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December 5, 2008

Back to reasonableness jurisprudence after all the football fun

Though OJ and Plaxico make it dangerously easy to start thinking I run a sports blog, I will close this crazy week by reporting on a report of the most notable court decision of the week.  Thanks to law.com, everyone can access here Mark Hamblett's report in the New York Law Journal about the important Cavera decision (discussed here yesterday). The NYLJ article, headlined "Second Circuit Approves Sentencing Bump for Urban Weapons Trafficking," starts this way:

The wide-ranging discretion in federal sentencing given to district judges by the U.S. Supreme Court allows a tougher prison term to a gun offender in New York City than in other parts of the country, the 2nd U.S. Circuit Court of Appeals said Thursday.

I have only had time to consume the majority opinion by (my former boss) Judge Guido Calabresi in Cavera.  Though I am biased to like every opinion a former boss writes, I do not think it is my bias showing when I describe the his Cavera opinion as "Molto Bene."  It is a great read and a must-read for everyone struggling with post-Booker sentencing and appellate review issues.

December 5, 2008 at 06:32 PM | Permalink


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"Rabin said he believes the majority's rationale will be used by judges only to impose tougher sentences.

"I guarantee you will never see this rationale applied at the lower end," he said. "It's only going to be applied where a judge has a gut feeling that he wants to do something tougher."

That's just nonsense.

Posted by: Daniel | Dec 5, 2008 7:07:28 PM

Daniel, please explain why it is nonsense. If you want others to think it's nonsense (and you obviously do, because otherwise you would not be posting), then provide argument on why. I'm not trying to be difficult, but, as an avid reader of this blog, I really want to know WHY you think it's nonsense (and not just that you think it is).

I ask because, as I was reading the opinion, I tried hard to think of a situation where "local conditions" would persuade a judge to impose a below Guideline sentence. I can think of a few examples where a particular crime might not be as severe in a certain locality than in others. For example, crack in rural areas or illegal reentry in a non-border state (although even these are debatable). It's tough to think of many good examples. Even with the ones I can come up with, I just can't see a judge saying "and because that crime is not a big problem here, I'm going to be more lenient than the GL advice." It just doesn’t seem practical to believe that would happen. However, it seems entirely likely that the rationale can easily be used to increase sentences for many types of crime.

In other words, as I was reading the opinion, I had the exact same reaction as the person you quoted. And I was really trying hard to think how this could be used to help defendants. Nothing practical came to mind.

So, with my explanation, why do you think my reaction was "nonsense."

Posted by: DEJ | Dec 6, 2008 11:35:13 AM

How about the impact of mass incarceration on the fabric of inner-city communities? At least one judge has cited this local condition in support of a below-guideline sentence.

I can also imagine local cultural norms being cited: "this is Montana, it's traditional to have guns here, so what if the guy was convicted of not paying child support 15 years ago?"

Posted by: azazel | Dec 6, 2008 1:19:20 PM


Your perspective says nothing about the opinion and everything about the judges currently on the bench. Freedom cuts both ways. I can think of lots of situations where local conditions could be used to justify lower sentences. For example, a judge could use the fact that a particular area has a significantly above average poverty level and use that fact to justify a lower sentence for armed robbery. The local economic conditions drove him to it. Now, as a real matter, it's unlikely that a judge would make that argument today. But who knows what judges we will have in the future or what social conditions are like then. Circumstances can change very quickly, as anyone who has been involved in Wall Street recently knows.

In short, when he says that this opinion will only be used to justify longer sentences he is implicitly saying there are no compassionate judges with courage and never will be. I think that's nonsense. If I were a liberal judge, frankly I'd be wetting my pants with excitement over this ruling.

Posted by: Daniel | Dec 6, 2008 2:53:02 PM

Concerning azazel's suggestion about "local cultural norms," the en banc court rejected this as a reason to impose a non-Guideline sentence. See Slip Op. at 21 ("We agree ... a district court should not rely on subjective considerations such as local mores or feelings about a particular type of crime.") (quotations omitted).

Concerning Daniel's comment, I entirely agree and am happy to see you recognize that your proffered example is unlikely to happen under today's circumstances. There are judges who I think would laugh out loud if it was argued a below GL sentence should be given b/c the burglary occurred in a poverty-stricken area. In fact, that may make the crime worse.

I hope that this opinion can be used by defendants – even if its some day in the unknown future, as Daniel seems to believe. And I know I'll try. But it's harder to envision the case where it works to go below the GL, and very easy to envision cases where it works to go above the GL.

Posted by: DEJ | Dec 8, 2008 12:00:48 PM

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