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June 5, 2007

Reasonableness review revisions (and revolutions?)

As highlighted by two posts at SCOTUSblog, the state and fate of reasonableness review in the Supreme Court may be evolving even though the Rita decision may still be weeks away.  First, Tom Goldstein here, rethinking his prior authorship prediction, now says Justice Breyer is likely "writing at least one of the opinions in the sentencing cases."  Of course, as of this writing, there is only one remaining sentencing case, Rita, after the Claiborne case went away due to the defendant's death (basics here).

But, as detailed in this post by Lyle Denniston, the Solicitor General, through this new filing, has now "urged the Supreme Court ... to grant review in a new Sentencing Guidelines case replacing one that has been ordered vacated, and suggested that the new case could be decided before the Court finishes the current Term, perhaps later this month."  The new case, as previously previewed here, is Beal v. US (docket 06-8498). 

As I explained in this post, I am not too keen on SCOTUS rushing through a new set of facts in Beal to address the issues raised Claiborne.  That said, I think the SG is absolutely right when he says, in this latest SCOTUS filing, that the "federal criminal justice system has a great need for this Court's guidance concerning the nature and scope of review of out-of-guidelines sentences under Booker." 

Because so many issues of sentencing law and policy intersect in the Supreme Court's sentencing cases (as I detailed in this post), I still believe the Supreme Court would be wise now to invest its time and energy in getting Rita right and then subsequently gear up to hear and decide out-of-guidelines issues next Term.  However, the SG obviously has a uniquely informed perspective on these federal criminal justice issues, and this Beal might be on the fact track to the Supreme Court reporter.

Anyone want to hazard a new prediction on what exactly the Justices will now do with reasonableness review (and when they will do it)?

Some recent related posts:

June 5, 2007 at 04:00 PM | Permalink


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The Court may take the SG's suggestion at p. 4: "Alternatively, the Court should grant review and set the case for argument as early in the October 2007 Term as is feasible."

No clue whether this would mean deciding Rita now or holding both cases for OT07

Posted by: | Jun 5, 2007 4:31:27 PM

I don't quite see why Doug is so worried about "SCOTUS rushing through a new set of facts in Beal to address the issues raised Claiborne. The only way the Court would adopt the SG's suggestion, is if the facts in Beal imply the same holding as the Court was already planning to reach in Claiborne. In that case, it would be a relatively easy repair job on an opinion that must surely have been in the late stages of preparation.

For instance, if the Court was planning to hold (as petitioner had urged) that extraordinary departures from the guidelines do not require extraordinary circumstances, then it really does not matter which of the two cases is used as an illustration. It is surely significant that both Beal's counsel and the SG are in agreement that the two cases are functionally identical.

Posted by: Marc Shepherd | Jun 5, 2007 6:29:08 PM

I agree with you, Marc. It is implausible to suggest that the Court would have made the ultimate ruling on Claiborne's sentence. The Court would not have said, "'exceptional circumstances' aren't necessary, but 'good reasons' are, and Claiborne doesn't present any good reasons." Instead, the Court would have said something like, "'exceptional circumstances' aren't necessary, there just need to be 'good reason,' and we remand to the Eighth Circuit to determine whether the district court's reasons met this standard." The Court's rulings in Rita and Claiborne are going to be all about legal standards. I wouldn't be surprised if the Court granted in Beal and declared that no briefing was necessary. That's precisely what the Court does in a GVR, after all.

Posted by: Aaron | Jun 5, 2007 9:39:45 PM

I agree that Beal is the substantial equivalent of Claiborne on the so-called proportionality question. However, I note an aspect of Beal, not present in Claiborne, that perhaps makes a stronger case for affirmance: the Eighth Circuit's reliance on Congress's direction to the Sentencing Commission that career offenders should be sentenced at or near the statutory maximum.

Posted by: Booker fan | Jun 6, 2007 11:07:24 AM

I disagree with Booker fan. The Eighth Circuit's reliance on the one level limitation on downward departures for career offenders makes a stronger case for reversing the Eighth Circuit. Section 3553(a) lists the factors that courts should consider and Congressional policy on career offenders is not one of them. The policy on career offenders is relevant only to the guidelines calculation and in Beal, the district court considered the guidelines and determined they were greater than necessary to achieve the purpose of punishment.

Posted by: Law student | Jun 7, 2007 11:58:51 PM

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