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October 4, 2007

A reasonable analysis of the challenges of reasonableness review

Over at FindLaw is this new essay by Mark Allenbaugh and Donald Purdy discussing the Gall and Kimbrough cases. The piece is entitled "Drugs, Disparity, and Judicial Sentencing Discretion: Two Cases Invite the Roberts Court To Finally Clarify What Constitutes A Reasonable Sentence Under the Now-Advisory U.S. Sentencing Guidelines."  Here are snippets:

During oral argument, the Court clearly was concerned about the lack of a clear substantive definition on appeal for "reasonableness" in this context.  The Court seems caught between a rock and a hard place.  A forgiving "reasonableness" standard would essentially take federal sentencing back to the pre-Guidelines era, where similarly-situated defendants could and did receive grossly disparate sentences. Yet a strict and closely-Guidelines-based reasonableness standard, conversely, would seem to simply effectively make the Guidelines mandatory once again....

Without clarification from the Court regarding both appellate "reasonableness" review and the specific meaning of the Court's declaration that the Guidelines are now advisory, federal sentencing will become increasingly chaotic, and we will indeed see the strange "Wonderland" of sentencing Justice Scalia predicted in his dissent in Booker two years ago.

October 4, 2007 at 08:04 AM | Permalink


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"federal sentencing will become increasingly chaotic, and we will indeed see the strange "Wonderland" of sentencing Justice Scalia predicted in his dissent in Booker two years ago"

Is this not gross exaggeration? I believe that recent studies have indicated that the degree of disparity before the guidelines was simply not all that great. It can't be any worse with advisory guidelines and reasonableness review, even if that review is largely for procedural defects. It certainly won't be "chaos," although prosecutors may find they've lost some leverage, which is probably one reason for in terrorem arguments of this kind.

Posted by: Dcounsel | Oct 4, 2007 2:58:40 PM

How hypocritical is someone from the Bush administration standing in front of the Supreme Court arguing about reasonableness in the sentencing. This comes right after Bush declared a 30 month in guideline sentence for one of his friends unreasonable. They treat the American people like we have no intelligence at all. When will someone call the Bush administration on this?

Posted by: | Oct 4, 2007 3:34:39 PM

Er, Mr. Anonymous, the Solictor Generalismo is representing the Peeps of the USA, not the President... that's the Attorney General's job [rimshot].

Posted by: dweedle | Oct 4, 2007 4:34:27 PM

Do you think he was really arguing for the people? Who appoints him?

Do you think the American people are in an uproar because a judge gave a downward departure. giving a sentence of 15 years instead of 19. Will the extra 4 years make all the difference in the world?

The real problem is the lock them up and throw away the key approach the guidelines take. There is not one thing in life you can take a one size fits all approach to. It makes no sense.

Posted by: | Oct 4, 2007 6:26:00 PM

Excuse me if I'm missing the point of Booker, but wasn't the reason the guidelines were found to violate the Sixth Amendment in the first place was because of the lack of discretion that they afforded the sentencing judge?

Shortly after the remedial decision in Booker was being test driven in the district court where I practice, the judges were at odds of exactly how to deal with it. However, one thing was certain: the judges definitely believed that they now had the discretion to fashion any sentence that they found very well fit.

The government in this district also did not disagree with this theory since none of the cases that were sentenced post-Booker, for quite some time, were appealed on the grounds of a “presumption of reasonableness.” Only when the Sixth Circuit Court of Appeals published its first opinion on the subject did the government start appealing the cases.

If the Supreme Court does affirm Gall what do we have? It appears that we are right back to the concept of mandatory guideline sentencing. Does this effectively overturn the holding of Booker? I guess only time will tell.

Posted by: Rodney | Oct 4, 2007 10:45:54 PM


If you don't like the penalties required by federal statutes and guidelines, then call your Congressman and Senators. Don't go to court and claim there's a constitutional problem with our sentencing laws just because you think they are too harsh.

Posted by: Da Man | Oct 5, 2007 9:52:00 AM

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