Making Sense of High Court Confusion

Today, in day 2 of the term, the Supreme Court heard two cases involving the US Sentencing guidelines. Both cases involve decisions by lower courts to sentence drug offenders to something less than the guidelines minimum (downward departure). There’s a whole lotta confusion about the US sentencing guidelines, much of it created by the Supreme Court in its recent jurisprudence on the issue. Ever the pithy one, Dahlia Lithwick sums it up pretty well:

So just to catch you non-Booker people up on what you’ve missed in the last few years: There used to be a lack of uniformity in sentencing. Congress created sentencing guidelines. The court decided the guidelines were merely advisory. Appeals courts said sometimes advisory guidelines are still mandatory. District courts got confused. And now the high court asks the parties to make immutable rules out of standards, and flexible standards out of rules. Kimbrough and Gall think a good rule is that the guidelines should go away. The Justice Department thinks a good rule is that the judges should go away. And the court? It may finally have to pick a side.

Why should you (non-SCOTUS followers) care, you ask? Well both cases today (and many of the cases that arise under the Guidelines) involve drug sentencing. And these cases are a potential giant leap toward chipping away at the crack-cocaine disparity. And in a case where “Scalia seems to be channeling Brennan” no less. A phrase I never thought I’d see.