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Reasonableness review revisions (and revolutions?)

By Douglas Berman

As highlighted by two posts at SCOTUSblog, the state and fate of reasonableness review in the Supreme Court may be evolving even though the Rita decision may still be weeks away.  First, Tom Goldstein here, rethinking his prior authorship prediction, now says Justice Breyer is likely “writing at least one of the opinions in the sentencing cases.”  Of course, as of this writing, there is only one remaining sentencing case, Rita, after the Claiborne case went away due to the defendant’s death (basics here).

But, as detailed in this post by Lyle Denniston, the Solicitor General, through this new filing, has now “urged the Supreme Court … to grant review in a new Sentencing Guidelines case replacing one that has been ordered vacated, and suggested that the new case could be decided before the Court finishes the current Term, perhaps later this month.”  The new case, as previously previewed here, is Beal v. US (docket 06-8498). 

As I explained in this post, I am not too keen on SCOTUS rushing through a new set of facts in Beal to address the issues raised Claiborne.  That said, I think the SG is absolutely right when he says, in this latest SCOTUS filing, that the “federal criminal justice system has a great need for this Court’s guidance concerning the nature and scope of review of out-of-guidelines sentences under Booker.” 

Because so many issues of sentencing law and policy intersect in the Supreme Court’s sentencing cases (as I detailed in this post), I still believe the Supreme Court would be wise now to invest its time and energy in getting Rita right and then subsequently gear up to hear and decide out-of-guidelines issues next Term.  However, the SG obviously has a uniquely informed perspective on these federal criminal justice issues, and this Beal might be on the fact track to the Supreme Court reporter.

Anyone want to hazard a new prediction on what exactly the Justices will now do with reasonableness review (and when they will do it)?

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