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November 30, 2004

How and how fast might Congress react to Booker and Fanfan?

If Booker and Fanfan are handed down Tuesday morning and if Blakely is held applicable to the federal guidelines (both of which are big ifs), I wonder how and how quickly Congress might seek to respond to the decision. 

Obviously, exactly what is said (and not said) in Booker and Fanfan will profoundly shape any congressional response.   But I also suspect how the media and the public — not to mention the Justice Department, the USSC and federal judges — perceives what is said in Booker and Fanfan, as well as fortuities of timing and other congressional concerns, could also greatly impact what happens after we see a Booker and Fanfan decision.

Many followers of federal sentencing reform, who recall how quickly the dramatic Feeney Amendment became law, are understandably concerned about a hasty and potentially rash congressional response to a ruling in Booker and Fanfan.  Yet, if the decision is cast by the High Court and perceived by the press and public as a vindication of the role of juries, which is how Blakely has be viewed by some, then cries to "undo" Booker and Fanfan may have less political traction.  Then again, if the decision is perceived as giving a break to undeserving criminals, a "tough-on-crime" response to the may be politically unavoidable (as recently suggested by representative Tom Feeney himself).

As noted previously here, the NACDL and a broad group of other organizations have already written this letter to the House and Senate Judiciary Committees opposing any hasty legislative fix in the wake of a decision in Booker and Fanfan.  Similarly, the Federal Sentencing Guidelines Task Force of the Federal Bar Association's DC Chapter (of which I am a member) on Monday sent a similar letter to the House and Senate Judiciary Committees.  This letter, which can be downloaded below, not only advocates "careful deliberation" by Congress in any response to Booker and Fanfan, but also collects numerous public statements by leading policy-makers and judges opposing reliance on mandatory minimum sentencing provisions.

Download fbadc_task_force_letter_to_congress.pdf

November 30, 2004 at 12:56 AM | Permalink

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