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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 at 06:33 PM | Permalink


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