February 14, 2007
Revving up for Claiborne and Rita: sentencing law in four dimensions
With less than a week until the SCOTUS oral argument in Claiborne and Rita, I now see these cases as so interesting because of how four sources of multi-dimensional sentencing law and policy intersect. Let me explain:
1. Constitutional Law: Booker struck down the mandatory federal sentencing system on Sixth Amendment grounds, but then set out a remedy that seems to undermine Sixth Amendment principles. As highlighted in posts here and here, the recent Cunningham decision suggests that Claiborne and Rita could have important Sixth Amendment dimensions. Moreover, as stressed here and by the Third Circuit's work in Grier, there are also important sentencing due process issues lurking after Blakely and Booker.
2. Statutory Law: The Booker remedy was premised on Congress's legislative intent when passing the Sentencing Reform Act (SRA), and it championed the statutory instructions to sentencing judges in 18 U.S.C. § 3553(a) as the controlling law for both district judges at sentencing and circuit judges reviewing sentences. But the Booker remedy did not say much about the "multiple and vague" factors set out in 3553(a). And, as suggested here and here, lower courts have struggled greatly to make sense of the express text of the SRA and the perceived goals of federal sentencing reform.
3. Administrative Law: The US Sentencing Commission is an administrative body and the guidelines are a form of administrative law. But the Mistretta case showcased that the USSC and the guidelines are not easily fit into standard administrative law models. Some post-Booker lower court rulings have emphasized the importance of the guidelines as the product of an expert agency, and yet traditional administrative law doctrines like Chevron have never really been brought to bear in the context of federal sentencing.
4. Common (or Case) Law: Formally, Claiborne and Rita are assessing the reasonableness standard of appellate review that was created out of whole-cloth by Justice Breyer in the Booker remedy opinion. There is no obvious constitutional, statutory or administrative law tether or guideposts for the application of this standard (which in part explains why the guideline have been so central to circuit rulings). Also lacking any obvious legal source are the circuit doctrines concerning the "presumption of reasonableness" at issue in Rita and the "proportionality doctrine" at issue in Claiborne.
Adding to the intrigue, of course, is that these sources of sentencing law overlap and connect in various ways. As in Mistretta and Jones, constitutional avoidance doctrines might push the Court to adopt a particular view and interpretation of applicable statutes; as in Koon and Watts, the Court might interpret the Constitution and the SRA to enhance the power of the USSC as an adminstative agency while undercutting the development of common-law doctrines by circuit courts.
In addition, various Justices have interesting histories with the various sources of law in the context of federal sentencing jurisprudence:
- Justice Breyer, who helped draft the SRA and was an original member of the USSC, obviously has a unique perspective on (and perhaps an unhealthy affinity for) the SRA and the guidelines.
- Justice Scalia, who was the lone dissenter from the Supreme Court's initial blessing of the SRA in Mistretta, also has a unique perspective on (and perhaps an unhealthy disaffinity for) the SRA and the guidelines.
- Justice Kennedy, who authored the unanimous opinion in Koon which asserts (perhaps inaccurately) that Congress in the SRA sought to ensure "that district courts retain much of their traditional sentencing discretion," has delivered numerous potent speeches lamenting the severity of federal guideline sentences (examples here and here).
- The new Justices are the yin and yang on federal sentencing law and policy: as detailed in this post, former federal prosecutor (and FSR author) Justice Alito had lots of exposure to federal sentencing realities on the Third Circuit and through his involvement (until his SCOTUS nomination) with the Constitution Project's Sentencing Initiative; former civil lawyer CJ Roberts comes at these issues without much history and he may be far more interested in achieving consensus among the Justices than in achieving any particular outcome.
And, of course, Claiborne and Rita puts all these elements into the awlways-bubbling soup of modern debates over the Court's role in law and politics. Consequently, I thik the only really safe prediction about to the final product in Claiborne and Rita is that the decisions will be (like the Blakely and Booker precursors) unpredictable.
February 14, 2007 at 11:43 AM | Permalink
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Tracked on Feb 14, 2007 5:08:13 PM
As you point out, Justice Breyer's "reasonableness" standard for appellate review was invented out of whole-cloth. Coming from him, this solution is no surprise. Justice Breyer is a devotee of judge-made law.
The late Chief Justice, on the other hand, was never a fan of the exquisite multi-prong balancing tests that the Warren and Burger Courts used to turn out on a regular basis. I have to assume that he accepted Justice Breyer's standard of appellate review as the cost of getting the overall result that he wanted.
Posted by: Marc Shepherd | Feb 14, 2007 12:27:58 PM
I am an attorney in Louisiana. I have been retired since before the guidelines and am now returning. I have my first federal sentencing in March and feel LOST. Thanks
Posted by: Cecelia Bonin | Feb 24, 2007 7:30:55 PM