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January 24, 2007

Further clarification of my take on the Senators' Claiborne brief

Various folks whom I respect greatly have suggested that my first discussion of the Senators' brief filed in support of the government in Claiborne has been misconstrued (or at least has undermined a constructive dialogue because it could be misconstrued) as making inflammatory charges about the motives of the Senators who signed the brief.  Especially because I have extraordinary personal respect for all the Senators who signed the brief, let me clarify my reaction to the brief:

BACKGROUND: As detailed here, I was very involved in developing briefs filed last month in Claiborne and Rita.  (I helped with the NYCDL's briefs for the defendants and wrote most of a brief not in support of any party).  Thus, everyone should realize that I am a partisan in this discussion.

SUBSTANCEI agree with most of the substance of the Senators' brief.  It stresses many great themes and even states, at page 27, that the district judge in Claiborne "may indeed have been correct that a sentence of 15 months, not 37 or 46 months, was warranted in light of the specific facts of the offense and the defendant's background."  The brief also concluded with this bold and important assertion:

It is well-documented that the crack-powder disparity has a disproportionate impact on African-American defendants, their families, and their communities, see ABA Justice Kennedy Commission Report, supra, Res. 121A at 28-29, and as a result has undermined public confidence in the criminal justice system.  Such sentencing disparity is completely contrary to the goals of the Sentencing Reform Act, and § 3553(a) enables courts to consider this impact as they develop principled rules on sentencing.

For these reasons and others, I hope the Justices play close attention to the substance of the Senators' brief when deciding Claiborne.

CONTEXT:  What troubles me about the Senators' brief (and what likely generated another's potentially offensive remark that I repeated) is that the brief was filed in support of the government in Claiborne.  (Senator Kennedy's office has this press release explaining that the "brief urges the Supreme Court to affirm the ruling of the 8th Circuit remanding the case for resentencing because the sentencing judge failed to state a sufficiently clear and principled rationale that can be readily applied by other courts in similar cases.")

As detailed here, many groups and persons who follow sentencing reform filed briefs in support of the defendants in both Claiborne and Rita.  Indeed, the Senators' brief is the only brief filed supporting the government's position in Claiborne.  (The US Sentencing Commission's brief is really focused on supporting the government's position in Rita.) 

Because the Senators' brief states that the "crack-powder disparity ... is completely contrary to the goals of the Sentencing Reform Act" and that Mario Claiborne's sentence "may indeed have been correct," it is hard to understand why the Senators' brief "urges the Supreme Court to affirm the ruling of the 8th Circuit remanding the case for resentencing." 

Critically, I do not think there was any malice or ill will or nefarious motive in the decision of the Senators to support the government in Claiborne.  And I sincerely apologize if my prior coverage has been misconstrued or has in any way undermined a needed reform dialogue on the crack-powder disparity.  Especially because I find the Senators' decision to support the government in Claiborne to be peculiar, I really hope the brief will spur a positive (and not inflammatory) dialogue on reform.

January 24, 2007 at 01:37 PM | Permalink

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They couldn't have supported the defendants, because their opponents in the next election would call them soft on crime, say they sided with criminals, and are for rape and child molestation (or whatever these two defendants were convicted of, I forget). No politician is going to even hint that he or she supports a convicted felon for these reasons. So they felt that they had to file it for the government by default.

Posted by: Bruce | Jan 25, 2007 12:05:17 PM

"So they felt that they had to file it for the government by default."

First, Professor Berman filed a brief not in support of either party, so, even assuming the Senators did not want to file a brief in support of (non-violent) defendants, I don't believe the "default" is as obvious as this statement claims.

Second, the brief proably would have been more appropriate (and more credible?) had it been filed not in support of any party. Perhaps the most telling part of the Brief is this quote:

"The Court has clearly sought to give full respect to the Sixth Amendment right to a jury trial - a critical protection against injustice throughout our history and a fundamental part of our democracy. ... [A]mici urge the Court to apply this constitutional right in a manner consistent with the basic structure and goals of the Sentencing Reform Act. In this respect, amici commend the Court for its effort in Booker to devise a remedy that conforms most closely to Congress' [sic] intent."

The Senators then list "several steps the Court can take" to advance SRA's goals: 1) consulting the Guidelines, 2) Deference to Commission Expertise, 3) Statement of Reasons, 4) Appellate Review.

If the purpose of the brief was to expound upon the "structure and goals of the Sentencing Reform Act" and to recommend "steps" towards that end, it is not apparent to me why the Senators also felt it necessary to "urge[] the Supreme Court to affirm the ruling of the 8th Circuit remanding the case for resentencing."

In essence, the goals of the brief would have been better accomplished if, as Prof. Berman's brief, it was filed not in support of either party.

Posted by: DEJ | Jan 25, 2007 5:15:06 PM

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