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March 27, 2016

Effective previews via SCOTUSblog before an exciting upcoming SCOTUS week for sentencing fans

This coming week brings two interesting Supreme Court cases about sentencing issues via Betterman v. Montana, to be argued on Monday, March 28, and Welch v. United States, to be argued on Wednesday, March 30.  I will likely have plenty to say about both cases after the oral arguments; helpfully, two great pre-argument previews done by Rory Little over at SCOTUSblog provides an opportunity to gear up for this year's SCOTUS sentencing March madness.  Here are links to, and the start of, these SCOTUSblog previews:

Argument preview: A “clean” constitutional question – does the speedy trial right apply to sentencing?

The Sixth Amendment provides various rights for “all criminal prosecutions.”  Among those listed is “the right to a speedy and public trial.” Next Monday, March 28, in Betterman v. Montana, the Court will consider whether the “speedy” part of the right applies to a criminal defendant’s sentencing that happened about fourteen months after he was convicted by guilty plea.  The briefing in the case is very good, and Betterman is represented by an experienced appellate advocate (Fred Rowley, making his first Supreme Court argument), as well as the UCLA Supreme Court Clinic.  Montana’s solicitor general, Dale Schowengerdt, will argue for the state, and Assistant to the U.S. Solicitor General Ginger Anders will argue on behalf of the United States as an amicus in support of Montana.

Argument preview: Complex retroactivity questions arising from Justice Scalia’s void-for-vagueness decision last Term

It seems increasingly clear that the current Supreme Court Term will have to be headlined “Justice Scalia is sorely missed.” Next Wednesday, March 30, the Court will hear argument in yet another criminal case in which the unexpected passing of Antonin Scalia on February 13 will leave an unanswered “hole” in the Court’s deliberations. Last June, Justice Scalia wrote the opinion in Johnson v. United States, in which, after an eight-year campaign originating in Justice Scalia dissents, a majority declared the “residual clause” of a federal repeat-offender statute unconstitutionally vague. The question quickly arose whether that ruling should be applied to federal cases on collateral review, even though they were “final” before Johnson was decided. That is, should Johnson apply “retroactively”? To answer that question, the Court chose (from among others) the petition in Welch v. United States. (On a tangential note, some courts of appeals have differed on the question of retroactivity for “initial” versus “successive” collateral review requests; this case will apparently answer for both contexts.)

Interestingly, the federal government has told the Court that it agrees with Gregory Welch that Johnson should be fully retroactive, and that Welch’s case should be remanded for resentencing. Thus, the Court has appointed an experienced amicus, Helgi Walker (a former clerk to Justice Clarence Thomas and partner at Gibson Dunn), to defend the judgment below, and the amicus brief, while likely controversial, is excellent.

March 27, 2016 at 12:55 PM | Permalink


Superficially, Betterman is an easy case--the state should win. But underneath I find it quite difficult. With 90% of cases ending in pleas, the reality is that in many cases the only "trial" that anyone every gets is the sentencing hearing. This is especially important, in my view, because the constitution envisions PUBLIC trials and there is a real danger that of sentencing can be kept from the public view and so can the trial (via plea agreements) the public nature of justice is at risk of passing by the wayside.

The reality is that criminal justice has changed so much since the founding that if Betterman wins I will not complain, even though on rational grounds a sentencing hearing clearly isn't a trial. Or phrased differently, the state has the better of the dictionary but Betterman has the better public policy argument.

Posted by: Daniel | Mar 27, 2016 6:17:18 PM

How is Betterman about public sentencing? Everything I've seen says that it implicates only the speedy trial portion of "speedy and public trial". As far as I am aware Betterman's eventual sentencing was in fact open to the public.

I actually find this case more interesting for the likely hood that even if the court rules that the speedy trial right does attach to sentencing that the delays were of Betterman's manufacture.

Posted by: Soronel Haetir | Mar 28, 2016 12:51:19 AM

Betterman is full of rich, subtle, broad implications.

For example, I have read many scholars talk about "sentencing trials" when they refer to the finding of an aggravator which increases potential punishment. If finding an ag is a exercise covered by the Sixth Amendment, do the Rules of Evidence apply? I think so.

I am litigating several cases where the principles of Nixon v Florida, relating to whether a lawyer can concede guilt, apply to sentencing. I think so. In other words, there are three ranges of potential punishment in NC. Can a lawyer, consistent with Nixon, concede the def shouldn't receive the lower range without consent?

Sentencing is the new trial, and jury determinations of guilt or innocence have been relegated to a rarity. Due primarily to the enormous shift in power over sentencing from the judge to the prosecutor.


Posted by: bruce cunningham | Mar 28, 2016 8:36:44 AM


The exact phrase is "speedy and public trial". So does one read that as two separate criterion (speedy AND public) or one compound phrase (speedy and public). This is not a new dilemma when dealing with compound phrases in the English language. If one reads it as a single compound phrase then the fact that his trial was eventually held in public is not relevant, because it failed to be speedy and the inverse is true. We don't analyze these two criteria separately but as one and the same thing.

Posted by: Daniel | Mar 28, 2016 2:33:05 PM

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