Judgment Day

Tomorrow the U.S. Supreme Court will hear oral arguments in Irizarry v. United States, a case involving judges’ duty to notify parties before departing from the sentencing guidelines.  If you’re looking to get up to speed quickly on all the important aspects of this case, check out the Argument Preview provided by SCOTUSblog.  Here’s the quick version (from the Preview) of what each side is arguing:

Irizarry’s Petition:

The Court should grant the writ because the decisions of the courts of appeals were split with regard to whether the Rule 32(h) notice requirement survived United States v. Booker, which rendered the Sentencing Guidelines advisory. Irizarry noted that the Eleventh Circuit’s rule was in line with that of the Third, Seventh, and Eighth Circuits, while the Second, Fourth, and Ninth Circuits found Rule 32(h) applicable in post-Booker cases, regardless of whether the above-guideline sentence was characterized as a variance or a departure. Furthermore, Irizarry noted that the First Circuit acknowledged the circuit split.

Irizarry argued that certiorari was warranted to avoid unwarranted sentencing disparities. He further argued that the determination whether notice is required should not turn on whether the sentence is characterized as a “variance” or a “departure,” because in either situation, the parties are not easily able to guess the grounds on which the court might choose to vary.

Brief in Opposition:

In its brief in opposition, the United States acknowledged the circuit split but stated that, “in the United States’ view, Rule 32’s notice requirement applies” to a decision by a sentencing court to exercise its post-Booker discretion to impose a non-Guidelines sentence based on § 3553(a) factors. Despite this agreement on the legal rule, the United States urged the Court not to review the question at this time for three reasons. First, the failure to provide Irizarry with notice was harmless error, because Irizarry’s past conduct was detailed in the presentence report and he “has never pointed to any additional evidence he would have introduced or argument he would have made if he had known before the sentencing hearing that the district court intended to impose a non-Guidelines sentence on that basis.” Second, the Judicial Conference was considering the possibility of amending Rule 32 to clarify the notice issue, which would make the Court’s intervention unnecessary. Finally, the United States urged the Court not to address the notice issue until after its disposition of Claiborne v. United States and Rita v. United States because the decisions in those cases, which considered the role of the Sentencing Guidelines after Booker, might inform the correct resolution of the issue here.

SCOTUSblog provides “The Week Ahead” here. The Court will hear oral arguments in two high profile criminal cases this week.

On Tuesday, the Court will hear Irizarry v. United States, a case involving judges’ duty to notify parties before departing from the sentencing guidelines. Professor Berman, author of Sentencing Law and Policy, had this commentary on the case:

I have mentioned before that I think the sleeper SCOTUS sentencing case this term in Irizarry, which technically addresses a seemingly little issue concerning notice for imposing sentences outside the guidelines. However, as revealed in the amicus brief supporting the Eleventh Circuit's ruling below (to which I contributed), the case presents an opportunity for the Justices to address more broadly the nature and status of departures and variances in the post- Booker world.

On Wednesday, the Court will hear Kennedy v. Louisiana, involving the constitutionality of imposing the death penalty for child rape. Many state officials and defendants’ rights groups are following this case, which is the first since 1977 to consider execution as a form of punishment for rape. Missouri has indicated that it may enact legislation if the Court permits the death penalty for child rape, and the New York Times reported here in January that in addition to Louisiana, Georgia, Montana, Oklahoma, South Carolina and Texas all have laws authorizing capital punishment for the rape of a child under the age of 12, although most require a previous conviction of sexual assault.

The Denver Post recently reported that state lawmakers rejected a bill allowing the execution of people who sexually assault children under the age of 13.

In advance of the arguments, the Court is expected to release orders from the Justices’ private conference last Friday. One to watch for is Wallace v. United States, a Due Process Clause case questioning whether a defendant who pleads guilty retains the right to appeal a pre-trial competency determination.

Update, April 14, 2008:  Orders are posted on SCOTUSblog and the Court will not hear Wallace v. United States.