Tuesday, January 15, 2008
Ninth Circuit issues (first?) Kimbrough circuit remand
Though perhaps other circuit have ruled similarly in other cases, the Ninth Circuit today in US v. Casteneda, No. 05-10372 (9th Cir. Jan. 15, 2008) (available here), issues a notable Kimbrough remand. Here is the key text of the ruling:
These statements [from the court at initial sentencing] demonstrate that the district court did not foresee the extension of its Booker discretion that would be announced two years later by the Supreme Court in Kimbrough. Thus, the district court did not feel free to consider whether “any unwarranted disparity created by the crack/ powder ratio” produced a sentence “ ‘greater than necessary’ to achieve § 3553(a)’s purposes.” Id. at 574-75.
We vacate the sentence and remand to the district court to reconsider the sentence in light of the Kimbrough decision and to determine whether the disparity between crack and powder cocaine produced a sentence “greater than necessary” under § 3553(a). As noted above, this issue comes before the panel as a Petition for Rehearing. We grant the Petition for Rehearing with respect to the foregoing issue....
Though I might dispute characterizing the Kimbrough ruling as "extension" of Booker, it is encouraging to see the Ninth Circuit correct its prior ruling here.
Tuesday, January 08, 2008
Effective review of Gall and Kimbrough basics
I was pleased to receive and now post en effective basic summary of the Supreme Court's work in Gall and Kimbrough. Here is the e-mail I received describing the effort:
Attached is a Summary by David Debold from Gibson, Dunn & Crutcher LLP Entitled: “Two Supreme Court Decisions in December 2007 Highlight the Advisory Nature of the Federal Sentencing Guidelines”. David Debold is the Editor of the Criminal Justice Section Publication Practice Under the Federal Sentencing Guidelines, click Practice Under the Federal Sentencing Guidelines for information on the publication.
Monday, January 07, 2008
Lots of Gall and Kimbrough GVRs this morning from SCOTUS
The first 17 pages of this new order list released by the Supreme Court this morning are taken up a whole big bunch of Gall and Kimbrough GVRs — which means the Supreme Court Granted the petition for review, and then Vacated the circuit court's decision below, and then Remanded the case for further consideration by lower courts in light of the decisions in Gall and Kimbrough.
I quickly counted about 75 GVRs in those pages and same the names of many of the defendants in some of the better-known crack/powder circuit cases — e.g., Pho from the First Circuit, Eura from the Fourth Circuit, Jointer from the Seventh Circuit, Spears from the Eighth Circuit. These GVRs are not that surprising, but how the circuit courts deal with all these cases they got wrong the first time will be interesting to watch.
Relatedly, I would be grateful if readers could spotlight in the comments any other notable cases appearing on — or missing from — this long GVR list.
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
Friday, December 14, 2007
Is Kimbrough as big as Brown v. Board of Ed?
I am usually the first one to suggest that Supreme Court sentencing decisions are hugely important. (Recall that I have described Blakely as perhaps the biggest SCOTUS criminal justice decision ever.) But even I have to take pause when seeing a comparison of Kimbough to Brown v. Board of Ed in this new Newsweek article. Here are excerpts:
For two decades, the United States has pursued, prosecuted and sentenced cocaine offenders in a way that borders on insanity -- targeting petty criminals over serious drug dealers -- while fostering contempt, instead of respect, for the policies that have sent tens of thousands to jail. On Monday, the Supreme Court said enough was enough and empowered federal judges to reject sentencing guidelines rooted in hysteria and ignorance. The move has considerable support on the federal bench. It allows judges "who actually see the people and understand the local community," to better consider their communities' best interests, said Jack B. Weinstein, a federal district judge in New York....
The court's two 7-2 decisions -- authored by Ruth Bader Ginsburg and John Paul Stevens, respectively--contained no rousing rhetoric; they methodically built on the logic of two prior opinions. But Ginsburg's ruling catalogued, at length, criticisms of federal cocaine policy. "This may be the first sentencing decision since the mid 1980s that actually talks about justice, that seems to have some blood in it," said Graham Boyd, director of the ACLU's drug law reform project. Boyd compared the potential impact of Ginsburg's decision to the famous Brown v. Board of Education desegregation ruling. "When the Supreme Court says that something is wrong, the other institutions of government pay attention," said Boyd.
Tuesday, December 11, 2007
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 Kimbrough
Here is how the Kimbrough decision's majority opinion authored by Justice Ginsburg gets started:
We hold that, under Booker, the cocaine Guidelines, like all other Guidelines, are advisory only, and that the Court of Appeals erred in holding the crack/powder disparity effectively mandatory. A district judge must include the Guidelines range in the array of factors warranting consideration. The judge may determine, however, that, in the particular case, a within- Guidelines sentence is “greater than necessary” to serve the objectives of sentencing. 18 U. S. C. §3553(a) (2000 ed. and Supp. V). In making that determination, the judge may consider the disparity between the Guidelines’ treatment of crack and powder cocaine offenses.
Friday, October 26, 2007
Is there any principled basis for DOJ opposition to the crack amendment being retroactive?
Writing in the National Law Journal, Marcia Coyle has this effective article detailing the state of the debate over whether the US Sentencing Commission will make its new reduced crack guidelines retroactive. The piece is entitled, "Retroactivity for Crack Sentence Cuts Debated: More than 20,000 crack offenders could have their sentences reduced," and here are key snippets:
As the Nov. 1 effective date approaches for new and lower crack cocaine sentencing guidelines, the U.S. Sentencing Commission has received more than 1,000 public comments on a related proposal -- making those lower sentencing levels retroactive. The commission has extended the public comment period on the retroactivity issue and has scheduled a Nov. 13 public hearing.
The commission staff recently released an analysis of the impact of making the so-called "crack minus two" guideline amendment retroactive: Nearly 20,000 crack offenders could have their sentences reduced an average of two years or more.
The more than 1,000 public comments on the retroactivity issue heavily favor retroactivity, according to sources close to the commission's work. The outpouring of comments is unusual for most of the commission's work, but not for the crack cocaine issue, they say. This time the comments appear to be the result of intensive efforts by organizations that have long supported the commission's position that the 100-to-1 crack-powder cocaine sentencing disparity disproportionately affects minorities and low-level offenders and undermines the objectives of the nation's sentencing reform laws.
"We've launched a campaign to ask all of our members to explain to the commission that this is the right thing and the judicially efficient thing to do," said Mary Price, vice president and general counsel of Families Against Mandatory Minimums (FAMM). Besides FAMM, the commission also has heard from the American Bar Association, the American Civil Liberties Union, Federal Public and Community Defenders, the National Association of Criminal Defense Lawyers, their members and other organizations.
Yet to weigh in on the retroactivity issue is the U.S. Department of Justice. But spokesman Erik Ablin said, "We have not yet filed a comment, but we plan to do so by the Nov. 1 deadline. I can tell you that our comment will reflect our opposition to retroactive application."
I will be eager to see what DOJ has to say, because I have a hard time identifying a truly principled basis for resisting retroactive application of an amendment that the USSC has said is long overdue and that is supported by mountains of sound research and advocacy.
Of course, because so many offenders have been subject to unduly harsh crack guidelines, the practical consequences of making the new guidelines retroactive would be significant. But so would be the practical consequences of non-retroactivity — which might spark prison riots and surely would engender lots of litigation. Moreover, it would be particularly sad if our national "Department of Justice" fear or resist too much justice for certain defendants simply because it may require a lot of extra paperwork.
Some related posts:
- The Sentencing Project urges retroactivity of USSC crack amendment
- USSC schedules public hearing on crack amendment retroactivity
- USSC analysis on potential crack amendment retroactivity impact
- Crack wackiness brewing over impact of crack amendments
- Latest FSR issue covers crack sentencing
- ABA makes pitch for USSC crack amendments to be made retroactive
October 26, 2007 in Enron sentencing, Kimbrough reasonableness case, New USSC crack guidelines and report, Purposes of Punishment and Sentencing, Race, Class, and Gender, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (7) | TrackBack
Wednesday, October 24, 2007
Notable dissent from a denial of crack rehearing
Today the Third Circuit released its decision (available here) to deny rehearing in US v. Ricks which concerned whether judges can disagree with the guidelines crack/powder ratio. Judge Ambro's adds a thoughtful dissent, which has this passage among a number of sound insights:
The panel’s opinion conflicts with the Supreme Court’s remedial opinion in Booker, which makes the Guidelines “effectively advisory” and requires district courts to consider all the factors of § 3553(a). In Ricks, the District Court considered the Guidelines’ sentencing range—which applied a 100:1 ratio—and rejected that range for what it considered to be a more reasonable punishment. I cannot see why “meaningful consideration” cannot lead to carefully considered rejection of an advisory policy.
It is no answer to say that sentencing judges cannot reject the policy decision of Congress. The whole Guidelines manual represents a policy decision of Congress. In order to remedy a constitutional defect, Booker excised the provisions that previously made the Guidelines mandatory. This made advisory Congress’s policy decisions as expressed in the Guidelines.
Thursday, October 18, 2007
Possible ineffective assistance in an Eighth Circuit crack appeal that nobody sees
Though perhaps I am trying to turn this into a "dogs not barking" story, I am very troubled to see that Eighth Circuit today apparently affirms a within-the-old-crack guidelines sentence in an unpublished Anders case in US v. Wanton, No. 06-3502 (8th Cir. Oct. 18, 2007) (available here). The facts are scarce in this unpublished disposition, but it appears that the defendant in Wanton pleaded guilty to distributing more than 50 grams of crack and received a bottom-of-the-range sentence of 135 months in prison. Since the Eighth Circuit has adopted a presumption of reasonableness for within-guideline sentences, perhaps it seemed obvious to the defense counsel that a sentencing appeal was friviolous.
But, with the US Sentencing Commission saying in powerful terms in May that the crack guideline are too harsh, and with the USSC's reduction in crack guildeines sentences becoming effective in a matter of weeks, and with the Supreme Court having just hear a crack sentencing case in Kimbrough, there ought to be a lot more to the story in Wanton. Indeed, unless the district court record demonstrates that the district judge was aware at sentencing of all these developments, I think it is a form of ineffective assistance for a defense attorney to assert that any appeal of a within-the-old-crack guidelines sentence is frivolous.
Some related posts:
- Conclusive proof old crack guidelines unreasonable
- USSC schedules public hearing on crack
- USSC analysis on potential crack amendment retroactivity impact
- Crack wackiness brewing over impact of crack amendments
- Latest FSR issue covers crack sentencing
- USSC provides (yummy?) half-a-loaf crack amendment
- Why the USSC's new crack work is soooooo significant
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 Kimbrough transcript
Upon first read, the SCOTUS oral argument transcript in Kimbrough is a bit less frustrating because Kimbrough's lawyer did a nice job stressing that Derrick Kimbrough's 15-year sentence seems in harmony with the sentencing purposes Congress set forth in 3553(a)(2). However, it is still aggravating to me that the Justices seem to approach these cases as if both district judges and circuit judges are always making broad systemic judgments about valid and invalid sentencing considerations. But that's not what Congress in 3553(a) to do at sentencing.
Instead, as a quick review of Congress's express commands in section 3553(a) of the Sentencing Reform Act makes clear, Congress told judges to "impose a sentence sufficient, but not greater than necessary, to comply with" the traditional purposes of sentencing (while also considering various relevant facts and factors including the guidelines). By my lights, that is exactly what Judge Jackson did when sentencing Derrick Kimbrough (and also what Judge Pratt did when sentencing Brian Gall). Tellingly, in the Kimbrough argument, the government never seriously asserts that 15 years' imprisonment was insufficient punishment for Derrick Kimbrough.
Another aggravating aspect of Kimbrough is the constant refrain about the potential harms of having different sentencing judges apply different cocaine sentencing ratios. I understand this disparity worry, but I do not understand why it is a bigger problem than different prosecutors rewarding cooperation differently. There is extensive evidence of profound disparity in how different prosecutors "reward" cooperation, and yet everyone accepts this as the price of giving prosecutors largely unregulated discretion to strike cooperation deals. In the end, I think the Supreme Court must come to terms with the reality that some relatively minor disparity in crack sentencing outcomes is the price of allowing the guidelines to be advisory and avoiding the procedural requirements of Blakely.
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.)