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February 14, 2007

Revving up for Claiborne and Rita: sentencing law in four dimensions

With less than a week until the SCOTUS oral argument in Claiborne and Rita, I now see these cases as so interesting because of how four sources of multi-dimensional sentencing law and policy intersect.  Let me explain:

1.  Constitutional LawBooker struck down the mandatory federal sentencing system on Sixth Amendment grounds, but then set out a remedy that seems to undermine Sixth Amendment principles.  As highlighted in posts here and here, the recent Cunningham decision suggests that Claiborne and Rita could have important Sixth Amendment dimensions.  Moreover, as stressed here and by the Third Circuit's work in Grier, there are also important sentencing due process issues lurking after Blakely and Booker.

2.  Statutory LawThe Booker remedy was premised on Congress's legislative intent when passing the Sentencing Reform Act (SRA), and it championed the statutory instructions to sentencing judges in 18 U.S.C. § 3553(a) as the controlling law for both district judges at sentencing and circuit judges reviewing sentences.  But the Booker remedy did not say much about the "multiple and vague" factors set out in 3553(a).  And, as suggested here and here, lower courts have struggled greatly to make sense of the express text of the SRA and the perceived goals of federal sentencing reform.   

3.  Administrative LawThe US Sentencing Commission is an administrative body and the guidelines are a form of administrative law.  But the Mistretta case showcased that the USSC and the guidelines are not easily fit into standard administrative law models.  Some post-Booker lower court rulings have emphasized the importance of the guidelines as the product of an expert agency, and yet traditional administrative law doctrines like Chevron have never really been brought to bear in the context of federal sentencing.

4.  Common (or Case) Law: Formally, Claiborne and Rita are assessing the reasonableness standard of appellate review that was created out of whole-cloth by Justice Breyer in the Booker remedy opinion.  There is no obvious constitutional, statutory or administrative law tether or guideposts for the application of this standard (which in part explains why the guideline have been so central to circuit rulings).  Also lacking any obvious legal source are the circuit doctrines concerning the "presumption of reasonableness" at issue in Rita and the "proportionality doctrine" at issue in Claiborne

Adding to the intrigue, of course, is that these sources of sentencing law overlap and connect in various ways.  As in Mistretta and Jones, constitutional avoidance doctrines might push the Court to adopt a particular view and interpretation of applicable statutes; as in Koon and Watts, the Court might interpret the Constitution and the SRA to enhance the power of the USSC as an adminstative agency while undercutting the development of common-law doctrines by circuit courts.

In addition, various Justices have interesting histories with the various sources of law in the context of federal sentencing jurisprudence:

And, of course, Claiborne and Rita puts all these elements into the awlways-bubbling soup of modern debates over the Court's role in law and politics.  Consequently, I thik the only really safe prediction about to the final product in Claiborne and Rita is that the decisions will be (like the Blakely and Booker precursors) unpredictable.

February 14, 2007 at 11:43 AM | Permalink


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Tracked on Feb 14, 2007 5:08:13 PM


As you point out, Justice Breyer's "reasonableness" standard for appellate review was invented out of whole-cloth. Coming from him, this solution is no surprise. Justice Breyer is a devotee of judge-made law.

The late Chief Justice, on the other hand, was never a fan of the exquisite multi-prong balancing tests that the Warren and Burger Courts used to turn out on a regular basis. I have to assume that he accepted Justice Breyer's standard of appellate review as the cost of getting the overall result that he wanted.

Posted by: Marc Shepherd | Feb 14, 2007 12:27:58 PM

I am an attorney in Louisiana. I have been retired since before the guidelines and am now returning. I have my first federal sentencing in March and feel LOST. Thanks

Posted by: Cecelia Bonin | Feb 24, 2007 7:30:55 PM

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