SCOTUS Accepts New Sentencing Cases

By TChris, Section Court Decisions
Posted on Mon Jun 11, 2007 at 11:22:18 AM EST
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Received by email, news that the Supreme Court granted certiorari in two sentencing case to replace Claiborne, which (as TalkLeft noted here) was rendered moot when Claiborne was shot to death.

Kimbrough v. United States, Case No. 06-6330 was a crack case in which the 4th Circuit reversed per curiam the defendant's below-range sentence, holding that "a sentence that is outside the guideline range is per se unreasonable when it is based on a disagreement with the sentencing disparity for crack and powder cocaine offenses," see United States v. Kimbrough, 174 Fed. Appx. 798 (4th Cir. 2006).
The Supreme Court also agreed to hear another case out of the 8th Circuit raising the same issue that had been raised by Claiborne: whether a court must have "extraordinary justifications" in order to impose an "extraordinary" below-range sentence. The case is Gall v. United States, No. 06-7949, and the 8th Cirucit's opinion can be found at United States v. Gall, 446 F.3d 884 (8th Cir. 2006).

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SCOTUS Accepts New Sentencing Cases | 6 comments (6 topical)

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Taking Kimbrough (none / 0) (#1)
by Deconstructionist on Mon Jun 11, 2007 at 11:38:17 AM EST

could mean something. That was an unpublished per curiam opinion. It might not mean any more than "per se unreasonableness" is not a defensible standard of review, or it might mean that the Supreme Court is ready to look closely at the guidelines for crack and hold that all of the myriad problems with the bases for the 100:1 ratio can provide grounds for a "variance" sentence under 18 USC § 3553.

Or, I suppose, the SC could affirm Kimbrough and set a monumentally horrible precedent. I tend to think that is unlikely, though, because it would seem so unnecessary.

I think Kimbrough is a done deal (none / 0) (#2)
by scribe on Mon Jun 11, 2007 at 11:51:50 AM EST

to say that (1) below-guidelines departures are not per se unreasonable except where (2) Congress has explicitly stated otherwise, as in the 100:1 crack-powder disparity.

I also think there will be at least a concurrence, if not a majority opinion, upholding the 100:1 crack-powder disparity against fairness and substantive due process type challenges, as well as against any other challenges which might be brought. "Deferring to the will of Congress" and all the other "judicial modesty" arguments Repugs like to make when putting behind bars people who are poor and/or of color.

My thinking is that they took Kimbrough (out of the universe of sentencing and crack-powder cases) now, so they can get the precedent in place before the election next year, then lean back on stare decisis after the election (assuming a Dem is elected) to decline to address (or re-address) the issue absent to-be-characterized-as soft-on-crime legislation dialing back the disparity, which only could come from Dems. In other words, they took it to lock in the crack-powder disparity for a long time to come and keep the wah on drugs going.

So, save your breath that would be spent urging a pro-defendant result in Kimbrough and work to elect progressives (so progressives can remake the S.Ct.) and end the wah on drugs (legislatively).

Sorry to sound so cynical, but when dealing with Repugs, how often has my cynicism been wrong?

: Times have changed, though (none / 0) (#6)
by manys on Mon Jun 11, 2007 at 07:01:39 PM EST

Any day now we can expect to see an amicus from Bork, Dershowitz and the rest of the Libby 12.

You don't understand (none / 0) (#3)
by Deconstructionist on Mon Jun 11, 2007 at 12:02:39 PM EST

the difference between "departures" within the guidelines framework and "variance" sentences pursuant to 18 USC § 3553 following Booker.

These are DIFFERENT issues. It's not a question of the court addressing the disparity in the guidelines. It's a queation of whether post-Booker a court can -- after calculating the guidelines as always including the crack OL-- then find a "variance is waraanted under § 3553 (a) because it fels the guideline sentencing range dictates a sentence greather than sufficient [to meet the purposes of § 3553] based in part on a sentencing court's disagreement with the effect of the crack guiideline on that particular sentence for that particular defendant.

fair enough - but my point was (none / 0) (#4)
by scribe on Mon Jun 11, 2007 at 12:31:25 PM EST

that however one wants to slice it conceptually, the S.Ct. will come down and uphold the specific statutory framework imposing the 100:1 crack-powder disparity against the judges who might think it unfair and attempt to mollify it through 3553 (or any other flavor of) balancing they might come up with.

While my thinking (or expression thereof) may have been a little sloppy, in this age of results-oriented intellectually-dishonest adjudication at 1 E. Capitol, it's the result that counts and only the result. You don't refute (or controvert) my prediction on how the case will turn out (or why).


: Well, (none / 0) (#5)
by Deconstructionist on Mon Jun 11, 2007 at 03:20:29 PM EST

I was long, long ago disabused of any tendency to await favorable opinions from the Supreme Court.
However, as I said in my first post, I think there is reason to hope Kimbrough will result in reversing the 4th, if only on the ground that it is not good enough to call a district court's judgment as to sentencing "presumptively unreasonable" and pack it in in three paragraphs.
More than that and "real" encouragement for district courts to consider the unfairness, illogic and disproortionate resulyts caused by the 100:1? I'm not betting my retirement fund.