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December 23, 2005

A Booker Festivus for the rest of us

Last year in this post, I celebrated a Blakely Festivus by engaging in a Blakely airing of grievances.  To keep up the grand traditions of this special day, this year I am moved not only to encourage donations to the Human Fund, but also to air some of my Booker grievances:

1. Lower courts, in applying the Booker remedy, appear to have little concern for the Sixth Amendment and due process values that Blakely championed.  Most of the lower federal courts, especially the circuit courts, continue to have no worries about basing severe sentence enhancements on uncharged or even acquitted conduct.  Though a few brave district courts recognize that Blakely and the Booker merits majority both highlight problems with reliance on lax procedures at sentencing, most lower courts are more than happy to use the Booker remedy to continue with business as usual. 

2. The Supreme Court, after having further muddled Blakely's meaning with its Booker remedy, appears to have little interest in cleaning up the messy state of sentencing jurisprudence.  SCOTUS has already agreed to take up whether Blakely errors are structural, and I am also hopeful it will soon review how Blakely is being evaded in California and Tennessee.  Nevertheless, by so far refusing to take up Booker plain error, and Blakely/Booker retroactivity, and the scope an validity of the prior conviction exception, the Court has revealed that it feels no guilt about making a jurisprudential mess and leaving clean-up duties to lower courts.

3. The US Sentencing Commission, though doing a good job releasing basic post-Booker statistics, still seems disinclined to take an active and bold leadership role.  After conducting valuable public hearings in the months after Blakely and Booker, the USSC has been awfully quiet over the last 9 months as the post-Booker world unfolds.  A major debate over a possible Booker fix seems likely in the coming year, and the USSC should be out front framing the issues for debate, rather than just waiting in the wings as proposals emerge from the Justice Department and in Congress.

4. The Justice Department, even though it asked for the Booker remedy and still possess dominant power in the federal sentencing system, favors an imbalanced Booker fix.  Though there is no firm evidence to suggest that the post-Booker world of federal sentencing is dysfunctional, AG Alberto Gonzales is still advocating a Booker fix in the form of a minimum guideline system.  Such a Booker fix seems unsound from both a legal and policy perspective, but the Justice Department's chief goal when advocating sentencing reforms seems to be simply maximizing the power of prosecutors and minimizing the power of all other players in the system.

Tellingly, Congress is so far left out of my grievance airing.  Despite all the worries about the passage of mandatory minimums or other draconian sentencing laws in the wake of Booker, the legislative branch has so far been generally calm and tempered in its reaction.  (A few members of the House are still interested in playing the "tough-on-crime" political game, but there seems to be a laudable new cautiousness on sentencing issues among many members of Congress.)  Of course, there is buzz that this may all change come January upon the one-year anniversary of the Booker decision.

Say it with me: Serenity Now!  Serenity Now!  Serenity Now!

December 23, 2005 at 10:30 AM | Permalink


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Prof, your grievance #1 is better directed at SCOTUS than at the lower courts. They are just following Justice Breyer's Booker opinion. I suggest you challenge him to Feats of Strength.

Posted by: hohoho | Dec 24, 2005 7:14:34 AM

Hohoho: The remedy opinion does not preclude judges granting defendants more procedural rights at sentencing, although you are right that Breyer's work certainly suggests he does not see the value of giving defendant such rights. Interesting form of active liberty.

Posted by: Doug B. | Dec 24, 2005 10:48:45 AM

What is Festiuvs? Its for the rest of us.

Happy Festivus!

Posted by: Frank | Dec 23, 2006 2:03:47 PM

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