Supreme Court to Revisit Federal Sentencing

The Booker decision gave federal judges an opportunity to craft sentences that are appropriate to the offender and offense, guided but not bound by the federal sentencing guidelines. Appellate courts after Booker are to review sentences for reasonableness.

Many federal appellate courts have undermined the Booker decision by reversing sentences that fall below the advisory guideline sentence, and some have gone so far as to deem a guideline sentence presumptively reasonable, while giving less deferential scrutiny to sentences that are more lenient than the guidelines suggest. (Courts seem less troubled by sentences that exceed the advisory guideline.) These decisions have the practical effect of restoring the binding force of the guidelines, recreating the constitutional problem that Booker purported to solve: mandatory punishment for crimes that are never proved to a jury. (TalkLeft background on the Booker decision is collected here.)

The Supreme Court on Friday accepted review of two cases that question whether within-guideline sentences deserve more deferential review than those that fall outside the guidelines.

Lawyers for Victor Rita Jr. argue that his sentence, while within the guidelines, was unreasonable because it failed to account for "his poor health and unblemished record of federal service, both as a marine and in two civilian agencies." He challenges the presumption of reasonableness that attached to his sentence simply because it fell within the advisory guideline range.

As Doug Berman points out, Rita's charges of lying to a grand jury and obstructing an investigation are similar to those facing Scooter Libby. If Libby is convicted and sentenced below the guidelines, does anyone doubt that the sentence would withstand appellate review?

The second case concerns a sentence that was shorter than the guidelines suggest.

The defendant in the second case the court accepted on Friday is a 21-year-old first offender, Mario Claiborne, who was convicted in Federal District Court in St. Louis of possessing a small quantity of crack cocaine. Mr. Claiborne’s lawyer persuaded the trial judge to impose a sentence of only 15 months, sharply lower than the guidelines range of 37 to 46 months.

The United States Court of Appeals for the Eighth Circuit, also in St. Louis, overturned the sentence and ordered resentencing, which has not yet taken place. The Eighth Circuit is among the appeals courts that regard deviations from the guidelines as inherently dubious, requiring special justification.

If the Supreme Court ultimately rules that "advisory" guidelines really are advisory, not de facto binding, the Justice Department may sharpen its lobbying for a legislative "Booker fix" to shift sentencing power from the judicial branch to the executive by further limiting judicial discretion. Democrats may be slightly more likely than Republicans to resist, providing another reason to go to the polls on Tuesday.

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    Booker and the 8th Circuit (none / 0) (#1)
    by scribe on Mon Nov 06, 2006 at 12:00:07 PM EST
    Prof. Berman has done yeoman work on the whole Booker-Blakely issue, over at Sentencing Law and Policy.

    The most egregious thing, which he's noted here and there (as it comes up), is that the 8th Circuit always (and I mean always) finds a way to decide a sentence over-the-guidelines is "reasonable", yet almost always (if not plain always) finds a way to decide a sentence below-the-guidelines is not "reasonable".  And, they're not alone, though surely just the most egregious.

    Without going on a long screed, the statute has five or six subsections which are to be considered in determining sentence, only one of which brings the guidelines into play.  The overarching theory is supposed to be that the sentence is "no longer than necessary" to achieve rehabilitative and punitive aspects.  The gyrations judges have imposed to avoid that one, so as to justify draconian sentences, has been one of the more extreme instances of judicial activism going.  Though, because it supports the right-wing's vindictive streak, it gets little notice.  

    Supreme Court (none / 0) (#2)
    by oldtree on Mon Nov 06, 2006 at 05:07:16 PM EST
    Have we impeached members of the court before?
    has anyone begun the process for certain existing members?