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December 11, 2008

Any profound thoughts on the state of federal sentencing a year after Gall and Kimbrough?

It just dawned on me this morning that yesterday marked the one-year anniversary of the Supreme Court's decisions in Gall and Kimbrough, the two cases in which the Justices made extra clear that Booker really meant that the guidelines were to be treated as truly advisory.  Though the US Sentencing Commission seems unlikely to produce a "one-year-later" report on the impact of Gall and Kimbrough, it seems fair to suggest that these cases have had an important and consequential effect on federal sentencing outcomes and atmospherics. 

I could opine at length about my own impressions of the tangible and intangible impact of Gall and Kimbrough, but this post is mostly designed to encourage reader input.  Specifically, I am eager to hear from commentors concerning whether and how Gall and Kimbrough should be celebrated or cursed one year later.  I would also love to hear suggestions about what institutions like the US Sentencing Commission, the Justice Department and Congress should be thinking about as we start year two of the post-Gall/Kimbrough world (and approach year five(!) of the post-Booker world).

December 11, 2008 at 10:39 AM | Permalink


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In my opinion, Gall and Kimbrough have added some much-needed flexibility and humanity to our federal sentencing system. There is still much work to be done, but district judges, and most appellate courts, can use their sense of reason and fairness to a much greater extent now than a year ago. That's an overall improvement to the system.

Posted by: Mark Pickrell | Dec 11, 2008 12:07:27 PM

So often state and federal elected officials put forth "sentencing guidelines" to show off their stance on crime. At the same time, they undercut justice and the capabilities of judges and justices. Hopefully the application of Gail will encourage courts to take sentencing standards back into their own hands, rather than in the hands of men and women who are trying to win popularity contests.

Posted by: JT | Dec 11, 2008 12:56:35 PM

I am not sure that you can really assess the impact on these cases, and I am not even convinced it is wise to do so. Whenever you have a transfer of power from branch to another, a large part of the impact is going to be based upon what the new branch choses to do with its new power. I think the whole line of SCOTUS jurisprudence in this area has, in the main, been correct as a constitutional matter. I don't think you can ask for anything else; the chips need to fall where they may. Whether this move by SCOTUS will lead to more "justice" in an abstract sense I know not; I'm sure it will be debated for years to come.

Posted by: Daniel | Dec 11, 2008 2:26:55 PM

Your posting came the same date that I posted on U.S. v. Turner, last Friday's very important D.C. Circuit case from the post-Gall/Kimbrough age. My blog entry is here http://katzjustice.com/underdog/permalink/FederalSentencing.html , and I think is responsive somewhat to your posting. Thanks, Jon

Posted by: Jon Katz - Underdog | Dec 12, 2008 6:47:31 AM

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