First-cut reactions to the Kimbrough transcript
Upon first read, the SCOTUS oral argument transcript in Kimbrough is a bit less frustrating because Kimbrough’s lawyer did a nice job stressing that Derrick Kimbrough’s 15-year sentence seems in harmony with the sentencing purposes Congress set forth in 3553(a)(2). However, it is still aggravating to me that the Justices seem to approach these cases as if both district judges and circuit judges are always making broad systemic judgments about valid and invalid sentencing considerations. But that’s not what Congress in 3553(a) to do at sentencing.
Instead, as a quick review of Congress’s express commands in section 3553(a) of the Sentencing Reform Act makes clear, Congress told judges to “impose a sentence sufficient, but not greater than necessary, to comply with” the traditional purposes of sentencing (while also considering various relevant facts and factors including the guidelines). By my lights, that is exactly what Judge Jackson did when sentencing Derrick Kimbrough (and also what Judge Pratt did when sentencing Brian Gall). Tellingly, in the Kimbrough argument, the government never seriously asserts that 15 years’ imprisonment was insufficient punishment for Derrick Kimbrough.
Another aggravating aspect of Kimbrough is the constant refrain about the potential harms of having different sentencing judges apply different cocaine sentencing ratios. I understand this disparity worry, but I do not understand why it is a bigger problem than different prosecutors rewarding cooperation differently. There is extensive evidence of profound disparity in how different prosecutors “reward” cooperation, and yet everyone accepts this as the price of giving prosecutors largely unregulated discretion to strike cooperation deals. In the end, I think the Supreme Court must come to terms with the reality that some relatively minor disparity in crack sentencing outcomes is the price of allowing the guidelines to be advisory and avoiding the procedural requirements of Blakely.