A fine overview of the sentencing scrambles
Emily Bazelon, who way back when wrote this great Boston Globe story focused on Justice Breyer’s central place in federal sentencing reforms, now has this new Slate commentary discussing Cunningham and the Supreme Court’s modern sentencing jurisprudence. The piece is entitled “Diagramming Sentences: The Supreme Court’s war on sentencing guidelines,” and it has many fine insights and flourishes as it takes stock of the Supreme Court’s work in the Apprendi line of cases. Here are just a few of my favorite passages:
The California case is the latest battle in a strange war that has turned natural judicial enemies into allies, set Congress against the courts, and given law professors a new life’s work. Some of the justices probably have had their eye on easing the sentencing load on defendants, more and more of whom have been getting locked up for longer and longer periods. But the court can’t make pro-defendant reform its explicit aim — that sort of policy decision is the legislature’s job, after all, and in any case the cobbled-together majority behind the recent decisions would never hold together. So, for now, at least, the court’s war on sentencing has enraged the lower courts and left the law in a shambles. These cases showcase destruction — this is what it looks like when the Supreme Court lays waste.
Is it a good idea to toss out sentencing schemes like California’s and the federal guidelines? That’s a hard question…. On the margins, at least, the Apprendi cases have helped loosen sentencing straitjackets…. On the other hand, as federal appeals judge Michael McConnell argued last year in a law-review article, the Supreme Court’s new approach may have derailed a push for broader sentencing changes….
Cunningham is only the court’s first word on the subject this term. In two cases to be argued next month, the court will fill in more detail about how much discretion federal judges actually now have. Doug Berman, law professor and sentencing blogger extraordinaire, thinks that both cases look like vehicles for additional change and leniency. In one, the defendant is a military veteran whose perjury crime looks more like a misunderstanding than a deliberate lie. In the second, an appeals court supplied the facts it relied on to reverse the sentencing break given by a trial judge. Get ready for more destruction.