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August 10, 2006

When and how should SCOTUS take up reasonableness review?

With the Eleventh Circuit today in Hunt thoughtfully rejecting a presumption of reasonableness for within-guideline sentences (details here), I am wondering when and how the Supreme Court will take up a case addressing post-Booker reasonableness review.  The circuits are split not only on this presumption issue, but also on a range of other large and small aspects of the standards and nature of appellate review after Booker

Because I think the circuits are very wrong when forcing district courts to follow the crack guidelines (as discussed here and here), I am hoping SCOTUS might explore reasonableness through review of a cracked-up crack ruling like Jointer from the Seventh Circuit or Eura from the Fourth Circuit.  But these cases raise so many hot button issues, perhaps the Court would be wise to take a lower profile case.   (Of course, the Court did use the high-profile Rodney King case a decade ago to consider departure authority in Koon.)

Given that a legislative Booker fix does not seem likely in the short term (as discussed here), the Supreme Court should no longer resist exploring reasonableness review on the assumption that the Booker remedy may not last.  Of course, the Court might indirectly address these issues in the Cunningham case from California to be argued in October.  Nevertheless, the federal sentencing world could be much more orderly (and less disparate) if the Supreme Court were to directly  address reasonableness review ASAP.

August 10, 2006 at 06:19 PM | Permalink


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I consider it extremely unlikely that Cunningham will shed any light on post-Booker reasonableness review. The California and federal systems are much too different. Further, in Booker, the U.S. Supreme Court fixed the federal system itself. If it decides in Cunningham that the California system needs fixing, it will almost certainly send it back to Cal. Supreme to decide what can be done. That would involve issues of state statutory interpretation that the state courts should address first (and probably last).

Posted by: Kent Scheidegger | Aug 10, 2006 7:27:24 PM

Kent, I trust you've seen that Cal is defending its own system by saying it is just like the federal system after Booker. You may think Cal's system is very different, but that's not what the Cal AG is arguing.

Posted by: Doug B. | Aug 10, 2006 7:52:08 PM

It's a creative argument, and we'll see how far they get with it. I will stand by my prediction that we will not know much, if anything, more about the federal sentencing questions after the Cunningham decision than we knew before.

Posted by: Kent Scheidegger | Aug 10, 2006 8:26:34 PM

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