Monday, November 13, 2006

Booker and the Future of Federal Sentencing

Professor J. Kelly Strader (Southwestern) guest blogging writes:

Two developments raise questions concerning the future of federal sentencing in the post-Booker era. The first development arises from the shift in the Supreme Court’s composition since the Court decided Booker in 2005, and the second from the results of last week’s mid-term elections. In Booker, Justice Stevens wrote the "merits" majority opinion, and was joined by Justices Scalia, Souter, Thomas, and Ginsburg. In the "remedial" opinion, the dissenters from the merits opinion held that the Guidelines could be constitutionally applied if they were considered advisory rather than mandatory. Justice Breyer wrote the remedial decision, and was joined by late Chief Justice Rehnquist, Justice Kennedy, Justice O’Connor, and Justice Ginsburg, who provided the swing vote. Under the remedial majority’s approach, sentences are to be reviewed for "reasonableness." (The latest Sentencing Commission statistics show that the percentage of Guidelines-range sentences has fallen by about ten percent, to 62 percent, under the Booker advisory sentencing scheme.)

Two of the dissenters from the Booker merits opinion, Rehnquist and O’Connor, have been replaced by Chief Justice Roberts and Justice Alito. As discussed here, the Court has agreed to examine the Booker sentencing scheme to determine (a) whether Guidelines-range sentences are presumptively reasonable and (b) whether non-Guidelines range sentences should be subject to special scrutiny. If the Court adopts a presumption of reasonableness, the holding may signal a return to a sentencing scheme that looks little different from the pre-Booker scheme – a result that Justice Scalia predicted in his remedial dissent when he stated that the "reasonableness" approach "may lead some courts of appeals to conclude -- may indeed be designed to lead courts of appeals to conclude -- that little has changed." Bloggers have much commented on the possibility of a return to what are essentially mandatory Guidelines – an outcome the remedial majority (save perhaps Ginsburg) would seem to support.

Based upon the tone and substance of the remedial dissents, I suspect that it is likely that the remedial dissenters will reject a presumption of reasonableness. If Roberts or Alito joins with the remedial dissenters, then that block will have a majority. If not, then Ginsburg will once again provide the pivotal vote.

Another interesting question is whether the new Congress will be inclined to revisit the federal sentencing scheme in response to Booker. One approach would be to enact wide-ranging mandatory minimum sentences. Republican members of Congress have historically viewed mandatory minimum sentences favorably, while Democrats have generally opposed mandatory minimum. So, the adoption of a mandatory minimums scheme may be unlikely for the time being. Stay tuned.


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