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September 25, 2007

Reply briefs in Gall and Kimbrough

Though I am still in a haze over Baze (details here), sentencing fans should be sure not to forget that we are but a week away from oral argument in the Booker reasonableness cases of Gall and Kimbrough.  Helping to get my mind back on these federal sentencing cases — which are, realistically, a lot more important to a lot more defendants than Baze — are the just-filed reply briefs from the petitioners.

Based on a quick review, both briefs look like great reads, and they can be downloaded here:

Download 066330_kimbrough_reply.pdf

Download gall_reply_brief.pdf

September 25, 2007 at 04:42 PM | Permalink


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There's a point at the end of the Gall reply that is often, indeed almost always, lost sight of. That is, that a rational sentencing system ought to reward those who, like Gall, withdraw from criminal activity or otherwise engage in commendable conduct. "[The court's statement that imprisoning Gall would encourage derision, not respect, for the law] suggests that, in the District Court’s view, a sentence of imprisonment would not serve the purpose of general deterrence because it would signal to others that renunciation of criminal activities offers no benefit in terms of a reduced sentence, when compared to those who persist in criminal conduct."

In short, criminal sentencing ought not be all stick and no carrot.

Posted by: David in NY | Sep 25, 2007 5:14:38 PM

a rational sentencing system ought to reward those who, like Gall, withdraw from criminal activity or otherwise engage in commendable conduct

Do you really think this is "almost always lost sight of"?

Posted by: | Sep 25, 2007 5:28:56 PM

"Do you really think this is "almost always lost sight of"?"

I really don't know how else to explain the Sentencing Commission's conclusion that factors such as post offense rehabilitation are ordinarily not relevant. Or the Eighth Circuit's decision in the Gall case. Or similar cases from other circuits. The guidelines and these cases seem to assume that the only way to show respect for the law, or to deter criminal conduct, or the like, is to give a higher, not a lower, sentence. This is not so.

In fact, I have never seen the particular argument in Gall made explicitly before -- that imposing a high sentence on a defendant who is less culpable does not serve deterrence policies, for it gives no encouragement to those who do not engage in more serious conduct. I certainly have never see a Court of Appeals recognize this, though perhaps I missed it.

Posted by: David in NY | Sep 25, 2007 5:38:53 PM

Awarding probation to Gall due to his withdrawing from his serious crime is inconsistent with the 3553(a) sentencing factors, irrespective of the particular Guidelines range calculation. Although Gall's Guidelines range informs what term of incarceration may be appropriate, and a term of incarceration below that range may be appropriate, one does not need to know the calculated Guidelines range to conclude that a non-prison sentence is unreasonable. A probationary sentence sends the message that individuals get one free shot at selling dangerous drugs. Where is the deterrence in that message?

Posted by: | Sep 26, 2007 7:01:56 AM

"Where is the deterrence in that message?"

First, I didn't realize that 3553(a) was only concerned about deterrence? And, second, even if it were, this "probationary sentence" promotes deterrence because it tells individuals that if you withdraw from a drug conspiracy early, lead a law abiding life for many years, and use the time after you withdraw to improve yourself and the community, you will be rewarded at sentencing.

Posted by: DEJ | Sep 26, 2007 12:22:04 PM

See, that anonymous commenter at 7:01:56 epitomizes what I was trying to say about the importance of rewarding those who engage in praiseworthy conduct at sentencing being lost sight of. Many who think like that commenter adopt the simplistic view that punishment must be all stick and no carrot. That's not so, and it's not what Congress required in section 3553.

Posted by: David in NY | Sep 26, 2007 3:16:10 PM

Can some one please tell me when is this case going to be heard? I think I read it would be this coming week, but I'm not sure.

Posted by: EJ | Sep 26, 2007 9:06:43 PM

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