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April 12, 2005

Questions about the brewing Booker fix

The Booker fix which is brewing in the US House of Representatives (basics here and here) has my mind racing with questions.  Here are just a few of the queries which leap to mind:

1.  Did the Justice Department have a hand in drafting this Booker fix?  At recent USSC hearings, DOJ representatives expressed possible interest in a "Bowman fix," but they seemed to disavow interest in mandatory minimum sentences.  The Booker fix appearing now as section 12 of H.R. 1528 (linked here) is something of a combination of the Bowman fix and the original extreme Feeney Amendment; the proposed fix, in FAMM's words, "would effectively make the federal sentencing guidelines a system of mandatory minimum sentences."

2.  Did the US Sentencing Commission have any warning concerning this Booker fix?  The USSC was blind-sided by Congress with the Feeney Amendment, and I have heard the USSC has been working hard throughout the last year to build a more effective working relationship with Congress.  I sensed that this relationship had been pretty positive in the post-Blakely and post-Booker periods, but the abrupt development of this Booker fix suggests that there is not perfect harmony inside the Beltway.

3.  What is likely to become of this Booker fix?  In the wake of Booker, the House has been the most fiery in its rhetoric about the need for a legislative response, while the Senate has seemed calm (almost to the point of indifference) about Booker.  This proposal could just be more rhetoric that will have no traction in the Senate.  Notably, this Wall Street Journal article about the bill reports that a "Senate Republican Judiciary Committee staff member said the staff members weren't consulted about the House bill and had no companion proposal in the works."  But recall that, though clever procedural maneuvers, the backers of the Feeney Amendment got that legislation through Congress in just a matter of weeks despite reservations expressed by some Senators.

4.  Will federal judges jump into the policy debate over a Booker fix?  In this post back in November, I pondered whether judges might become actively involved in policy debates over the future of the federal sentencing system.  And that was before Booker created a remedy that seem to be to the liking of most of the federal bench.  Sadly, given the ugly judge-bashing in DC these days, I fear that the views of federal judges won't be given the respect they deserve even if they do actively engage in the post-Booker policy dialogue.

5.  Is this Booker fix constitutional, or does it make Harris and/or Mistretta shaky?  This Booker fix relies upon the Supreme Court's 5-4 decision in Harris, which allows judges to find facts that raise minimum sentences.  But in light of Blakely and Booker, the votes of Justices Breyer and Scalia (and maybe Kennedy) are not certain if Harris is really put to the test through this Booker fix.  Also, even if no current Justice has a changed view, the expected replacement of Chief Justice Rehnquict (or later Justice O'Connor) could prove to be a swing vote on this matter. 

In addition, recall that Judge Panner in Detwiler concluded that the Feeney Amendment undermined key concepts that supported the Supreme Court's decision in Mistretta and thus rendered the whole federal system structurally unconstitutional (Detwiler is discussed here with commentary here).  I think Judge Panner's Detwiler result and reasoning becomes even more compelling if this Booker fix becomes law.

6.  Is this Booker fix a symptom of the post-Schiavo attack on the judiciary? Congress and the federal judiciary have been sparing over sentencing matters for a number of years, and this sort of Blakely/Booker fix was feared long before the recent Schiavo happenings.  But it had seemed that Congress was prepared to let the post-Booker world develop for some months, perhaps because the most recent statistics from the USSC (which I hope will be updated ASAP) suggest that the post-Booker world looks a lot like the pre-Booker world.  And yet, despite evidence suggesting not much needs fixing, suddenly in the midst of all the ugly judge-bashing rhetoric we get a dramatic sentencing proposal which reads like a massive broad-side attack on judicial sentencing discretion.

Readers with possible answers to any of these questions, or with additional questions about the brewing Booker fix, are encouraged to speak up in the comments.

April 12, 2005 at 02:22 AM | Permalink

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» Bad Booker 'Fix' from TalkLeft: The Politics of Crime
by TChris This is from an email alert sent out this morning by the National Association of Criminal Defense Lawyers: A disastrous "Booker fix" is scheduled for hearing and markup this afternoon before the House Crime Subcommittee. The provision, sneake... [Read More]

Tracked on Apr 12, 2005 1:14:29 PM

» Bad Booker 'Fix' from TalkLeft: The Politics of Crime
by TChris This is from an email alert sent out this morning by the National Association of Criminal Defense Lawyers: A disastrous "Booker fix" is scheduled for hearing and markup this afternoon before the House Crime Subcommittee. The provision, sneake... [Read More]

Tracked on Apr 12, 2005 1:53:19 PM

» Bad Booker 'Fix' from TalkLeft: The Politics of Crime
by TChris This is from an email alert sent out this morning by the National Association of Criminal Defense Lawyers: A disastrous "Booker fix" is scheduled for hearing and markup this afternoon before the House Crime Subcommittee. The provision, sneake... [Read More]

Tracked on Apr 12, 2005 1:55:09 PM

» Bad Booker 'Fix' from TalkLeft: The Politics of Crime
by TChris This is from an email alert sent out this morning by the National Association of Criminal Defense Lawyers: A disastrous "Booker fix" is scheduled for hearing and markup this afternoon before the House Crime Subcommittee. The provision, sneake... [Read More]

Tracked on Apr 12, 2005 5:58:44 PM

Comments

Hello Professor,
Regarding the "Bowman-fix" Bill, the limitations appear to apply to "the history and characteristics of the defendant" in determining the kind of sentence noted in 18 U.S.C. 3553(a)(4). Do you think that the Bill totally precludes the use of the same information, within limits, for a downward departure? I am not certain, as U.S.S.G. 1B1.1, which is not a policy statement and is included in 3553(a)(4), refers to Parts H and K of Chapter Five (downward departures). Additionally, how does the Bill interact with 3553(a)(5), which notes that judges shall consider the policy statements, which means downward departures. Lastly, where does Koon fit in to all of this.
Doug

Posted by: doug | Apr 12, 2005 8:50:46 AM

All good questions, Doug, that are not readily answered on what seems to be a hastily drawn bill. But I think the bill, as written, seeks to eliminate variances AND departures on any of the three dozen listed mitigating grounds.

Also, Koon is an interpretation of the SRA, so this statutory amendment would supercede its rulings (as did the Feeney Amendment to a large extent).

Posted by: Doug B. | Apr 12, 2005 9:06:14 AM

The witness list for the hearing can be found here (http://judiciary.house.gov/hearings.aspx?ID=106). Doesn't look like anyone really qualified to disucss the Booker fix is involved (unfortunately).

Posted by: JDB | Apr 12, 2005 9:47:15 AM

Professor,
Thanks, the bottom line is that this will create, with rare exception, a series of mandatory minimums. Hopefully, the next move in this "tit-for-tat" is an overruling of Mistretta and Harris.
Doug

Posted by: doug | Apr 12, 2005 9:48:59 AM

Professor:

In reading this bill, I find it hard to believe that it could pass constitutional muster in light of Blakely and Booker. The effect of this bill is obviously to make the Guidelines mandatory again. True, judges are not as constrained to go above the guideline range as in the pre-Booker days, but given that only around 2% of the cases are above the range anyway, I cannot see this scintilla of discretion saving this system from a Blakely/Booker challenge. In short, I think this bill could easily be found unconstitutional, even without upsetting the holdings in McMillian and Harris.

Posted by: JH | Apr 12, 2005 10:13:41 AM

What about plea bargaining? I admit that I haven't read the text of the bill yet, but if discretion is so severely limited, and we get a series of mandatory minima, what advantage is there for defendants to plead (except substantial assistance, which only applies in a small minority of cases, mostly conspiracies)? I wouldn't think the DOJ would want this, because it would just take a few FPD's to say "heck, if there's no benefit, and there's no hope of getting a lesser sentence from the judge, let's just take every case to trial! And let's not waive speedy trial! HA!"

Posted by: District Clerk Battling Booker | Apr 12, 2005 2:59:26 PM

A good insight, DCBB, although I presume the acceptance of responsibility reduction would still provide some incentives to plea. Also, fact-bargaining and charge-bargaining would surely still be in the mix to help encourage pleas (although I know that, officially, never happens).

But you core point is still strong. By eliminating the prospect of mitigation on so many grounds, you may make going to trial a more worthwhile risk.

Posted by: Doug B. | Apr 12, 2005 3:26:13 PM

Professor,
I do not expect the "fix" to encourage trials. After all, for many of us, before Booker the Guidelines acted as mandatory minimums and the vast majority of clients pleaded guilty to take advantage of the reduction for timely acceptance of responsibility. Today, except for rare situations, the guidelines remain mandatory minimums. There is no denying, however, that the "fix" takes away the courts' ability to address the personal circumstances of each defendant that currently exists under Booker.

Posted by: doug | Apr 12, 2005 5:08:13 PM

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