Justice Alito on Booker and the slide back to post-1984 Sentencing

March 2nd, 2011

Justice Alito’s concurring opinoin in Pepper v. United States was somewhat critical of the Justice Sotomayor’s opinion finding that when a defendant’s sentence has been set aside on appeal, a district court at resentencing may consider evidence of the defendant’s postsentencing rehabilitation, and such evidence may, in appropriatecases, support a downward variance from the now-advisory Guidelines range. Alito is concerned that providing more discretion to Judges may warrant a re-examination of Booker!

By the time of the enactment of the Sentencing Reform Act in 1984, this scheme had fallen into widespread disre-pute. See, e.g., Mistretta v. United States, 488 U. S. 361, 366 (1989) (noting “[f]undamental and widespread dissat-isfaction with the uncertainties and the disparities” of thisscheme); United States v. DiFrancesco, 449 U. S. 117, 142 (1980) (“It has been observed . . . that sentencing is one of the areas of the criminal justice system most in need of reform”); S. Rep. No. 98–223, p. 62 (1983) (“The shameful disparity in criminal sentences is a major flaw in the existing criminal justice system”). Under this system, each federal district judge was free to implement his or her individual sentencing philosophy, and therefore the sentence imposed in a particular case often depended heavily on the spin of the wheel that determined the judgeto whom the case was assigned. See Bullington v. Mis-souri, 451 U. S. 430, 444, n. 16 (1981) (“There has been no attempt to separate policymaking from individual sentenc-ing determinations” (internal quotation marks omitted));M. Frankel, Criminal Sentences: Law Without Order 5 (1973) (“[T]he almost wholly unchecked and sweeping powers we give to judges in the fashioning of sentences areterrifying and intolerable for a society that professes devotion to the rule of law”).

Some language in today’s opinion reads like a paean tothat old regime, and I fear that it may be interpreted assanctioning a move back toward the system that prevailed prior to 1984. If that occurs, I suspect that the day will come when the irrationality of that system is once again seen, and perhaps then the entire Booker line of cases will be reexamined.

In Bryant v. Michigan we saw a backlash against the Crawford confrontation line of cases. Are we heading towards a Booker backlash?