Strength training really does work! Federal criminal defense practitioners who have been bold enough to demand Booker (U.S. v. Booker, 543 U.S. 220 (2005)) sentencing recommendations under advisory guidelines for the past 2+ years, are getting some new enhanced muscle power at sentencing with the Supreme Court’s Gall v. U.S. opinion. Under Gall, and within the context of 18 U.S.C. 3553 ( a), the district courts should witness a substantial growth of mitigation strategies brought forth by the criminal defense practitioners on behalf of criminal defendants. United States District Court Judges no longer have to be concerned with their decisions being overturned for “substantive reasonableness”. The standard for review of sentences under the highly deferential standard adopted by the Court in Gall will result in more constitutional sentences.
Nothing has changed for those tireless criminal defense professionals, like me, who have creatively worked with and around the U.S. Sentencing Guidelines since their birth 20 years ago. Perhaps now however, more criminal defense attorneys will utilize the services of federal sentencing and mitigation experts who can prepare well written, case referenced briefs that offer district courts more sentencing options. Sentencing briefs are the only way district courts can consider all the factors in mitigation prior to sentencing. Along with the Kimbrough opinion, almost every defendant will now benefit from a defense filed mitigation brief.
In addition, Gall makes it possible to bring back ‘bargaining’ in the plea process. Imagine if the defense bar was wholly prepared and briefed regarding all the mitigation present in the defendant’s case PRIOR TO PLEA NEGOTION! In many cases it would mean more informed and better bargaining power for the defense. There is more to sentencing strategy than cooperation. Advising attorneys on circuit approved departures and downward adjustments is both valuable and necessary in obtaining the best plea for criminal defendants.
Here is a pdf of the ruling. Gall v U.S. Opinion.