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April 26, 2005

The judges speak out against HR 1528

In the interregnum between Blakely and Booker, I pondered in this post whether federal judges would engage in the policy debate after Booker.  Providing an answer is a letter written by Judge Sim Lake, Chair of the Criminal Law Committee of the US Judicial Conference, addressed to James Sensenbrenner, Chairman of the House Judiciary Committee, expressing opposition to H.R. 1528, the drug sentencing bill with the tacked-on Booker fix provisions.  (Prior discussion and lots of commentary on this bill can be found at links here and here, and details about other letters in opposition to H.R. 1528 are discussed here and here.)

Here are some passages from the start of the letter, which can be downloaded below:

I write to express the views of the Judicial Conference of the United States with regard to H.R. 1528.... The judiciary is firmly committed to a sentencing guideline system that ensures adequate deterrence of criminal conduct and protects the public from further crimes by convicted criminals, but is also fair, workable, transparent, predictable, and flexible. We believe that an advisory guideline system can achieve all of these goals, and the sentencing data since Booker supports this belief.

According to the Sentencing Commission's most recent data, the number of sentences within the guideline range has remained fairly constant since Booker was decided and corresponds to historical sentencing practices.  This is consistent with the experience of state court advisory guideline systems where most sentences fall within guideline ranges.  Moreover, in the reported post-Booker decisions in which courts have imposed sentences outside the advisory guideline range, judges have explained why such sentences were appropriate....

The judiciary is very concerned that the sentencing provisions of Section 12 of H.R. 1528 were included without supporting data or consultation with the judiciary.  Because there is no demonstrable need to consider possible legislative responses to Booker at this time, and because, as explained below, Section 12 does not represent a sound alternative to the present advisory guideline system, the Judicial Conference strongly opposes this proposal.

The letter goes on to criticize various particular provisions of H.R. 1528, and concludes with this interesting information about an event not to be missed:

The Committee, along with the Federal Judicial Center and the Sentencing Commission, is sponsoring a National Sentencing Policy Institute in Washington, D.C., on July 11-13, 2005.  The purpose of the institute is to bring together over 100 judges, congressional staff, and Department of Justice officials with the members of the Committee and the Sentencing Commission (1) to discuss potential policy and practical issues arising from the Booker decision and (2) to provide feedback on these issues to the Committee and the Commission. We intend to invite the leadership of both the House and Senate Judiciary Committees and their staffs to attend the institute and actively participate.  We hope you will be able to join us.

Download judicial_conf_letter_on_hr_1528.pdf

April 26, 2005 at 01:51 PM | Permalink

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Comments

Professor,
I notice that the "red-headed stepchildren" (defense attorneys) are not invited to this important meeting.

Posted by: doug | Apr 26, 2005 3:24:51 PM

Judge Lake and the other federal judges he claims to represent need to confer with their bosses at SCOTUS. The Court (in the remedial opinion) stated plainly that the system established by the Court in Booker "would not be the last word." The Court recognized that the solution to the Sixth Amendment problems in the old system are for Congress, not the Court, to establish. The solution is not a question of "demonstrable need" but of POLITICAL CHOICE. Judge Lake's letter, and the entire conference, reflects the problems that we have seen with Justice Breyer's participation in Booker: once he has a vested, personal stake in the outcome of a set of policty choices, his ability to adjudicate the law is compromised. Every judge attending the July conference should recuse himself or herself from future sentencing cases. Impartiality is not too much to ask.

Posted by: Mark | Apr 27, 2005 10:42:42 AM

In response to Doug's April 26 post.

I think you've misunderstand the anti-policy arguement. The issue of what weight policy should have in judicial decisions is restricted to just that, the decisions in cases. The concept is that, in [/i] adminstering justice [i] judges ought to interpret the existing law impartially, rather than simply changing what they don't like. Mind, there is a large historical basis for judicial use of policy to overrule precedent, but that discussion is for another day.

What's important to see is that it would be a grave mistake to expand the impartiality requirement beyond the judge's decisions. Remember, Judge's are also citizens and are entitled to the same participation in our democracy as any other citizen. Indeed, they are generally some of our most intelligent and educated citizens when it comes to the law and its practicle effect on people. To silence judge's from non-adjudicative discourse (or make them stop doing their jobs if they do) would not only unfairly hinder their rights, it would also deny this democracy invaluable intellectual resources.

Besides, recusing judge's from cases involving laws on which they have opinions would basically leave the courts empty because no intelligent person can help but form opinions. It's really not practicle.

Posted by: Pete | May 19, 2005 12:16:30 PM

Excuse me, the above refrenced post was by Mark on April 27, not Doug.

Posted by: Pete | May 19, 2005 12:18:00 PM

What country am I living in?
What ever happened to the land founded by our forefathers?
I guess 1984 has come a little late this decamillenium.
When are we going to change the laws to be ONLY those that protect us from each other and not from ourselves?
you folks are arguing nits.
Look at the constitution. Amendments 9 and 10. LEAVE US ALONE!
It's never been a better time for a Privacy amendment.

Posted by: Steve | Jun 2, 2005 11:09:23 AM

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