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Why the orphaned sentencing argument in Tapia needs a good guardian

By Douglas A. Berman

Adam Liptak's Sidebar column this week in the New York Times, which is headlined "Court Chooses Guardians for Orphaned Arguments," is all about the SCOTUS practice of appointing counsel to represent arguments/opinions that have been abandoned by the parties. The piece is focused on the Pepper resentencing case argued earlier this month, and the piece is especially timely because it seems the Justices will now need to appoint another party to argue another sentencing position in the newly granted Tapia case from the Ninth Circuit (previously discussed here and here). As explained in prior posts, the Tapia case concerns whether rehabilitation needs can be used as a factor by a district judge to give a longer prison sentence.  At one time, the US Justice Department had supported district judge to consideration of this factor, but in the Tapia cert briefing the SG expressed the current view of the Government that "the plain language of [18 U...continue to full post

Full post as published by Sentencing Law and Policy on December 16, 2010 (boomark / email).