Thursday, June 07, 2007

A legal eulogy for the Claiborne case

The St. Louis Post-Dispatch has this new article, entitled "Death leads to dismissal of key Supreme Court case," that discusses the legal aftermation of the death of Mario Claiborne.  Here are excerpts:

Investigators are still sorting out why Mario Claiborne was following a stolen pickup last week and just how the pursuit led to gunfire and Claiborne's death.  But the killing has created other legal twists, as it forced the dismissal of Claiborne's closely watched case before the U.S. Supreme Court, which was expected to rule within the next few weeks. J ustices were to clarify how much discretion federal judges have when applying sentencing guidelines....

Claiborne's case already had traveled an improbable road by reaching the Supreme Court, where oral arguments were held in February.  Thousands of people seek review by the high court and few succeed. And of those who get the court's attention, even fewer are killed before their case is heard.  "Once people make it to the Supreme Court, we don't tend to lose them," said Tom Goldstein, who heads the Supreme Court practice of Washington law firm Akin Gump Strauss Hauer & Feld.

The case had been watched across the country and potentially could have affected thousands of criminal defendants and a growing backlog of cases awaiting resolution of the issue.  About 9,800 of the more than 70,000 defendants sentenced in federal court in fiscal year 2006 got similar departures from guideline sentences, according to Justice Department statistics.  "You've got a lot of different parties that see this as having a far-reaching effect," [Assistant U.S. Attorney Cris] Stevens said.

Some related posts:

June 7, 2007 in Claiborne and Rita reasonableness case | Permalink | Comments (3) | TrackBack

Tuesday, June 05, 2007

Reasonableness review revisions (and revolutions?)

As highlighted by two posts at SCOTUSblog, the state and fate of reasonableness review in the Supreme Court may be evolving even though the Rita decision may still be weeks away.  First, Tom Goldstein here, rethinking his prior authorship prediction, now says Justice Breyer is likely "writing at least one of the opinions in the sentencing cases."  Of course, as of this writing, there is only one remaining sentencing case, Rita, after the Claiborne case went away due to the defendant's death (basics here).

But, as detailed in this post by Lyle Denniston, the Solicitor General, through this new filing, has now "urged the Supreme Court ... to grant review in a new Sentencing Guidelines case replacing one that has been ordered vacated, and suggested that the new case could be decided before the Court finishes the current Term, perhaps later this month."  The new case, as previously previewed here, is Beal v. US (docket 06-8498). 

As I explained in this post, I am not too keen on SCOTUS rushing through a new set of facts in Beal to address the issues raised Claiborne.  That said, I think the SG is absolutely right when he says, in this latest SCOTUS filing, that the "federal criminal justice system has a great need for this Court's guidance concerning the nature and scope of review of out-of-guidelines sentences under Booker." 

Because so many issues of sentencing law and policy intersect in the Supreme Court's sentencing cases (as I detailed in this post), I still believe the Supreme Court would be wise now to invest its time and energy in getting Rita right and then subsequently gear up to hear and decide out-of-guidelines issues next Term.  However, the SG obviously has a uniquely informed perspective on these federal criminal justice issues, and this Beal might be on the fact track to the Supreme Court reporter.

Anyone want to hazard a new prediction on what exactly the Justices will now do with reasonableness review (and when they will do it)?

Some recent related posts:

June 5, 2007 in Claiborne and Rita reasonableness case | Permalink | Comments (5) | TrackBack

Monday, June 04, 2007

Shouldn't SCOTUS just do Rita right and go from there?

As noted here, the Supreme Court officially took the Claiborne case off its docket through this per curiam opinion that vacates the Eighth Circuit's opinion in the wake of Mario Claiborne's death (basics here).  But this expected move now raises a host of questions about what the Justices will and should do with the important issues raised and extensively briefed in Claiborne

As detailed here, Claiborne's lawyer has suggested an alternative case, Beal v. U.S. (docket 06-8498), for the Court to take up in order to be able to address directly reasonableness review in a case involving a below-guideline sentence.  I believe the SG's office has not yet officially weighed in on this suggestion, though perhaps something will be filed soon in the wake of the Court's official ruling in Claiborne.

For a variety of reasons, I hope SCOTUS does not take up and rush through another case to replace the Claiborne case.  Claiborne involved a distinct set of facts built on a unique lower court record.  Though perhaps the Justices had a view of the Claiborne case that was not focused on its unique facts, all sound sentencing determinations are necessarily fact- and context-specific.  (Indeed, as I argued in various amicus filings in Claiborne and Rita (available here), 3553(a) can be understood to demand fact- and context-specific reasoned judgments by district courts at initial sentencings and by circuit courts applying reasonableness review.)

Though lower courts certainly need additional SCOTUS guidance on how to deal with below-guideline arguments and sentences, the Justices still can and should address the most pressing post-Booker issues through a complete ruling in Rita.  Though the Roberts Court has tended toward narrow rulings, I believe both judicial modesty and doctrinal clarity can be best served if the Court provides a thorough analysis and ruling in Rita and then just waits to consider and address other post-Booker issues through the Court's standard review procedures.

June 4, 2007 in Claiborne and Rita reasonableness case | Permalink | Comments (8) | TrackBack

SCOTUS dismisses Claiborne, again rules 5-4 in a capital case

After a few quite sentencing weeks, SCOTUS did a lot this morning that sentencing fans will find interesting.  SCOTUSblog is, of course, the place to get all the early reports, and here are the sentencing highlights thanks to Lyle Denniston:

The Supreme Court on Monday threw out the case of Claiboirne v. U.S. (06-5618), because the individual involved, Mario Claiborne of St. Louis, Mo., had died last week.  The Court ordered an Eighth Circuit decision in the case vacated as moot.  The case involved the question of whether it is presumed to be unreasonable for a federal judge to impose a below-Guidelines range sentence, if there were no extraordinary circumstances in the case.  The Court took no immediate action on a plea to grant review in a substitute case from the Eighth Circuit raising the same issue....

The Supreme Court, dividing 5-4, ruled on Monday that federal courts must defer to trial courts in deciding whether to remove a juror from a death penalty trial because of the potential juror's views about capital punishment.  The Court said that the trial judge "is in a superior position" to make that decision.  The case was Uttecht v. Brown (06-413), with the Court reversing the Ninth Circuit Court.  Justice Anthony M. Kennedy announced the decision of the majority, and Justice John Paul Stevens responded from the bench for the dissenters.

Commentary will follow on both of these developments later in the day.

June 4, 2007 in Claiborne and Rita reasonableness case | Permalink | Comments (2) | TrackBack

Sunday, June 03, 2007

Will SCOTUS address Claiborne's fate on Monday?

On Monday morning, the Supreme Court will release orders and probably a few new opinions.  Before last week, I thought there was a chance that we might decisions in the Claiborne and Rita reasonableness case as early as this Monday (although wiser folks than me had predicted the middle of June for these critical rulings on Booker's meaning and impact on federal sentencing).

However, the death of Mario Claiborne (details here) would seem to ensure that SCOTUS will need more time to sort out these matters.  Thus, I think the chief issues now are whether the Supreme Court's orders on Monday will include some formal action on the Claiborne case and will provide some indication on how the Justices plan to handle these matters going forward.  Any predictions, dear readers?

Related posts:

June 3, 2007 in Claiborne and Rita reasonableness case | Permalink | Comments (7) | TrackBack

Saturday, June 02, 2007

Can the Claiborne case survive Mario Claiborne's demise?

As detailed in this post from Lyle Denniston at SCOTUSblog, an effort is underway to help the Supreme Court resolve the issues raised by the Claiborne case even though Mario Claiborne died last week (details here).  Here are the basics from Lyle's post:

A public defender in St. Louis has urged the Supreme Court to find a way to decide in the current Term a significant issue about federal criminal sentencing law that was at stake in a case involving an individual who died last week.  The case is Claiborne v. U.S. (docket 06-5618)...

Michael Dwyer, assistant federal public defender in the Eastern District of Missouri, on Friday filed a motion asking the Court either to go ahead and decide the Claiborne case as presented, or to grant expedited review of another case from Dwyer's office involving the same Guidelines question. The alternative case suggested is Beal v. U.S. (docket 06-8498) -- like Claiborne, from the Eighth Circuit Court. The Supreme Court considered the Beal case at a Conference in February, but took no action on it, apparently intending to hold it until after it had decided Claiborne....

Dwyer contended in his motion that "the close similarity of the facts and decisions of the districts courts and appellate panels in Claiborne and Beal makes the latter case an efficient and effective vehicle to resolve the urgent issues presented in Claiborne.  Because of his representation of Claiborne, the Federal Public Defender for the Eastern District of Missouri could expeditiously prepare Beal for briefing and argument."

June 2, 2007 in Claiborne and Rita reasonableness case | Permalink | Comments (0) | TrackBack

Thursday, May 31, 2007

Could SCOTUS address below-guideline sentences in another case?

A thoughtful reader asks:

Wouldn't it be possible for the Surpeme Court simply to...

  1. take another case on cert for the same issue in Claiborne (there are a ton of appeals out there on the same issue; US v. Eura, which is on cert from the 4th Cir, to name just one),
  2. decide in its discretion that it doesn't need oral argument or briefing to decide the case (certainly, it has discretion to do so),
  3. and write effectively the same decision with a different facts section? 

Is there anything stopping it from doing this?

May 31, 2007 in Claiborne and Rita reasonableness case | Permalink | Comments (8) | TrackBack

Mario Claiborne killed in strange robbery... now what?!?!?

I have been hearing rumors since yesterday that the defendant in Claiborne v. US, Mario Clairborne, had been killed in Saint Louis.  I have now confirmed through various sources that the "Morio Claiborne" mentioned in this article as having been killed in a car robbery incident is the same person whose case is right now pending before the Court. 

My sources tell me that something will be filed officially with the Supreme Court today.  But exactly what this means for the Claiborne case (and the companion Rita case) remains to be seen.  Needless to say, I am stunned by this remarkable development, and I wonder if there is any recent precedent about what exactly should be done in circumstances like this.

Wow... and I'm very interested in reader comments.

UPDATE: SCOTUSblog is now reporting the news and has this analysis of now what:

Under Supreme Court Rule 35, when a party to a case has died, a personal representative may be named if the legal interests would survive the death.  That would not be possible in a case involving a convicted and sentenced individual, who has the sole legal interest in the outcome. Thus, it would appear that the Claiborne case would simply be dismissed by the Court, leaving that aspect of the Guidelines reasonableness inquiry unsettled -- unless the coming decision in the Rita case goes beyond the single issue presented there.

May 31, 2007 in Claiborne and Rita reasonableness case | Permalink | Comments (26) | TrackBack

Tuesday, May 22, 2007

Who's writing how many opinions in Claiborne and Rita?

In the this post and its comments, Tom Goldstein speculates that Justice Stevens is writing the opinion for the Court in Claiborne and Rita.  Others suggest that Justice Breyer might have the assignment.  I am pretty convinced that they will both author something in these cases.  (After all, these two Justices combined for four opinions in Booker).

In addition to speculating about who is writing for the Court, it is also fun to ponder how many total opinions there will be in Claiborne and Rita.  Technically, these are two distinct cases that surely could produce different voting outcomes/patterns and thus might require distinct majority and dissenting opinions.  In addition, I would guess that, in addition to Justices Stevens and Breyer, at least three or maybe four or perhaps even five other Justices — Justices Scalia, Ginsburg, Alito and maybe also Justices Kennedy and Thomas — may want to speak their peace in these cases.

For all these reasons, I'll set the over/under for total opinions in Claiborne and Rita at six (which was the total number of opinions in Booker).  I am eager to hear readers make arguments for either the over or the under as we wait.

May 22, 2007 in Claiborne and Rita reasonableness case | Permalink | Comments (1) | TrackBack

Tuesday, May 15, 2007

Should SCOTUS now just remand Claiborne in light of the new USSC report?

The new USSC cocaine report provides so much to discuss (basics here), I am not sure where to start.  In the hope generating a lawyerly debate, I'll start with these provocative questions:

1.  Should the Justices now just simply remand the Claiborne case — which concerns the reasonableness of a below-the-old-crack-guideline sentence — to the Eighth Circuit for reconsideration in light of the new USSC report and amendments?

2.  Should the Justices request letter briefs on this issue from the parties and/or should Claiborne's lawyer or the Solicitor General request a remand?

Put simply, the new report and amendments from the USSC provides powerful new evidence about the reasonableness of crack sentences, especially for low-level offenders like Mario Claiborne.  Though I thought that Claiborne's below-guideline sentence was reasonable before the USSC latest analysis, the USSC report provides a lot of new information and perspective on any decision to give a below-the-old-crack-guideline sentence.

As question 2 suggests, this issues seems lively enough to justify soliciting input from the parties.  And, in my view, some (or all) of the lawyers might reasonably decide their client's interests would be best served by a simple remand without SCOTUS consideration on the merits. 

(Of course, I would be greatly disappointed if the Supreme Court does not fully address post-Booker sentencing realities this term.  But SCOTUS can and will speak to many post-Booker issues in Rita even if it were to remand Claiborne without any discussion of the merits.)

May 15, 2007 in Claiborne and Rita reasonableness case, Drug Offense Sentencing, Federal Sentencing Guidelines, Who Sentences? | Permalink | Comments (4) | TrackBack

Saturday, May 12, 2007

Conclusive proof old crack guidelines unreasonable

Though it's still a few more days until the US Sentencing Commission releases its new cocaine sentencing report (background here and here), the USSC has now posted on its website this reader-friendly version of all its new proposed guidelines amendments.  (It also has released online this Spring 2007 newsletter which summarizes the new amendments and other USSC developments.)

The reader-friendly document describing the reasons for the USSC's new crack changes provides further support for my long-held view that the old crack guidelines were presumptively unreasonable.  Consider these paragraphs (and especially the highlighted sections):

Current data and information continue to support the Commission’s consistently held position that the 100-to-1 drug quantity ratio significantly undermines various congressional objectives set forth in the Sentencing Reform Act and elsewhere.  These findings will be more thoroughly explained in a forthcoming report that will present to Congress, on or before May 15, 2007, a number of recommendations for modifications to the statutory penalties for crack cocaine offenses. It is the Commission’s firm desire that this report will facilitate prompt congressional action addressing the 100- to-1 drug quantity ratio.

The Commission’s recommendation and strong desire for prompt legislative action notwithstanding, the problems associated with the 100-to-1 drug quantity ratio are so urgent and compelling that this amendment is promulgated as an interim measure to alleviate some of those problems.  The Commission has concluded that the manner in which the Drug Quantity Table in §2D1.1 was constructed to incorporate the statutory mandatory minimum penalties for crack cocaine offenses is an area in which the Federal sentencing guidelines contribute to the problems associated with the 100-to-1 drug quantity ratio....

Having concluded once again that the 100-to-1 drug quantity ratio should be modified, the Commission recognizes that establishing federal cocaine sentencing policy ultimately is Congress’s prerogative. Accordingly, the Commission tailored the amendment to fit within the existing statutory penalty scheme by assigning base offense levels that provide guideline ranges that include the statutory mandatory minimum penalties for crack cocaine offenses.  The Commission, however, views the amendment only as an interim solution to some of the problems associated with the 100-to-1 drug quantity ratio. It is neither a permanent nor a complete solution to those problems.

This fully up-to-date and expert analysis from the USSC provides, in my view, conclusive evidence that a sentence imposed within the old crack guidelines is NOT likely to serve the purposes of punishment Congress set forth in 3553(a)(2).  Consequently, each every defendant sentenced within the old crack guidelines has a very strong basis for arguing on appeal that his sentence is unreasonable (and certainly that a presumption of reasonableness should not apply to any within-the-old-crack-guideline sentence).

Related posts on the USSC new crack work:

May 12, 2007 in Claiborne and Rita reasonableness case, Drug Offense Sentencing, Federal Sentencing Guidelines, New USSC crack guidelines and report, Race, Class, and Gender | Permalink | Comments (4) | TrackBack

Thursday, May 10, 2007

The multi-front crack attack

Within the next few days, the US Sentencing Commission should release its highly-anticipated new cocaine sentencing report.  As highlighted here and here, I am very excited to see how this new report — which the USSC says will reiterate its "consistently held position that the 100-to-1 crack-powder drug quantity ratio significantly undermines various congressional objectives set forth in the Sentencing Reform Act and elsewhere" — might ripple through the current federal sentencing pond.

Meanwhile, the crack-cocaine sentencing ratio is still being assailed through cert petitions filed in the Supreme Court.  Coincidentally, today I received a copy of an initial petition filed in the Young case from the Third Circuit and a copy of a reply brief filed in the Spears case coming from the Eighth Circuit.   (These documents, which are great reads for folks following the crack story closely, can be downloaded below.)

Both Spears and Young would present great opportunities for the Supreme Court to remedy the ugly ways in which most circuits have been approaching crack sentencing after Booker.  However, it seems to me quite possible that the Justices will (at least indirectly) address some of these issues in Claiborne (and perhaps also Rita).  Consequently, I would anticipate post-Claiborne GVRs in both these cases.

Download young_crack_cert_petition.pdf

Download spears_cert_reply.pdf

May 10, 2007 in Booker in the Circuits, Claiborne and Rita reasonableness case, Death Penalty Reforms, Race, Class, and Gender | Permalink | Comments (0) | TrackBack

Will Claiborne or Rita address the status of "traditional" departures?

As I noted here last year, there is a consequential circuit split over the status of "traditional" departures after Booker.  The Seventh Circuit pioneered the notion that "traditional" departures are obsolete after Booker, and the Ninth Circuit has echoed this sentiment.  But most other circuits (and the Sentencing Commission) have expressly called for district courts to conduct a "traditional" departure analysis before considering 3553(a) factors.

Today the Seventh Circuit in US v. Simmons, No. 06-3894 (7th Cir. May 10, 2007) (available here), reiterates its view that a district court errs by granting a traditional departure (although this error is deemed harmless in Simmons).   Technically, neither or Claiborne or Rita raises a departure issue, but the Justice may want to clear up the post-Booker status of departures if they are genuinely concerned about national sentencing consistency.   

Simmons also highlights that district courts in the Seventh Circuit still have not quite gotten the message that "traditional" departures are obsolete.  Indeed, Sentencing Commission statistics indicate that district courts in the Seventh Circuit granted more traditional departures in the last 3 months of 2006 than did district courts in the neighboring Sixth and Eighth Circuits.

May 10, 2007 in Claiborne and Rita reasonableness case | Permalink | Comments (1) | TrackBack

Tuesday, April 17, 2007

Some (needed?) help for SCOTUS on Sixth Amendment "first principles"

As detailed here and here, this morning was civil at the Supreme Court: the Court released opinions in three civil cases (and the vote alignments in all three cases seem notably unpredictable).  As Lyle Denniston notes, now the earliest-argued case still undecided is "James v. U.S. (05-9264), on whether a state conviction for attempted burglary can be treated as a violent felon under federal armed criminal sentencing law."  More opinions are to be released tomorrow, so maybe then we will finally see a SCOTUS version of "Sweet Baby James."

Of course, Claiborne and Rita are still pending, and my anticipation is starting to build (even though I doubt we will see these decisions until June).  Adding to my anticipation is an e-mail I received from YLS Professor Kate Stith, who reports to me that her student "Richard Re, YLS '08, has a nuanced exposition of the argument [that] Sixth Amendment 'first principles' resolve the apparent tension between Blakely and Booker I, on the one hand, and Booker II, on the other."  That explanation can be downloaded below, and here is a taste to whet your appetite:

If reasonableness review is to be consistent with the Sixth Amendment, then Sixth Amendment doctrine must be re-conceptualized so as to differentiate between sentencing guidelines imposed by legislatures and those generated by judges themselves.  But why would the Blakely and Booker rules apply only when the legislature is involved?  In order to answer this question, we have to return to Sixth Amendment first principles.

Download yls_solving_the_booker_paradox.doc

April 17, 2007 in Claiborne and Rita reasonableness case | Permalink | Comments (4) | TrackBack

Tuesday, March 27, 2007

More on FSR issue on Claiborne and Rita

As detailed here, the Federal Sentencing Reporter's latest issue, entitled "Claiborne & Rita: Reasonableness Review in the Supreme Court," is focused on the two post-Booker cases now pending before the Court.  The issue has now gone to press and will be available on-line here before long.  My Editor's Observations, which I have made available for downloading below, previews some of the issue's themes.  Here is a snippet:    

This Issue of FSR ... seeks to provide both context and concepts for understanding the federal sentencing realities that may have prompted the Claiborne and Rita cert grants and that may impact the Court's decisions.  The articles in this Issue, some of which directly address federal sentencing realities in Booker's wake and some of which address broader issues concerning the operation of guideline systems, provide varied perspectives on whether and how Claiborne and Rita could impact the current state and future direction of post-Booker federal sentencing.

The information, insights, and ideas in the articles that follow are not readily summarized.  But all the pieces point to two broad themes that have potentially profound implications not only for Claiborne and Rita but also for the future of all structured sentencing efforts.  One theme, which is most prominent in the articles by Professor Frank Bowman and Judge Nancy Gertner, is the difficulty of integrating the Supreme Court's Sixth Amendment jurisprudence and a judge-centered sentencing system.  The other theme, which is particularly prominent in other articles in this Issue, is the difficulty of integrating formal sentencing doctrines and practical sentencing dynamics.

Download berman_editor_observations_for_fsr_19.3.pdf

March 27, 2007 in Claiborne and Rita reasonableness case | Permalink | Comments (0) | TrackBack

Friday, March 23, 2007

FSR Issue on Claiborne and Rita

I have finally put the finishing touches on the Federal Sentencing Reporter's latest issue, which is entitled "Claiborne & Rita: Reasonableness Review in the Supreme Court."  As the title suggests, this issue of FSR is focused primarily on the two post-Booker cases now pending before the Court.  Here's a review of the contents: 

EDITOR’S OBSERVATIONS

ARTICLES ON POST-BOOKER SENTENCING

ARTICLES ON BROADER GUIDELINE OPERATION

The Federal Sentencing Reporter can be ordered here and accessed electronically here, though it will be a few days before this latest issue (Vol. 19, No. 3) comes on-line.

Other recent FSR issues on Blakely, Booker and federal sentencing dynamics:

March 23, 2007 in Claiborne and Rita reasonableness case | Permalink | Comments (1) | TrackBack

Saturday, February 24, 2007

Another view of the Rita and Claiborne oral arguments

In recent posts set out below, I have (along with many thoughtful commentors) provided a take on the Rita and Claiborne SCOTUS oral arguments from this past week.  For another view, I have received from a favorite former student a brief summary of both arguments that he prepared for his defender office.  These summaries can be downloaded here: Download ritaclaiborne_argument_summaries.rtf

In addition, this student had these intriguing additional comments on the oral argument:

The govt. strongly argues that the "presumption" on appeal and "discretion" in the district are entirely compatible.  In theory, I can perfectly understand this argument.  But, in practice, that could not be further from the truth. I was just at a hearing yesterday where the District Judge said the 10th Cir. applies a "presumption" for within Guideline sentences and therefore the Cir. endorses rigid adherence to the Guidelines. No matter how strenuously we object or try to correct the District Judge, the "presumption" is always looming in the District Court. The govt.'s response is that it hopes District Judges would follow 3553(a) regardless of the appellate presumption, Rita pg. 29, but the govt. should know very well this is not the reality at sentencing.

Also, while predictions are doomed to fail, I essentially think Justice Stevens' question towards to end of Rita (pg. 45) foreshadows what could be a likely outcome: all sentences that consider 3553(a) will be presumed reasonable and on a case-by-case basis, with no proportionality requirement, the COA will determine if the appealing party can overcome the presumption.  With that outcome, you don't have the inconsistency of the govt.'s argument, and you can avoid unwarranted disparities through the development of a common law of sentencing under 3553(a).

Some related Rita and Claiborne oral argument posts:

February 24, 2007 in Claiborne and Rita reasonableness case | Permalink | Comments (1) | TrackBack

Wednesday, February 21, 2007

A first quick take on the Claiborne transcript

I have now had a chance to read quickly the oral argument transcript in Claiborne (noted here with nice comments from readers).  Here are a few first-cut reactions:

1.  Though counsel for defendant Claiborne did a nice job emphasizing some parts of the text of 3553(a), I still would have liked to have seen more engagement with the purposes of sentencing set forth in 3553(a)(2).  I think counsel should have said that the Eighth Circuit did not state (let alone explain) why any of the 3553(a)(2) purposes were not sufficiently served by the district court's sentencing determination.

2.  Counsel for the Government did an amazing job showing respect for the Booker constitutional ruling while still pushing the notion that the guidelines have to serve as a "tether" for post-Booker sentencing decision-making.

3.  There was an obvious effort by all the Justices to find an applicable standard by which to judge sentencing outcomes on appeal.  As point 1 above highlights, I think that standard can and should should be the express textual instructions that Congress set forth in 3553(a)(2).  If those instructions seem too vague or are hard to apply or do not result in sufficiently consistent outcomes, Congress can and should change those express statutory instructions (or make the guidelines mandatory again by providing for Sixth Amendment compliant fact-finding). 

4.  Justice Stevens wonderfully started to gravitate toward an offense/offender distinction in his questioning of counsel for the Government.  As I suggested in a recent post, as well as in a recent Stanford Law Review article, I think an offense/offender distinction can be very illuminating for sorting through a lot of post-Booker issues.  It will be very interesting to see if this distinction (which Justices Kennedy and Breyer have some affinity for) ultimately finds expression in the opinions in Claiborne.

February 21, 2007 in Claiborne and Rita reasonableness case | Permalink | Comments (0) | TrackBack

Debunking some myths about the quest for sentencing uniformity

As I read the Rita and Claiborne oral argument transcripts, I am aggravated by the persistent assumptions that (1) Congress is exclusively concerned with sentencing uniformity, and (2) a guideline-centric sentencing system with judicial fact-finding is essential to achieving sentencing uniformity.  These assumptions reflect a superficial understanding of the Sentencing Reform Act of 1984, subsequent sentencing legislation passed by Congress, and the federal guidelines in operation.  Let me explain.

The text of the SRA and its legislative history show that Congress in 1984 was interested not only in greater sentencing consistency, but also in creating a more principled, reasoned and transparent federal sentencing system.  As the crack sentencing debate spotlights, slavish adherence to certain guidelines can often produce an unprincipled form of uniformity.  That why the US Sentencing Commission has repeatedly said the crack guidelines undermine the goals of the SRA.

Further, in a major report in 1991, the USSC explained to Congress that mandatory minimums in operation produce unwarranted disparity.  Nevertheless, Congress has continued to embrace mandatory minimum statutes that undermine the sensible pursuit of sentencing uniformity.  In addition, Congress has rarely sought to regulate prosecutorial discretion even though the USSC has long detailed the myriad ways prosecutorial discretion can produce unwarranted disparities.  In fact, the 2003 PROTECT Act broadly expanded prosecutorial discretion in various ways, including formally embracing different prosecutorial fast-track policies throughout the country.  Obviously, Congress has many sentencing goals beyond just achieving sentencing uniformity.

Relatedly, after Booker, Congress could have readily returned the guidelines to their mandatory status simply by declaring that guideline fact-finding should conform to Sixth Amendment.  (This is how the majority of states responded to Blakely.)  But we have now had advisory guidelines in place for more than two years, and Congress has not seriously considered any legislative fix to make the guidelines mandatory again.  This shows, yet again, that Congress has many sentencing goals beyond just achieving sentencing uniformity.

As I explain in much of my scholarship, I am a strong believer in sentencing guidelines because they can and should enhance more consistent, principled, reasoned and transparent sentencing practices.  Unfortunately, the federal sentencing guidelines often champion superficial notions of uniformity over other equally important sentencing goals (even though the SRA as reflected in text of 3553(a) & (c) and other provisions rightfully stress other critical goals).  I am hopeful that the decisions in Rita and Claiborne will be sensitive to these realities to help ensure that the federal system still aspires to achieve principled, reasoned and transparent federal sentencing justice.

February 21, 2007 in Claiborne and Rita reasonableness case | Permalink | Comments (8) | TrackBack

A first quick take on the Rita transcript

I have now had a chance to read quickly the oral argument transcript in Rita (first discussed here).  Here are a few first-cut reactions:

1.  Though first QP in Rita asked "Was the district court's choice of a within-Guidelines sentence reasonable?," the Court spent most of its time focused on the presumption of reasonableness for within-guideline sentences.

2.  Counsel for defendant Rita from the outset framed the case in general terms that played into the government's emphasis on the importance of the guidelines to foster sentencing uniformity.  I think counsel should have focused the Court explore the first QP noted above.

3.  Counsel for the Government made concessions about the application of the Booker remedy that seem to be in tension with some of DOJ's arguments in lower court post-Booker litigation.

4.  There was disturbingly little discussion or exploration of the text of 3553(a).  Because this text seems to favor defendants, I am not surprised the Government avoided it, but I was disappointed this provision was not more central to the defendant's arguments.

5.  Justice Breyer is clearly interested in continuing a guideline-centric sentencing system, but that's no surprise.  Questions from other Justices left me unsure about whether others are personally committed to preserving a guideline-centric universe.

6.  I still think Justice Kennedy is an intriguing and uncertain vote in Rita.  As noted here, last week he told Congress that "I am not comfortable with anything in the federal correctional system and with our sentencing policy."  Is someone who makes this statement, and who has repeatedly lamented the severity of federal sentencing terms, likely to embrace the notion that the federal sentencing guidelines are always presumptively reasonable?

February 21, 2007 in Claiborne and Rita reasonableness case | Permalink | Comments (4) | TrackBack