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November 10, 2005

Hints about how a Justice Alito might view post-Booker players

Because the Third Circuit has decided to send virtually all sentencing appeals back for resentencing after Booker (details here), Judge Alito has not had an opportunity to address post-Booker legal issues in his role as a judge.  (But, of course, as discussed in this post and this follow-up, Judge Alito's work with the Constitution Project's Sentencing Initiative entails that he has been considering post-Booker policy issues.)

However, thanks to this terrific University of Michigan Law Library site, which has all of Alito's academic writings here, we can unearth what might be hints as to how a Justice Alito might view key participants in the post-Booker world from two commentaries appearing in the Federal Sentencing Reporter not long after the guidelines were enacted.  (I have previously discussed in this post how one of these article provides an intriguing glimpse into Alito's view of sentencing under the federal guidelines.)

Writing in 1989 when still serving as the US Attorney for New Jersey for an FSR Forum asking "What Role Should Individual Sentencing Judges Play in the Guideline Development Process" (available here), Sam Alito made these interesting comments, which are still quite relevant for the post-Booker world:

Probably the most important contribution that can be made by sentencing judges during the first few years of guidelines sentencing is to write sentencing opinions in cases in which application of the guidelines presented significant problems.  During most of 1988, few of my office's cases involved guidelines sentencing.  As the number of guidelines cases has grown rapidly in recent months, however, it has become increasingly apparent that there are quite a few offenses for which the guidelines do not fit very well.  I suspect that the Commission, after a few years of experience, will want and need to make significant revisions to eliminate many of these "bugs," and I think that judicial sentencing opinions may be the best way to memorialize the problems requiring revisions.

And, in 1992, at the end of an FSR article entitled "Reviewing the Sentencing Commission's 1991 Annual Report" (discussed here), Judge Alito made this insightful observation about the role of the USSC:

[T]he Commission, through the amendment process, is now performing with respect to the interpretation of the guidelines essentially the same role that the Supreme Court plays with respect to the interpretation of the guidelines essentially the same role that the Supreme Court plays with respect to the interpretation of other federal laws: resolving circuit conflicts and generally keeping the courts of appeals in line. In Braxton v. United States, 111 S.Ct. 1854 (1991), the Supreme Court stated that Congress contemplated that the Commission would play this role, and the Commission is doing so.  As far as I am aware, no other federal agency — in any branch — has ever performed a role anything like it. Anything that the Commission chooses to say in the future about how it exercises this power — in general or in particular cases — would be extremely interesting.

I am inclined to read these passages as suggesting that Alito may well believe that judges and the Sentencing Commission — and not Congress — should have leading roles in defining the contours of the post-Booker universe.

November 10, 2005 at 12:40 PM | Permalink

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