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October 3, 2004

Ivory tower optimism meets inside the Beltway realism

I explained earlier this week here why I am optimistic about the future of sentencing reform, but I have conceded here that meaningful sentencing reform may seem much more possible when considered from the ivory tower than from inside the Beltway. Additional proof of these dynamics comes from a set of "DC Observations" I received from Baylor Law Professor Mark Osler this morning.

Long-time readers know that Professor Osler (writing now, of course, from the ivory tower) has suggested one of the most sensible and straight-forward "solutions" to reforming federal sentencing after Blakely. (Professor Osler's thoughtful "3x Solution" can be accessed here.) But, after a trip to DC for research purposes, Professor Osler shares these sobering observations of the future of federal sentencing reform:

Below are my four principle observations from my DC adventure:

1. In the end, Booker and Fanfan aren't very important (unless the Court does not apply Blakely to the Guidelines). As you have written, given the composition of the Blakely majority it is hard to believe that anyone in the majority will defect, and it is clear that Blakely will be applied to federal sentencing. All of our fussing about severability, however, will be pointless. Once Blakely is applied to federal sentencing, Congress will act, regardless if all or part of the Guidelines fall. It is Congress, not the Court or the USSC, that will remake sentencing — the Court's role will be just to provide the impetus for change, and the USSC's job will be to follow very specific Congressional mandates, ala Feeney.

2. Once the Guidelines fall, there will be no great debate on what comes next. Rather, as with Feeney, the new rules will come down without significant debate. Newt Gingrich has a lot to do with this. When he became House Majority Leader, he did two things to the process: (1) He curtailed the power of the committee chairs, increasing the power of the party whips; and (2) He halved the staffs of the committees. This latter change had profound effects. Because there are no longer enough staffers to write legislation, this job is largely performed now by lobbyists. On any given bill, the Republican powers assemble relevant lobbyists to draft legislation (at least on the House side) and pass it in party-line votes. For sentencing matters, the relevant lobbyists are from DOJ — they will, in the end, write the new legislation in the House. This means more mandatory minimums are on the way because that will be Main Justice's preference (as evidenced by the recent letter-to-the-editor campaign by DOJ bolstering current minimums), despite the opposition to same from AUSA's who actually try cases.

3. Don't count on decision-makers caring much what you think. Once I was convinced that the House was not approachable based on the above, I put on a full-court press to meet with someone from the office of Sen. John Cornyn (R-Tex), who is on the Senate Judiciary Committee. I contacted Cornyn's office by phone, email, and fax seeking only a few minutes with a staff member. In my communications, I made it clear that I was a constituent, and that I was a former AUSA who now teaches sentencing law in Texas. My pleas were ignored, and my calls went unreturned.

4. Finally, in all of the academic discussion of these matters, almost no one has discussed what may be ultimately most important: The election. That may be because many of us (myself included) are not very partisan politically. However, we can't ignore politics in making our prognostications. If Bush wins (and a Republican majority remains in the House, a near-certainty), all of the above will remain true. If Kerry wins, all of the above may also remain true, but there is a chance it won't. If the new legislation is stalled until a new administration comes in, the difference won't be at the end of the process (Kerry's ability to veto) but the front end — it is likely that the new AG will be less inclined to lobby for mandatory minimums, and will have a broader mind as to what reforms will be considered.


All of Professor Osler's observations are trenchant and provocative, and I hope I might reflect and comment on them late tonight. But, as I will explain in a following post, I am soon to be heading inside the Beltway myself, and I am now ever more fearful of what I will discover upon leaving the lovely confines of the ivory tower.

October 3, 2004 at 10:40 AM | Permalink

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Comments

Say it ain't so, Joe, I mean, Professor Berman.

Posted by: Jeannie | Oct 3, 2004 11:31:13 AM

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