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September 1, 2004

The judges' amicus brief

With sincere thanks yet again to my many new friends "in the field," I now have a copy of (and provide below) the brief submitted on behalf of a group of former federal judges (who were apparently led by former SDNY US District Judge John Martin).
Download booker_fanfan_judges_amicus.pdf

I am slowly but surely "consuming" all the rich and interesting briefs filed today, and I hope to comment at length about them tomorrow and throughout the long weekend ahead.

September 1, 2004 at 11:58 PM | Permalink

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» Let The Blakely Briefing Begin!!! from ACSBlog: The Blog of the American Constitution Society
On September 1, 2004, opening briefs in U.S. v. Booker and U.S. v. FanFan were filed with the Supreme Court. The Supreme Court agreed to consolidate and hear these cases, on an expedited manner, to help resolve the chaos created... [Read More]

Tracked on Sep 2, 2004 5:16:31 PM

» Let The Blakely Briefing Begin!!! from ACSBlog: The Blog of the American Constitution Society
On September 1, 2004, opening briefs in U.S. v. Booker and U.S. v. FanFan were filed with the Supreme Court. The Supreme Court agreed to consolidate and hear these cases, on an expedited manner, to help resolve the chaos created... [Read More]

Tracked on Sep 2, 2004 5:18:26 PM

» Let The Blakely Briefing Begin!!! from ACSBlog: The Blog of the American Constitution Society
On September 1, 2004, opening briefs in U.S. v. Booker and U.S. v. FanFan were filed with the Supreme Court. The Supreme Court agreed to consolidate and hear these cases, on an expedited manner, to help resolve the chaos created... [Read More]

Tracked on Sep 3, 2004 7:48:15 AM

Comments

Perhaps my fairly quick read of the two amici briefs prevented me from really understanding what was being said in them. Did these former judges, some of whom I know and greatly respect, really sign off on a brief that urged the Court to uphold a system that has resulted in 17 years of often absurd and terribly unfair results? The judge's brief suggests that their real problem with the guidelines came only with passage of the Feeney amendment. Yet, as they all know, there was much wrong with the system even before that straw started to break the camel's back.

There's a certain Alice-in-Wonderland quality to both their brief and the one submitted by three thoughtful (and two very liberal) senators. All of those involved are undoubtedly aware of the tragic results that were mandated by the guidelines in certain cases, yet the two briefs defend the current system as if they had been written in 1984--before we had fifteen years' practical experience of often heartbreaking rigidity and the realization that there was no meaningful way to undo the one-way ratchet of ever-increasing "recommended" sentences.

Maybe others who can read between the lines better than I can explain why these two groups have entered this fray with these positions. I can appreciate the Senators' well-intentioned desire to further the institutional interest of protecting legislation from challenge. But why have they chosen to do so here when the implementation of it has mutated over time to become something whose effect is far afield from the noble purpose behind the original Sentencing Reform Act? It is even more difficult to understand the actions of former judges who have no vested interest in preserving the status quo. Each must have sighed in resignation at least once after being compelled to impose or uphold a sentence that seemed unjustly harsh. Distinguishing the guidelines on the theoretical basis that they adequately allow for the exercise of discretion is a stretch. The question is why stretch here? And, if they felt the stretch was necessary, why not even a footnote acknowleding the sad failures of the sentencing-guideline scheme?

Perhaps the broader question is why these groups are urging the Court to preserve a flawed system, instead of using a golden opportunity to force it to be rebuilt in a more rational (even if in a fairly similar) form. As I've argued before on this blog, it would probably be politically impossible to have Congress take the current system and scale it back to allow for more fairness when recommended sentences seem needlessly harsh. On the other hand, if the Court dismantles the current system, it would be a much easier political task to build it back up partially, allowing for more flexibility than we have now. If the amici get their way and the Court upholds the guidelines, what's their ultimate game plan on how to fix its flaws?

Posted by: Alex E. | Sep 2, 2004 1:54:32 AM

I also find it odd that the judges talked about their substantial ability to depart from the guidelines, and repeatedly refer to US v. Koon as their major authority to depart as they see fit?!?!? Didn't Feeney basically make it as though Koon never happened?

I have seen alot of odd arguments defending the guidelines, but haven't seen one talking about the large ability of the judge to depart as he see's fit, that one sounds simply like a plain lie!

Posted by: Nick H | Sep 2, 2004 2:20:15 AM

I have to agree with Nick. Perhaps in the 2d and 9th Circs, district judges feel free to use 5K2.0 departures and not be overturned by the courts of appeals. But with new de novo review of most judge-made downward departures, I know that that is not the case in most district courtrooms today. Perhaps these "former" judges have not personally felt the effects of Congress's further attempts to restrain the federal courts (or perhaps are just too focused on the high population centers in this country to realize what's going on in other places). Plus, I'm perplexed about their argument that if the entire country was like the 4th Circ., with few departures, then the Guidelines system might be in trouble. Blakely is about proof of facts to a jury--it's about reliable and honest factfinding. While judicial discretion may be the current foil to our system, downward departures are not the answer to the Court's constitutional concerns.

Posted by: district clerk battling blakely | Sep 2, 2004 9:55:56 AM

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