Comments on: Commentary: Gall Advances the Booker Revolution, But Also Leaves Fodder for the Court of Appeals Counter-Revolutionaries http://www.scotusblog.com/2007/12/commentary-gall-advances-the-booker-revolution-but-also-leaves-fodder-for-the-court-of-appeals-counter-revolutionaries/ The Supreme Court of the United States blog Mon, 23 Jan 2012 22:38:26 +0000 hourly 1 http://wordpress.org/?v=3.2.1 By: Kedar Bhatia http://www.scotusblog.com/2007/12/commentary-gall-advances-the-booker-revolution-but-also-leaves-fodder-for-the-court-of-appeals-counter-revolutionaries/#comment-13591 Kedar Bhatia Tue, 11 Dec 2007 18:41:56 +0000 http://www.scotusblog.com/wp/uncategorized/commentary-gall-advances-the-booker-revolution-but-also-leaves-fodder-for-the-court-of-appeals-counter-revolutionaries/#comment-13591 Andrew is aboslutely correct- The Court's dual decisions will probably not be used often. However, I think it is still important to remember that this case was meant only to create the most reasonable outcome in a number of fringe cases like the ones that were decided yesterday. Sure, Judges won't suddenly jump to make use of their newfound freedom, but the Court only meant to grant them the freedom to choose among a wider range of options when they found it appropriate to do so. Odd-ball opinions will always come out of the trial courts and Congress will always do what it can to limit those - appellate review of sentencing decisions is not over forever. Andrew is aboslutely correct- The Court’s dual decisions will probably not be used often. However, I think it is still important to remember that this case was meant only to create the most reasonable outcome in a number of fringe cases like the ones that were decided yesterday. Sure, Judges won’t suddenly jump to make use of their newfound freedom, but the Court only meant to grant them the freedom to choose among a wider range of options when they found it appropriate to do so.

Odd-ball opinions will always come out of the trial courts and Congress will always do what it can to limit those – appellate review of sentencing decisions is not over forever.

]]> By: Andrew Oh-Willeke http://www.scotusblog.com/2007/12/commentary-gall-advances-the-booker-revolution-but-also-leaves-fodder-for-the-court-of-appeals-counter-revolutionaries/#comment-13572 Andrew Oh-Willeke Mon, 10 Dec 2007 21:00:46 +0000 http://www.scotusblog.com/wp/uncategorized/commentary-gall-advances-the-booker-revolution-but-also-leaves-fodder-for-the-court-of-appeals-counter-revolutionaries/#comment-13572 One wonders empirically how many District Court judges there are out there yearning to be free of the guidelines. One suspects that we could see almost as many judges imposing guideline sentences simply because they want to do so, because it absolves them of extended further analysis to a great extent, and because a presumption of reasonableness is nice and involves no hassle. Certainly, there will be outlier judges, and Gall seems likely to give those judges more freedom. But, it isn't clear that those judges are abundant, or that even those judges disagree with the guidelines in a wide range of cases, even if many have issues in some fairly narrow circumstances. Since the demise of the binding sentencing guideline, there has been very little appellate reversal of upward departures. Today's cases may restore balance and virtually end appellate review of sentencing decisions all together. One wonders empirically how many District Court judges there are out there yearning to be free of the guidelines.

One suspects that we could see almost as many judges imposing guideline sentences simply because they want to do so, because it absolves them of extended further analysis to a great extent, and because a presumption of reasonableness is nice and involves no hassle.

Certainly, there will be outlier judges, and Gall seems likely to give those judges more freedom. But, it isn’t clear that those judges are abundant, or that even those judges disagree with the guidelines in a wide range of cases, even if many have issues in some fairly narrow circumstances.

Since the demise of the binding sentencing guideline, there has been very little appellate reversal of upward departures. Today’s cases may restore balance and virtually end appellate review of sentencing decisions all together.

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