Preview of Rita/Claiborne Cases:
In the Tuesday New York Times, Linda Greenhouse has a very good article explaining the stakes in Tuesday's oral arguments in two important sentencing cases, Rita and Claiborne, the Supreme Court's follow-up to Booker. The issues in the cases are very technical but very important, and Greenhouse does a terrific job explaining them and putting them in context. You can read the briefs filed in the cases here via SL&P.
Dave Hardy (mail) (www):
This should be interesting. The concept that the power given to Congress to outlaw actions and fix the punishment should be exercised by Congress, and not by a non-elected commission, is one worthy of serious consideration.

I had second-hand knowledge of lobbying of the Commission by prosecutorial groups, based on such (to my mind irrelevant) considerations as "if our offense gets a higher rating, there is a better chance that US Attorneys will consider it worth prosecuting."
2.20.2007 12:36am
There is no easy way to get uniform sentencing without having some guidelines as to what is a reasonable sentence. But without such guidelines, I fear that we'll get severe discrepencies between diferent federal districts. What we will get is --much to AMK's demise -- moe mandatory minimums!!!

Dave Hardy: I agree with you that there are separation of powers issues, but it was resolved in Mistretta (8-1 from what I recall, with Scalia dissenting). Justice Scalia ultimately got his way through a tortured reading of the jury trial right under the Sixth, so here we are.
2.20.2007 7:23am
Kovarsky (mail):
and the apprendi project marches on...

i continue to insist that ginsburg's failure to write a concurring remedial opinion in booker was her low moment on the bench.

the fact that congress has done nothing about this problem reveals a lot about how flawed a lot of assumptions about the legislative process - particularly insofar as they bear on statutory interpretation questions.

also, percuriam, i don't understand how we'll have "severe" discrepancies between different districts if all that happens is that the court does away with the presumption of reasonableness that attaches to a sentence within the guideline range. i suspect the vast majority of judges will sentence within the range; they can still sentence outside the range; their sentences must still be reasonable - but they aren't bullied into the range by the presumption. sure, it will create some marginal variation across regions, but most judges still try to follow the guidelines, for the most part.

don't get me wrong, i think the merits opinion in booker is right and the remedial opinion wrong.
2.20.2007 8:47am
Kovarsky: "sure, it will create some marginal variation across regions, but most judges still try to follow the guidelines, for the most part."

I hope you are right; But I would hate to be a lawyer explaining to a client that is not a part of the "marginal variation."

I don't know if you practice federal criminal law, but in my experience, since Booker, I have yet to find a judge who feels they have been "bullied" by the presumption. Quite to the contrary.
2.20.2007 2:57pm