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May 7, 2005

An international view on increased post-Booker sentences

A few months ago, as detailed in this post, I received a thoughtful e-mail from a self-described "retired Australian lawyer/law professor" suggesting that international law ought to play a role in the post-Booker world.  As noted in that prior post, this foreign correspondent suggested international law precluded sentencing judges from imposing an increased sentence post-Booker based on pre-Booker conduct.

Today I heard again from my Aussie pen-pal, who was moved to write by Judge Posner's decision this week in Goldberg (discussed at length here) which seems to condone the possibility of increasing sentences after a Booker remand.  In an interesting and brief note, which can be downloaded below, he explain his "view that international law, as applied by federal courts, should prevent a federal court imposing a more severe sentence than a defendant would have received had the Guidelines remained mandatory." The note concludes by expressing hope that one of Posner's "former colleagues at U of Chicago Law School [will] lend him an international law text and prompt him to re-think and re-write what he has written before judges lower down the system take him at his word."

Download aussie_view_on_posner_and_denial_of_human_rights.doc

May 7, 2005 at 09:06 PM | Permalink

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Comments

To begin, I am not one of those lawyers who enjoys complaining about the use of “international law” in the US. Everyone who really practices knows that international law, and the law of other nations is an issue almost every day in the US. Indeed, only when lawyers or law students want to rile up non-lawyers (or make a pathetic attempt to get a job with a speaker at a Federalist Society event) do we act shocked about the use of international law.

That said, I don't see what your Australian friend is getting at. As we know, the FSGs never changed the maximum penalty for a crime, but rather were an attempt to assess whether a given conviction was worthy of the least or most serious punishment. They were clumsy, and toward the end the DOJ and Congress began to take advantage of them more than was constitutionally permissible, but they did not alter the maximum substantive punishments.

Even of a defendant's ultimate sentence is higher under Booker than the FSGs, it won't be because he received a higher punishment, but rather the mechanism for determining how much time he should serve has changed. Big difference.

Posted by: s.cotus | May 8, 2005 8:45:59 AM

Evidently, S Cotus has not read Blakely which makes it crystal clear that the relevant statutory maximum is the maximum legal sentence under the guidelines (as established by Apprendi and Jones) and NOT the maximum specified by statute. I am deeply disturbed at the gammut of prosecutors and judges who attempt to use legal sophistry to circumvent the very core of rights that this country saw fit to elevate with constitutional protection. As if the federal system does not favor the prosecution enough, let's simply do away with evidence and the burden of proof...

Posted by: NM | May 8, 2005 9:01:36 PM

NM, 1) Booker isn't Blakely; 2) rhetoric about how the courts and prosecutors are biased doesn't get us anywhere, because you provide no specifics and the same rhetoric is used by people who think that courts are biased toward defendants (who greatly outnumber you, anyway); 3) you fail to provide specific citations to Booker or Blakely to support your point; 4) calling decisions or arguments you don't like "sophistry" does not explain or illuminate them, it just condemns them because you don't like them; 5) Blakely says this: the relevant “statutory maximum” is not the maximum sentence a judge may impose after finding additional facts, but the maximum he may impose without any additional findings. When a judge inflicts punishment that the jury’s verdict alone does not allow, the jury has not found all the facts “which the law makes essential to the punishment,” Bishop, supra, §87, at 55, and the judge exceeds his proper authority -- I don't see how this supports your position

Posted by: S.cotus | May 10, 2005 4:24:02 PM

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