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A quick take on winners and losers in Gall and Kimbrough

By Douglas Berman

I have now had a chance to read both Gall and Kimbrough, and I am really intrigued and impressed by how much good stuff is packed into two relatively short opinions.  (Perhaps it helps that, for the first time in a major Apprendi, Blakely, Booker case, Justice Breyer does not have anything to say.  In a future post, I plan to do a Justice-by-Justice take on what these two rulings show us about the Justices.)  Let me provide a much-too-quick review of my sense of winners and losers:

Big Winners

  • All District Courts, which now should feel even more comfortable coming to their own independent judgments about the application of 3553(a) to reach what they consider to be just sentencing outcomes.
  • The US Sentencing Commission, which gets some dicta love in both opinions and now has even more cover for its likely decision to make its new crack guidelines retroactive.
  • Federal Defense lawyers, who now have many new and renewed arguments for arguing for below-guideline sentences.

Big Losers

  • Most Circuit Courts, which were chided in both opinions for not giving enough respect to either the Supreme Court’s decision in Booker to make the guidelines advisory or to district court efforts to take seriously the idea that the guidelines are truly just advisory.
  • Some crack defendants sentenced within the old guidelines, who may have failed to preserve the argument that the crack/powder disparity alone provided a valid basis for a below-guideline sentence.

Win some, Lose some

  • The Department of Justice, which technically lost both of these cases, but likely can find enough helpful dicta to continue to urge most district courts to continue to impose within-guideline sentences.
  • Most Federal Defendants, who are not like Brian Gall and cannot always be confident that a sentencing judge won’t use her discretion to impose a sentence above the guidelines.
  • Congress and the 2008 Campaigns, which could reasonably decide to make much, or to completely ignore, these rulings.

UPDATE:  I am pleased to see my friend Mark Osler has this post at SCOTUSblog with his own sense of winners and losers.  Here are headings from his post:

  • Winner: Parsimony Provision
  • Loser: Judicial Transparency
  • On the Horizon: Booker, Part 2?