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Big Sentencing News

There's lots of news on sentencing in the blawgosphere today.  At 10 a.m., the Supreme Court released two significant sentencing decisions, Gall v. U.S. and Kimbrough v. U.S.  In Gall, the court held, in a 7-2 decision (Alito and Thomas dissenting) that appellate courts must use a deferential standard to review a lower court's sentence that falls below the range in the sentencing guidelines.  Gall involved a case where a college student had played a limited role in an ecstasy distribution scheme, from which he withdrew well before he was indicted.  Gall admitted his role and entered into a plea agreement.  A sentencing report recommended a sentence of 30 to 37 months.

The judge, upon consideration of several factors, particularly Gall's voluntary withdrawal, his relative youth and his subsequent  law-abiding life after pulling out of the conspiracy, sentenced Gall to 36 months of probation.  The Eighth Circuit reversed, holding that probation represented a disproportionate variance from the 30 months at the lower end of the sentencing guidelines.  The Supreme Court found that the Eighth Circuit should have accorded more deference to the judge who is in a "superior position" to make an assessment of the individual factors underlying a sentence. 

Similarly, the Court's decision in Kimbrough v. U.S., also gives the lower courts additional discretion at sentencing.  Kimbrough holds that a judge may "consider the disparity between the Guidelines' treatment of crack and powder cocaine offenses" in sentencing.

A couple of bloggers have offered some quick takes on the decisions.  At the Sentencing Blog, Doug Berman says that District Court judges are clear winners here, as well as the U.S. Sentencing Commission, which has been working towards rectifying the sentencing disparity between cocaine and crack offenses.  And both cases give defense attorneys new ammunition for arguing for below-guideline sentences (in fact, Berman even suggested that lawyers for Michael Vick and Conrad Black postpone sentencing in their clients' respective cases, though his advice came too late for Vick, who's already gotten 23 months and Black, who received 6.5 years).  As for losers,  Berman writes that the Supreme Court decisions limit the Circuit Courts' power.  And crack defendants sentenced within the old guidelines won't find relief unless they preserved the argument that the crack/cocaine disparity justifies a below-sentence guideline.

And what do the sentencing guidelines mean for white collar defendants?  Peter Henning at White Collar Crime Prof agrees that district court judges have more power, and says that defendants need to present strong sentencing evidence before the district court. Government prosecutors also need to realize that the guidelines won't be imposed by default.

SCOTUS Blog also offers this winners/losers summary on today's sentencing cases.

Posted by Carolyn Elefant on December 10, 2007 at 05:04 PM | Permalink | Comments (1)


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