Sunday, November 5, 2006

The Supreme Court and Reasonableness

The Supreme Court accepted two cases that will likely provide guidance on what is "reasonableness."   The cases are: Claiborne v. U.S. (06-5618) and Rita v. U.S. (06-5754).  Scotus Blog here sums up the essence of these cases in stating:

"In Claiborne, the Court will examine whether a sentence below the guideline range is reasonable, and whether a sentence that varies substantially from the guidelines can only be imposed in extraordinary situations. In Rita, it will decide whether a sentence within the range is reasonable, whether such a sentence may be presumed to be reasonable, and whether such a sentence may be imposed without full analysis by the judge of factors that might justify a lesser sentence."

Professor Doug Berman, at Sentencing Law & Policy has some wonderful analysis and commentary of these cases including posts here, here, here, and here.

The forthcoming decisions will likely provide lower courts with enormous guidance in how to decide arguments of reasonableness.  Most importantly it will be determinative of whether power should be given to the judiciary to balance some of the power already in the hands of the executive. Prosecutors in white collar cases choose the charges, choose the defendants, and choose who will receive the cooperation deal.  In doing this, they control a good part of the sentencing decision.  Post-Booker, courts were provided with some oversight of the prosecutorial power.  These cases provide an opportunity to clarify exactly how much power and oversight will be held by the judiciary.

(esp)

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