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January 16, 2005

Why Congress should go slow, and what the USSC should say

In the Potent Quotables assembled here, US District Judge Charles Kornmann astutely suggests that "Congress should give [advisory guidelines] a chance. If it doesn't work, if they find that judges are going off the map, then [Congress] can always revisit it."  This sentiment perfectly channels why I have been urging that everyone take a deep breath in response to Booker, especially Congress. 

Congress will always have the power to modify the federal sentencing system at any time in the future.  Until we have some opportunity to assess and analyze what Booker really means for the judges and lawyers working "on the ground," it will be very hard for Congress to be confident that any immediate legislative "fix" will make the federal system better than what Booker has now created.

Moreover, as I stressed in my testimony in November to the US Sentencing Commission, I fear that any major structural modification of the guidelines by Congress in the coming weeks "risks sowing greater confusion and uncertainty — and lots and lots of litigation — about applicable federal sentencing laws and practices." I am particularly concerned about ex post facto litigation headaches if "the Bowman fix" (aka topless guidelines) or mandatory minimum sentencing provisions are enacted and seek to be immediately applied.

For these reasons and others, I highly encourage the US Sentencing Commission to stress to Congress that any quick fixes risk making a confused and uncertain federal sentencing world even more confused and uncertain. (And, as we saw in the post-Blakely, pre-Booker period, confusion and uncertainty may undermine the goals of sentencing reform more than any particular set of sentencing rules.)

In addition, I encourage the USSC to pick a date certain — perhaps June 24, 2005, the one-year anniversary of the Blakely decision — and tell Congress that it will produce a report with data analysis and legislative recommendations for moving the federal sentencing system forward.  Through such a report, the USSC can assess what has happened post-Blakely, what will happen post-Booker, and combine critical data with all the USSC has learned from its recently produced 15-year report, a report which should play a central role in any discussion of possible legislative responses to Booker. (The full USSC report can be accessed here, its executive summary can be accessed here, and my summary of the executive summary is here.)

January 16, 2005 at 04:28 PM | Permalink

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Comments

Professor,
I have been considering the issue of ex post facto for some time and have recently sent out an e-mail to a number of folks who specialize in federal criminal defense. It is my thoughts that ex post facto will not apply due to the fact that it is the Court and not Congress that has made this change. See Rogers v. Tennessee, 532 U.S. 451 (2001); Marks v. United States, 430 U.S. 188 (1977). However, the Due Process Clause of the Fifth Amendment might offer some protection. See Bouie v. City of Columbia, 378 U.S. 347 (1964). The next question is to whom should this protection extend? The first half of Booker indicates that the starting point is Apprendi, but the test under due process might not save those folks. It is my thought, for what it is worth, that folks who either committed thier offense after the Court decided Blakely, but before Booker, or have been in the prosecutorial process during that period, should have the strongest argument under the analysis seen in Bouie and Rogers. Please share your thoughts on this subject.

(I do recognize that ex post fact offers the strongest protection against increased sentences, but I do not see a way around the language in Marks and Rogers. If someone can make it work, I would like to see a decent explanation.)

Posted by: doug | Jan 16, 2005 4:58:23 PM

Doug, you are right that, after Booker, the question is Due Process not ex post facto. But, to be clear, my post above is about the ex post facto concerns if Congress now were to enact a new sentencing statute and try have that legislative fix apply right away (which is what Frank Bowman has urged in his topless guidelines fix).

Posted by: Doug B. | Jan 16, 2005 5:06:27 PM

Professor,
Thank you for your timely reply. I agree that if Congress implements topless guidlines, ex post facto will rule the day. Interestly enough, if the topless guidelines are implemented, some people will have due process claims and others will have ex post facto claims. As they say, timing is everything.

Posted by: doug | Jan 16, 2005 5:28:54 PM

Professor,
Along with any due process/ex post facto protection my clients may have when faced with a judge threatening a higher-than-the-guideline-range sentence on remand, might not "judicial vindictiveness" principles help as well -- at least where the judge, at the original guideline sentencing, imposed a sentence anywhere below the high end of the guideline range?

The argument would go like this: since the judge had complete discretion to impose a higher sentence than he/she did the first time around (at least up to the high end of the guideline range) and didn't, isn't it vindictive (absent some unusual factor such as new sentencing information) to impose a higher sentence this time around?

Posted by: Jill | Jan 16, 2005 5:46:07 PM

Jill,
You might look to Alabama v. Smith, 490 U.S. 794 (1989), and North Carolina v. Pearce, 395 U.S. 711 (1969), which Smith overruled, for some guidance on the issue of vindictiveness. (Professor, sorry about hijacking the direction of your initial entry!)

Posted by: doug | Jan 16, 2005 6:07:24 PM

Professor Berman, thanks for the blog. I have had it bookmarked for a long time now to follow this. I would like to point out however, that from my perspective, the decision does nothing to correct the main problem with the guidelines, which is failure to provide any meaningful test to relevant conduct evidence.

In a typical meth case maybe a dozen co-defendants each have an incentive to place inflated drug amounts on their buddies in order to satisfy the investigators and prosecutors. Round and round go the investigators, requiring ever greater amounts in the inevitable subsequent proffers, based on the upward spiral created by the process. Everyone knows that if the government is not "satisfied" the all-important 5K1 motion will not be forthcoming.

I have sat in on many proffers, and the "encouragement" provided by investigators to arrive at ever-larger amounts is hardly subtle. These amounts are then uncritically adopted by the prosecutor, and become the basis for long sentences under the guidelines.

My problem, as a trial defense lawyer, was not so much with the guidelines per se (I leave those issues to smarter people than I) but their use to enhance sentences on the most dubious evidence. This is an abuse of the system that results in injustice all the time, and is an abuse that the system seems designed to foster. A *true* Sixth Amendment remedy would have corrected this by subjecting all this to factfinding by a jury.

B-F changes nothing about that.

Posted by: Tim a defense lawyer | Jan 18, 2005 12:29:17 PM

Dear Professor:

To ask the obvious: How will Booker impact those who are already serving greatly enhanced sentences, based on section 3553? Such as those who have already served the maximum that could have been sentenced pursuant to a plea or jury finding, but still find themselves in prison, due to the judge's enhanced sentenced based on some additional "facts".

Posted by: nick | Jan 18, 2005 1:24:45 PM

MY FATHER WAS TRIED AND CONVICTED OF WIRE FRAUD, A LEVEL SIX OFFENCE, THE MAX. WOULD HAVE BEEN 6 TO 9 MONTHS, HE WAS SENTENCED TO 6 YEARS. NONE OF THE ENHANCEING FACTORS WERE BROUGUT UP IN TRIAL. HE HAS AN APPEAL PENDING CITEING BLAKELY, I THINK THE APPEAL WAS FILED IN JUNE 04. HE IS 77 YEARS OLD AND ON A WALKER AND HAS A COMPLETE ELIOSTOMY. HE HAS ALREDY SURVED 18 MOS. AND COUNTING. ANY INFORMATION WOULD BE APPRECIATED.

Posted by: JO ANN | Jan 21, 2005 5:28:55 PM

MY FATHER WAS TRIED AND CONVICTED OF WIRE FRAUD, A LEVEL SIX OFFENCE, THE MAX. WOULD HAVE BEEN 6 TO 9 MONTHS, HE WAS SENTENCED TO 6 YEARS. NONE OF THE ENHANCEING FACTORS WERE BROUGUT UP IN TRIAL. HE HAS AN APPEAL PENDING CITEING BLAKELY, I THINK THE APPEAL WAS FILED IN JUNE 04. HE IS 77 YEARS OLD AND ON A WALKER AND HAS A COMPLETE ELIOSTOMY. HE HAS ALREADY SERVED 18 MOS. AND COUNTING. ANY INFORMATION WOULD BE APPRECIATED.

Posted by: JO ANN | Jan 21, 2005 5:29:50 PM

I'm a lawyer. This is a jurisdictional question. If a person is convicted in state court of a law which did not exist until a year later, can he file an original case in the U.S. District Court to challlenge the ex post fact violation by the state court. I know about the 11th Amendment and the Rooker/Feldman doctrine, but those authorities should not allow the states to suspend the the US Constitution Article 10. I also know of a case that held the Bankruptcy rights under Aticle I abrogates any state rights under the 11th Amendment. The underlying facts involve structuring deposits of cashiers checks in 1989 when the law against it was not enacted until 1990, but the state court convited him for it anyway. Can he challange this in the federal district court? Defense Lawyer

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