Friday, December 28, 2007
Fourth Circuit affirms below-guideline sentence in first big post-Gall ruling
A decision just released by the Fourth Circuit today in US v. Pauley, No. 07-4270 (4th Cir. Dec. 28, 2007) (available here), suggests that at least one circuit got the back-off message that the Supreme Court seemed eager to send to the courts of appeals in Gall and Kimbrough. Here is the opening paragraph in Pauley:
Larry Pauley pled guilty to one count of possessing photographs that contained images of child pornography, 18 U.S.C. § 2252A(a)(5)(B). At sentencing, the district court determined that Pauley’s Guidelines range was 78 to 97 months’ imprisonment. After considering this range in conjunction with the factors set forth in 18 U.S.C. § 3553(a), the district court sentenced Pauley to forty-two months’ imprisonment. Finding no abuse of discretion, we affirm the sentence imposed by the district court.
The decision goes on to discuss sentencing review and Gall at some length. And this passage discussing the particulars of the district court's sentencing decision provides a sense of the overall tone of the opinion:
In its consideration of the § 3553(a) factors, the district court correctly found in the exercise of its discretion that other facts warranted a sentence lower than that recommended by the Guidelines range. The district court found that Pauley warranted a lower sentence because he was deeply remorseful and, besides the criminal conduct at issue, he was a good father and teacher. Such considerations were appropriate because they are directly tied to § 3553(a)(1)’s directive that the court consider the history and characteristics of the defendant. 18 U.S.C. § 3553(a)(1). The district court also found that Pauley warranted a lower sentence because he lost his teaching certificate and his state pension as a result of his conduct. Consideration of these facts is consistent with § 3553(a)’s directive that the sentence reflect the need for "just punishment," id. § 3553(a)(2)(A), and "adequate deterrence," id. § 3553(a)(2)(B). The district court further explained that a lower sentence would allow Pauley to be rehabilitated through the counseling he will receive during incarceration, and the court noted that a lifetime of supervised release would reduce the risk of Pauley becoming a repeat offender and would deter him from future criminal conduct. These are also valid considerations under § 3553(a). In sum, considering all of the factors that the district court viewed as mitigating in their totality, we hold that the thirty-six month downward variance was supported by the justifications necessary to uphold the sentence.
Saturday, December 22, 2007
Disparities, trial penalty and Gall in Skilling reply brief
Thanks to this post at White Collar Crime Prof Blog, I was able to access the 162-page reply brief(!) filed by Jeff Skilling's legal team in his Fifth Circuit appeal. The sentencing arguments begin on page 143, and these disparity arguments are developed starting at page 152:
Skilling’s 24.3-year sentence reflects a profound and unwarranted disparity compared to the (1) uniformly below-Guidelines sentences imposed on eight even more culpable high-ranking executives from major corporations; and (2) the 5.5 year sentence imposed on co-defendant Richard Causey.
In developing point (2), the reply brief makes these points (with some cites omitted) about the relevance of co-defendant disparity:
The [Enron] Task Force says the district court was prohibited from considering the sentence imposed on former Enron CAO Richard Causey because the Guidelines and sentencing statutes concern “nationwide” disparities rather than those among co-defendants. This is not the law. This Circuit has long recognized the district court’s ability to consider co-defendants’ sentences. Similarly, in the post-Booker, advisory-Guidelines regime, courts regularly consider the sentences imposed on co-defendants. Indeed, just this month, the Supreme Court expressly approved of a sentencing court’s giving “specific attention to the issue of disparity when [it] inquired about the sentences already imposed by a different judge on two…co-defendants.” Gall, slip op. at 9....
There is no rational and lawful basis for the 19-year disparity between Causey and Skilling’s sentences. The only ground offered by the district court [Skilling’s decision to exercise his right to trial] was contrary to the Constitution.
Though the Fifth Circuit might not reach sentencing issues in the Skilling appeal, this case is worth watching closely if they do because these kinds of disparity arguments seem especially important in the wake of Rita, Gall and Kimbrough.
Thursday, December 20, 2007
Sixth Circuit affirms two above-guideline sentences
As many have noted, giving district courts broader discretion to go outside the guidelines will not always benefit defendants. Proof of this comes from the Sixth Circuit's pudding of criminal rulings today, in which these two decisions affirm above-guideline sentences:
- US v. Lane, No. 07-5129 (6th Cir. Dec. 20, 2007) (available here)
- US v. Bolds, No. 07-5062 (6th Cir. Dec. 20, 2007) (available here)
Wednesday, December 19, 2007
Drugged commentary on the sentencing week that was
Over at FindLaw, Mark Allenbaugh has this new piece titled "A Positive Development in All the Sentencing Insanity: How The Supreme Court and the U.S. Sentencing Commission Have Begun to Correct the Damage Done by the War on Drugs." Here is how it starts:
Since the Nixon Administration, our nation has been engaging in a relentless, yet futile War on Drugs — not on crime, but specifically on drugs. This war has not only been costly, but also done virtually nothing to stem the influx of drugs into our nation or Americans' drug use. In fact, some have argued that the War on Drugs has actually created incentives for illicit drug manufacturers to develop new products such as methamphetamine and Ecstasy, as well as to develop better and more efficient distribution channels through Mexico, and perhaps even China.
And yet, despite clear indications that we long ago lost this war (at least as defined by the ways we are fighting it and the rhetoric we use), we mindlessly continue along the same path.
But despite all this despairing history, there now is a glimmer of hope for more sane drug sentencing — in the form of two December 10 decisions from the Supreme Court.
I do not view last week's amazing federal sentencing events as anything close to a referendum or even a significant turning point on the "war on drugs." That said, I do not think it is coincidental or inconsequential that Gall and Kimbrough involved drug offenses. And, as Mark's commentary notes at the end on this commentary, the critical question going forward is "What Will Congress Do?".
December 19, 2007 in Booker and Fanfan Commentary, Drug Offense Sentencing, Federal Sentencing Guidelines, Gall reasonableness case, Kimbrough reasonableness case, New USSC crack guidelines and report, Who Sentences? | Permalink | Comments (0) | TrackBack
Tuesday, December 18, 2007
AFDA webcast on lastest federal sentencing developments
As detailed on this page, Gregory Nicolaysen, the founder of the Association of Federal Defense Attorneys (AFDA), has organized another of his great audio webcast for this Wednesday (December 19) at 12noon ET to allow me to discuss Kimbrough, Gall, the new crack guidelines and related federal sentencing happenings and its possible aftermath.
Unlike other groups seeking big bucks for webcasts, the AFDA usually only charges a nominal fee and the Greg has made this webcast free for everyone. The webcast will be an informal interview conducted over live streaming audio, with accompanying text posted to a viewing screen and links to PDF files containing materials relevant to the topics discussed. To attend this webcast, simply:
- Go to the AFDA home page and put your cursor on the Audio Webcast bar, then...
- In the drop-down menu that appears, select "Attend A Webcast," then...
- Enter the following: Username: AFDA (all caps; case-sensitive); Password: 121907
Though I plan primarily to recap and expand upon some commentary already appearing here, I'd be grateful if readers might use the comments to note any issues that seem particular important for me to cover during this webcast.
December 18, 2007 in Booker and Fanfan Commentary, Booker in the Circuits, Claiborne and Rita reasonableness case, Federal Sentencing Guidelines, Gall reasonableness case, Kimbrough reasonableness case | Permalink | Comments (3) | TrackBack
Wednesday, December 12, 2007
A Gall sighting (or citing?) in the Sixth Circuit
I think the Sixth Circuit wins the award for being the first federal appeals court to issue a published reasonableness decision incorporating the Supreme Court's work in Gall into its discussion. In US v. Lalonde, No. 06-4536 (6th Cir. Dec. 12, 2007) (available here), a panel affirms a within-guideline sentence and starts its sentencing discussion with these Gall goodies:
Post-Booker, the Sentencing Guidelines are no longer mandatory, United States v. Booker, 543 U.S. 220, 260-61 (2005), and “the ‘range of choice dictated by the facts of the case’ is significantly broadened.” United States v. Gall, 552 U.S. --, No. 06-7949, Slip Op. at 20 (Dec. 10, 2007). However, the Sentencing Act, 18 U.S.C. § 3553(a), “nonetheless requires judges to take account of the Guidelines together with other sentencing goals” when fashioning a defendant’s sentence. Booker, 543 U.S. at 261 (emphasis added). As the Supreme Court just recently clarified in Gall, “the Guidelines should be the starting point and the initial benchmark” in determining a sentence and “a district court should begin all sentencing proceedings by correctly calculating the applicable Guidelines range.” Slip Op. at 11 (emphasis added); accord United States v. Gale, 468 F.3d 929, 934 (6th Cir. 2006) (Post-Booker, “the district court must still consider the Guidelines in fashioning a defendant’s sentence, and must construe them correctly in doing so.”).
On appeal, we must ensure that the district court properly calculated the advisory Guidelines range as part of its overall consideration of the § 3553(a) factors. See Gall, Slip Op. at 12 (directing appellate courts to “ensure that the district court committed no significant procedural error, such as failing to calculate (or improperly calculating) the Guidelines range”).
Tuesday, December 11, 2007
Eighth Circuit needs no Gall to affirm above-guideline sentence
As many folks recognize, the pro-discretion ruling in Gall does not ensure lighter sentences for everyone: Gall seems to give district courts even more discretion to sentence above the guidelines and should lead circuit courts to review these decisions more deferentially. However, a decision handed down this morning by the Eighth Circuit in US v. Jones, No. 07-1212 (8th Cir. Dec. 11, 2007) (available here), highlights that district and circuit courts really did not need Gall to feel comfortable imposing and approving above-guideline sentences.
In Jones, the district court relied on the defendant's misconduct in jail while awaiting sentencing to add nearly 1.5 years of additional imprisonment to his suggested guideline sentence. The Eighth Circuit panel in Jones, not surprisingly, finds a way to uphold this enhanced sentence despite a thin sentencing record that it has previously found insufficient to support reduced sentences. This Jones opinion was likely completed last week; it does not mention Gall, though Jones now seems sounder in the wake of the Supreme Court's repeated assertion that reasonableness review should be highly deferential.
The weighty guidelines question after Gall
I have now re-read the Supreme Court's work in Gall, and I am intrigued by a weighty question left unaddressed by the majority opinion — namely, how much weight can and should the guidelines be given in a post-Booker advisory sentencing system.
After Booker, many lower courts tried out various terms to define the amount of weight to be given to advisory guidelines — ranging from "heavy" to "substantial" to "considerable" — although the nomenclature seemed more important as an attitude than as a concrete standard. Notably, the majority opinion in Gall does not directly address this issue. Intriguingly, the Gall majority says "the Guidelines are only one of the factors to consider when imposing sentence," Gall slip op. at 20-21, but earlier it indicated that "district courts must begin their analysis with the Guidelines and remain cognizant of them throughout the sentencing process." Id. at 11 n.6.
Intriguingly, Justice Alito's solo dissent is focused on weight issues. He repeatedly asserts his view that the Booker remedy should be interpreted to mean that "sentencing judges must still give some significant weight to the Guidelines sentencing range." Slip op. at 8. But the fact that he is writing alone — and does not get the vote of any Justices who joined the Booker remedy, not even Justice Breyer who is such a guideline fan — suggests that all the other Justices do not think that the guidelines must be given "some significant" weight. That said, as Justice Alito stresses in the final footnote of his dissent, it does seem that the Court still believes the guidelines must be given "some weight."
In short, after Booker, it seems that federal sentencing does not require giving "some significant weight" to the advisory guidelines, and yet giving them "some weight" is still required. Got that district judges?
Judicial reactions, formal and informal, to Gall and Kimbrough
As detailed in this Los Angeles Times piece, headlined "To some jurists, high court ruling brings vindication," federal sentencing judges long troubled by the rigidity and severity of the federal guidelines are sure to celebrate the Supreme Court's work yesterday in Gall and Kimbrough. Here is the start of the article:
To judges and others who long battled strict federal sentencing rules for crack cocaine offenders -- considered draconian and racist by longtime opponents -- Monday's Supreme Court decision brought vindication. "I am delighted," said veteran Los Angeles federal Judge Terry J. Hatter Jr., who for more than 20 years has publicly assailed federal sentencing laws as ill-conceived and unfairly targeted toward minorities. "This brings some justice back to our justice system," the 74-year-old jurist added.
The article also reminded me that some circuits have still pending some major en banc cases dealing with various post-Booker issues that now may look different after Gall and Kimbrough (e.g., the Sixth Circuit has yet to decide Vonner and the Ninth Circuit still has Zavala and Carty to resolve).
More generally, as Michael O'Hear and Carissa Hessick have rightly stressed in posts at SCOTUSblog, there is plenty of dicta in Gall and Kimbrough to allow, in Hessick's words, "those appellate courts that have clung to the Guidelines in the wake of the Court's decision in Booker to continue to do so."
In sum, then, as was true after Booker and Rita, how lower courts formally and informally react and construct an understanding of Gall and Kimbrough will determine whether the decision marks a significant turning point, or just a relatively minor tweak, in the post-Booker federal sentencing universe.
All the sentencing discretion that's fit to analyze
Effectively covering the Supreme Court's work in Gall and Kimbrough, the New York Times has these two strong pieces:
- From Linda Greenhouse here, "Court Restores Sentencing Powers of Federal Judges"
- From Adam Liptak here, "Given the Latitude to Show Leniency, Judges May Not"
Both article astutely note that another big federal sentencing story may break Tuesday afternoon. As Liptak's piece explains:
Indeed, this week's sentencing decision most likely to have the broadest short-term impact is not on the Supreme Court’s docket. On Tuesday, the United States Sentencing Commission is set to decide whether more than 19,000 federal prisoners convicted on charges involving crack cocaine should be eligible for re-sentencing based on amendments to the guidelines that became effective last month. The amendments reduced the disparity between sentences for crack and powder cocaine.
Monday, December 10, 2007
A manic Monday recap, and a dinner break
I predicted over the weekend that this could be quite the sentencing day, and it sure has not disappointed. Of course, the strong statements by a strong majority of the Supreme Court in Gall and Kimbrough is the most consequential news (and How Appealing collects early media coverage here). But I suspect non-lawyers will ultimately end up spending more time talking about the federal sentences given today to Michael Vick and Conrad Black. Whatever your interest, as I head out to a needed dinner break, here is a review of my posts covering manic Monday (many of which have great reader comments):
SCOTUS RULINGS IN GALL AND KIMBROUGH
- SCOTUS rules for the defendants in Gall and Kimbrough!!
- The start of the majority opinion in Gall
- The start of the majority opinion in Kimbrough
- A quick take on winners and losers in Gall and Kimbrough
- A quick Justice-by-Justice review of Gall and Kimbrough
- FSG are truly advisory (even in crack cases), but what about....
OTHER NOTABLE SENTENCING NEWS
- Michael Vick gets 23 months in prison
- Conrad Black gets 78 months (after a favorable guideline ruling)
- Scooter Libby drops appeal ... is a holiday pardon on the way?
- SCOTUS also rules for the defendant in Watson
As we reflect on all these developments, it is worth spotlighting that both Michael Vick and Conrad Black ended up getting within-guideline sentences. This is a useful reminder that, even now after the Supreme Court has clarified in Gall and Kimbrough that the federal guidelines are really, truly, yes-we-really-mean-it advisory, lots of sentencing judges are still going to be following the guidelines advice.
A quick Justice-by-Justice review in Gall and Kimbrough
There is so much to say about the substance of the rulings in Gall and Kimbrough (basics here), and I will likely need a few days to unpack all the important particulars. Here I want to do a quick Justice-by-Justice review what we see in Gall and Kimbrough, in part because I think it could foreshadow the Court's work on any number of future sentencing issues. So here goes:
Justice Ginsburg, the author of Kimbrough, reveals yet again that she only agreed to the Breyerian Booker remedy on the theory that the guidelines would be truly advisory. Throughout her opinion she emphasizes a number of key facets of a truly advisory guideline system that should help ensure district courts appreciate how much discretionary sentencing authority they now have.
Justice Stevens, the author of Gall, reveals yet again that he can give the defense bar lots of great dicta. His Rita concurrence was full of potent dicta, and many aspects of the Gall ruling support arguments of stressed by defense attorneys (e.g., the seriousness of supervised release and probation terms; the importance of co-defendant disparity under 3553(a)(6)).
Chief Justice Roberts and Justices Breyer and Kennedy, the three Justices who do not bark at all but join both majority opinions, reveal general disinterest and/or general exhaustion. As was true with his vote in Cunningham, CJ Roberts seems more interested in harmony and stare decisis than in grinding and particular sentencing ax. As shown by their opinions in Rita and Cunningham, Justices Breyer and Kennedy seem most concerned that guidelines, the Commission, and judicial power remain vibrant even in Apprendi-land, and Justice Breyer likely got both Justices Stevens and Ginsburg to add a bit of dicta to that end in Gall and Kimbrough.
Justice Scalia, the author of brief concurrences in both Gall and Kimbrough, continues to emphasize his concern with sentencing procedures and the Sixth Amendment. Especially for issues like acquitted conduct enhancements, it is nice to see Justice Scalia continue to stress the viability of "as-applied constitutional challneges to sentences."
Justices Souter and Thomas, both of whom write separately to show they are still mad at Ginsburg for following the Breyer pied piper down the road of advisory guidelines, express their aggravation for the tangled web that the Booker remedy has weaved. Ever the genteel New Englander, Justice Souter makes a simple call to Congress to get back to mandatory guidelines that respect the Sixth Amendment; ever the grumpy Gus, Justice Thomas makes an impassioned statement that, because the post-Booker jurisprudence has become so lawless, he's just not going to take it anymore.
Justices Alito, who authors the only real substantive dissent in either case, shows that his pro-prosecution instincts are stronger than his allegiance to statutory text. Nowhere is his dissent does he address the parsimony mandate of 3553(a), even though he concedes that a reasonable jurist "could conclude that a sentence of probation [for Brian Gall] was sufficient in this case to serve the purposes of punishment set out" in 3553(a)(2).
A quick take on winners and losers in Gall and Kimbrough
I have now had a chance to read both Gall and Kimbrough, and I am really intrigued and impressed by how much good stuff is packed into two relatively short opinions. (Perhaps it helps that, for the first time in a major Apprendi, Blakely, Booker case, Justice Breyer does not have anything to say. In a future post, I plan to do a Justice-by-Justice take on what these two rulings show us about the Justices.) Let me provide a much-too-quick review of my sense of winners and losers:
- All District Courts, which now should feel even more comfortable coming to their own independent judgments about the application of 3553(a) to reach what they consider to be just sentencing outcomes.
- The US Sentencing Commission, which gets some dicta love in both opinions and now has even more cover for its likely decision to make its new crack guidelines retroactive.
- Federal Defense lawyers, who now have many new and renewed arguments for arguing for below-guideline sentences.
- Most Circuit Courts, which were chided in both opinions for not giving enough respect to either the Supreme Court's decision in Booker to make the guidelines advisory or to district court efforts to take seriously the idea that the guidelines are truly just advisory.
- Some crack defendants sentenced within the old guidelines, who may have failed to preserve the argument that the crack/powder disparity alone provided a valid basis for a below-guideline sentence.
Win some, Lose some
- The Department of Justice, which technically lost both of these cases, but likely can find enough helpful dicta to continue to urge most district courts to continue to impose within-guideline sentences.
- Most Federal Defendants, who are not like Brian Gall and cannot always be confident that a sentencing judge won't use her discretion to impose a sentence above the guidelines.
- Congress and the 2008 Campaigns, which could reasonably decide to make much, or to completely ignore, these rulings.
UPDATE: I am pleased to see my friend Mark Osler has this post at SCOTUSblog with his own sense of winners and losers. Here are headings from his post:
- Winner: Parsimony Provision
- Loser: Judicial Transparency
- On the Horizon: Booker, Part 2?
The start of the majority opinion in Gall
Though the Kimbrough decision may garner more attention because of the historical controversies over crack sentencing, the Gall decision likely will be the most consequential for post-Booker sentencing realities. Here is how Justice Stevens summarizes the majority's decision:
We now hold that, while the extent of the difference between a particular sentence and the recommended Guidelines range is surely relevant, courts of appeals must review all sentences — whether inside, just outside, or significantly outside the Guidelines range — under a deferential abuse-of-discretion standard. We also hold that the sentence imposed by the experienced District Judge in this case was reasonable.
Tuesday, October 09, 2007
Advice for the Justices on Gall
Greg Poe and Brian Willen have this short article on Gall in the current issues of Legal Times. The piece is entitled "Tailored To the Crime: Sentencing case shows need to defend judicial discretion," and it concludes with this sound tripartite advice to the Justices:
First, there should be no thumb on the scale in favor of a guideline sentence. Although the judge must consider the advisory guideline range, that range is not to be treated as a tether. Congress has set out a variety of factors to guide courts in sentencing. Judges must assess those factors and articulate how any particular sentence would advance the legislative goals.
Second, the sentence ultimately imposed, whether inside or outside of the guideline range, should be entitled to substantial deference on appeal as long as the district court follows correct procedures and articulates substantial reasons for the sentence. Such deference recognizes a trial judge’s superior ability to assess the facts and circumstances of each case. But deference is not abdication, and appellate review would allow true outlier sentences to be corrected.
Third, judges must respect the statutory command to impose a sentence “sufficient, but not greater than necessary” to achieve specified purposes of punishment. This “parsimony principle,” which traces back to Montesquieu, has been a central maxim in American criminology since the framing of the Constitution.
Thursday, October 04, 2007
A reasonable analysis of the challenges of reasonableness review
Over at FindLaw is this new essay by Mark Allenbaugh and Donald Purdy discussing the Gall and Kimbrough cases. The piece is entitled "Drugs, Disparity, and Judicial Sentencing Discretion: Two Cases Invite the Roberts Court To Finally Clarify What Constitutes A Reasonable Sentence Under the Now-Advisory U.S. Sentencing Guidelines." Here are snippets:
During oral argument, the Court clearly was concerned about the lack of a clear substantive definition on appeal for "reasonableness" in this context. The Court seems caught between a rock and a hard place. A forgiving "reasonableness" standard would essentially take federal sentencing back to the pre-Guidelines era, where similarly-situated defendants could and did receive grossly disparate sentences. Yet a strict and closely-Guidelines-based reasonableness standard, conversely, would seem to simply effectively make the Guidelines mandatory once again....
Without clarification from the Court regarding both appellate "reasonableness" review and the specific meaning of the Court's declaration that the Guidelines are now advisory, federal sentencing will become increasingly chaotic, and we will indeed see the strange "Wonderland" of sentencing Justice Scalia predicted in his dissent in Booker two years ago.
Wednesday, October 03, 2007
Gall and Kimbrough SCOTUS argument wrap-up
Thanks to this post at How Appealing, everyone can quickly catch up with major newspaper coverage of yesterday's oral arguments in the two Booker reasonableness cases. This editorial from the Washington Post puts an interesting spin on what the take-away should be from the Kimbrough case:
By the end of yesterday's Supreme Court argument in Kimbrough v. U.S., two things seemed clear. First, thousands of defendants charged with crack cocaine offenses will continue to face irrationally long sentences. Second, the justices probably will move further down a path that will lead to the slow, painful death of the federal sentencing guidelines.
Also, this law.com coverage rightly highlights that Justice Scalia had the line of the day during the Kimbrough argument: "Indeed, it might be quite impossible to achieve uniformity through advisory guidelines, which is why Congress made them mandatory."
Wrap-up of recent blog coverage of Gall and Kimbrough:
Tuesday, October 02, 2007
First-cut reactions to the Gall transcript
As I hinted here, I am finding the transcript in Gall more frustrating than enlightening. My frustration primarily stems from the fact that the advocates failed to explore how the explicit text of 3553(a) can and should give content to reasonableness review. Particularly disappointing was the failure of Gall's lawyer to stress that the government has never effectively shown --- or even really argued --- that Brian Gall's below-Guideline sentence was insufficient to achieve the sentencing purposes Congress set forth in 3553(a)(2).
Though 3553(a) is has lots of vague language, a number of valuable sentencing principles can and should be derived from the text that Congress enacted (and that Booker made central to the application of an advisory guideline scheme). Rather than try to concoct an array of legal definitions for reasonableness review, I believe the Supreme Court should simply encourage circuit courts to determine and explain, on a case-by-case basis, whether and how a particular sentencing outcome serves the purposes that Congress set out in the statutory text of the Sentencing Reform Act. As the last section of Rita suggests, the process should be more important than any specific outcome. If the process is thoughtful, reasoned, and respectful of congressional broad goals as expressly stated in 3553(a), significant appellate deference should be the norm. But, if the process is not thoughtful or poorly reasoned, or is plainly disrespectful of the text of 3553(a), then more searching appellate review seems justified.
Venting aside, the competing voices of the Justices in Gall is really intriguing. Particularly notable is the way in which Justice Scalia seems to be channeling the late Justice Brennan, such as when he suggest it could not possibly be unreasonable for a sentencing judge to say he "thought only in a rare case should there be jail time."
Read all about it: Gall and Kimbrough transcripts
Now available at this SCOTUS webpage are the transcripts from this morning's oral argument in Gall and Kimbrough. Based on brief reports from folks in attendance, the arguments we nuanced and I will have lots of comments once I get to consume these transcripts. I think I'll read the Gall transcript first, since that case was argued first, and then the Kimbrough transcript.
Fellow readers (and/or argument attendees) are welcome to use the comments to share their thoughts and insights. Lyle Denniston has shared his views at SCOTUSblog with this post entitled "Analysis: More trouble for Guidelines."
UPDATE: Though I am finding the transcripts a bit more frustrating than enlightening, but I did very much enjoy seeing Jeff Green in the Gall argument talk about the reasonableness of a sentencing judge looking to a "legal database, for example, or even a blog or something like that."
Am I foolish to dream about consensus in Gall and Kimbrough?
As I eagerly await the transcripts of the Gall and Kimbrough arguments to be available here this afternoon, I cannot help but dream about the Justices finding their way in these cases to some consensus on post-Booker sentencing standards. I am driven to dream in part by this spot-on commentary by Benjamin Wittes at the New Republic lamenting the Court's recent divisiveness. Here are snippets:
Chief Justice John G. Roberts Jr. has spoken eloquently about the importance of unanimity and the corrosive effect of separate opinion-writing on the court's institutional capital.... But it's hard to identify important areas in which the court [last term] spoke with a strong voice that rose above the polarized views of its members. The court, rather, performed exactly as believers that it is nothing more than a political institution would have predicted. And it made fools of those of us who believe in it as something more elevated: an institution that aspires to rule based on principle....
[N]ow it's a new day and a chance to start over. And who knows? A few months from now, last term may seem far away; the brethren may seem once more fraternal; and the institution may look a little more like a court ruling on law than a fractious bunch of politicians striking exactly the poses their constituencies expect of them. But I'm not holding my breath. And I'm not excited about watching them try.
Of course, when addressing Sixth Amendment issues, the Court has been deeply divided for a decade now, and the new Justices have not yet been able to quell to squalling. However, Gall and Kimbrough ultimately have more to do with judicial discretion and appellate review than with the Sixth Amendment, and back in 1996 the Court came together in Koon to deliver a unanimous ruling (per Justice Kennedy) that embraced broader district court sentencing discretion and light appellate review. I think there is a real chance that the Court might find consensus in these principles again. (But, then again, a few weeks ago I also thought there was real chance the Mets and Padres would be gearing up for the MLB playoffs right now.)