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June 21, 2007

Anticipating Rita reactions

Whenever the Supreme Court hands down a ruling in Rita — and, gosh, I hope it's soon — I will be watching closely reactions from other federal sentencing participants.  Of course, the nature and swiftness of reactions will depend greatly on whether the Court in Rita ratifies the reasonableness status quo for within-guidelines or instead rejiggers the post-Booker landscape.  But, even without seeing the opinion, we can already anticipate how key actors will likely respond:

  • The Justice Department, as it has over the last 2 years, seems likely to continue to advocate for a Booker fix in the form of some kind of topless mandatory guideline system.
  • The US Sentencing Commission, as it has over the last 2 years, seems likely to continue to champion the importance and centrality of its guidelines.
  • Congress, as it has over the last 2 years, seems unlikely to have much interest in embarking upon a serious project of comprehensive sentencing reform.
  • Individual district judges, as they have since Booker, seem likely to find support for either migrating from or migrating toward the guidelines.
  • Circuit courts, as they have since Booker, seem likely to rule far more often in favor of the government on appeal than for defendants.

Of course, all this does not mean the outcome in Rita is inconsequential.  Rather, my main point is to highlight some structural realities that will shape Rita reactions no matter what the ruling.  (Also, adding to these status quo dynamics is the fact that SCOTUS will not drop other reasonableness review shoes until probably 2008 when it eventually rules in Gall and Kimbrough.)

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June 21, 2007 at 08:48 AM | Permalink

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Comments

Circuit courts, as they have since Booker, seem likely to rule far more often in favor of the government on appeal than for defendants.

With the possible exception of death penalty habeas petitions before certain judges, I imagine this is true of criminal appeals generally. Given the fact that the courts of appeals owe deference to the district courts, the fact that the appellants are overwhelmingly criminal defendants, and the fact that criminal defendants always have a greater incentive than the government to appeal, I'd be shocked if it were otherwise.

Posted by: | Jun 21, 2007 8:53:27 AM

SCOTUSblog has the news: The government won, Rita lost.

Posted by: Marc Shepherd | Jun 21, 2007 10:04:11 AM

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