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April 10, 2005

Pondering the USSC's role after Booker

As indicated here, the US Sentencing Commission has both a public hearing and a public meeting scheduled for this coming week.  I am not sure of the full agenda for these meetings, though I know they will be in part concerned with proposed guideline amendments concerning identity theft and antitrust offenses that the USSC had previously promulgated for comments (available here).

I am hopeful that this USSC meeting will bring us more post-Booker sentencing statistics; but the consideration of specific guideline amendments has me pondering more broadly the role of the USSC post-Booker.  I think interesting arguments might be made that, since the guidelines are now wholly advisory, the USSC ought to approach guideline amendments in a much different way.  At the very least, given the centrality of the § 3553(a) factors in the wake of Booker, it seems important for the USSC to explain and justify its changes to the guidelines with greater explicit discussion of the factors and principles in § 3553(a).

I am not the only one pondering these issues.  Indeed, Jim Felman, who is scheduled to testify at this week's USSC hearing, has authored testimony which (particularly in part 3) discusses thoughtfully how the USSC ought to proceed post-Booker.  Among other interesting points, this testimony (which can be downloaded below) notes that the "Commission's consideration of the § 3553(a) factors when drafting and amending the guidelines is a critical aspect of the reasoning underlying judicial decisions to afford the guidelines substantial weight after Booker."

Download felman_ussc_2005_antitrust_testimony.wpd

April 10, 2005 at 09:56 PM | Permalink

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