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June 22, 2007

More strong Rita analysis at SCOTUSblog

All the post-Rita analysis at SCOTUSblog yesterday was fantastic, and the strong insights continue to flow today with new posts from Jeff Fisher and from Carissa Byrne Hessick and F. Andrew Hessick.  These paragraphs from the Hessick's effectively spotlight some particularly important appellate realities after Rita:

Rita does not say that the circuits have to adopt the presumption of reasonableness.  Indeed, the Court appears to have been careful in its phrasing, stating that the question was whether a court of appeals "may apply a presumption of reasonableness" to a district court sentence that reflects a proper application of the Sentencing Guidelines and that the presumption is "nonbinding" --- which seems to mean that a circuit that has adopted the presumption need not follow it.

This seems a little odd.  Certiorari is usually granted to resolve differences in the circuits; but Rita appears to endorse differing treatment in different circuits.  The differing treatment also seems at odds with the goal of uniformity under §3553(a).  Basically everyone agrees that the presumption will result in more guidelines sentences in the district courts located in circuits that have adopted the presumption (Souter's dissent says this is bad; Breyer's majority says that it is good).  By contrast, guideline sentences will be less common in those circuits without the presumption.  It seems entirely possible that sentences for similarly situated individuals may vary depending on whether the sentencing court is in a presumption circuit.

Added to this foreordained split and potential for disparate sentences is Rita's failure, as David Stras observes, to explain what the presumption of reasonableness means.  Given the Court's statements that the presumption is not binding, something akin to Skidmore deference seems to be the best candidate.  But we can't be sure.  All that can be gleaned from Rita is that the presumption means that circuits have the option of concluding --- without conducting much analysis --- that within guideline sentences are lawful.  The lack of guidance plus the potential for disparity seems a good recipe for future Supreme Court intervention.

A few other related Rita analysis posts:

June 22, 2007 at 02:00 PM | Permalink

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