The remedy mess

Rightfully, I am already being asked by many “Now what?”  Of course, the answer to that question has many institutional permutations: Now what for Congress, now what for the Sentencing Commission, now what for state actors of all sorts.  But I am especially scratching my head on the “now what” question for all the federal cases “in the pipeline.”  Here’s the cryptic final paragraph from Justice Breyer on these issues:

As these dispositions indicate, we must apply today’s holdings — both the Sixth Amendment holding and our remedial interpretation of the Sentencing Act — to all cases on direct review…. That fact does not mean that we believe that every sentence gives rise to a Sixth Amendment violation. Nor do we believe that every appeal will lead to a new sentencing hearing. That is because we expect reviewing courts to apply ordinary prudential doctrines, determining, for example, whether the issue was raised below and whether it fails the “plain error” test. It is also because, in cases not involving a Sixth Amendment violation, whether resentencing is warranted or whether it will instead be sufficient to review a sentence for reasonableness may depend upon application of the harmless-error doctrine.

I must admit that I am not completely sure what this means for on-going cases, except that we are likely to have lots and lots of litigation over what this means for on-going cases.  In addition, it seems that, as suggested in my prior Rule by Judges post, the instruction that “reviewing courts [are] to apply ordinary prudential doctrines” will ensure that appellate courts have enormous sentencing powers in the days ahead.

I am especially eager to hear from litigants and lower courts personnel if they are any concrete idea what this means — or, more generally, on how advisory guideline sentencing is really going to work.