A few great lines (from the departing Justice) in today's little sentencing case

Though not really a sentencing case as much as a statutory interpretation decision, the Supreme Court's unanimous decision today in Abuelhawa v. United States, No. 08-192 (S. Ct. May 26, 2009) (available here), is fundamentally about sentencing consequences. And the Court's opinion, per Justice Souter, has one comical sentence and one notable footnote that I might highlight here.

First the sentence: "When the statute was enacted, the use of land lines in drug transactions was common, and in these days when everyone over the age of three seems to carry a cellphone, the Government’s interpretation would skew the calibration of penalties very substantially."  Though I happen to know of at least a few folks over the age of three who do not carry a cellphone, I still think the turn of phrase here is wonderful.

Now the footnote:

The Government’s suggestion that a result like this [namely a "twelve-fold quantum leap in punishment for simple drug possessors"] is not anomalous because a prosecutor could exercise his discretion to seek a lower sentence, seeTr. of Oral Arg. 41, simply begs the question.  Of course, Congress legislates against a background assumption of prosecutorial discretion, but this tells us nothing about the boundaries of punishment within which Congress intended the discretion to be exercised; prosecu-torial discretion is not a reason for courts to give improbable breadth tocriminal statutes.  And it ill behooves the Government to invoke discretionary power in this case, with the prosecutor seeking a sentencing potential of 24 years when the primary offense is the purchase of two ounces of cocaine.  For that matter, see id., at 41–43 (concession by Government that current Department of Justice guidelines requireindividual prosecutors who bring charges to charge the maximum crime supported by the facts in a case).

I am not sure this dicta about prosecutorial discretion is of any formal consequence, but I always enjoy when courts sensibly reject self-serving prosecutorial arguments that prosecutorial power should be expanded because prosecutors are unlikely to make too much use of such expanded power.