In this post a few years ago, I flagged an interesting cert petition while asking in my post title “Now a full decade after Rita, Gall and Kimbrough, do any Justices still care about reasonableness review?”. That post from April 2018 stemmed from my frustration with the US Supreme Court’s seeming disinterest in examining how reasonableness review of federal sentences was functioning in the circuits. For years and years, judges, scholars and commentators have suggested that the appellate review of sentences — and all of federal sentencing under advisory Guidelines — would benefit significantly from the Court’s further guidance on the contours of reasonableness review.
As long-time readers likely know, I have long been particularly troubled by the so-called “presumption” of reasonableness permitted by Rita v. US, 551 U.S. 338 (2007), which has largely functioned as a problematic, un-rebuttable, safe-harbor for within-guideline sentences even in settings where the US Sentencing Commission’s data and analysis demonstrate the obvious unreasonableness of certain guideline provisions. But, over these oh-so-many-years of excessive federal sentences, my grumpiness over the failure of SCOTUS to take up reasonableness review anew has largely turned to resignation and acceptance of the fact that the Justices were just not that into the issue.
But perhaps hope should spring eternal, especially with Carissa Hessick flagging a new cert petition in this extended PrawfsBlawg post titled “Supreme Court Weighs Whether to Hear Possible Sentencing Law Blockbuster.” Here are excerpts (and links) from Carissa’s post:
This Friday, the Supreme Court will decide whether to grant certiorari in Demma v. United States. Demma raises two questions under the Supreme Court’s Sixth Amendment sentencing doctrine: (1) the extent to which judges can sentence outside of the Federal Sentencing Guidelines based only on a policy disagreement with the Guidelines, and (2) how much appellate courts must defer to the substantive sentencing decisions of district court judges….
Both of the legal questions raised by the Demma petition are important. And frankly, I am surprised that the Supreme Court has yet to resolve them in favor of district court discretion to sentence outside of the Guidelines. I suspect that the Court hasn’t clarified these issues because it wants judges to impose Guidelines sentences in most cases. And while the Court’s Sixth Amendment sentencing doctrine doesn’t allow the Court to accomplish that directly, it has tried to do so indirectly through allowing the courts of appeals to take different approaches on these questions.
But I find that decision — the decision to allow different legal standards for sentencing — troubling. The Supreme Court ordinarily prides itself on resolving legal disagreements between the circuits. And it seems especially ironic to allow different courts of appeals to have different legal standards when it comes to sentencing. After all, the remedial majority in Booker said that it was creating an advisory Guidelines system because it wanted to promote uniformity in sentencing. Different legal standards in different circuits is hardly likely to lead to uniformity.
And we don’t have sentencing uniformity right now. Instead we have sentencing practices that vary wildly depending on the circuit. Because different circuits have different sentencing case law, judges in some circuits are far more likely to sentence outside of the Guidelines than judges in other circuits….
The chances that the Court will grant cert in Demma look pretty good. The Court called for a response from the Solicitor General (who had initially waived response). The Court also relisted the petition after an earlier conference.
I really hope that the Justice vote to grant cert in this case. And I hope that they resolve these questions in a way that vindicates the Sixth Amendment right that they first acknowledged in Apprendi.
Give the Supreme Court’s long history of dodging many reasonableness review issues for now more than a dozen years, I am a bit fearful of the statement that the “chances that the Court will grant cert in Demma look pretty good.” But as the title of this post hints, I am hopeful that the newer members of the Court, Justices Gorsuch and Kavanaugh, who had to grapple with reasonableness review issues during long tenures as circuit judges, might now be eager to help further define the contours of reasonableness review.
In the end, though, I suspect Justice Breyer is always a critical Justice on this front, as he both created reasonableness review with his remedial opinion in Booker and defined its essential form in Rita. If Justice Breyer’s voice and vote on these matters carry some extra weight, those of us eager to see the full Court take up reasonableness review might need to root for him to be eager to tackle these issues yet again.
Some (of many, many) older related posts about reasonableness review:
- Another reminder that substantive reasonableness review has very little bite (from Feb 2019)
- As Booker enters its adolescence, do we really know much of substance about substantive reasonableness review? (from Sept 2018)
- Now a full decade after Rita, Gall and Kimbrough, do any Justices still care about reasonableness review? (from April 2018)
- Is there much to — or much to say about — reasonableness review a decade after Rita, Gall, and Kimbrough? (from July 2017)
- Has anyone formally calculated exactly how very few federal sentences are found unreasonable? (from March 2014)
- “More than a Formality: The Case for Meaningful Substantive Reasonableness Review” (from Jan 2014)
- “Doing Kimbrough Justice: Implementing Policy Disagreements with the Federal Sentencing Guidelines” (from Feb 2013)
- Making a full-throated pitch for SCOTUS to again address reasonableness review (from May 2012)
- New scholarship complaining that reasonableness review is now quite unreasonable (from March 2010)