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April 18, 2011

Oral argument transcript in SCOTUS Tapia case...

is now available at this link and it is worthwhile read not just for federal sentencing practitioners but also for anyone interested in the intersection of punishment theory and sentencing practice.

Because I served as co-counsel to the appointed amicus, I will continue my personal no-comment policy on this case and its issues until a decision comes down in the coming months.  That policy, however, should not prevent or restrain others from sharing their thoughts on this case.

Prior posts on Tapia case:

April 18, 2011 at 05:15 PM | Permalink


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Doug --

I thought you had Bibas exceptionally well prepared. He knew what he was going to get asked and had his answers direct, succinct and well organized. He had great presence of mind, something it's easy to lose in the pressure of a SCOTUS argument. I also thought the defendant's lawyer made a disastrous mistake by saying there could not be dual purpose sentences -- something that is untrue and that's more than he needs to assert.

You're losing Scalia, and it would seem Kagan. Thomas thinks like Scalia on issues like this, so my bet is you're losing him too. The problem there is that Scalia seems to regard the language of Section 3582 as both clear and conclusive; I think he's overrating it on both counts.

I think you're getting Sotomayor, Alito and the Chief. Kennedy could go either way; it seemed at the outset that he was with you, but later, not so much.

I thought Ginsburg's questioning sniffed out what I view as the key to your winning, namely, the expanded post-Booker discretion that got its biggest boost in Gall and Kimbrough, with her in the majority both times. How ironic it was that Ginsburg should ask, skeptically, whether the approach you're supporting would lead to more disparity, since it was Ginsburg who wrote that more disparity was the necessary price of the Booker remedy. If I had been there, I would have quoted her own words right back at her.

Right now, I see it as three-to-three. I can't tell about Ginsburg, Kennedy or Breyer. Breyer was talking about a remand for re-sentencing, seemingly to get the district judge to spell things out more clearly. But once Breyer reviews the sentencing transcript, he might have second thoughts. I thought the district judge was pretty clear about what he wanted to achieve.

Of course all this is just off the transcript. It's better to be there, obviously.

I wonder if, consistent with your no-comment-on-the-legal-issues policy, you could at least say if were feeling happy when you walked out of the building.

Posted by: Bill Otis | Apr 18, 2011 6:25:55 PM

I know I promised an end to adjectives in these comments. But this impossible here.

Has anyone had the opportunity to sit in the back of a special class of mentally retarded kids helping each other solve math word problems, collaboratively? The self-serious discussion of these know nothing Justices is more mind bending, these slow shuffling, coffee drinking, tired already government workers.

I was able to get through 30 pages, then I typed in Find: Berman. Nothing.

An expert is setting standards of professional care in some tort trial on a very narrow technical subject inside a practice. His testimony is often subjected to a Daubert hearing. Here is Rule 702:

A witness may only testify if 1) the testimony is based upon sufficient facts or data; 2) the testimony is the product of reliable principles and methods; and, 3) the witness has applied the principles and methods reliably to the facts of the case.

Why are know nothing amateurs allowed to make decisions to be imposed on the entire nation at the point of a gun without any of that standard?

Whichever the decision made, its sole validation is at the point of a gun of Army Airborne.

The inanity of the discussion does support the notion that the sole mature aim of the criminal law is incapacitation. Rehabilitation is nice for any prisoner interested, but it should be of no concern to any sentencing judge, if public safety is the aim of the law, rather than lawyer job generation. The garbage science disrespects the integrity of the prisoner, and hammers the taxpayer, for no reason, save the generation of worthless government sinecures. Whatever the decision, it is garbage based on garbage. Even after the decision, the effect will remain unknown. But these amateurs don't really care. They want more trial procedure to increase the hours of lawyer employment.

Daubert standards should apply to judicial decisions and to law making by legislature. Only 2 SC decisions even mentioned scientific validation, Mass v EPA, and Brown v Bd. of Ed.

Posted by: Supremacy Claus | Apr 19, 2011 1:40:57 AM

Supremacy. tell us how you really feel on this, don't hold anything back...

Posted by: Abe | Apr 19, 2011 9:32:02 AM

Abe: I recommend reading the transcript. The adjective that applies is "fact free." Yet, this decision will cost millions, affect 1000's, unlike some narrow practice in a technical field, requiring expertise, and that the expertise meet the Daubert standards of Rule 702. Daubert applies to the criminal law. Prof. Berman can help this nation by demanding a Daubert hearing every time a decision will change a law.

Posted by: Supremacy Claus | Apr 19, 2011 9:52:27 AM

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