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April 25, 2005

The litigation mess argument against H.R. 1528

I noticed this afternoon that FAMM has collected here some of the letters 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 here).  One item available there that I had not previously seen is this long letter on behalf of the federal public defenders, which particularly details various grounds for constitutional challenges to various provision of H.R. 1528.

Among other potent points, the defenders letter spotlights that H.R. 1528 "would generate widespread litigation," and thus it reinforces the view I expressed twice to the US Sentencing Commission (testimony here and here) about the legal confusion and uncertainty that would follow any major structural changes to the federal sentencing guidelines in the wake of Booker.  Especially given the mess (and disparity) in the circuits stemming from the (relatively minor) issue of Booker plain error, thinking about the just the litigation consequences if H.R. 1528 were to become law makes my head hurt.  Indeed, this is another reason why, as I suggested in this post, I think the Justice Department may not be too keen on the Booker fix provisions of H.R. 1528 becoming law.

April 25, 2005 at 05:28 PM | Permalink

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