United States V. Booker - Dissenting Opinions - Scalia's Opinion

Scalia's Opinion

Justice Scalia took issue with the Court's inferring a "reasonableness" standard of appellate review of sentences from the remainder of a statute from which it had excised the express statement that sentences should be reviewed for "reasonableness." Traditionally, sentencing discretion was not reviewable on appeal. When the Guidelines were enacted, appellate review was limited to discrete cases delineated by statute; appellate review was not plenary. According to the text of the statute, the "power to review a sentence for reasonableness arises only when the sentencing court has departed from the applicable guideline range." The situation here was not that the statute did not explicitly set forth a standard of review, but rather that the statute did explicitly set forth such a standard, but then excised from the statute the provision that established the standard. Was it proper for the Court to "look for some congressional 'implication' of a different standard of review in the remnants of the statute that the Court has left standing? Only in Wonderland."

Furthermore, it was not as easy for the courts to apply the "reasonableness" standard in the context of appellate review of sentences as the majority would have liked. First, there was no history of applying that standard under the Guidelines regime. Second, under the majority's holding that standard would apply across the board to all sentence appeals, including those that involved no legal error. "The worst feature of the scheme is that no one knows — and perhaps no one is meant to know — how advisory Guidelines and 'unreasonableness' review will function in practice."

Read more about this topic:  United States V. Booker, Dissenting Opinions

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