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June 21, 2007

Another first view of Rita

My always very thoughtful colleague Alan Michaels sent me (and allowed me to post) this reaction to Rita:

Having read all the opinions, but once only so far, I think you are completely correct to emphasize the importance of lower-court reaction to Rita.

On the one hand, the Court's opinion, which six Justices joined, makes it clear that within Guidelines sentences will continue to not be reversed easily.  The Guidelines thus provide a safe-harbor for district judges, as well as a possible labor-saver, since it seems a within Guidelines sentence requires less explanation by the District Judge.  As both majority and dissent acknowledge, this could well encourage within Guideline sentences.

On the other hand, five Justices argue for broad discretion for district judges to go outside the Guidelines (on an abuse of discretion standard or even less review).  One can certainly argue that, in some ways, the Stevens opinion is the controlling one, at least to the extent that it empahsizes the scope of district court discretion, since Scalia, Thomas and Souter wanted more. Moreover, even the Court's opinion (perhaps to keep the votes of Stevens and Ginsburg) is careful to disavow any statement that district judges are constrained by the Guidelines. This suggests that a District Judge of a mind to give a sentence above or below the Guidelines will get the leeway to do so.

Whether district judges follow one path or the other will, as you say, determine the significance (though, of course, Gall could give them a push).

June 21, 2007 at 02:18 PM | Permalink


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Prof. Berman:
On the last page of Breyer's opinion, He notes that "though Rita has a lengthy and distinguished military record, he did not claim at sentencing that military series should ordinarily lead to a sentence more lenient that the sentce the Guideliens impose."
Why didn't he? And if he had, would it have mattered?
Shouldn't 25 years of distinguished military service to the country be a mitigating factor? See U.S. v. Adelson 441 F. Supp.2d 506 (SDNY 2006 )(“But, surely, if ever a man is to receive credit for the good he has done, and his immediate misconduct assessed in the context of his overall life hitherto, it should be at the moment of his sentencing, when his very future hangs in the balance. This elementary principle of weighing the good with the bad, which is basic to all the great religions, moral philosophies, and systems of justice, was plainly part of what Congress had in mind when it directed courts to consider, as a necessary sentencing factor, “the history and characteristics of the defendant.”) What's your view and that of my fellow readers? What do my very conservative friends think of this point? If you were a judge, would it make a difference to you?

Posted by: Michael Levine | Jun 21, 2007 2:35:44 PM

"One can certainly argue that, in some ways, the Stevens opinion is the controlling one"

In what sense could one win an argument on that ground, given that Stevens was joined only by Ginsburg in his opinion (which bizarrely rebrands "reasonableness" review as "abuse of discretion" review - _Booker_ would have made much more sense had that been what they said the first time)?

The more I read through _Rita_, the more disappointed I am. While giving lip service to the idea of district court flexibility ("don't mind the presumption on appeal, do the right thing!"), the Court reinforces the centrality of the Guidelines, particularly in Section III - no lengthy explanation is needed for a Guideline sentence, particularly if neither of the parties argues for a non-Guideline sentence. So much for the "nonbinding" presumption not operating to place a burden on either party to rebut it!

Posted by: JDB | Jun 21, 2007 2:53:14 PM

JDB, even Justice Breyer's opinion says "reasonableness" review is the same as "abuse of discretion review." See Maj. Op. at 11 ("Given our explanation in Booker that appellate 'reasonableness' review merely asks whether the trial court abused its discretion . . . .").

Posted by: | Jun 21, 2007 3:04:08 PM


Without Stevens and Ginsburg, the majority opinion has only four votes. Scalia, Thomas and Souter would all make appellate review of district court sentences even MORE deferential than Stevens. Therefore, Stevens' view of the extent of district court discretion under reasonableness review is the "narrowest" that commands a majority, and hence can be considered the controlling opinion.

Posted by: | Jun 21, 2007 3:24:15 PM

Good point - I was miscounting Justices! My mistake. Still disappointed, tho'. And, for the record, the phrase "abuse of discretion" never appears in _Booker_. Given that it is a well used and understood term setting the standard of review, if that's what the remedial _Booker_ five meant, they should have said so.

Posted by: JDB | Jun 21, 2007 3:29:23 PM

JDB, abuse of discretion was the standard set out in Koon, which Remedial Booker DID refer to approvingly. See Booker at 260-261.

Posted by: | Jun 21, 2007 3:38:56 PM

Therefore, Stevens' view of the extent of district court discretion under reasonableness review is the "narrowest" that commands a majority, and hence can be considered the controlling opinion.

This is not correct. The so-called Marks rule applies only where no single opinion is joined by a majority of the justices. In Rita, Stevens and Ginsburg joined the whole of Breyer's opinion. Accordingly, that opinion -- not the Stevens concurrence -- is controlling. If JPS wanted to strip the Breyer opinion of its binding force, he had the option of not joining all or part of it. He chose to do otherwise. That is not to say the Stevens opinion should be ignored -- but it most certainly is not "controlling."

Posted by: | Jun 21, 2007 3:46:22 PM

The only cites to _Koon_ appear to be in discussions of how to figure out a standard of review, not what that standard is. Regardless, this proves my point - remedial _Booker_ could have spared a lot of confusion that we knew was coming had it said something like "reasonableness review is a lot like abuse of discretion, as we explained in _Koon_," but it didn't.

Posted by: JDB | Jun 21, 2007 3:47:48 PM

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