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June 11, 2007

SCOTUS scratches my sentencing itch, but also has me scratching my head

I am, of course, excited that the Supreme Court has now taken up two new federal sentencing cases, Kimbrough from the Fourth Circuit and Gall from the Eighth Circuit, to deal with post-Booker sentencing issues (basics here).  Based on a quick review (and helpful reader comments) and more from SCOTUSblog, it seems that that Gall is a partial replacement for the Claiborne case because it addresses a below-guideline sentence reversed by the Eighth Circuit.  But unlike Claiborne, Gall is not a crack case, so Kimbrough was apparently taken to allow the Justices to address directly whether a district court may deviate from the guidelines based on a disaffinity for the harsh crack guidelines.

Perhaps the key and most significant fact in both Gall and Kimbrough is that the district court in both cases imposed a below-guideline sentence that a circuit court thereafter reversed as unreasonable.  In sharp contrast, the Rita case still pending before SCOTUS (and still expected to be decided this term?) deals with a within-guideline sentence imposed by the district court and affirmed as presumptively reasonable by the Fourth Circuit.  Also significant is that the Supreme Court apparently plans to hear Gall and Kimbrough under a normal schedule next Fall, but likely still will issue a ruling in Rita this month.

So, adding up these pieces, what does this likely mean for the future of federal sentencing law and post-Booker jurisprudence?  I am still scratching my head, but let me venture a few ruminations:

1.  Based on the 1996 Koon decision, I have long thought that even anti-Blakely Justices favor significant district court discretion over circuit court lawmaking in the sentence arena.  Consequently, I have always expect that the post-Booker cases would champion district court discretion (and perhaps fault excessive circuit court intervention) in sentencing determinations.

2.  The "problem" with Rita is that championing district court discretion by affirming the sentence imposed by the district court also serves, at least indirectly, to praise the guidelines.  (And, conversely, reversing in Rita might suggest reasonableness review should be aggressive.)

3.  Without the Claiborne companion, the Justices may be worried that Rita alone wont allow the development of the complete message they wish to send to lower courts about post-Booker doctrines and practices.

4.  But all the timing (and the many options) have me really puzzled.  Whatever the court does with Rita, the holding and the dicta will reverberate through the federal sentencing world ASAP.  And yet, as the Rita pebble (or boulder) ripples through the federal sentencing pond, everyone will know that the Justices have just picked up two more rocks to throw into the pond.  And, under usual timelines, we shouldn't expect rulings in Gall and Kimbrough until perhaps January 2008 or later.

5.  Sadly, I am now worried we might know who's the next President before we know what Booker really means for federal sentencing.  Oy vey.... though I guess it's good for my business.

June 11, 2007 at 02:16 PM | Permalink


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"However, because Gall is a meth case . . ."

Typo alert: you mean an ecstasy case.

Posted by: Booker fan | Jun 11, 2007 3:29:26 PM

I'm not sure the problem you see is there. In Rita, the government is arguing for a presumption that a sentence within the guidelines is reasonable, but not for any presumption that one outside is unreasonable. Seems to me that the court can answer this question one way or the other without much affecting the factors at issue in Gall and Kimbrough.

Similarly, the two remaining questions in Rita -- is the sentence reasonable, and can the presumption be sufficient to find it sentence reasonable even if the court did not discuss the 3553 factors -- do not affect an out-of-guidelines sentence to which the presumption does not apply.

It also seems to me, by the way, that most discussion has ignored the third question presented in Rita, which seems to assume a bit more of a duty on the sentencing court to discuss the 3553 factors, and possible counter-factors, than most Circuits require.

Posted by: David in NY | Jun 11, 2007 3:43:28 PM

Thanks for the correction (now made) Booker fan.

Posted by: Doug B. | Jun 11, 2007 3:52:48 PM

True, the questions presented in Rita do not implicate non-Guideline sentences. However, the problem is that if the presumption is affirmed, it will only cause the Guidelines to serve as more of an anchor to District courts.

However, if the presumption is affirmed in one breath, but in the next, the Court says you don't need extraordinary facts to give a non-Guideline sentence, then the temptation to use the Guidelines as an anchor is NOT there.

In essence, you need BOTH opinions to really know how "advisory" the Guidelines are, and that's the problem with only issuing Rita w/o the companion cases.

Posted by: DEJ | Jun 11, 2007 4:15:56 PM

LOL at the fourth circuit being presumptively reasonable.

Posted by: mel | Jun 11, 2007 5:42:33 PM

I don't know why everyone thinks there is a decision coming this term in Rita. There might be. But, on the other hand, if the Supreme Court was going to put the case over to be reargued next term with the new grants, that order--traditionally--wouldn't issue until the last day of the term. So, as far as I can tell, the Court's silence thus far tells us nothing.

Posted by: Andrew Siegel | Jun 12, 2007 10:01:26 AM

Doesn't all of this really say something about 1) the quickly whipped-up "advisory guidelines" section of Booker; and 2) Justice Ginsburg's unexplained decision to grant that ad hoc, poorly thought out "solution" a majority?

Posted by: Anon | Jun 12, 2007 11:28:42 AM

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