sentenced to 240 months in prison—the statutory maximum.82 After announcing the sentence, the district court elicited objections only halfheartedly, rather than properly asking the Bostic Question.83 Appropriately applying abuse-of-discretion review, the Sixth Circuit vacated Thomas’s sentence, finding that the district court had “never mentioned anything resembling the section 3553(a) factors, save a conclusory reference to ‘considering the additional factors contained within . . . Section 3553(a).’”84
Had the district court used the Bostic Question to elicit objections from Thomas’s counsel, perhaps the story would have been the same. However, the Question could also have prompted Thomas’s counsel to challenge the court’s perfunctory treatment of the section 3553(a) factors, which in turn would have prompted the court to reconsider the sentence or, more likely, to provide a more robust explanation of the court’s decision making. At a minimum, the Bostic Question would have opened up space for Thomas (or the government, for that matter) to react to the sentence and elicit further clarification. Even if a district court has committed no reversible error—as is usually the case—this dialogue has intrinsic value.
Such dialogue does more than create a more robust transcript for appellate courts to parse. It also facilitates reaction to, and dialogue about, the manner in which the judge synthesized the facts and then applied the Guidelines or other relevant law. Members of the public—whether the defendant, those attending the hearing, or recipients of secondhand news—benefit in the aggregate when they gain access to more information about the law and legal institutions that bind them. At a time in American history when criminal sentencing reform is widely viewed as a necessary,85 but still politically fraught,86 topic, we ought to seize opportunities to tie public participation and mobilization more closely to the realities of sentencing procedure and judicial decision making.
The Bostic Question manages to promote both fairness and finality at once—no small feat in criminal procedure. District courts using the Question will be more likely to correct errors on the spot, more likely to record a more complete account of their reasoning for appellate courts to evaluate, and more likely to “enhance [courts’] democratic potential”87 and accountability for sentencing outcomes. I urge all courts to seize this opportunity to reap considerable benefits at a minimal cost.
CHARLES C. BRIDGE*