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August 27, 2014

"Rebellion: The Courts of Appeals' Latest Anti-Booker Backlash"

The title of this post is the title of this notable new essay about federal sentencing and appellate practices by Alison Siegler available via SSRN.  Here is the abstract:

For over twenty-five years, federal courts of appeals have rebelled against every Supreme Court mandate that weakens the United States Sentencing Guidelines. Since the Court made the Guidelines advisory in United States v Booker, the rebellion has intensified, with the appellate courts consistently ensuring adherence to the Guidelines by over-policing sentences that fall outside the Guidelines and under-policing within-Guidelines sentences.  The courts of appeals are now staging a new revolt, creating appellate rules — carve-outs — that enable them to reject meritorious challenges to within-Guidelines sentences.

Part I describes the previous rebellions.  Part II introduces the current rebellion.  Part II.A discusses what I term the “stock carve-out,” an appellate rule that violates the sentencing statute and the Sixth Amendment by allowing sentencing judges to ignore mitigating arguments regarding defendants’ personal characteristics.  Part II.B discusses the “§ 3553(a)(6) carve-out,” a rule that similarly violates the statute and precedent by allowing sentencing judges to ignore disparity arguments.  Part III concludes.

August 27, 2014 at 03:29 PM | Permalink


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What a surprise, a Chicago law professor publishing in the Chicago law review? Who needs peer review? That's for those other academics!

Posted by: Nick | Aug 27, 2014 8:04:54 PM

Alison Siegler

"It is worth asking why appellate courts continue to act as they did during the era of mandatory Guidelines--when it was arguably 'their duty to keep sentencing judges from deviating from the severity called for by the Guidelines.""

Daniel Kahneman

"I propose a simple account of how we generate intuitive opinions on complex matters. If a satisfactory answer to a hard question is not found quickly, System 1 (intuition) will find a related question that is easier to answer...The target question is the assessment you intended to produce. The heuristic question is the simpler question that you answer instead.The technical definition of heuristic is a simple procedure that helps find adequate, though often imperfect , answers to difficult questions." See Thinking Fast and Slow (2011). P. 97

Kahneman received the Nobel Prize (Economics) in 2002.

Posted by: Tom McGee | Aug 29, 2014 1:07:17 PM

Obviously the appellate courts are programmed to use sentencing as a heuristic, thereby dumbing-down the State's response to criminal behavior. That's the story of the so-called sentencing revolution.

Posted by: Tom McGee | Aug 30, 2014 12:23:23 PM

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