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October 2, 2007

A fitting take on SCOTUS sentencing cases fit to be tied

As she does so well, Dahlia Lithwick finds a way in this great Slate piece to cut through all the reasonableness mumbo-jumbo and cut to the heart of the Supreme Court's work today. Her piece is entitled "Run-On Sentencing: The Supreme Court takes another crack at the sentencing mess," and I found the first and last paragraphs riotously spot-on (and very flattering):

At the risk of an unfair generalization, I think the legal world sorts rather neatly into Booker people and non-Booker people.  One of my best friends is a Booker person.  Can talk about sentencing cases for hours. Days.  The wonderful Doug Berman is the Booker czar and his blog is the Booker holy grail. Me?  Not so Booker....

So just to catch you non-Booker people up on what you've missed in the last few years: There used to be a lack of uniformity in sentencing.  Congress created sentencing guidelines.  The court decided the guidelines were merely advisory.  Appeals courts said sometimes advisory guidelines are still mandatory.  District courts got confused.  And now the high court asks the parties to make immutable rules out of standards, and flexible standards out of rules.  Kimbrough and Gall think a good rule is that the guidelines should go away.  The Justice Department thinks a good rule is that the judges should go away.  And the court?  It may finally have to pick a side.

October 2, 2007 at 08:19 PM | Permalink


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Lithwick's piece about the Booker fiasco is great. And here's another sure sign that the jurisprudence in this area is a complete mess: federalist doesn't even seem to know what side he's on.

Posted by: anon | Oct 2, 2007 10:38:44 PM

Absolutely right. You could almost see Roberts scanning the bench yesterday trying to decide who of his collegues he hates the most for creating this new bogus line of 6th Ame. law.

Posted by: dweedle | Oct 3, 2007 9:45:03 AM

Can someone please comment on the requirements that uncharged, dismissed and acquitted alleged offenses be used in calculating the guideline range to dramatically increase sentences, at the same rate as if a charge had been brought and a conviction obtained.
Whats a good challenge (for defendant)to this?

Posted by: Rita | Oct 3, 2007 3:42:33 PM

Rita: Who knows now. Until SCOTUS made up entirely new 6th Ame. rights at sentencing that never existed before 5 years ago the answer was easy: they can use it. Now we're all waiting for the judges to realize their boo boo and fix it.

Posted by: dweedle | Oct 4, 2007 12:24:29 PM

Sorry, dweedle, but, at least for federal crimes, there is that pesky Fifth Amendment right against a citizen having to answer allegations that have not been approved by a Grand Jury. (And that even peskier Due Process right.) The Supreme Court, in all the Sixth Amendment jurisprudence that you appear to dislike, have explicitly left open a bevy of Grand Jury issues for sentencing. The DoJ, even if they "win" in Gall & Kimbrough, will still one day have to contend with the implications of using unindicted allegations against a citizen in a formal proceeding. After Mistretta and then Gall/Kimbrough (assuming that the DoJ "wins" those cases), I won't be optimistic. But defense counsel will just come back with Due Process and Grand Jury arguments.

They'll do this because it's their job. And one day they might win (that day could even come when Gall or Kimbrough come out) because the Guidelines stink. Bureacratized sentencing is bad sentencing in a free country. Only a Stalinist or Dungeons & Dragons freak, or some other Kafkaesque character, is capable of loving the Guidelines. Human complexity is simply not subject to a simple matrix -- no matter how many different kinds of dice that the Sentencing Commission tries to use.


Posted by: | Oct 4, 2007 2:42:16 PM

"Human complexity" is coded language for disparity. I understand the need to fight for your client and try to get the best result, but it amounts to navel gazing when that result is compounded nationally. It's like the Three Bears, there are some judges that are too cold, some that are too hot, and very few that are just right. The guidelines made sure that the outliers didn't end up making a disproportional system that promoted even less respect for the law. The USSC doesn't make the laws, they simply try their best to work through the mandates of your elected representatives from Congress. The electorate are the ones throwing the dice when they put people like Mark Foley in office. Are sentences too long? Yes. But finding a way to have your client's sentence shortened at the expense of everyone else is BS. Why does Gall get a windfall when everyone else engaged in the same conduct in another district doesn't?

Let's be honest, the universal problem here is that Congress has produced sentencing schemes that are insane. Instead of attempting to remedy that problem navel gazers want to revert to system when what matters most is who the Judge is and how well your lawyer knows him/her.

Now remind me, who used the word Stalinist? Because at the heart of any totalitarian system is the caprice of the ruling order, and you can't get any bigger caprice than 400+ district court judges acting as their own sentecing commissions.

Posted by: dweedle | Oct 4, 2007 5:18:23 PM

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