Osler's Razor

The arguments in Rita and Claiborne, as I had hoped, were compelling, spirited and ultimately frustrating, as the Justices seemed to be defining nothing so much as the box they placed themselves in through the Booker remedy. By making the guidelines advisory but subject to a "reasonableness" standard on appellate review, Booker planted the seeds of its own destruction. As today's questioning drew out, the precedent built up by the Courts of Appeal over time may well recreate the very 6th Amendment dilemma that was presented by the mandatory guidelines. That is, if the 2d Circuit holds that 12 months in prison for a given crime is unreasonable, but 18 months is reasonable absent additional facts... how is that different than the mandatory guidelines, other than the body creating the limits?

Hmmm. Good question. One thing this illustrated is that a case like this is, as much as anything, a convergence of three groups who have separate conversations. The government side came up with their view of what was important, those of us on the defense side had a completely separate conversation, and the Court had a third thoroughly distinct conversation. The arguments this morning revealed that perhaps these three conversations had completely different topics. To the defense side, it was about the parsimony provision of 18 U.S.C. 3553; to the government, it was about proportionality as the basis for reasonableness; and for the Court, it was the role of the 6th Amendment in all of this as circuit court precedent builds up, brick by brick. This morning's argument was perhaps not so much a meeting of two adversaries before a tribunal so much as a meeting of three groups who had looked at different parts of the same elephant.

Also, Justice Breyer gave a fascinating defense to one of his motivations for favoring advisory guidelines over jury findings on sentencing issues: If we turn such things into jury questions, this will give even more discretion to prosecutors, who will control the process through what evidence they put before that jury, and what special issues they seek to have determined. While I have often worried about (and written about) the shift of discretion over the past 25 years from judges to prosecutors, for some reason this aspect of jury findings at sentencing had not been part of my thinking.

As always, a great debate creates more questions than answers.