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Anticipating Rita reactions

By Douglas Berman

Whenever the Supreme Court hands down a ruling in Rita — and, gosh, I hope it’s soon — I will be watching closely reactions from other federal sentencing participants.  Of course, the nature and swiftness of reactions will depend greatly on whether the Court in Rita ratifies the reasonableness status quo for within-guidelines or instead rejiggers the post-Booker landscape.  But, even without seeing the opinion, we can already anticipate how key actors will likely respond:

  • The Justice Department, as it has over the last 2 years, seems likely to continue to advocate for a Booker fix in the form of some kind of topless mandatory guideline system.
  • The US Sentencing Commission, as it has over the last 2 years, seems likely to continue to champion the importance and centrality of its guidelines.
  • Congress, as it has over the last 2 years, seems unlikely to have much interest in embarking upon a serious project of comprehensive sentencing reform.
  • Individual district judges, as they have since Booker, seem likely to find support for either migrating from or migrating toward the guidelines.
  • Circuit courts, as they have since Booker, seem likely to rule far more often in favor of the government on appeal than for defendants.

Of course, all this does not mean the outcome in Rita is inconsequential.  Rather, my main point is to highlight some structural realities that will shape Rita reactions no matter what the ruling.  (Also, adding to these status quo dynamics is the fact that SCOTUS will not drop other reasonableness review shoes until probably 2008 when it eventually rules in Gall and Kimbrough.)

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