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June 23, 2006

Yale Law Law Journal comment on crack and reasonableness

Eric Citron, who was a frequent correspondent when the First Circuit was considering the crack/powder disparity in US v. Pho (basics here, commentary here and here and here), has published a Yale Law Journal comment on the case and reasonableness review.  The comment, which can be accessed here, is titled "United States v. Pho: Reasons and Reasonableness in Post-Booker Appellate Review."  Here is an abstract:

This Comment argues that a proper understanding of Booker’s reasonableness review validates the appellate court’s rejection of these reduced-ratio sentences in Pho, and should do so despite the fact that the sentences issued by Judge Torres were eminently “reasonable” in any colloquial sense of the term.  Two possible conceptions of reasonableness review must be distinguished—“reasonable-length” review and “reasons-based” review—and the latter should be preferred. Reasons-based review focuses not on the terms imposed but on the reasons given for imposing them, insisting that those reasons comport with Congress’s sentencing priorities. This paradigm, more so than the vague reasonableness standard, acknowledges congressional authority over sentencing rationales and preserves a central role for Congress’s much-beloved Sentencing Guidelines going forward.  At the same time, by seeing the Guidelines as providing reasons rather than outcome-oriented formulae, it avoids the rote view of the Guidelines that rendered them unconstitutional under Booker. It is thus not only the most appropriate view on the law, but also capable of reconciling Congress’s obvious desire for rule-bound sentencing with the advisory role of the Guidelines as they now stand.

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June 23, 2006 at 02:14 PM | Permalink


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I think Mr. Grossman makes an excellent point. Sentencing is a discretionary act -- so much more so after Booker. Like any act of discretion, a sentencing judge should be required to explain why she acted the way she did. A reviewing court should review those reasons, and the ultimate sentence imposed, for an abuse of discretion. Thus, even though a sentence of a particular length of imprisonment could be "reasonable," that sentence could be unreasonable if it rested on an unreasonable rationale.

An appellate court is actually more likely to substitute its judgment for that of the sentencing court if, in reviewing a sentence, it is permitted to conclude that, notwithstanding the sentencing court's unreasonable rationale, the sentence is nevertheless reasonable because its length falls within the bounds of allowable discretion.

In this way, reasonableness review would mirror traditional abuse-of-discretion review. If a trial court exercises its discretion without explaining itself, or if it does so only after it provides an unreasonable basis for its decision, a reviewing court doesn't uphold that decision if it ultimately agrees with the outcome. The reviewing court vacates the decision and remands for a new exercise of discretion.

Posted by: Anonymous | Jun 23, 2006 2:31:17 PM

I agree very much with the posting that likens reasonableness review after Booker to a form of "abuse of discretion" review. I would only caution that the relevant discretion attaches to the final judgement of the sentence, but not to the available sources of reasons -- the correct observation of Pho (although the case does have its flaws) is that a Court does not have discretion to reject judgments which are properly construed as congressional in origin. The only other caution is that my name isn't Grossman.

Posted by: Eric Citron | Jun 23, 2006 5:17:12 PM

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