First-cut reactions to the Gall transcript

As I hinted here, I am finding the transcript in Gall more frustrating than enlightening.  My frustration primarily stems from the fact that the advocates failed to explore how the explicit text of 3553(a) can and should give content to reasonableness review.  Particularly disappointing was the failure of Gall’s lawyer to stress that the government has never effectively shown — or even really argued — that Brian Gall’s below-Guideline sentence was insufficient to achieve the sentencing purposes Congress set forth in 3553(a)(2).

Though 3553(a) is has lots of vague language, a number of valuable sentencing principles can and should be derived from the text that Congress enacted (and that Booker made central to the application of an advisory guideline scheme).  Rather than try to concoct an array of legal definitions for reasonableness review, I believe the Supreme Court should simply encourage circuit courts to determine and explain, on a case-by-case basis, whether and how a particular sentencing outcome serves the purposes that Congress set out in the statutory text of the Sentencing Reform Act.  As the last section of Rita suggests, the process should be more important than any specific outcome.  If the process is thoughtful, reasoned, and respectful of congressional broad goals as expressly stated in 3553(a), significant appellate deference should be the norm.  But, if the process is not thoughtful or poorly reasoned, or is plainly disrespectful of the text of 3553(a), then more searching appellate review seems justified.

Venting aside, the competing voices of the Justices in Gall is really intriguing.  Particularly notable is the way in which Justice Scalia seems to be channeling the late Justice Brennan, such as when he suggest it could not possibly be unreasonable for a sentencing judge to say he “thought only in a rare case should there be jail time.”