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Rust on Review of Federal Sentencing Decisions

By Lawrence Solum

Craig D. Rust (George Mason University School of Law) has posted When ?Reasonableness? is Not so Reasonable: The Need to Restore Clarity to the Appellate Review of Federal Sentencing Decisions after Rita, Gall, and Kimbrough (Touro Law Review, Vol. 26, No. 75, 2010) on SSRN. Here is the abstract:

Judges, like anyone else who works for a living, need standards. Judges need to know what rules to apply, when to apply them, and who to apply them to. And judges, just like you or I, want to know how their work will be reviewed.

Unfortunately, in many circuits, federal district court judges do not know how, or even if, their work will be reviewed by appellate courts in the context of criminal sentencing decisions.

Booker completely changed the sentencing landscape in the federal court system, but it left many questions as to what standards appellate courts would apply in reviewing sentencing decisions. The Supreme Court issued three opinions in 2007, Rita, Gall, and Kimbrough, in an attempt to resolve several of the circuit splits that resulted when the Supreme Court repealed the mandatory sentencing guidelines in Booker. Practically speaking, these decisions failed to clarify what authority appellate courts wield in the sentencing process, and how appellate judges should exercise that authority.

This Article examines how the contradictory language from Rita, Gall, and Kimbrough not only failed to provide clarity, but created new inter- and even intra-circuit splits. This Article argues that these problems can only be resolved by articulating clear and practicable standards that prioritize the sentencing factors contained in 18 U.S.C. § 3553(a), rather than continuing to weigh them all equally. Specifically, the Supreme Court could require district court judges to take advantage of the wealth of sentencing data being collected by the U.S. Sentencing Commission to justify particular sentences for defendants by reference to those given to similarly situated defendants across the nation. This solution has the potential to achieve the balance that has thus far eluded the Court between both Congress? legislative intent behind the original enactment of the mandatory sentencing guidelines, and the Court?s Sixth Amendment concerns raised in Booker.

Full post as published by Legal Theory Blog on March 18, 2010 (boomark / email).