Report on Second Circuit crack reasonableness argument

As detailed in this post, Professor Mark Osler (with some input from me) filed an amicus brief on behalf of the ACLU in the Second Circuit in US v. Castillo explaining why, after Booker, it is reasonable for a district judge not to follow the guidelines’ 100-1 crack-powder ratio.  On Wednesday, a panel of the Second Circuit heard argument in Castillo.  Mark was given time at oral argument, and here are portions of a report he sent me right after the argument:

All three judges [Circuit Judges Katzmann and Sack, with District Judge Murtha by designation] seemed well-briefed on the issue, skeptical of the 100-to-1 ratio, and respectful of the government’s argument.  Judge Katzmann noted that Senators Sessions and Hatch had tried to introduce legislation promoting 20-to-1, showing an uncommon knowledge of the underlying political fight that has raged for two decades now.  Judge Katzmann pressed the government attorney, Jonathan Abernethy, on whether he supported 100-to-1 himself, noting that it had very little support.

Judge Sack seemed particularly concerned with the fact that sentencing judges, if this panel ruled for the government, may seek the same outcome by “finding” individualized factors.