http://www.scotusblog.com/2007/12/commentary-gall-and-appellate-court-transparency/ The Supreme Court of the United States blog Tue, 14 Feb 2012 20:42:12 +0000 hourly 1 http://wordpress.org/?v=3.2.1 http://www.scotusblog.com/2007/12/commentary-gall-and-appellate-court-transparency/#comment-13594 Rory Little Tue, 11 Dec 2007 20:35:26 +0000 http://www.scotusblog.com/wp/commentary-and-analysis/commentary-gall-and-appellate-court-transparency/#comment-13594 It is interesting that commenters from all sides are expressing anxiety that judges will now use their new-found (old-style) discretion to sentence in a direction the commenters don't like (more leniently, more harshly, within the Guidelines....). Over two decades ago, federal judges had untrammelled discretion to sentence within wide statutory bounds. AND there were no evidentiary standards for the establishment of facts, no requirement for disputing facts, no requirement for a statement of reasons, and no right to appeal outside of the 8th Amendment's virtually unexceedable bounds.... Either we have faith in the general integrity of federal judges, and the general moderation of their backgrounds, or we don't. On the whole, the record of the federal judiciary in sentencing is a good one, I would submit, and trustworthy. Of course there are individual horror stories. But now we have the various process protections we didn't have 20 years ago, and yet the discretion necessary to recognize individual circumstances that most believe, I think, to be valuable and even indispensible to s system of justice. I would hope that all observers -- Congress most importantly -- will be willing to wait, and see how federal sentencing patterns now develop. And see whether the true dialogue between the Sentencing Commission and the Courts and Congress can develop, now that the dialogue is required and can't be circumvented by legal mandates. The U.S. Department of Justice has already announced it may seek a "legislative solution." I think it is a solution in search of a problem. The Guidelines still have force: they must be determined, and their recommended result must be considered. Outlier sentences will have to be reasonably justified. Federal Judges (the bulk of whom don't have much criminal experience) will continue to look at the Guidelines as useful information. Let's all concentrate on something more important -- like re-entry programs for persons releasesd from jail, incarceration costs and numbers -- and let federal sentencing run as it is for a while. The 7-2 vote means, I think, that the Court is pretty comfortable with the general guidance it has given, after the mess that Apprendi (unnecessarily, in my view) created.... It is interesting that commenters from all sides are expressing anxiety that judges will now use their new-found (old-style) discretion to sentence in a direction the commenters don’t like (more leniently, more harshly, within the Guidelines….).
Over two decades ago, federal judges had untrammelled discretion to sentence within wide statutory bounds. AND there were no evidentiary standards for the establishment of facts, no requirement for disputing facts, no requirement for a statement of reasons, and no right to appeal outside of the 8th Amendment’s virtually unexceedable bounds….
Either we have faith in the general integrity of federal judges, and the general moderation of their backgrounds, or we don’t. On the whole, the record of the federal judiciary in sentencing is a good one, I would submit, and trustworthy. Of course there are individual horror stories. But now we have the various process protections we didn’t have 20 years ago, and yet the discretion necessary to recognize individual circumstances that most believe, I think, to be valuable and even indispensible to s system of justice.
I would hope that all observers — Congress most importantly — will be willing to wait, and see how federal sentencing patterns now develop. And see whether the true dialogue between the Sentencing Commission and the Courts and Congress can develop, now that the dialogue is required and can’t be circumvented by legal mandates. The U.S. Department of Justice has already announced it may seek a “legislative solution.” I think it is a solution in search of a problem. The Guidelines still have force: they must be determined, and their recommended result must be considered. Outlier sentences will have to be reasonably justified. Federal Judges (the bulk of whom don’t have much criminal experience) will continue to look at the Guidelines as useful information. Let’s all concentrate on something more important — like re-entry programs for persons releasesd from jail, incarceration costs and numbers — and let federal sentencing run as it is for a while. The 7-2 vote means, I think, that the Court is pretty comfortable with the general guidance it has given, after the mess that Apprendi (unnecessarily, in my view) created….

]]>