Wednesday, May 27, 2009


With a nod of thanks to Prof. Doug Berman at the Sentencing Law and Policy blog it's worth a read of still-Judge-not-yet-Justice Sotomayor's opinion concurring in part and dissenting in larger part from an en banc decision of the 2nd Circuit that affirmed an upward departure in a federal firearms trafficking case. US v. Cavera.

Berman writes, "I consider her Cavera opinion a fascinating and remarkable piece of judging. The opinion should be read closely not only by sentencing fans, but by everyone seeking a truly informed perspective on the type of jurist that Judge Sotomayor now is."

But what type is she?

The decision is pro-defendant in the narrow sense that any decision which would reverse an upward departure is pro-defendant. And I suppose it's good to know she would do that in some case (hard to imagine that, say, Alito or Roberts would). But what the opinion is really about, it seems to me, is the need/authority of the appellate courts to conduct serious review of the sentencing decisions of the trial courts to make sure that the trial judge was sufficiently rigorous in any departure from the Guidelines.

It's far from clear that her approach will be particularly friendly to the defense. Frankly, I think it likely to result generally in support for upward departures and opposition to downward ones - which would make her actual vote in Cavera an anomaly.

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