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January 18, 2005

Taking stock of advisory guideline systems

With Booker making advisory guidelines a reality in the federal system, a careful examination of our modern experiences with advisory systems are in order.  As detailed in this post, the  Federal Sentencing Reporter will soon be publishing a timely article entitled on "Advisory Guidelines in the Post-Blakely Era," authored by the executive directors of two sentencing commissions involved in the development of advisory guideline system.  Relatedly, Adam Liptak has this thoughtful article today in the New York Times examining the operation of advisory guideline systems in the states.

In addition, because I am about to do a Chicago public radio show with University of Chicago Professor Albert W. Alschuler, I was reminded that Professor Alschuler was among the first to forcefully advocate advisory guidelines as the right federal response to Blakely (the original draft of Al's article is available here).  Reviewing that pre-Booker article this morning, which is To Sever or not to Sever? Why Blakely Requires Action by Congress, 17 Federal Sentencing Reporter 11 (Oct 2004), I was terrifically amused by this wonderfully ironic paragraph in its introduction:

This commentary proposes a sentencing system that courts could not implement without Congressional action — one in which judges would be guided but not bound by sentencing guidelines, in which they would impose determinate sentences not subject to adjustment by a parole board, and in which their sentences would be subject to appellate review for reasonableness and proportionality. Id. at 11 (emphasis added).

Obviously, though Al might be exactly right about the value of advisory guidelines, he was apparently wrong, thanks to Justice Breyer and the remedial majority, that his proposed solution could not be implemented witout Congressional action.

January 18, 2005 at 12:25 PM | Permalink

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Comments

Mr. Berman,

The Odyssey show was fantastic. Thank you for the input. I called the show and held to hope to talk to you but didn't get through.

-Josh

Posted by: Josh | Jan 18, 2005 2:01:07 PM

Doesn't this serve as proof positive that the two Booker majorities are hopelessly incompatible?? The only person who seems to think otherwise is Justice Ginsburg and she could not even bother to write an opinion.

Posted by: yo | Jan 18, 2005 2:20:38 PM

I have seen no comments regarding the impact, if any, upon the states.

Posted by: Jeff Smith | Jan 18, 2005 3:18:06 PM

I think the impact of Booker on the States affected by Blakely is at the margins of two issues: retroactivity (to Apprendi, at least) and procedural default (the snippet at the end of the Breyer opinion about courts applying their procedural rules). Else, I don't see much. In the end, it's the unbelievable remedy that did in any hope of clarification of any aspect of Blakely for the States.

Finally, maybe the prominent repetition of the prior conviction exception in the Stevens opinion means that Almendarez-Torres is not on life support.

I just think the remedy in Booker goes to show what lengths courts, including the Supremes, will go to to avoid the consequences of big decisions. The Booker remedy is right in line with Mapp followed by Stone v. Powell, and then Linkletter and even Teague.

As the Who and Doug said: Meet the new boss--same as the old boss. Or is it Justice Ginsburg snatching defeat from the jaws of victory?

Now that the Supremes have invented a new form of constitutional analysis and applied it themselves, I wonder if any of the States with guideline systems are going to follow suit. Indiana does not have a guideline system. I doubt that even the Indiana Supreme Court could do anything similar to the Booker remedy with a straight face. But it appears that anything is possible these days.

Posted by: Michael Ausbrook | Jan 18, 2005 4:15:22 PM

which judges would be guided but not bound by sentencing guidelines, in which they would impose determinate sentences not subject to adjustment by a parole board, and in which their sentences would be subject to appellate review for reasonableness and proportionality

Posted by: mbt | Feb 13, 2011 6:03:07 AM

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