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January 15, 2005

A capital-driven Booker break

With all the Booker action, I have not had a chance to keep up with the still percolating death penalty developments in an important month for capital punishment.  Helpfully, other bloggers have collected news and other materials concerning the legal battles surrounding efforts to halt executions scheduled for the days ahead in California and Connecticut.

In California, condemned killer Donald Beardslee has thus far failed in all his legal appeals and now may need a grant of executive clemency to avoid becoming the 11th person executed in the state in the modern capital era on Wednesday.  How Appealing has chronicled this story here and here, and Criminal Appeal also has a notable Beardslee post here.

In Connecticut, the news concerns others' efforts to stop the execution of serial killer Michael Ross, who has given up all his appeals.  Details from How Appealing are here and here, and Kirby's Reports has been covering the Ross case extensively, as highlighted here and here and here.

January 15, 2005 in Death Penalty Reforms | Permalink | Comments (0) | TrackBack

Booker blogshpere afternoon

Just a quick post to spotlight that Howard Bashman at How Appealing has the daily dose of Booker newspaper stories and editorials here.  It might be interesting, if anyone has the time, to assemble in one place all the quotes from judges that appear in all the articles there and here and here and here and here.

In addition, TalkLeft has here some commentary by TChris, Booker's lawyer, drawing on some of today's editorials.  Also, I please note that I am encouraging those in the federal system to report federal Booker rulings here, and also state actors to report any post-Booker state Blakely developments here.

January 15, 2005 in Booker and Fanfan Commentary | Permalink | Comments (3) | TrackBack

Understanding and appreciating Judge Cassell's Wilson opinion

I am not surprised that TalkLeft and many commentors are disappointed by Judge Cassell's Wilson ruling; the decision confirms that at least one judge will, as Justice Breyer surely hoped, seek to create a post-Booker federal sentencing world that looks a lot like the pre-Blakely guidelines world.

But everyone should, as I have urged before, take a deep breath before coming to any big judgments about Wilson or Booker or anything else we see and read about the future of federal sentencing in the days ahead.  Moreover, in this post (and perhaps future ones), I will try to give some reasons why the Wilson decision, as I suggested here, merits far more praise than criticism.

1.  Consider the crime: Judge Cassell gave "heavy weight to the Guidelines" in a case involving a armed bank robbery committed by a defendant with an extensive criminal history. Wilson slip op. at 28-29.  Few have criticized the length of federal guideline sentences in these sorts of cases (as opposed to non-violent crimes by first offenders), and the sentence of 15+ years for defendant Wilson (188 months) actually seems quite moderate for a "five-time" felon who committed a serious crime with a sawed-off shotgun that terrorized victims.  Id. at 30.

2.  Consider the context: The defendant in Wilson had apparently admitted all the guidelines facts and signed a Blakely waiver.  Id. at 31-32.  Consequently, if the Stevens/Scalia/Thomas proposed remedy in Booker had carried the day, it seems Judge Cassell would have been required to impose a sentence of no less than 188 months and would have had (unreviewable) discretion to impose a sentence up to 235 months.  But, because Breyer's remedy carried the day, Judge Cassell clearly had discretion to impose a sentence less than 188 months and, arguably because of the parsimony mandate (discussed here), did not have discretion to go above 188 months.  See id. at 6 & 21-26.

3.  Consider the decision: Judge Cassell's ruling is direct, clear, cogent and provides needed and extremely helpful (and immediate!) guidance for lawyers and defendants facing sentencings in his court.  He also provides an expressly purpose-driven account and defense of the federal guidelines — and along the way invigorates the parsimony mandate, see id. at 21-23 and my parsimony post here — which is more thoughtful and transparent than any federal sentencing decision I have ever seen. 

Though I disagree with a number of Judge Cassell's substantive conclusions in Wilson, his work is (super-fast) judging at its finest — unlike, I have to say, some of the judicial work of the DC Nine earlier in the week.  Moreover, in addition to expressly refusing to enforce the defendant's Blakely waiver, id. at 32, Judge Cassell gave the parties 10 days to file any and all objections to his ruling so he could reconsider his conclusions in light of further input from the parties.

4.  Consider the decision-maker:  Wilson is the view of the post-Booker world from just one (very smart) district judge.  Let's see what some other very smart district judges —particularly those judges working toward a place in the Sentencing Judges Hall of Fame such as Judges Bataillon and Gertner and Goodwin and Holmes and Lynch and Molloy and Weinstein and Young and so many others — have to say on these matters.  (And, of course, we also have to hear from the entire cadre of circuit judges and probably the DC Nine, too, before we can really assess what Booker has done for federal sentencing.)

January 15, 2005 in Booker in district courts | Permalink | Comments (13) | TrackBack

Justice Breyer sought recusal advice

Tony Mauro is reporting in this first-rate law.com article that "Supreme Court Justice Stephen Breyer, author of the key opinion in last week's sentencing guidelines decision, consulted a legal ethics expert last summer before deciding that he could rule on the issue."  The article provides all the details and highlights that Justice Breyer sought advice from Prof. Gillers on this issue in early July, well before the acting Solicitor General had moved for cert. 

Kudos to Justice Breyer for spotting this ethics issue right away and for seeking the advice of others as he thought through this matter (and also for coming to the right conclusion, in my opinion, about whether he should be involved in Booker).

January 15, 2005 in Booker and Fanfan Commentary | Permalink | Comments (4) | TrackBack

Booker basics and more commentary

Not surprisingly, everyone is puzzled trying to figure out Booker.  As I have suggest in various ways, only through a lot of litigation will we even start to get a sense of what the decision "really" means (which is why I am encouraging those in the federal system to report federal Booker rulings here, and also state actors to report any post-Booker state Blakely developments here).

Helpfully, there are already a number of sources and resources trying to explain Booker basics.  FAMM has a helpful Understanding Booker and Fanfan, and White Collar Crime Prof Blog has posted here Booker wisdom of always wise lawyer Peter Goldberger, and the blog Right Side of the Rainbow has produced A Layman's Guide to Understanding Booker

In addition, though written for a lawyery audience, another always wise lawyer, Mark Allenbaugh, has this terrific Findlaw commentary on Booker.  Similarly, this Salon piece on Booker provides a sophisticated take on the basics.

Also, recall that I tried to summarize Booker's essence in this post, and I have collected a wealth of links to my commentary and others' here and here.  And Judge Cassell's Wilson ruling (about which I will have a lot more commentary later today) provides one district judge's view of the post-Booker world.

January 15, 2005 in Booker and Fanfan Commentary | Permalink | Comments (4) | TrackBack

Remembering the Blakely state stories

Not surprisingly, the decision in Booker has started a dramatic and uncertain new federal chapter in the Blakely story.  But, as I suggested in this post, I still think  the federal sentencing story after Booker is a relatively minor (headline-grabbing) solar system within a vast Blakely universe.   We should never forget that states handle over 90% of the criminal cases nationwide, and both Blakely and now Booker provide many more questions than answers for state actors and institutions.

Notably, I there are on-line 15 state Blakely rulings in just the last three days (though I've not had a chance to read any), and I keep wondering if any state courts or litigants find in Booker anything that may significantly alter the state Blakely analysis. So, while those in the federal system are reporting federal Booker stories here, perhaps state actors might use the comments of this post to report or reflect on what Booker could mean for them.

Wonderfully, my amazing research assistant today finished an updated Word version of all my blog posts on Blakely in the states.  That (141-page) document, which is organized by states and shows 29 different states with some Blakely developments, can be downloaded below.  In addition to establishing that I have apparently already written a small book on Blakely in the states, the document available below reinforces how dynamic and uncertain the Blakely world remains even without giving a moment's thought to Booker.

Download slp_blakely_in_the_states_through_112_word.doc

January 15, 2005 in Blakely in the States | Permalink | Comments (4) | TrackBack

January 14, 2005

Report your Booker stories here

I have received a very thoughtful request to start a "post with the goal of collecting 'Booker stories' from the district courts around the country via the comments."  As the request stated, "having a single place for that information could make it easier to get a handle on exactly what is going on 'on the ground' in the wake of Booker."

So, this post is for Booker stories.  The requestor got things started by reporting on two sentencings in his building in the Southern District of West Virginia today by two different judges.  Here's the report:

Both were low offense level cases, but both judges mentioned Booker in one way or another.  In the first case, the defendant's offense level came in at 12 (marijuana conspiracy charge).  The defendant spent 4.5 months in custody following her arrest and has since been on bond and going through drug rehab.  The judge noted that the Guidelines were now advisory, but proceeded to impose a Guideline-sanctioned sentence of 10 months imprisonment, 4.5 already served and 5.5 on home confinement, and 3 years of supervised release.

In the second case, the defendant also came in at an offense level of 12 (theft charge).  The defendant is 81 years old and very ill.  After noting the advisory nature of the Guidelines, which would have required some time "in custody," the judge imposed a sentence of a 10-month term of home confinement as a condition of that probation.  The judge used his new-found power under Booker to avoid the requriements of Zone C of the Sentencing Table that would have required at least 5 months of actual incarceration.

So it appears that, in the SDWV at least, the "advisory" nature of the Guidelines may provide some relief, although there have been no hearings with seriously contested enhancements or relevant conduct yet, to my knowledge.  No word from Judge Goodwin yet, either.

January 14, 2005 in Booker in district courts | Permalink | Comments (30) | TrackBack

Weekend plans...

I am back from a terrific experience talking about the sentencing world at the UNC School of Law.  I always get new insights talking to smart folks about this stuff, and all of the dialogue got me even more mixed up (as does Judge Cassell's Wilson opinion) about whether to love or hate (or both love and hate) every aspect of the Booker ruling.

In any event, I am planning to take the greatly needed long weekend to catch my breath and take stock.  I hope to be able to do some further commentary on Booker and Wilson, and I also hope to be able to share other commentary I see or receive. (Thankfully, I see this afternoon from SCOTUS blog here that no opinions are expected from the High Court next week, so we do not (yet) have to worry about a decision in Shepard or Roper on top of Booker.)

I would bet that a lot of readers might now have plans for drafting Booker motions this weekend.  I will try my best to link to, or provide copies of, any notable Booker motions that I see.  Happy drafting.

January 14, 2005 in Booker and Fanfan Commentary | Permalink | Comments (0) | TrackBack

Judge Cassell proves his brilliance, who's next?

I now have to go off line for most of the afternoon to travel to do my faculty workshop at the UNC School of Law, but I have had a chance to skim Judge Cassell's Wilson opinion (here) and have to quickly comment that it is absolutely brilliant (even in those spots when I think it is wrong).  No offense to the wise Nine in DC, but Judge Cassell has advanced the federal sentencing world far more in a day than SCOTUS could manage in sixth months.  (Is it too early to throw Judge Cassell's name into the CJ Rehnquist replacement sweepstakes?)

I will have lots of commentary on Judge Cassell's work late tonight and throughout the weekend.  But for now I must just stress that, as he did after Blakely through Croxford, Judge Cassell in Wilson has framed and defined the issues for debate in the wake of Booker.  And I am certain his views on these issues in Wilson, just as his views in Croxford, will not be universally embraced.  Indeed, I am so excited not only to have a chance to read Wilson closely, but to see what Judges Bataillon and Gertner and Goodwin and Holmes and Lynch and Weinstein and all the other fine folks having to work this through on the ground have to say in response.  The new federal sentencing world will be built opinion by opinion, and I suspect the new world will both be beautiful and grotesque (at least to my tired eyes).

January 14, 2005 in Booker and Fanfan Commentary | Permalink | Comments (10) | TrackBack

Judge Paul Cassell speaks first again!!

I should not be surprised that the always speedy and brilliant US District Judge Paul Cassell, who got in the amazing first written word in Blakely with his Croxford opinion, has now gotten in the first word on Booker through US v. Wilson, Case No. 2:03-CR-00882 (D. Utah Jan. 13, 2005) (available here).

Here's the key opening of a 39-page opinion that is today's (first?) must read:

In light of the Supreme Court’s holding, this court must now consider just how “advisory” the Guidelines are. The court has before it for sentencing defendant James Joseph Wilson, who has pled guilty to armed bank robbery. In view of his lengthy criminal record and his brandishing of a sawed-off shotgun at several tellers, the Guidelines advise a prison sentence of no less than 188 months. What weight should the court give to this recommended sentence? This issue of the weight to be given to the advisory Guidelines will, of course, recur in all of the court’s sentencings unless and until Congress responds to Booker.

Having reviewed the applicable congressional mandates in the Sentencing Reform Act, the court concludes that considerable weight should be given to the Guidelines in determining what sentence to impose. The Sentencing Reform Act requires the court to impose sentences that “reflect the seriousness of the offense, promote respect for the law, provide just punishment, afford adequate deterrence, [and] protect the public.” The court must also craft a sentence that “afford[s] adequate deterrence to criminal conduct” and “protect[s] the public from further crimes of the defendant.” Finally, the court should “avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct.”

Over the last 16 years, the Sentencing Commission has promulgated and honed the Guidelines to achieve these congressional purposes. Congress, too, has approved the Guidelines and indicated its view that Guidelines sentences achieve its purposes. Indeed, with respect to the congressionally-mandated goal of achieving uniformity, the Guidelines are the only way to create consistent sentencing as they are the only uniform standard available to guide the hundreds of district judges around the country. Therefore, in all future sentencings, the court will give heavy weight to the Guidelines in determining an appropriate sentence. In the exercise of its discretion, the court will only depart from those Guidelines in unusual cases for clearly identified and persuasive reasons. In this particular case, the court will follow the Guidelines and give Wilson a sentence of 188 months.

January 14, 2005 in Booker and Fanfan Commentary | Permalink | Comments (15) | TrackBack

A day late and a Booker short

The Eighth Circuit wins the award for having on-line the first federal ruling discussing Blakely that I could find after Booker was handed down.  However, even though US v. Walker, 2005 WL 66272 (8th Cir. Jan. 13, 2005), is dated Thursday, Jan. 13 (the day after Booker changed the federal sentencing world on Wednesday January 12), the Eighth Circuit in a footnote in Walker says:

Walker has requested leave to file a supplemental brief on the applicability of Blakely v. Washington, 124 S.Ct. 2531 (2004), which we have denied. However, we reserve ruling on the applicability of the Blakely reasoning to this case until the Supreme Court issues its opinions in United States v. Booker and United States v. Fanfan.

Of course, the Eighth Circuit should not be criticized for this quirk of timing; the Supreme Court itself showed us quite clearly through Booker that federal justice often moves more slowly than we might hope.

On a more serious front, I am eager to see when and how lower federal courts around the country start dealing with Booker in written opinions.  I hope to be able to share and analyze these opinions as soon as they are available.

January 14, 2005 in Blakely Commentary and News, Blakely in Appellate Courts, Booker and Fanfan Commentary, Federal Sentencing Guidelines | Permalink | Comments (3) | TrackBack

Booker in the papers

With great thanks to Howard Bashman at How Appealing, we call all access links to more than 20 morning Booker newspaper stories here

And, the Wall Street Journal has not just one, not just two, but three incredible articles on the Booker aftermath.  The WSJ pieces, which require a subscription to access, are headlined "New Sentencing Battle Looms After Court Decision" and "Congress Prepares to Tackle Prisoner Recidivism" and "Martha Stewart Worries About 'Depressed' Inmates".

Once again, I highly encourage readers to spotlight in the comments any and all articles or issues or quotes of particular note in the media buzz.

January 14, 2005 in Booker and Fanfan Commentary | Permalink | Comments (0) | TrackBack

Eureka!! Tangible evidence of a flip-flop

As we all scratch our heads trying to figure out what Booker means, it seems appropriate to wonder what prompted Justice Ginsburg to "switch teams" on the right and remedy questions.  And, in a great discovery (which proves the value of reading even dissenters' footnotes very carefully), Jon Wool of the Vera Institute has discovered tangible evidence suggesting Justice Ginsburg at some point was prepared to stick with the Blakely five on the remedy question.

Let me reprint Jon's note to me in full, since his account of the story is very effective:

A Switch that Took Time?

One reason the Supreme Court took as long as it did to decide the time-sensitive Booker and Fanfan cases may be that a split occurred in a once-unified majority, creating a separate remedial majority. It is not uncommon for a majority opinion to become a dissent when one justice switches sides midstream. When this happens, the author of the former majority opinion must amend the opinion’s references to “the dissent” to read “the majority,” among other changes. It appears that Justice Stevens’s dissent on the remedial question missed one such amendment. In footnote 8 of that dissent, Justice Stevens comments on a prior case’s striking of an entire statute and contrasts that with the present Court’s approach. He refers to the present approach, however, “as the dissent would have us do,” rather than “as the majority now does.”  Both the use of the term “dissent,” when in fact he is the dissenter on this question, and the use of a subjunctive rather than perfect tense, strongly suggest that Stevens’s dissent once was a portion of a unified majority opinion. Which justice came to reject Justice Stevens’s remedial approach in favor of Justice Breyer’s? Justice Ginsburg is a good bet; she voted with the four dissenters in the substantive portion of the majority opinion, as she did in Apprendi and Blakely, and is the swing vote for the remedial majority.

Great work by Jon to be the first, to my knowledge, to spot this telling footnote typo in Justice Stevens's dissent.  I wonder if we might ever get some insider account of the in-chambers lobbying that must have taken place over Justice Ginsburg's vote.

January 14, 2005 in Booker and Fanfan Commentary | Permalink | Comments (6) | TrackBack

Good start USSC, while DOJ promotes guidelines

In an impressive contrast to its long silence following Blakely, the US Sentencing Commission is continuing its recent tendency to take a more proactive and visible role in charting the future of federal sentencing (as it should). The day after Booker, USSC Chair Judge Hinojosa released this official statement, which highlights the work the USSC has already done in the wake of Blakely and stresses that the "U.S. Sentencing Commission is in a unique position to continue to assist all three branches of government during this period of transition."

Though Judge Hinojosa's statement many not seem all that substantive, the message in the statement is extremely important and could help Congress understand that it should take a breather and allow the USSC, a uniquely positioned and uniquely important agency, to be primarily responsible for starting to sort out the post-Booker world. I hope the USSC will continue to act boldly and seek to lead during this period of such uncertainty.

Of course, as Ron Wright and I and commentators note here, how Congress and Justice Department are sizing up Booker and its aftermath is a subject worthy of great debate. And, as I noted, DOJ's perspective may be, practically speaking, the most important to track. On this point, here is a link to Assistant AG Chris Wray's official DOJ response to Booker delivered on Wednesday immediately after the decision. One key section states:

[I]t is important to note that in spite of this ruling, federal sentencing guidelines remain a critical part of the process to achieve justice. District courts are still required to consult the federal sentencing guidelines, and any sentence may be appealed by either defense counsel or prosecutors on the grounds that it is unreasonable. To the extent that the guidelines are now advisory, however, the risk increases that sentences across the country will become wildly inconsistent.

Because of what Booker says (and also fails to say), I suspect there are divisions of opinion and uncertainties in all three branches in the wake of the decision. The fact in turn makes the USSC's work and leadership that much more important going forward. I am pleased with the USSC's start, but the really hard work lies ahead.

January 14, 2005 in Booker and Fanfan Commentary, Federal Sentencing Guidelines, Who Sentences? | Permalink | Comments (4) | TrackBack

Copious commentary from SL&P's Booker Tonight

I hope baseball fans might appreciate the cryptic title of this post: I am trying to analogize the Booker commentary here to the amazing baseball commentary on ESPN's Baseball Tonight. The analogy seems apt because, for sentencing fans like me, Booker is the thrilling seventh game of a World Series to decide the fate of the federal sentencing guidelines.  (The first six games were, of course, Almendarez-Torres, Jones, Apprendi, Harris, Cotton and Blakely.)

Amazingly, though Booker has now been decided (apparently in extra innings), we still do not know who won.  Thus we need the help of commentators, the sentencing egg-head versions of ESPN's Karl Ravech, Harold Reynolds, Tim Kurkjan, and Peter Gammons.  And here I provide more commentary than anyone could possibly want.

First, around the blogsphere, in addition to the prior coverage assembled here and here and here, I can now link to additional insightful commentary from TalkLeft and from the White Collar Crime Prof Blog.

Second, I have for downloading below (1) a wonderfully thoughtful and insightful e-mail dialogue between Professors Frank Bowman and Alan Michaels about the realities of the Breyer remedy in Booker, and (2) a (typo-filled) transcript of yesterday's tele-conference organized by Families Against Mandatory Minimums in which many informed commentators shared their first takes on Booker.  Both documents are right with insights and food-for-thought.

Download profs_bowmanmichaels_dialogue.doc

Download famm_teleconference_transcript_11205.doc

January 14, 2005 in Booker and Fanfan Commentary | Permalink | Comments (1) | TrackBack

So much to say ... where to begin?

After a long and rainy drive, I am on-line in North Carolina.  Having had time to reflect on some of the opinions and also having now quickly reviewed my e-mail, I am a bit overwhelmed by how much I want to say and share about Booker based on new developments, commentary I have received from others, and my own latest thoughts. 

To begin slowly, let me first thank Professor Ron Wright for his able guest blogging this afternoon.  I also want to thank everyone who has sent me thoughts and materials via e-mail, as well as everyone who has posted comments on the blog.  (I have received roughly 300 substantive e-mails, and see more than 225 blog comments, now just over 36 hours since Booker's release). 

I have added a few of my own thoughts to Ron's provocative posts on provoking Congress and Breyer's Ouiji Board, and I expect my Booker buzz will also allow me to share additional thoughts and materials in some coming posts.

January 14, 2005 in Blakely Commentary and News | Permalink | Comments (0) | TrackBack

January 13, 2005

Booker and provocation of Congress

POST FROM RON WRIGHT:
Obviously, the Justices are not involved in a chess match with Congress. They have not anticipated (and cannot anticipate) three moves ahead. But it also seems likely that the Justices gave some thought to the likely congressional reaction to their ruling. Which of the two remedies the Court debated make a quick congressional response more likely?

At first blush, I would guess that the Stevens/Scalia remedy -- keep the binding guidelines, but add jury factfinding or waiver where necessary -- had the best chance to create a stable outcome that Congress would accept, at least in the short run. DOJ had already learned to maneuver in this type of system, and treated this as a fall-back position in their arguments to the court.

On the other hand, the Breyer remedy -- advisory guidelines that still must be consulted in each case -- may itself produce only incremental change. In the short run, all the courtroom actors know what to do under this system. Perhaps judges will change sentencing patterns slowly enough, and in small enough increments, that they will not provoke a reaction from Congress.

On the third hand, there may be members of Congress who are anxious to amend the federal sentencing laws, and it does not matter to them which of the different remedies the Court chose. Whatever the opinions say, they create an opening for change.

Any thoughts from readers on which of the available remedies was the most or least likely to provoke a major and immediate congressional restructuring of the sentencing laws?

LATER ADDITIONAL COMMENTARY FROM DOUG BERMAN:
Ron and the first 17 comments raise many good points, but on this front I particularly want to spotlight that the development of federal sentencing law and policy is more like chinese checkers than chess, because we have multiple players, not just the courts and Congress.  And the player who truly has the biggest marbles is the Justice Department, a fact which was demonstrated by DOJ's ability to get the Feeney Amendment enacted (and which has been astutely stressed by Professors Frank Bowman and Marc Miller in their post-Feeney commentary on the state of the federal system).

What this all means is that, were the Court being truly pragmatic in Booker, it would also be concerned about what remedy would be likely to provoke DOJ.  And, on this front, I think we can identify a clear difference in the Stevens and Breyer remedies.  DOJ had indicated post-Blakely, both through its litigation strategies and various official statements, that it would not be happy with the Stevens' approach of "Blakely-izing" the guidelines.  But I have a feeling that DOJ may be content, at least in the short-term, with Breyer's remedy (especially if DOJ can get some quick appellate rulings that following the guidelines is per se reasonable).

Here, then, is one of the many great ironies of Breyer's opinion for the Court in Booker.  Breyer claims, quite expressly at p. 14 of his opinion for the Court, that the Stevens remedy would give prosecutors more power than his remedy.  But if this was really true, why would DOJ resist so greatly the Stevens remedy and essentially seek the remedy that Breyer created for the Court?

(Tellingly, in Part IV of his opinion for the Court, Justice Breyer recognizes that his remedy "coincides significantly" with DOJ's proposed remedy and that he is rejecting the defenses' remedies which accord with Justice Stevens' approach.  But, echoing the debate between Justices Scalia and Breyer in Blakely, Breyer apparently continues to believe that prosecutors gain power when defendants have more rights at sentencing, even though the litigation strategies of both DOJ and the defense bar suggests otherwise.)

January 13, 2005 in Booker and Fanfan Commentary | Permalink | Comments (19) | TrackBack

Severability as a Ouija Board

POST FROM RON WRIGHT:
Doug asked me to step in for a few hours while he's on the road. It's always a pleasure.

I've been reading through the Booker opinions pretty slowly, trying to edit them for use by law students (the cases will go into an Instant Supplement to the casebook that I edit with Doug, Nora Demleitner, and Marc Miller). Doug made the point earlier that the Breyer opinion relies on some shaky legal reasoning to craft, by judicial fiat, a substantively attractive guideline system. That point became especially clear to me in reading the passages in Breyer's opinion dealing with the standard of appellate review.

Breyer, it seems to me, uses the severability doctrine like a Ouija Board. He points the doctrine at the entire body of federal sentencing statutes, and which statutory sections does this doctrine instruct the Court to excise?  It points to the mandatory power of the guidelines for District Court judges, and the Feeney Amendment's change to the appellate enforcement mechanism. The guidelines still must be consulted, the Sentencing Commission and probation officers continue to do their work to support judges, but the much-reviled Feeney Amendment must fall.  Remarkable, isn't it, that the severability Ouija Board instructs the Justices to strike down precisely the two provisions that are most unpopular as a policy matter among federal judges?

LATER ADDITIONAL COMMENTARY FROM DOUG BERMAN:
Ron proves his brilliance (though perhaps also shows his age) through his Ouiji Board analogy to describe Justice Breyer's remedial handiwork.  I write simply to spotlight the particular irony that Justice Breyer claims his (Ouji Board) severability moves are to serve "Congress' basic goal ... of increased uniformity."  But Congress clearly believed in 1984 when it enacted the Sentencing Reform Act, and in 2003 when it passed the Feeney Amendment, that increased uniformity is served by having mandatory guidelines and by a de novo standard of review of departures.  Nevertheless, now according to Justice Breyer purportedly divining Congressional intent, those aspects of the federal sentencing system have to be tossed in the name of achieving "increased uniformity."

January 13, 2005 in Booker and Fanfan Commentary | Permalink | Comments (5) | TrackBack

Collected Booker commentary

I am about to hit the road to travel to North Carolina to do a faculty workshop at the UNC School of Law, and thus I will have to be off-line the rest of the day.  (Thanks for the great timing, SCOTUS!)  Also, the blog service has been cranky today, so my apologies for the comments feature not always working. (Thanks for the great timing, Typepad!)

Nevertheless, I have been able to collect below all my substantive Booker posts so far, which now also include nearly 200 comments from readers (which are often substantial, always insightful, and sometimes truly brilliant).  By the time you read and digest all that, as well as all the media pieces here and here and here, and all the blog coverage here and here (with Orin Kerr having another great take here), I should be back on-line.

January 13, 2005 in Booker and Fanfan Commentary | Permalink | Comments (2) | TrackBack

Take a deep breath.....

As I have suggested in some prior posts, I think the only certainty about the future of federal sentencing after Booker is uncertainty.  Uncertainty about how Booker will be interpreted and applied, uncertainty about how individuals and courts should react, uncertainty about how Congress and the US Sentencing Commission can and should respond.

But I am certain that everyone (myself included) should take a deep breath and not even expect to be able to figure all this out instantly.  In particular, I think it is especially important for Congress to act cautiously, hold hearings, consult in an open and deliberative way with the US Sentencing Commission, the Justice Department, defense groups and judges of all sorts to chart a sound and sensible path for the future of the federal criminal justice system.

In many ways, I think the "Go Slow" advice I gave to Congress in July after Blakely remains fully in force.  Moreover, I think every member of Congress ought to review the US Sentencing Commission's recently released 15-year report, a report which deserves, in my view, far more attention than it has received to date. (The full report can be accessed here, its executive summary can be accessed here, and my summary of the executive summary is here.)  How can Congress decide where it wants to go with federal sentencing until it completely understands where it has been?

On the same theme, I just received this letter signed by 50 diverse organizations delivered to members of House and Senate Judiciary Committees encouraging a "go slow" approach to any legislative changes and consideration of the full impact of federal sentencing policy.  Here is the heart of the letter:

We, the undersigned organizations, write to encourage you to consider two key issues in regard to any legislative action in this area:

1. In order to create a sensible, long-term sentencing policy, Congress should avoid the temptation to create a "quick fix." There is no real quick fix, and seeking an end run around the important issues could have unintended negative consequences.  A proposal to allow much longer sentences while retaining current restrictions on judicial discretion to mitigate punishment (the so-called "Bowman fix") should be rejected.

2. In order to have punishments that fit the crimes committed, Congress must closely evaluate the past 20 years of sentencing policy and the broader implications of those policies. Mandatory minimum sentences and other problems should be fixed in the process.

In closing, we urge you to work toward meaningful sentencing reform. Congress must strike an appropriate balance among competing goals, and must do so carefully and with meaningful participation from all of the affected parties, including the judiciary, the Sentencing Commission, criminal justice practitioners (including community and institutional corrections), academic experts, victims, and the public at large.

January 13, 2005 in Blakely in Legislatures, Booker and Fanfan Commentary, Federal Sentencing Guidelines, Who Sentences? | Permalink | Comments (3) | TrackBack