Rita v. United States Leaves More Open than it Answers

Abstract

This essay surveys the sentencing issues left open by Rita v. United States and considers how the presumption of reasonableness is likely to operate in practice and how rebuttable it is, the roles of safe harbors and individual judges' policy disagreements, and the importance of Justices Stevens and Ginsburg as the swing Justices in this area. This line of cases has drifted far from its roots in a Sixth Amendment concern for juries. Though the resulting sentencing policies may be substantively desirable, the Court cannot articulate how they are rooted in the Sixth Amendment's concern for juries.

Keywords: Criminal sentences, Federal Sentencing Guidelines, maximum sentences, juries, Sentencing Reform Act, Apprendi, Blakely, Booker, Sixth Amendment

JEL Classification: K14, K42