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April 20, 2005

When will we hear from the USSC (or DOJ) concerning the brewing Booker fix?

It is now more than a full week since the Booker fix and drug sentencing provisions of H.R. 1528 (basics here, commentary here and here and here) were the subject of a hearing before the House Subcommittee on Crime, Terrorism, and Homeland Security (coverage is linked here).  I am wondering when and how we will hear from the US Sentencing Commission concerning this bill, as well as when and how we will hear from DOJ concerning the Booker fix provisions.

Given that H.R. 1528 included a number of mandatory minimum sentencing provisions even before the last-minute addition of the Booker fix provisions (Section 12), I was hoping that the USSC would vocally advocate against the bill on the basis of its long-standing opposition to mandatory sentencing provisions (see, e.g., this 1991 USSC report on the failures and harms of mandatories).  Especially once the imbalanced Booker fix surfaced in H.R. 1528, which runs directly contrary to all the "go slow" advice the USSC received in its post-Booker hearings (highlights linked here), I was hoping the USSC would be quick to spotlight problems with the bill.

Of course, I understand it is hard for an official agency to weigh in on proposed legislation as fast as Frank Bowman or Jim Felman or a group of academics have.  Still, the silence from the USSC will become deafening before too long.  The word is that H.R. 1528 was not marked up in the House today, so the bill is not flying through the legislative process.  Nevertheless, the dynamics which surrounded the development and passage of the Feeney Amendment should leave little doubt that time is always of the essence in these matters.

Relatedly, I remain curious about the views of the Justice Department concerning the Booker fix provisions of H.R. 1528.  As detailed in this post, DOJ has generally endorsed the drug sentencing provisions of the bill, although it has expressed concerns about some of its harshest terms.  But the Booker fix proposal is a much different animal.  My instinct is that many line prosecutors would be troubled by the possible impact on plea negotiations that could flow from eliminating nearly all departure grounds (other than for assistance or fast-track), which is what the Booker fix provisions of H.R. 1528 now essentially proposes. 

In addition to concerns that line prosecutors might have, I also think folks in Main Justice should be concerned about the questionable constitutionality of the Booker fix provisions of H.R. 1528.  Because it is so unbalanced, I doubt DOJ would want the terms of H.R. 1528 to become the first test case for the vitality of Harris or the limits of Booker.  Moreover, I assume DOJ is still overwhelmed with post-Booker litigation burdens, and new legislation of this sort would only multiply the number of issues to litigate.  Finally, the extreme imbalance of H.R. 1528 suggests this is a moment for DOJ to really stand up and act like a Department of Justice and not just like a Department of Prosecutors.

April 20, 2005 at 05:29 PM | Permalink

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Comments

"Finally, the extreme imbalance of H.R. 1528 suggests this is a moment for DOJ to really stand up and act like a Department of Justice and not just like a Department of Prosecutors."

The Dept. of Prosecutors line is just cheap.

I do agree that H.R. 1528 is just another long line of "fixes" that Congress rushes to the floor to try and change a Court decision they do not like. One would think congress would have learned from the failure of the child obsenity/internet legislation over the past few years.

Posted by: lawdevil | Apr 21, 2005 11:07:01 AM

Aerospace Engineer.

Is the Government's Cocaine Price Support and Gang and Terrorist Finance Program doing what it is supposed to do?

Any one remember alcohol prohibition? Any one at all?

Posted by: M. Simon | Apr 21, 2005 5:46:01 PM

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