The Supreme Court, sounding even more skeptical about restricting federal judges' power to select criminal sentences, spent two hours Tuesday in a seeming exploration of how to salvage something workable in the U.S. Sentencing Guidelines system and how to fashion a remaining "“ but diminished "“ role for appeals courts in reviewing actual sentences. One immediate impression was that the U.S. Circuit Courts may no longer be able to require sentencing judges to stay within the Guidelines except in highly unusual circumstances. The trend line in the argument appeared to be clear enough that Justice Stephen G. Breyer, a strong proponent of the Guidelines regime, at one point fretted about the end of that now-advisory federal sentencing system.

In fact, it also was Justice Breyer who summed up the task the Court confronted in back-to-back arguments in Gall v. U.S. (06-7949) and Kimbrough v. U.S. (06-6330), saying that, by the end of the day, the Court needed to hear the words it could use in a ruling that would "lead to considerable discretion" for sentencing judges, "but not totally." While he said that "one of the major thrusts" of the Court's past rulings was that judges should "follow the Guidelines," even if they were not mandatory, it seemed clear that that admonition was losing some of its force with colleagues.

Justice Antonin Scalia, who with some reluctance has been going along with retaining the Guidelines system, led the chorus of argument on Tuesday that sentencing judges could openly disagree with the U.S. Sentencing Commission's recommendations, even refusing to follow the policy judgments the Commission laid out, in order to make very certain that the Guidelines were strictly advisory. When one of the lawyers defending a below-Guideliines sentence suggested that judges would have to pay attention to the policy underlying a Guideline range and could deviate from it only if their "disagreement was reasonably grounded in the facts of the [particular] case," Scalia countered that that concession was not necessary. "That is not my understanding" of the Court's precedents on a sentencing regime that satisfies the Constitution, Scalia said.

The last time the Court took steps to preserve the Guidelines system, late last June, when it bowed to sentencing judges' discretion but seemed to be preserving a fairly strong oversight role for the appeals courts, the vote was 8 to 1 (in Rita v. U.S.). But that vote was somewhat misleading at the time, because of the various positions taken by the Justices, and, on Tuesday, it was obvious that the pro-Guidelines sentiment is not that solid on the bench.

But, if the Guidelines themselves seemed to be losing some of their remaining luster among the Justices, it appeared even clearer that federal appeals courts could see their role in overseeing sentences fading into a distinctly secondary one. The Justices focused closely and repeatedly upon how to define appellate review that would not result, in practice, in making the Guidelines more or less binding. The view now embraced by several appeals courts that a sentence that fell outside a Guideline ranges would be found "unreasonable" if not justified by "extraordinary circumstances" went largely without visible support from the bench.

The Court appeared likely to have to thrash out in private discussions just what the appellate courts could do. No apparent consensus was evident during the two hours. "What is left for the appellate courts; is it just procedural," or is it substantive, Chief Justice John G. Roberts, Jr., asked.

But the approach that the Justice Department advanced "” giving appeals courts clear-cut authority to demand more justification from sentencing judges for sentences that fall "significantly outside" a Guideline range, with the need for stronger reasons rising with the amount of deviation from the range "” was not embraced by any member of the Court. "We're trying to develop a rule that can be applied sensibly," Justice Scalia commented to Deputy Solicitor General Michael R. Dreeben. "You haven't given us a ruleIf I were a Court of Appeals judge, I would have no idea when I could [nullify an out-of-Guideline sentence] or when I could not." Justice John Paul Stevens prodded Dreeben unsuccessfully, trying to get some more specific definition of what his "proportionality" approach would entail. Even Breyer said he was worried about Dreeben's suggestion being too mathematical, too inflexible.

Both of the cases up for argument involved below-range sentences: Brian Michael Gall got 36 months on probation, instead of the Guideline minimum for his crime, 30 months in prison; Derrick Kimbrough got 15 years for dealing in cocaine, instead of the Guideline minimum of 19 years. But both sentences were nullified by federal appeals courts as unjustified.

The two cases, as they reached the Court, focus on whether it is "reasonable" for a sentencing judge to depart from the Guidelines "“ in Gall's case, substituting probation for a prison term, in Kimbrough's case, deviating from the 100-to-1 sentencing ratio for crack vs. powder cocaine.

In Gall, argued first Tuesday, the Justices' examination of "reasonableness" focused not so much of when a below-range sentence would be deemed "unreasonable," but on the division of sentencing authority between trial judges and appellate courts. While the general sentiment on the bench seemed to be in favor of tilting that balance decidedly in the trial judge's favor, some of the Justices did express reservations if a trial judge felt that "anything goes" so long as the judge put on the record reasons for not following a Guideline range. Dreeben pressed for a significant role for appellate judges, giving them authority to take "a harder look at a case" where the judge had set a sentence "largely outside the Guidelines." Gall's lawyer, Washington attorney Jeffrey T. Green, argued that empowering appeals courts to insist upon stronger justifications was a move toward "a presumptive sentence," subverting the advisory nature of the Guidelines and requiring judges to find facts that had not been found by a jury, in violation of the Sixth Amendment.

In Kimbrough, the Justices shifted from sentencing judges' deviation from Guidelines ranges, to their authority to deviate from the Sentencing Commission's view that Congress intended that crack cocaine crimes were more serious than powder cocaine crimes, and thus should draw much heavier sentences. The Commission has not felt free to deviate, in its Guidelines, from the 100-to-1 crack-to-powder ratio, even though Congress did not directly mandate that as a Guideline. While Dreeben, arguing this case, too, for the government, insisted that Congress had simply taken away all discretion for judges about maintaining the sentencing disparity, Kimbrough's lawyer, Michael S. Nachmanoff, Federal Public Defender in Alexandria, Va., argued that trial judges should be free to set a cocaine sentence to fit the particular facts of each case, even if that resulted in a wide difference in sentencing of like cases. Nachmanoff went so far as to concede to Justice Ruth Bader Ginsburg that, under his approach, a judge in an individual case could opt to sentence for powder cocaine crimes as high as for crack crimes.

Posted in Kimbrough v. US, Gall v. US, Everything Else