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December 10, 2007

A quick Justice-by-Justice review in Gall and Kimbrough

There is so much to say about the substance of the rulings in Gall and Kimbrough (basics here), and I will likely need a few days to unpack all the important particulars.  Here I want to do a quick Justice-by-Justice review what we see in Gall and Kimbrough, in part because I think it could foreshadow the Court's work on any number of future sentencing issues.  So here goes:

Justice Ginsburg, the author of Kimbrough, reveals yet again that she only agreed to the Breyerian Booker remedy on the theory that the guidelines would be truly advisory.  Throughout her opinion she emphasizes a number of key facets of a truly advisory guideline system that should help ensure district courts appreciate how much discretionary sentencing authority they now have.

Justice Stevens, the author of Gall, reveals yet again that he can give the defense bar lots of great dicta.  His Rita concurrence was full of potent dicta, and many aspects of the Gall ruling support arguments of stressed by defense attorneys (e.g., the seriousness of supervised release and probation terms; the importance of co-defendant disparity under 3553(a)(6)).

Chief Justice Roberts and Justices Breyer and Kennedy, the three Justices who do not bark at all but join both majority opinions, reveal general disinterest and/or general exhaustion.  As was true with his vote in Cunningham, CJ Roberts seems more interested in harmony and stare decisis than in grinding and particular sentencing ax.  As shown by their opinions in Rita and Cunningham, Justices Breyer and Kennedy seem most concerned that guidelines, the Commission, and judicial power remain vibrant even in Apprendi-land, and Justice Breyer likely got both Justices Stevens and Ginsburg to add a bit of dicta to that end in Gall and Kimbrough.

Justice Scalia, the author of brief concurrences in both Gall and Kimbrough, continues to emphasize his concern with sentencing procedures and the Sixth Amendment.  Especially for issues like acquitted conduct enhancements, it is nice to see Justice Scalia continue to stress the viability of "as-applied constitutional challneges to sentences."

Justices Souter and Thomas, both of whom write separately to show they are still mad at Ginsburg for following the Breyer pied piper down the road of advisory guidelines, express their aggravation for the tangled web that the Booker remedy has weaved.  Ever the genteel New Englander, Justice Souter makes a simple call to Congress to get back to mandatory guidelines that respect the Sixth Amendment; ever the grumpy Gus, Justice Thomas makes an impassioned statement that, because the post-Booker jurisprudence has become so lawless, he's just not going to take it anymore.

Justices Alito, who authors the only real substantive dissent in either case, shows that his pro-prosecution instincts are stronger than his allegiance to statutory text.  Nowhere is his dissent does he address the parsimony mandate of 3553(a), even though he concedes that a reasonable jurist "could conclude that a sentence of probation [for Brian Gall] was sufficient in this case to serve the purposes of punishment set out" in 3553(a)(2).   

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Tracked on Dec 10, 2007 5:07:20 PM


"Justices Alito, who authors the only real substantive dissent in either case,hows that his pro-prosecution instincts are stronger than his allegiance to statutory text."


Is that really fair? I realize you believe that particular text is the holy grail of federal sentencing law. But I don't think disagreement with you on that is necessarily a sign of policy preferences trumping law; not everyone sees that text as being as powerful as you personally do. (Unless you meant your comment tongue in cheek, which I realize is certainly possible.)

Posted by: Orin Kerr | Dec 10, 2007 2:57:30 PM

Orin, my concern is based in part on his failure to address the parsimony text at all (which, as I have noted elsewhere, lots of circuit courts have failed to do when reversing below-guideline sentences). If Alito gave an explanation for why he did not think the text called for an affirmance of the district court, I'd be perhaps less harsh in my assessment. But, especially given that the majority repeatedly stressed this key text, Alito's failure to even address it seems telling.

Posted by: Doug B. | Dec 10, 2007 3:02:33 PM

I thought Justice Alito's dissent was an embarrassment. He didn't even address the use of a proportionality analysis until the very end, and appears totally ignorant of the fact that the circuits *are* in fact regularly using it, and the vapid "mathematical" version of it, to reverse downward variances. See, e.g., U.S. v. Davis, 458 F.3d 491 (6th Cir. 2006) ("Few would disagree that we have an extraordinary variance in this case-from a guidelines range of 30 to 37 months to one day, to what the government refers to as a 99.89% variance-so the question is whether extraordinary circumstances justify*497 the full amount of the variance. Not here, in our view.")

Alito spoke of merely paying "lip service" to the Guidelines, which is laughable in Gall's case given the lengthy hearing and the several page long sentencing opinion that Judge Pratt filed. *That* is "lip service"?

Alito also seems primarily interested in bashing Blakely & Booker, which is a little late in the day. He also seems very exercised that the DJ here didn't give "sufficient weight" to the GL, but I'm not sure he offers any worthwhile example of what "sufficient weight" would be (presumably b/c he wishes DJs to blindly use the GLs).

He also rants about how he feels the DJ didn't give any "appreciable weight" to the GLs, which is just ridiculous in this case, with the written opinion (which does analyze the GLs, and in fact denies the D's GL-based departure motions). Notably, Alito spends very little time discussing the actual case, and the majority of his opinion pounding the table about how weighty & important the GLs are.

Posted by: Sentencing Observer | Dec 10, 2007 3:23:48 PM

One further thing -- Alito complains about the DJ "slighting" the "unwarranted disparities" argument, but it's clear that Alito ignores -- worse than "slighting" -- the majority's compelling discussion of how Gall was *not* similarly situated to his co-defendants, such that disparity between their sentences was *warranted*.

Posted by: Sentencing Observer | Dec 10, 2007 3:25:54 PM


You can certainly say that you think Alito is overlooking something important. But your claim was much broader. You claim that Alito's failure to address your favorite argument and agree with you actually says something more general about his way of deciding cases: "his pro-prosecution instincts are stronger than his allegiance to statutory text." This assessment seems pretty plainly unfair to me.

Posted by: Orin Kerr | Dec 10, 2007 3:26:30 PM

Orin, the "sufficient, but not great than necessary" mandate of 3553(a) is not only my "favorite argument," it is also the statutory text. Indeed, it is my favorite argument because I believe that judges should be attentive to the statutory text before turning to policy considerations. If Alito said (as Posner has) that this text is hopefully vague and thus merits little attention, then I'd soften my critique. But Alito does not do that, instead he just ignores the text and develops his own views of how much weight he thinks the guidelines ought to be given. And the fact that he gets nobody to join his analysis --- and is thus writing perhaps his first solo dissent --- I think provides additional support for my assertion.

Perhaps you think my assertion is wrong, but I am not sure what makes it "plainly unfair" in your eyes.

Posted by: Doug B. | Dec 10, 2007 3:32:44 PM

Professor Kerr,

In my view, the parisomy text warrants unusual attention because it is unusual language for a statute. Considering that it is relatively uncommon for Congress to articulate -- in a statute to be applied directly by judges and not merely interpreted by them -- a policy preference so prominent and yet so subject to interpretation as "sufficient but not greater than necessary," isn't it appropriate that such language be given importance in the application and not merely in the abstract? We haven't been told what is sufficient, or what is greater than necessary, but I'm inclined to agree with Professor Berman to the extent that his posts often imply that identifying that elusive point in each case ought to be the central aspiration at each sentencing.

I read the parsimony language as a recognition by Congress that sentencing is a uniquely personal moment, both for judges and for defendants, and as a concession that it is therefore a moment where the usual policy-making branches should yield some of their policy authority to the judge familiar with the facts of the case, and that the judge should be guided in this policy decision by the principle that the lowest sentence serving the requirements of sentencing is the correct one. "Holy Grail" may be a name too far, but perhaps not by as much as you suggest.

What strikes me about Justice Alito is that he is, like several of his brethren, including Justice Scalia, to be given due credit for his desire to produce opinions that erase ambiguity and announce simple rules. I worry, however, that Justice Alito is less cautious than Justice Scalia in basing those rules on existing law rather than on mere facility of future application.

Posted by: M. | Dec 10, 2007 3:38:23 PM

The professor takes the high road in his response to Orin. I won't: In his two years on the Court now, Alito is probably the most knee-jerk, pro-government Justice of them all. It may only be a correlative observation, but Alito's prosecutorial history certainly is in line with his votes. You'd think that a purported libertarian blogger like Orin would have picked up on this by now.

Posted by: | Dec 10, 2007 3:43:19 PM

I have the greatest respect for Professor Kerr. But, Professor Kerr is, under no circumstances, going to call someone like Alito a government hack. Even if Kerr thinks he is.

Harsh words are only appropriate when 1) you are a partner condemning someone you don’t want to be an associate; or 2) a judge condemning a hapless litigator for not living up to your personal preferences.

Posted by: S.cotus | Dec 10, 2007 3:47:41 PM

Justice Alito writes (Slip op. 8): "If the question before us was whether a reasonable jurist could conclude that a sentence of probation was sufficient in this case to serve the purposes of punishment set out in 18 U. S. C. §3553(a)(2), the District Court’s decision could not be disturbed."

Can someone explain what Justice Alito thinks IS the question before the Court if not whether the sentence at issue was a reasonable one?

Posted by: What the Alito? | Dec 10, 2007 3:52:54 PM

one point i would like to see
could we put a dollar amount to what the government spent on appealing the original sentence to the circuits and what they spent arguing this to the supreme court?
I would love to see what they are using our federal tax dollars for?
Someone wrote and earlier note about gall only an idiot wouldn't have give gall probation. then i guess an idiot would continue to argue and protest the sentence the way the us attorney did.
this department needs to be held accountable for how they are spending our tax dollars.

Posted by: | Dec 10, 2007 3:54:22 PM

The parsimony mandate says nothing about the weight to be given to the Guidelines, only that they must be "considered" along with a hash of other factors on the way to the ultimate goal of a sentence that is sufficient, but no greater than necessary.

Included in that hash is the Guidelines, which represent a systematic attempt to implement the will of Congress regarding what sentences are "sufficient, but no greater than necessary", and which were mandatory when the statute (including the parsimony mandate) was written.

Even under the text that survived remedial Booker, the Guidelines have a role to play, and Justice Alito attempts to grapple with what that role should be and how to implement that role in practice.

Justice Alito is one of only two sitting justices who's had any experience sitting on a lower court and trying to apply the Supreme Court's Apprendi line of cases. I'd think you'd give him credit for addressing the "realities" of appellate review for substantive reasonableness.

Posted by: | Dec 10, 2007 4:05:24 PM

As much as I am leery to side with the government, I will not fault the government for taking non-frivolous appeals. In these cases, the issues are somewhat nebulous and there is no indication that they are taking them for improper reasons.

At some level, the government is entitled to know what “the law” is. This, for better or worse, costs the government money. So, I think it is unfair to accuse the government of illegitimate litigation strategies when they are seeking a resolution of unsettled law.

My analysis changes when the government is commencing prosecutions based on ambiguous facts, since the government, I would argue has no right to certainty of facts.

Posted by: S.cotus | Dec 10, 2007 4:06:16 PM


But no one is following the text here. As Justice Thomas points out, this is an exercise in post-Booker legislative refashioning.

In any event, you have a very different rhetorical style than I do. Perhaps it's better to leave it at that.

Posted by: Orin Kerr | Dec 10, 2007 5:27:33 PM

Anonymous writes: "The professor takes the high road in his response to Orin. I won't: In his two years on the Court now, Alito is probably the most knee-jerk, pro-government Justice of them all. It may only be a correlative observation, but Alito's prosecutorial history certainly is in line with his votes. You'd think that a purported libertarian blogger like Orin would have picked up on this by now."

Anonymous, if you want to make that argument, then by all means make it: Let's take a look at the evidence and see. But Doug didn't make that argument, and as far as I know has not done so. As for the purported libertarian blogger comment, I believe I preemptively responded to that .

Posted by: Orin Kerr | Dec 10, 2007 5:33:51 PM

Can someone explain what Justice Alito thinks IS the question before the Court if not whether the sentence at issue was a reasonable one?

A court of appeal may not reverse a trial court's sentencing decision unless the trial court abuses its discretion. If the trial court issued a reasonable sentence (which Alito seems to concede), then it absolutely follows that the trial court did not abuse its discretion.

So Alito's opening paragraph on page 8 is absolutely a non-sequitor. Good catch, "What the Alito?"

Posted by: Mike | Dec 10, 2007 6:10:34 PM

To pre-empt counter-arguments (there are none): A trial court does not act reasonably when he makes an error of law. (This is all basic standard of review stuff.)

So if Alito's point was that the trial court did not give weight to the Guidelines, then he would be saying that the trial court committed a legal error. But if that were the case, the trial court's sentence could not be reasonable.

I suppose someone might say Alito was using "reasonable" in the colloquial sense. That would be an odd argument, though, especially in light of the legal issues in the case.

Posted by: Mike | Dec 10, 2007 6:24:10 PM

What the Alito? and Mike,

I think Justice Alito's point in that paragraph on p.8 is that the question is not, "Was the sentence here greater than necessary to satisfy the purposes of punishment" but rather is about the weight to give to one of the factors used to achieve the purposes of punishment: the Guidelines. I think he (and all of the Justices) would agree that the sentence given is not to exceed what is necessary to satisfy the purposes of punishment. The question is whether, in determining what sentence is necessary to, but does not exceed, the purposes of punishment, judges are to directly apply their own sense of how these purposes are balanced in a given case, or whether judges must do this balancing "indirectly" by giving weight to the balancing done by the Commission when it codified the Guidelines. Alito's argument is that the Booker remedial opinion implies that courts cannot rule based purely on their own weighing of the purposes of punishment as applied to a given defendant, but must give weight to the balancing that the Commission codified in the Guidelines. One may disagree with his position, but he surely has not missed the entire point of what the argument is about.

Posted by: TheOx | Dec 10, 2007 7:05:18 PM

A nitpicky point, while it's true that a court does not act reasonably when it makes an error of law, that does not necessarily result in the reviewing court reversing the lower court. As you probably know, a classic example of this occurs is in the federal habeas context in which federal courts (under ADEPA) may not disturb a state court judgment unless (among other reasons) it involves an unreasonable application of clearly establish law (as determined by the SCOTUS). And on direct appeal, the harmless error standard often results in legal errors going unfixed.

doug: I am a law clerk.

Posted by: Alex | Dec 10, 2007 7:38:31 PM

Orin, do you read the cases? I do. Name a sitting Justice who votes more often with the government than does Alito.

As for you "preemptive response," I take it you're the kind of libertarian who seldom meets a government search of which he didn't approve? Yeah, in addition to the cases, I read your dribble, too. But I prefer to preserve the meaning of the words I use. Looks like Justice Kennedy trained you well.

Posted by: | Dec 10, 2007 8:18:14 PM

A nitpicky point, while it's true that a court does not act reasonably when it makes an error of law, that does not necessarily result in the reviewing court reversing the lower court

Where did I say otherwise? I wrote: "A court of appeal may not reverse a trial court's sentencing decision unless the trial court abuses its discretion." That is different from saying: "A court of appeal must reverse a trial court that abuses its discretion."

If you're going to pick, make sure there are actually nits.

TheOx: I barely have any idea of what you wrote. My best guess is you're arguing that Alito's problem with the trial court was that it did not give enough weight to the Guidelines. But I addressed that argument already. If a trial court did not give proper weight to the Guidelines, he committed an error of law. Therefore, he did not act reasonably. Because, as about a thousand cases will show you, a trial court that misapplies the law does not act reasonably.

Posted by: Mike | Dec 10, 2007 8:20:31 PM

mike, I am sorry..I was referring to your latter comment. I didn't notice the earlier one.

Posted by: Alex | Dec 10, 2007 8:41:25 PM

Mike, Alito says that if the question were "whether a reasonable jurist could conclude that a sentence of probation was sufficient in this case to serve the purposes of punishment set out in 18 U. S. C. §3553(a)(2)" -- not 3553(a), generally. His point is that 3553(a) includes (a)(4) (the Guidelines), not just (a)(2) (the purposes of punishment). Not only that, but in that same paragraph, Alito mentions that (a)(3), (4), and (5) weigh against the district court's decision.

You can disagree with Alito's proposed rule of law. I do. But he isn't stupid, and he is entirely correct to say that the issue is NOT what 3553(a)(2) requires. It's what 3553(a) requires as a whole, including (a)(4).

Posted by: | Dec 10, 2007 9:32:59 PM

I am new here, so I might be unfamiliar with a reoccurring theme on this blog, but the suggestion that Justice Bryer got Stevens and Ginsburg to add dicta to their opinions is interesting to me. In the wake of Justice Kennedy throwing his weight around the ideological vacuum in the middle of the Court, I have found myself more susceptible to the siren call of the understanding that THE LAW IS whatever your best guess at what the Supreme Court WILL SAY it is if they are presented with the question (logic and reason notwithstanding).

So, I would be interested to know why Justice Breyer would want his dicta added in the majority opinion, when it seems that, especially as of late, the prime real-estate is in the opinion of the deciding vote.

Posted by: Anon | Dec 10, 2007 11:29:58 PM

I too was annoyed at the dissent of Alito. Just another reminder that prosecutors should not be made judges.

Yes, I will go on record and say once you've tried a case as a prosecutor at the state or federal level, you should be forever barred from being a judge. Maybe there can be an exception for someone who tried one case as a prosecutor, quit the next day out of self-loathing, and worked pro bono defense for 10 years to make up for it. Then I'd let them be a judge.

And yes, defense attorneys can be judges. In fact, it should be a pre-requisite.

Posted by: bruce | Dec 11, 2007 6:13:12 AM

bruce, I take it then, that for a court as important as the Supreme Court, one shouldn't be allowed on unless he's committed a violent felony and served time in prison?

Posted by: | Dec 11, 2007 11:09:58 AM

11:09:58: Actually, part of that I agree with (not the committing a felony part). I think all prosecutors and judges (at least judges handling criminal cases/appeals) should have to spend 1 year in a medium security prison. People should know that one year in prison is a LONG time. A really LONG time. Those in the position to offer sentences of 6, 20, 40, 56, 99, or howevermany years should know what a year actually is. Sentences should not be based on other sentences. One month locked up in a cage is far more than sufficient punishment for 95% of felonies.

Let's make sure prosecutors and judges who give or affirm sentences know what one year in prison actually means. Sentences will drop by several orders of magnitude, and we won't have more people in prison than any other nation in the history of the planet Earth.

Posted by: bruce | Dec 11, 2007 1:06:01 PM

Bruce, you're the man. If doctor have to do internship, why shouldn't lawyer do it? Yes, spending time in prison would really put a reality touch to things....

Posted by: | Dec 11, 2007 2:37:43 PM

thanks, bruce. just wanted to know where you're coming from.

By your logic, someone on the other side might propose that no one should be allowed to be a defense attorney or a sentencing judge until s/he's been violently raped, mugged, and had a family member killed. And no one should publicly advocate shorter sentences until they've at least been robbed. Once one has been on the receiving end of moral depravity, one might understand that even though we're all human, some monsters who walk among us are beyond reform and need to be put down.

Those prepared to stand up and say that someone deserves leniency, has "found religion," is "no longer dangerous," etc., should understand the consequences of what they're saying.

Anyone on the DP bar who gives a speech to the effect that someone has been "completely exonerated" by newfound evidence should allow that person to babysit his children for a week.

Posted by: | Dec 11, 2007 3:35:17 PM

Eighth Circuit be damned! FINALLY we have some sanity there.

I haven't had time to read the opinion (finals), but the 8th circuit is a sentencing recidivist that needed to be taught a lesson. And the Supremes, 7-2, taught them one.

Posted by: Alec | Dec 11, 2007 3:53:58 PM

Dec 11, 2007 3:35:17 PM, I'm sure what's your problem is. We are all in agreement regarding violent criminals. They should be punish to the fullest of the law. What the problem is, using draconian laws to punish non-violent criminals. Especially, using the preponderance standard, as well as enhancing sentences on acquitted, uncharged charges.

Posted by: | Dec 11, 2007 5:23:21 PM

Since people are huffing and puffing about ex-prosecutors and ex-defense attorneys being on the Supreme Court (or even as a judges in general), can anyone supply some statistics? Just for the Supreme Court would do. This seems a bit of an arcane subject, but interesting too. Only two Justice come easily to my mind as former defense attorneys: Thurgood Marshall and Abe Fortas. Both contributed significantly to the Court’s opinions in several areas of law. I believe Justice Ginsburg said that she missed Marshall on the Court because he had a background so different and yet complimentary to the other Justices, and that it did the Court a lot of good to have his point of view available. It is unfortunate that Fortas had to resign; it certainly didn’t help the cause of future ex-defense attorneys and their possibilities for the Court.

Before anyone starts blowing about prosecutors being pro-government when they become Justices, remember that Earl Warren started his career that way, and too, was a two-term Republican governor who enthusiastically enforced the detention of Japanese Americans during World War II. He of course, became the single greatest force in American Judicial history for the expansion of civil rights and the rights of defendants to due process of law.

Even Justice Scalia, who would have to be characterized as having a background light years from the defense side of the bench, has proved quite positive in some areas of criminal law from the defendant’s point of view. His opinions in Crawford v. Washington and in Blakely are prime examples.

It seems to me that becoming a Justice of the Supreme Court carries with it a high probability of “The Man for All Seasons” effect. But again, can we get some statistics?

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