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Sentencing Law and Policy
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On second read, evidence of Breyer brilliance in Rita

By Douglas Berman

As I re-read Justice Breyer’s opinion for the Court in Rita, a particular sentence (at slip op. 18-19) kept drawing my attention:

[The sentencing judge’s] reasoned sentencing judgment, resting upon an effort to filter the Guidelines’ general advice through §3553(a)’s list of factors, can provide relevant information to both the court of appeals and ultimately the Sentencing Commission.

Because this phrasing sounded strangely familiar, I went back to the amicus brief I primarily authored and found this sentence describing my vision of post-Booker sentencing realities:

Booker thus now requires judges to exercise reasoned sentencing judgment by filtering the Guidelines’ advice through the dynamic, multi-faceted, purpose-oriented provisions of §3553(a).

The Rita Court’s repeated emphasis on judicial sentencing decisions as “reasoned decisions” (see slip op. at 17-19) leads me to conclude that Rita has largely embraced my vision (as well as my nomenclature) for understanding Booker and how Booker reshaped the federal sentencing universe.  A fuller account of this vision appears not only this amicus brief, but also in these recent law review pieces: