Rita has something for everyone (except Victor Rita)

The following post is from William B. Saxbe Designated Professor of Law Douglas A. Berman, Moritz College of Law at The Ohio State University, and editor of Sentencing Law and Policy.

Though I am going to have to read all the opinions a few more times to really take stock of what’s here, my first reaction to the Rita decision (basics here) is that it has something for everyone except Mr. Victor Rita. Indeed, for an opinion that many hoped could help clarify post-Booker sentencing realities, Rita strikes me as more likely to create continued confusion because everyone will be able to find some passages to their linking. Let me explain:

On the one hand, those circuits that have been applying a presumption of reasonableness to within-guideline sentences now have conclusive authority that they can continue to do so. However, the opinion for the Court in Rita does not say that those circuits which have resisted this presumption have to adopt the presumption (though I would suspect some now might).

But, on the other hand, and perhaps even more importantly as a practical matter, the opinion for the Court in Rita suggests that at least some within-guideline sentences in some cases have to be, at some point, found unreasonable by circuit courts. Justice Stevens makes this point explicitly when he says that the Court’s opinion “makes clear … that the rebuttability of the presumption is real.” The fact that the opinion of the Court rejects Justice Scalia’s suggestion that reasonableness review is only procedural provides additional fodder for those defendants, on appeal, asserting that their within-guideline sentence is unreasonable.

And yet, the opinion for the Court lauds the Sentencing Commission for its “serious, sometimes controversial” efforts to carry out its mandate “to embody in the Guidelines the factors and considerations set forth in 3553(a),” and it asserts that “it is fair to assume that the Guidelines, insofar as practicable, reflect a rough approximation of sentences that might achieve §3553(a)’s objectives.” (It is fair to assume that this sentence, insofar as practicable, might achieve a rough record for the number of qualifies in an important sentence.)

But still, and perhaps even more importantly as a practical matter, the opinion for the Court suggests it is quite possible to make the argument that a particular “Guidelines sentence itself fails properly to reflect §3553(a) considerations” and that “the sentencing court does not enjoy the benefit of a legal presumption that the Guidelines sentence should apply.”

Also, just in case anyone was looking for some procedural clarity, we also are told that “a statement of reasons is important,” perhaps especially so if a party “argues that the Guidelines reflect an unsound judgment, or, for example, that they do not generally treat certain defendant characteristics in the proper way.” And yet, the “appropriateness of brevity or length, conciseness or detail, when to write, what to say, depends upon circumstances,” which sometimes “will call for a brief explanation” and other times “will call for a lengthier explanation.”

Got that everyone?