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Sentencing Law and Policy
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New insights on Alito and the post-Booker world

By Douglas Berman

In what serves as a terrific companion to Marcia Coyle’s great National Law Journal article on Alito and criminal law (basics here, commentary here), Lawrence Hurley in the Los Angeles Daily Journal has a fascinating piece entitled “Court Nominee Is Well-Versed On Guidelines: Alito Could Shape the Way Justices Approach Sentencing Reform.”  This piece discusses at length Judge Alito’s recent involvement in the Constitution Project‘s bipartisan Sentencing Initiative (discussed previously here

Unfortunately, this Daily Journal does not appear to be available on-line.  But I am able to provide below a portion of the article which reports on very interesting comments that Judge Alito made back in March in the course of his work with the Constitution Project:

An insight into Alito’s views on the post-Booker world comes from the transcript of a panel discussion he took part in with the Constitution Project on March 9.  His comments indicate concern about what could happen if judges depart too far from the guidelines, although he also concedes that the appeals courts could resolve discrepancies to some extent.

Alito began his comments during the discussion by praising the way lower-court judges had approached the issue, saying that the sentencing models that had emerged were “all reasonable,” ranging from those judges who stuck closely to the sentencing guidelines to others who merely used them in conjunction with other factors.  “I think it’s conceivable that … the whole system could go off in either of those directions,” Alito said.

He then added that he doubted there would be any unanimity from the circuit courts, meaning that judges “will have to get guidance from the Supreme Court about exactly what they mean by reasonableness.”  Alito did not appear at all dismissive of a case-by-case approach to assessing reasonableness, although he indicated that there could be a lack of consistency both between judges and circuits.

One area where Alito suggested there could be a problem is if the Supreme Court were to adopt a standard that merely requires judges to pay lip service to the 1984 Sentencing Reform Act, the precursor to the guidelines.  He said most judges would be eminently capable of justifying how they reached their decisions and the end result would be large sentencing disparities. “I am skeptical that enough sentencing disparity can be wrung out of the system simply by requiring judges to justify what they did by reference to the goals of sentencing,” he said.

Related prior posts: