Another Supreme Court term, another chapter in the sentencing saga, says Law.com. The justices heard arguments yesterday in two cases that test how much discretion federal judges have in sentencing defendants. At issue in one of the cases: the controversial 100:1 ratio used in calculating sentences for trafficking crack as opposed to powder cocaine. The court’s 2005 decision in United States v. Booker made federal sentencing guidelines advisory rather than mandatory and held that appeals courts should review sentences for “reasonableness.” Federal appeals courts adopted various standards for that review.
Justice Stephen Breyer, a former member of the U.S. Sentencing Commission, laid out his objective: “Considerable discretion on [the] part of the district judge but not totally, not to the point where the [sentencing] uniformity goal is easily destroyed.” Breyer cited the “murky curtain” that is “something of a presumption” of unreasonableness for sentences outside of the guidelines range. This “murky curtain,” or uncertain standard, he said, “will lead to lawyers making endless arguments about whether  they’re on one side of it or the other. So let’s sweep it aside.” Deputy Solicitor General Michael Dreeben said the court would be “sweeping aside the approach that nine circuits have taken.” “That’s correct,” Breyer said. The argument returned again and again to the problem of defining reasonableness in evaluating sentencing factors and results.