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Rita v. US

The Supreme Court's long-awaited decision in Rita v. United States finally came out last week.  Rita was the Court's first Federal sentencing decision since it declared the Federal Sentencing Guidelines advisory in Booker v. United States back in 2005.  That decision, needless to say, caused a tumult in Federal sentencing, particularly with regard to the question of what role the Guidelines should continue to play.  The fear was that the Guidelines, while now "advisory" in theory, were still viewed as mandatory in practice; that fear has only grown with the experiential realization that, since Booker was handed down, not a single within-Guidelines sentence has been reversed by a circuit court.

The Federal courts of appeals have far more power to review sentences than do Ohio courts by comparison, and Rita was supposed to establish some parameters for that power.  In Booker, the Court had declared that the appellate courts could still review a sentence for "reasonableness," and the specific question in Rita was whether a sentence within the Guidelines is presumptively reasonable.  As anticipated in most quarters, the Court held that it was, by an 8-1 vote, with only Justice Souter dissenting.  In fact, the Court didn't even go that far, holding merely that a circuit court could employ that presumption, not that it had to.

While the Court stressed that this was a "nonbinding" presumption on appeal, rather than a presumption the district court should employ in determining the sentence, it's hard to see how that's going to make much difference in real life.  Justice Breyer's opinion for the Court spends a fair amount of time talking in laudatory terms about all the research that went into the Guidelines.  In recent years, some courts (and defense counsel) have argued that the sentencing provisions of 18 USC 3553, and especially that section's "parsimony provision" -- that a sentence should be "sufficient, but not greater than necessary" to achieve the section's purposes -- offers in itself a basis for variance from a Guidelines.  Breyer, though, cuts that argument off at the knees by concluding that "the Guidelines, insofar as practicable, reflect a rough approximation of sentences that might achieve §3553(a)'s objectives."  In other words, don't bother looking at 3553, because the Guidelines already take that into consideration.

As I'd mentioned in the past few weeks, Rita was supposed to be decided along with Claiborne v. US, which presented the flip side of the question:  whether a sentence outside the guidelines was presumptively unreasonable.  That case died with Claiborne, who was killed a month ago in a botched robbery attempt, but the Court has granted cert in a case presenting the same question, and that decision will come out next year.  If the Court finds for the government in that one, too, then it's hard to see how a fiction that the Guidelines are merely advisory can be maintained.  If a district judge knows that a within-guidelines sentence will be reviewed on the presumption that he did the right thing, and a sentence outside the guidelines will be reviewed on the presumption that he did the wrong thing, that's going to be a powerful incentive to choose a within-guidelines sentence.  As Justice Souter noted in his dissent:

What works on appeal determines what works at trial, and if the Sentencing Commission's views are as weighty as the Court says they are, a trial judge will find it far easier to make the appropriate findings and sentence within the appropriate Guideline, than to go through the  unorthodox factfinding necessary to justify a sentence outside the Guidelines range.

At any rate, the opinion is a lot more involved than the cursory treatment I've given it here.  As always, Doug Berman, over at the Sentencing Law & Policy blog, is the go-to guy on sentencing issues.  He's got some interesting and thought-provoking comments on Rita here, here, and here.  And I'm sure he'll have more.  If you do a lot of Federal criminal work, this is stuff you should be reading.

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