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January 14, 2005

Good start USSC, while DOJ promotes guidelines

In an impressive contrast to its long silence following Blakely, the US Sentencing Commission is continuing its recent tendency to take a more proactive and visible role in charting the future of federal sentencing (as it should). The day after Booker, USSC Chair Judge Hinojosa released this official statement, which highlights the work the USSC has already done in the wake of Blakely and stresses that the "U.S. Sentencing Commission is in a unique position to continue to assist all three branches of government during this period of transition."

Though Judge Hinojosa's statement many not seem all that substantive, the message in the statement is extremely important and could help Congress understand that it should take a breather and allow the USSC, a uniquely positioned and uniquely important agency, to be primarily responsible for starting to sort out the post-Booker world. I hope the USSC will continue to act boldly and seek to lead during this period of such uncertainty.

Of course, as Ron Wright and I and commentators note here, how Congress and Justice Department are sizing up Booker and its aftermath is a subject worthy of great debate. And, as I noted, DOJ's perspective may be, practically speaking, the most important to track. On this point, here is a link to Assistant AG Chris Wray's official DOJ response to Booker delivered on Wednesday immediately after the decision. One key section states:

[I]t is important to note that in spite of this ruling, federal sentencing guidelines remain a critical part of the process to achieve justice. District courts are still required to consult the federal sentencing guidelines, and any sentence may be appealed by either defense counsel or prosecutors on the grounds that it is unreasonable. To the extent that the guidelines are now advisory, however, the risk increases that sentences across the country will become wildly inconsistent.

Because of what Booker says (and also fails to say), I suspect there are divisions of opinion and uncertainties in all three branches in the wake of the decision. The fact in turn makes the USSC's work and leadership that much more important going forward. I am pleased with the USSC's start, but the really hard work lies ahead.

January 14, 2005 at 05:40 AM | Permalink


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Does anyone agree with me when I say the Justice Department is a lot less concerned with "wildly inconsistant sentences" than they are with losing their incredible prosecutorial advantage over defendants. I believe the thought of having to actually do their job and prove these crimes in court is the underlying reason for their scratching and clawing to have the sentencing guidelines remain mandatory and upward departures remain a non jury factor. Maybe the days of "cop a plea or we'll make you wish you had" are gone and justice can return. You would think the "Justice" Department would welcome the chance to adhere to the Constitution on matters of the law.

Posted by: rw | Jan 14, 2005 9:44:51 AM

Great job rw you hit the nail right on
the head.

Posted by: cl | Jan 14, 2005 3:01:55 PM

I couldn't agree more with rw! right on!

Posted by: ST | Jan 15, 2005 10:48:26 AM

Thank you for your supportive commments. I would like to add that I am astonished at the unbelievable arrogance of the statement made by Mr. Wray in the official response offered by the DOJ. It seems that the DOJ feels that defense attorneys and defendants should be placated by the fact that "unreasonable" sentences sentences can still be appealed but that the DOJ shouldn't be held to the same standard of having to appeal the sentences they deem "wildly inconsistant".Thank God these issues were questioned and judgeships were taken from the hands of every rung-climbing junior prosecutor in the DOJ and put back where they belong, in the hands of District Court Judges and juries. It just seems so Un-American for the DOJ to be so "disappointed" in a decision made in adherence to the Constitution of the United States. Where is the remorse for having sentenced thousands upon thousands of people without the protection of the Constitution.I mean no disrespect to the hard working people of the DOJ but for God's sake please realize that the rules of the game have been defined and you must work within those rules to do your job properly. Your dismay at having to surrender power to the people who were given that power by the Constitution is shameful. Please do your jobs under the standards that were established to safeguard us all.

Posted by: rw | Jan 16, 2005 11:07:44 AM

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