The U.S. Supreme Court’s recent sentencing decisions in Gall v. United States and Kimbrough v. United States provide the focal point for our first four commentaries, all written by federal district court judges and published for the first time here. Judge Richard Kopf of the District of Nebraska takes a Letterman-esque “Top Ten” view of the sentencing world as interpreted by Supreme Court decisions. Judge Gerard Lynch of the Southern District of New York emphasizes the “guideline” nature of the Sentencing Guidelines. Judge Lynn Adelman and law clerk Jon Deitrich of the Eastern District of Wisconsin, ask us to “curb our enthusiasm” for the twin decisions, which—they argue—do not go quite far enough. Finally, Judge Nancy Gertner of the District of Massachusetts identifies both the apparent blessings and the less-obvious dangers of the Court’s holdings.

Gall, Kimbrough and Crack Retroactivity:
Positive but Incomplete Steps in the Evolution of Federal Sentencing

Lynn Adelman

United States District Judge for the Eastern District of Wisconsin

&

Jon Deitrich

Law Clerk, chambers of Judge Lynn Adelman; Adjunct Professor of Law, Marquette University Law School

The week of December 10, 2007 was a momentous one in the area of federal sentencing law. The Supreme Court issued its long awaited decisions in Gall v. United States and Kimbrough v. United States, upholding the district court’s exercise of sentencing discretion in both cases, and the United States Sentencing Commission voted to make retroactive its recent amendments to the federal sentencing guideline for crack cocaine offenses. These were surely positive developments, but some curbing of enthusiasm may be in order.


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Gall, Kimbrough and Me

Nancy Gertner

United States District Judge for the District of Massachusetts

There is both promise and danger in the Supreme Court's recent decisions in Gall v. United States, 128 S. Ct. 586 (2007) and Kimbrough v. United States, 128 S. Ct. 558 (2007). The promise is clear: finally, courts will be allowed to focus on all the purposes of sentencing in the Sentencing Reform Act, rather than being fixated on just the goal of avoiding sentencing disparity. Finally, courts can stop being concerned solely with the question: am I doing the same thing as what the judge in the next courtroom is doing, even if neither of us is making any sense? Finally, common law judges can be real participants in sentencing and develop a common law of sentencing. Finally, judges can work to generate a new set of sentencing precedents rather than simply ceding all decisions to the U.S. Sentencing Commission. The language in the Gall and Kimbrough decisions, not to mention their holdings, sound new themes in sentencing not heard of in appellate decisions since the dawn of the Guidelines era.


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The Top Ten Things I Learned From
Apprendi, Blakely, Booker, Rita, Kimbrough and Gall

Richard G. Kopf

United States District Judge, District of Nebraska

As a district judge, I read with interest, and even tried to follow, the Supreme Court’s sentencing opinions in Apprendi, Blakely, Booker, Rita, Kimbrough and Gall. With tongue partly in cheek, here, in descending order, are the top ten things I learned from those missives:

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Letting Guidelines be Guidelines
(And Judges Be Judges)

Gerard E. Lynch

United States District Judge, Southern District of New York; Paul J. Kellner Professor of Law, Columbia University

In a prescient New York Times op-ed piece entitled “Let Guidelines be Guidelines,” written in response to the Supreme Court’s decision in Blakely v. Washington, before certiorari was granted in United States v. Booker, Bill Stuntz of Harvard and Kate Stith Cabranes of Yale urged that the best solution for the constitutional crisis facing the United States Sentencing Guidelines would be to treat the Guidelines as guidelines, and not as a straightjacket. The Supreme Court evidently took a similar view, deciding in Booker that the Guidelines were constitutional only to the extent that they were not mandatory. The recent follow-up decisions, Kimbrough and Gall, reinforce and extend the holding of Booker that district court judges are not bound by the Guidelines, but should impose sentences based on the general criteria set forth in 18 U.S.C. § 3553(a), after giving due consideration to the Guidelines.

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We are seeking original commentaries, ideally around 1500 words (3-5 manuscript pages), with many insights and few footnotes. Your submission will be quickly reviewed by student and faculty editors and any recommended changes will be sent to you for approval. While it is difficult to gauge how long the pre-publication process will take, our intent is to create a relatively hassle-free and expeditious timeline, measured in weeks, not months.

If you are interested in publishing with us in this unique format, please contact us with your proposal and any questions or concerns.

• Douglas Berman, William B. Saxbe Designated Professor of Law; Faculty Co-Managing Editor of Ohio State Journal of Criminal Law: (berman.43@osu.edu)
• Matthew Lebold, Chief Managing Editor, OSJCL Amici (matthew.lebold@gmail.com)