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March 31, 2010

Telling(?) distractions during Dillon SCOTUS oral argument

I have now had a chance to review quickly the transcript from yesterday's Supreme Court oral argument in Dillon, which can be accessed here.  I am eager to here reader reactions, and this piece in the Pittsburgh Post-Gazette, which is headlined "Justices hear appeal on drug penalty inequities," summarizes most of the highlights better than I could. My first cut reaction is that, at many stages, certain Justices seemed to be distracted by concerns that suggest that they may not be especially sypathetic to Percy Dillon's fate.

For example, Justice Ginsburg suggests that it would not be "fair" for Percy Dillon to get a chance to have his severe crack sentence impacted by Booker when "others whose sentence has become final cannot get into the court's door because they don't have the entering wedge" provided by the revision of the crack guidelines.  But this expressed concern for systemic "fairness" is itself driven by the Justices own disinclination to allow the Booker remedy to apply retroactively, and it also fails to deal with the fact that Dillon was originally subject to a unique form of unfairness because his original sentence was so inflated by the old severe crack guidelines.  The way Justice Ginsburg frames her concerns about fairness suggests she thinks Dillon should not get a "special" chance to get a true post-Booker assessment of sentencing justice.

March 31, 2010 at 09:16 AM | Permalink


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I posted my extended reactions to the argument in this post's comments: http://sentencing.typepad.com/sentencing_law_and_policy/2010/03/sentencing-day-at-the-supreme-court.html#comments

I also commented on Ginsburg's concern. To me, her concern is unjustified. Congress has allowed for Dillon's (and others') sentence to be modified. There is nothing unfair about only allowing defendants whose sentences are subject to modification (and therefore have low finality interest) to obtain the benefit of Booker.

And further, as the post point out, crack defendants were "originally subject to a unique form of unfairness" during their "original sentence."

But it gets worse than that. Crack defendants are subject to a second and third unique form of unfairness in their 3582(c)(2) proceedings. This is because the USSC has repeatedly said the amended crack guideline is still inadequate. The amended guideline, according to the USSC, continues to “significantly undermine[] various congressional objectives set forth in the [SRA] and elsewhere” and is neither “permanent” nor “complete.” USSG Appendix C, Amend. 706. Although the amended range is only a "partial step", USSG 1B1.10 is premised on the fact that the amended guideline range is “sufficient to achieve the purposes of sentencing.” USSG 1B1.10, “Background”.

In the case of a crack defendant, then, USSG 1B1.10 is premised upon a blatant lie. Dillon and other Defendants have suffered from an unjust original sentencing range, an unjust amendment sentencing range, and a policy statement (1B1.10) whose foundation is an absolute lie in the case of crack. That, Justice Ginsburg, is what sounds "unfair" to me.

Posted by: DEJ | Mar 31, 2010 12:01:49 PM

I believe the comment you reference was in response to MY comments about those same statments by the Court. You are certainly entitled to your opinion/position, but in terms of "reading the tea leaves" let's examine what the Court said:
p. 8 of transcript: JUSTICE GINSBURG: Ms. Freeland, may I take you on another path, not the question of the difference between the two -- two sections. You have a large prison population, and then Booker comes down, and then the guidelines change only as to crack cocaine, nothing else. All of the others whose sentence has become final cannot get into the court's door because they don't have the entering wedge.
p. 9 of transcript: JUSTICE GINSBURG: But why should, bearing in mind that entire prison population similarly situated, the courts say the finality bar is lifted only to the extent that the crack cocaine guideline disparity has been reduced
Finally, regarding your prior rejoinder to my paraphrasing the Court as saying that Booker is not retroactive, see:
p. 35 of transcript: JUSTICE BREYER: I would have thought the objection to that is: No, they didn't make a mistake in applying Booker, because this Court has said that Booker isn't retroactive. And of course, they did make a mistake if it is retroactive. And then the Court should have said, it is retroactive, in which case there would be no problem.
My money remains on an unfavorable opinion for Mr. Dillon

Posted by: anon | Mar 31, 2010 7:16:28 PM

Although it is tangential to the legal issues at stake in Dillon, I found it fascinating and heartening that Justice Kennedy expressed concerns about the size of the federal prison population, criticized the low numbers of commutations by Presidents Obama and Bush in the past two years (zero and five, respectively, according to Kennedy), and questioned why DOJ doesn't recommend commutation in cases that would seem to merit such relief.

(defense attorney)

Posted by: Gail Johnson | Mar 31, 2010 11:58:39 PM

anon, I'm not really sure what you're arguing with me about. My comment was in reaction to Justice Ginsburg's concern, which you paraphrased and Prof. Berman quoted. I read the transcript thoroughly and was well aware of her comments.

As far as whether the Supreme Court has held Booker to not be retroactive, it hasn't (despite Breyer's statement). Please cite me the case if you disagree. As far as reading tea leaves, I absolutely agree with you that it doesn't look good for Dillon. My point was not that he would prevail, but rather that Ginsburg's concerns about it being unfair and Booker's non-retroactivity are not warranted or persuasive.

Posted by: DEJ | Apr 1, 2010 1:45:56 AM

I posted the quotes for those who had not/will not read the transcript. Of course I do not state that the Supremes had ruled on Booker retroactivity - that was just to explain my earlier paraphrasing. I understand you do not buy the comments Justice Ginsburg made about finality - it just struck me as telling that a Justice from the left could hang her/his hat on the "fairness to non-crack defendants" to rule in favor of the government.

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