February 24, 2007
Another view of the Rita and Claiborne oral arguments
In recent posts set out below, I have (along with many thoughtful commentors) provided a take on the Rita and Claiborne SCOTUS oral arguments from this past week. For another view, I have received from a favorite former student a brief summary of both arguments that he prepared for his defender office. These summaries can be downloaded here: Download ritaclaiborne_argument_summaries.rtf
In addition, this student had these intriguing additional comments on the oral argument:
The govt. strongly argues that the "presumption" on appeal and "discretion" in the district are entirely compatible. In theory, I can perfectly understand this argument. But, in practice, that could not be further from the truth. I was just at a hearing yesterday where the District Judge said the 10th Cir. applies a "presumption" for within Guideline sentences and therefore the Cir. endorses rigid adherence to the Guidelines. No matter how strenuously we object or try to correct the District Judge, the "presumption" is always looming in the District Court. The govt.'s response is that it hopes District Judges would follow 3553(a) regardless of the appellate presumption, Rita pg. 29, but the govt. should know very well this is not the reality at sentencing.
Also, while predictions are doomed to fail, I essentially think Justice Stevens' question towards to end of Rita (pg. 45) foreshadows what could be a likely outcome: all sentences that consider 3553(a) will be presumed reasonable and on a case-by-case basis, with no proportionality requirement, the COA will determine if the appealing party can overcome the presumption. With that outcome, you don't have the inconsistency of the govt.'s argument, and you can avoid unwarranted disparities through the development of a common law of sentencing under 3553(a).
Some related Rita and Claiborne oral argument posts:
- A first quick take on the Rita transcript
- A first quick take on the Claiborne transcript
- Revving up for Claiborne and Rita: sentencing law in four dimensions
- Reviewing Claiborne/Rita rev up
- Justice Scalia's Theory of Appellate Review and the Sixth Amendment
- Transcript for Claiborne Arguments
February 24, 2007 at 04:44 PM | Permalink
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Sometimes someone says something you might have articulated if you could have found the words. So here. I was at the Rita and Claiborne arguments this week, and based on what I observed, I wholly agree with the prediction/conclusion expressed by your former student. And though I would have preferred the jury factfinding supported by the Booker dissenters, I think that a presumpively reasonable sentence (as long as it is procedurally sound) with no proportionality principle on review is the best that can be done at present ... unless the Court (or Congress) revisits the Booker remedy.
(The summary of the argument is also quite useful too. Thanks for passing it along.)
Posted by: | Feb 24, 2007 5:26:07 PM