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January 21, 2009

Lots of criminal justice action from SCOTUS, including a sentencing per curiam

With all the executive branch excitement this week, I forgot that the courts are still the place to go for the best criminal justice action.  And, to my pleasure and surprise, as reported here and hereat SCOTUSblog, the Supreme Court has lots of this action with arguments in some criminal justice cases and the release of a number of decisions in previously argued cases.

But what has me most excited is the release of a per curiam opinion in Spears v. United States(08-5721), a sentencing case up from the Eighth Circuit that did not have argument.  Here are the basics on the ruling from Lyle Denniston:

The Court also released a per curiam opinion in Spears v. United States (08-5721), a sentencing guidelines case.  The opinion is here. The Chief Justice wrote a dissenting opinion, joined by Justice Alito. Justice Thomas dissented without opinion. Justice Kennedy would have granted the petition for certiorari.

I will have a lot more to say about Spears when I get a chance to digest the Justices' collective work.

January 21, 2009 at 11:02 AM | Permalink

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Roberts, Alito, and Thomas dissent from an opinion holding that a District judge has the authority to vary from the Guidelines' crack-powder ratio based on policy disagreement with that ratio.

Kennedy would have calendared it for argument.

What's that? You say you thought Kimbrough already held that?

Posted by: Texas Lawyer | Jan 21, 2009 11:57:02 AM

Spears seems like an odd beast to me. For a PC it sure is written in the style of a binding opinion. Of course, this may be due to the fact that SCOTUS has already addressed this case and the 8th circuit came to a contrary result. Hope they get the message this time.

Will be interesting to see if the other circuits that followed the 8t abandon that path now.

Posted by: Soronel Haetir | Jan 21, 2009 12:03:59 PM

For a PC it sure is written in the style of a binding opinion.

It is a binding opinion. PCs are just as binding as signed opinions. The difference is just that the Court didn't order full merits briefing because they didn't think it was a difficult question. Though dissents from summary reversals are rare. And I think Scalia wrote it.

I think it's great. As the dissent says, there was still room for disagreement after Kimbrough. Not anymore. This should make future crack defendants happy, in addition to others who've been upset with the view in the courts of appeals that even under "advisory" Guidelines, "policy disagreement" with the crack/powder ratio isn't an appropriate basis for giving departures.

Here's the SL&P post about the CA8 decision.

http://sentencing.typepad.com/sentencing_law_and_policy/2006/12/eighth_circuit_.html

Posted by: | Jan 21, 2009 12:20:39 PM

12:20:39, I think that's the post about Spears I.

Here's the post about Spears II:

http://sentencing.typepad.com/sentencing_law_and_policy/2008/06/eight-circuit-t.html

Posted by: Texas Lawyer | Jan 21, 2009 12:29:02 PM

The result in Spears flows pretty inexorably from the holding in Kimbrough, and thus the per curiam decision is (Roberts and Alito notwithstanding) hardly surprising. That said, the practical consequences of Spears will continue to highlight the fundamental incoherence of the post-Booker world.

Spears is surely right that the power to reject a 100-1 ratio necessarily implies a power to derive (create? invent?) a different ratio and apply it. But on what basis could a district judge possibly arrive at such a conclusion? Must he (can he?) take evidence on the relative chemical and social toxicity of crack and powder? Can he take judicial notice of non-record materials? May he analyze the evidence collected by Congress and/or the Sentencing Commission and arrive at different conclusions from the expert commission or the democratically elected legislature? And if he does any or all of these things, what is the range of "right" or even legally acceptable answers?

Suppose one judge looks at the evidence and says that 100-1 looks about right to him. And then his neighbor in the next chambers does the same, but concludes that 20-1 is more appropriate. And then her neighbor does the same but concludes that 1-1 is right. When these three opinions go up to the court of appeals, what is the appellate court supposed to do? If all of these conclusions are legally acceptable, then the guidelines are utterly meaningless and we have formally returned to a regime in which the sentence similarly situated defendants receive is totally dependent on the lottery of the judicial assignment wheel.

If, on the other hand, the court of appeals is empowered to say that a particular ratio or band of ratios is legally acceptable, but ratios outside of that band are not, then the court of appeals turns out to have a power that, per Blakely and Booker, the Sixth Amendment denies to Congress and the Commission.

Any constitutional ruling that constantly generates brain-twisting conundrums like this cannot be right. Sooner or later, it will collapse under the weight of its own fundamental incoherence.

Posted by: Frank Bowman | Jan 21, 2009 12:31:00 PM

If all of these conclusions are legally acceptable, then the guidelines are utterly meaningless and we have formally returned to a regime in which the sentence similarly situated defendants receive is totally dependent on the lottery of the judicial assignment wheel.

I think that's where we are. The Guidelines just save district judges time.

Posted by: | Jan 21, 2009 1:29:47 PM

Roberts' comment about a summary reversal being harsh medicine is interesting.

Posted by: federalist | Jan 21, 2009 2:36:17 PM

"Any constitutional ruling that constantly generates brain-twisting conundrums like this cannot be right. Sooner or later, it will collapse under the weight of its own fundamental incoherence."

Time for another go at a congressional fix, Profs. B & B?

Posted by: Kent Scheidegger | Jan 21, 2009 3:01:51 PM

As a regular reader, Kent, you know that I raised that idea in a post yesterday even before we got the wisdom of asparagus (aka Spears)!

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