Sentencing Law and Policy

Distinct views, but uniform brilliance (and results?)

After a careful read of Judge Adelman's Ranum opinion, I am struck not only by how distinctly the opinion interprets and applies Booker as compared to Judge Cassell's Wilson ruling, but also by how uniformly brilliant the analysis is in both opinions.  In addition, as I will explain below, I think the decisions, though seemingly disparate as a matter of tone and procedure, in fact both serve Congressional goals of uniformity, honesty and proportionality in sentencing.  Cf. Breyer opinion for Booker remedial majority at 21.

Before a discussion of the merits below, let me first complement both Judges Cassell and Adelman for their (speedy) efforts to provide guidance on the meaning of Booker (and also for alerting me to their rulings).  What Booker really means for federal sentencing depends on how it is applied in practice, and the rulings in Wilson and Ranum both provide clear and cogent accounts of how two judges think Booker must be applied.  As I suggested here, I suspect there will be a lot more analysis and insights for and from judges and litigants in the days ahead, and I sincerely believe we will best figure out the post-Booker world by having these discussions in an open, transparent and on-the-record way for all to see and debate.

On the merits, everyone should be focused first on the fact that Judge Cassell's sentence in Wilson treated the guidelines as nearly mandatory in a case which involved a violent crime committed by a person with a long criminal history (and, notably, the case apparently had no "Blakely facts" in dispute), while Judge Adelman's sentence in Ranum treated the guidelines as more advisory in a case which involved a non-violent crime committed by a first offender (and, notably, the case apparently did have some "Blakely facts" in dispute).

Many persons have rightfully distinguished how we should treat violent recidivists and non-violent first offenders at sentencing, and have also expressed concern about whether the federal guidelines do an adequate job in this regard.  Notably, these persons include (1) Justice Kennedy in his potent speech to the ABA in 2003 assailing the overall severity of federal sentencing terms, (2) the ABA Commission doing work in Justice Kennedy's name, and (3) key republican Senators on the Senate Judiciary Committee and AG nominee Alberto Gonzales (as detailed here based on the recent confirmation hearings).  To quote on this theme from a summary of the ABA's Kennedy Commission report: "Lengthy periods of incarceration should be reserved for offenders who pose the greatest danger to the community and who commit the most serious offenses, and alternatives to incarceration should be available for offenders who pose minimal risk to the community and appear likely to benefit from rehabilitation efforts."

In other words, achieving true substantive uniformity and proportionality in sentencing may call for Judge Cassell to follow the guidelines in Wilson and for Judge Adelman to depart from the guidelines in Ranum. (And, gosh, is there anything more refreshingly honest than seeing two capable judges have the opportunity to say and effectuate, on the record, what justice seems to demand in the case before them?)  Or put another way, everyone should be very cautious before jumping to the conclusion that the results in Wilson and Ranum represent undue disparity.  Only someone suffereing from, in Professor Marc Miller's terminology, sentencing equality pathology can quickly assert that Wilson and Ranum are obviously disparate in their ultimate results.

Finally, I am reminded of Judge Cassell's astute insight in Wilson that the "congressional view of how to structure [the] sentencing system will surely be informed by how judges respond to their newly-granted freedom under the 'advisory' Guidelines system."  Based on what I have seen so far in Wilson and Ranum, Congress should be very impressed and proud of the work being done by district courts in the wake of Booker and pleased with the first small bits of advisory guidelines dtata.  Indeed, I hope Representative Tom Feeney and every other member of Congress will read both Wilson and Ranum carefully before making any broad statements about whether federal judges can be trusted to sentence wisely and in good faith in the post-Booker environment.

Another (very different) view of Booker from a district court

Here we go again!!  As I suspected (and suggested in posts here and here), Judge Cassell's Wilson ruling was not the last word, but only the first word on the look of the post-Booker federal sentencing world.  A quite distinct perspective comes today from US District Judge Lynn Adelman in US v. Ranum, Case No. 04-CR-31 (D. Wisc. Jan 19, 2005).

In Ranum, which can be downloaded below, Judge Adelman writes 13 thoughtful pages to "explain how I understand Booker and why I sentenced defendant Ranum to a year and a day in prison."  The entire opinion is rich with insights and powerful statements.  For example, Judge Adelman writes:

Sentencing will be harder now than it was a few months ago.  District courts cannot just add up figures and pick a number within a narrow range.  Rather, they must consider all of the applicable factors, listen carefully to defense and government counsel, and sentence the person before them as an individual.  Booker is not an invitation to do business as unusual.

And in a lengthy and key introductory passage, Judge Alderman documents the disagreement with Judge Cassell's approach in Wilson:

The directives of Booker and § 3553(a) make clear that courts may no longer uncritically apply the guidelines and, as one court suggested, "only depart . . . in unusual cases for clearly identified and persuasive reasons."  United States v. Wilson, Case No. 2:03-CR-0082, 2005 WL 78552, at *1 (D. Utah Jan. 13, 2005).  The approach espoused in Wilson is inconsistent with the holdings of the merits majority in Booker, rejecting mandatory guideline sentences based on judicial fact-finding, and the remedial majority in Booker, directing courts to consider all of the § 3353(a) factors, many of which the guidelines either reject or ignore.  For example, under § 3553(a)(1) a sentencing court must consider the "history and characteristics of the defendant."  But under the guidelines, courts are generally forbidden to consider the defendant’s age, U.S.S.G. § 5H1.1, his education and vocational skills, § 5H1.2, his mental and emotional condition, § 5H1.3, his physical condition including drug or alcohol dependence, § 5H1.4, his employment record, § 5H1.5, his family ties and responsibilities, § 5H1.6, his socio-economic status, § 5H1.10, his civic and military contributions, § 5H1.11, and his lack of guidance as a youth, § 5H1.12.  The guidelines' prohibition of considering these factors cannot be squared with the § 3553(a)(1) requirement that the court evaluate the "history and characteristics" of the defendant.  The only aspect of a defendant's history that the guidelines permit courts to consider is criminal history.  Thus, in cases in which a defendant's history and character are positive, consideration of all of the § 3553(a) factors might call for a sentence outside the guideline range.

Further, § 3553(a)(2)(D) requires a sentencing court to evaluate the need to provide the defendant with education, training, treatment or medical care in the most effective manner.  This directive might conflict with the guidelines, which in most cases offer only prison.  See U.S.S.G. § 5C1.1 (describing limited circumstances in which court can impose sentence other than imprisonment).  In some cases, a defendant’s educational, treatment or medical needs may be better served by a sentence which permits the offender to remain in the community.

In addition, § 3553(a)(7) directs courts to consider "the need to provide restitution to any victims of the offense." In many cases, imposing a sentence of no or only a short period of imprisonment will best accomplish this goal by allowing the defendant to work and pay back the victim.  The guidelines do not account for this.  In fact, the mandatory guideline regime forbid departures to facilitate restitution.  United States v. Seacott, 15 F.3d 1380, 1388-89 (7th Cir. 1994).

Finally, in some cases the guidelines will clash with § 3553(a)’s primary directive: to "impose a sentence sufficient, but not greater than necessary to comply with the purposes" of sentencing. 

In sum, in every case, courts must now consider all of the § 3553(a) factors, not just the guidelines.  And where the guidelines conflict with other factors set forth in § 3553(a), courts will have to resolve the conflicts.

In a word, WOWSA!!

Download us_v_ranum.rtf   

UPDATE: Here is a pdf version if you have problems with the download: Download us_v_ranum.pdf (and commentary about the opinion is now here).

Still more collected Booker commentary

I collected much of last week's Booker commentary here and here, and because I may need to be off-line much of today, I thought I might usefully do another such collection of more recent posts on Booker:

• Engaging with the sentencing revolution, sort of
• The importance of counsel, and the challenges of judging it
• The critical, and still confusing, "prior conviction" exception
• Silent switches
• Taking stock of advisory guideline systems
• Ex post facto, due process and cases in the pipeline

In addition, yesterday I did a segment with Professor Al Alschuler covering Booker and related issues for the Chicago Public Radio show Odyssey, which can be accessed via the web here.  The questions from the Odyssey host, as well as from callers, helped make this program, in my view, especially thoughtful and interesting.

Engaging with the sentencing revolution, sort of

As previously discussed by Orin Kerr in this terrific post, one of the most interesting facets of Justice Stevens' opinion for the merits majority in Booker is the express discussion of the impact of the modern sentencing reforms on the Court's constitutional jurisprudence.  Discussing the "new trend in the legislative regulation of sentencing," Justice Stevens explains that "the Court was faced with the issue of preserving an ancient guarantee under a new set of circumstances:"

The new sentencing practice forced the Court to address the question how the right of jury trial could be preserved, in a meaningful way guaranteeing that the jury would still stand between the individual and the power of the government under the new sentencing regime.  And it is the new circumstances, not a tradition or practice that the new circumstances have superseded, that have led us to the answer first considered in Jones and developed in Apprendi and subsequent cases culminating with this one. It is an answer not motivated by Sixth Amendment formalism but by the need to preserve Sixth Amendment substance.

I was pleased that this passage confirmed my belief since the Apprendi decision that the Supreme Court's new Sixth Amendment jurisprudence reflects a reaction to the revolution in sentencing policy and practice brought by modern statutory and guidelines reforms.  See Appreciating Apprendi: Developing Sentencing Procedures in the Shadow of the Constitution, 67 Criminal Law Bulletin 627 (November-December 2001).  Indeed, my recent article in the Winter 2005 issue of the ABA's Criminal Justice magazine explains the Blakely ruling in exactly these terms.  (I am pleased that I can now provide that article, entitled "The Roots and Realities of Blakely," for downloading here: Download blakely_roots_for_aba.pdf.)

And yet, though I was pleased to see some engagement with the sentencing revolution, I was displeased that Justice Stevens' opinion fails to address or even acknowledge that historical approval in cases like Williams of lax procedural rights in a discretionary sentencing system was once expressly premised on the rehabilitative "medical model" of sentencing that dominated before modern reforms.   As discussed in my post about what Blakely is really about and also in the ABA article available above and also in Judge Nancy Gertner's  Mueffleman decision (available here), the modern sentencing reform movement largely reflects a general rejection of rehabilitation as a penal theory as sentencing is today predominantly about imposing punishment, not about devising a cure.

Thus, while the Booker merits majority is to be praised for its express discussion of the modern evolution of sentencing, a lot more could have been said on this topic.  (Notably, as evidenced by his dissents in cases like McMillan and Watts, Justice Stevens himself seem ready to rethink various aspects of Williams, but he likely did not have five votes for broader dicta to that effect in Booker.)  Moreover, because of the work of the Booker remedial majority, it appears that Justice Breyer has created a way for the federal sentencing system to still rely on an administrative system of sentencing justice.

The importance of counsel, and the challenges of judging it

As detailed in this Tony Mauro article at law.com, the Supreme Court "appeared sharply divided Tuesday over a Pennsylvania case [Rompilla v. Beard] that could set new minimum standards for effective assistance of counsel in death penalty cases."   Though capital cases always make headlines, I think Dahlia Lithwick basically has it right when she explains in this Slate commentary that Rompilla "isn't all that significant, really, [because it] is just one of thousands of claims about inadequate trial lawyers that capital defendants put forward."

And yet, though the Rompilla case may not be exceptional, any elaboration on the meaning and application of ineffective assistance of counsel regarding sentencing representation is of great import in the wake of Blakely and Booker.  I noted this point last week here in conjunction with the Supreme Court's cert. grant in Halbert v. Michigan, and I believe that these issues have now become even more important in light of the Supreme Court's creation of advisory guidelines through its ruling in Booker.

I have been thinking lately that advisory guidelines for sentencing judges in non-capital cases have a quality similar to the guidelines given to sentencing juries in capital cases.  And we know from experience in capital cases that the quality of defense counsel can have a profound impact on ultimate sentencing outcomes, particularly with respect to the development and presentation of mitigating evidence about the defendant. 

Similarly, I expect that, in the new federal advisory guidelines system, quality of defense counsel will have a profound impact on ultimate sentencing outcomes.  Of course, as I detailed in an article a few years ago, From Lawlessness to Too Much Law? Exploring the Risk of Disparity From Differences in Defense Counsel under Guidelines Sentencing, 87 Iowa Law Review 435 (2002) (abstract here), quality of defense counsel surely has a profound impact on ultimate sentencing outcomes in a mandatory guidelines systems, too.

But the Booker move to advisory guidelines should make even more critical whether and how defense attorneys develop and present mitigating personal evidence about the defendant — evidence that the mandatory federal guidelines largely took off the table.  Indeed, I think the work of defense counsel in presenting mitigating offender information will profoundly impact when and how often advisory guidelines are followed in the federal system.   And, bringing us back to the issue in Rompilla, it will be interesting to see if any courts ultimately deem some federal defense counsel ineffective at sentencing if they do not develop and present mitigating offender information while representing defendants in the new federal sentencing world.

Booker internets resources and commentary

I have decided to use "internets," a term perhaps coined by President Bush, to describe collectively materials on traditional websites and on blogs.  And the internets have a lot to offer of late on the Booker front:

WEBSITES

• The website Watching Justice has this Booker page with links to a few newspaper editorials (more of which I linked here), and also links to various official comments about and resources on the decision.
• The November Coalition has this updated page of Booker/Blakely materials.
• FAMM appears to have updated its Booker materials available here.

BLOGS

• I have just discovered the Ninth Circuit Blog run by a group of top-notch federal defenders of the Ninth Circuit.  This blog already has ten very detailed posts about Booker litigation issues which should be of special interest to defense attorneys.  (The blog has also allowed me to "out" FPD Paul Rashkind as having a role in this blog which used to mock my Booker predictions.)
• Old favorites, the Blakely Blog and INCourts are back in action, with the former here doing a Tuesday review of federal Booker stories, and the latter here catching up on the Indiana state Blakely stories.

On the lighter side, sort of

You would not think a case about drug sentencing and a defendant with AIDS would make for light reading, but the Eleventh Circuit's decision last week in US v. Barfield, No. 03-14077 (11th Cir. Jan. 14, 2005), has a certain gallows humor quality.  I am thankful to a reader for bringing it to my attention.

In Barfield, the defendant in December 1994 pled guilty to a crack cocaine offense and received, after the benefit of a downward departure because of her cooperation and HIV status, a sentence of 30 months' imprisonment.  Then, in January 1995, the defendant managed to stay execution of her sentence by claiming (falsely) that she had only six months to live.  Eight years later, a spurned boyfriend turned her in, and Barfield then asserted based on a variety of legal theories that she could not, after all this time, be incarcerated.  As detailed in the 11th Circuit's Barfield decision, though the defendant may deserve an award for chutzpah, she did not prevail in her efforts to stay out of prison.

Now I am wondering if defendant Barfield might now try to seek resentencing based on Booker.

Clemency denied for Beardslee

UPDATE: Donald Beardslee, according to this Reuters story, was executed by the state of California at 12:29am pacific time on January 19th, 2005.

----

As TalkLeft has detailed here and here, and as more fully detailed in this AP article, California Gov. Arnold Schwarzenegger and the US Supreme Court have "turned back a plea for mercy for a convicted murderer, clearing the way for California's first execution in nearly three years." 

Here is a link to the Governor's official statement, which has a lot of substantive discussion of the arguments pressed in favor of clemency.  The statement concludes with these paragraphs:

Nothing in Beardslee's application, supporting papers, or testimony on his behalf before the Board convinces me that he did not understand that he committed two grisly murders and that his decision to take those actions was wrong. Clemency is not designed to undo the considered judgment of the people in favor of the death penalty, but to prevent the miscarriage of justice.

The Board of Prison Terms unanimously recommended that I deny clemency to Beardslee. A copy of their recommendation is attached to this decision. After my own independent study and analysis, I agree with the Board.

Although I have given serious consideration to Beardslee's plea for mercy, I do not believe the evidence presented warrants the exercise of clemency in this case. For this reason, Donald J. Beardslee's application for clemency is denied.

For other recent posts on capital clemency developments and issues, see

• Indiana capital commutation and other capital news
• The capital story of clemency
• Sister Prejean's powerful perspective

The critical, and still confusing, "prior conviction" exception

I have written in many (pre-Booker) posts about the critical importance — and critical uncertainty — of the "prior conviction" exception to Apprendi/Blakely.  For background, here are just a few of my major prior posts on this subject:

• The "prior conviction" exception to Blakely
• The next big Blakely issue: the prior conviction exception
• Juvenile convictions and the "prior conviction" exception
• Fascinating "prior conviction" case from Indiana
• See also the offense/offender distinction I champion in my Conceptualizing Blakely article.

Importantly, though the Booker merits majority did not speak directly to the issue, it did continue to articulate the "prior conviction" exception when stating (and reaffirming) the Apprendi/Blakely rule.  Moreover, as detailed here, a case still pending before the Supreme Court, Shepard v. US, could allow the Court to address the "prior conviction" exception directly.  But, after so many issues went unaddressed (or were poorly addressed) in Booker, I am not holding my breath that Shepard will shine a beacon of light to clarify the darkness that now surrounds the "prior conviction" exception.

Though the advisory guidelines remedy in Booker might suggest this issue is now less important, everyone should appreciate that (1) state courts continue to divide wildly on the application of the "prior conviction" exception when defendants make Blakely claims, and (2) it would be very difficult for Congress to build a new sentencing system without clarification of the viability and scope of this exception.  (Recall that Justice Thomas in Apprendi suggested that he regreted his vote in the 5-4 decision that created this exception.)

Moreover, as documented in part by the DC Circuit's decision dated today in US v. Miller, 2005 U.S. App. LEXIS 862 (DC Cir. Jan. 18, 2005), these criminal history issues can get remarkably intricate even in seemingly simple settings.  (Notably, though Miller was released and is dated Jan. 18, 2005, the DC Circuit's decision affirming the defendant's guideline sentence only discusses Booker as a "pending" case.  The Miller ruling, then, is not just a day late and a Booker short, it is a full week late and a Booker short.)

Silent switches

A few persons have written to urge additional commentary (by me and the media) on Justice Ginsburg's swing vote in Booker and the absence of a concurring opinion to defend her votes.  Of course, in this Eureka post, I did spotlight the evidence that Justice Stevens may have once had a majority for his Blakely-ization remedy and that Justice Ginsburg was the likely late-day flip-flopper.  And, in this potent LA Times commentary, Professor Alan Dershowitz had some particularly harsh words for Justice Ginsburg's failure to explain her votes.  Nevertheless, I generally agree that further commentary and speculation about the thinking behind, and possible battle over, Justice Ginburg's votes is justified.

But, critically, if we are going to examine silent switches, we perhaps should start with an earlier case which, at the time, seemed to spare the federal sentencing guidelines from the reach of Apprendi.  All close followers of the Apprendi line of decisions know that in Harris v. United States, 536 US 545 (2002), Justice Scalia broke ranks with the Apprendi/Blakely five in order to constitutionally approve judicial fact-finding for the enhancement of mandatory minimum sentences.  And Justice Scalia provided no explanation for his switch in Harris, even though Justice Breyer, who is never silent in these cases, said in his Harris concurrence that he could not easily distinguish Apprendi from Harris "in terms of logic."

Taking stock of advisory guideline systems

With Booker making advisory guidelines a reality in the federal system, a careful examination of our modern experiences with advisory systems are in order.  As detailed in this post, the  Federal Sentencing Reporter will soon be publishing a timely article entitled on "Advisory Guidelines in the Post-Blakely Era," authored by the executive directors of two sentencing commissions involved in the development of advisory guideline system.  Relatedly, Adam Liptak has this thoughtful article today in the New York Times examining the operation of advisory guideline systems in the states.

In addition, because I am about to do a Chicago public radio show with University of Chicago Professor Albert W. Alschuler, I was reminded that Professor Alschuler was among the first to forcefully advocate advisory guidelines as the right federal response to Blakely (the original draft of Al's article is available here).  Reviewing that pre-Booker article this morning, which is To Sever or not to Sever? Why Blakely Requires Action by Congress, 17 Federal Sentencing Reporter 11 (Oct 2004), I was terrifically amused by this wonderfully ironic paragraph in its introduction:

This commentary proposes a sentencing system that courts could not implement without Congressional action — one in which judges would be guided but not bound by sentencing guidelines, in which they would impose determinate sentences not subject to adjustment by a parole board, and in which their sentences would be subject to appellate review for reasonableness and proportionality. Id. at 11 (emphasis added).

Obviously, though Al might be exactly right about the value of advisory guidelines, he was apparently wrong, thanks to Justice Breyer and the remedial majority, that his proposed solution could not be implemented witout Congressional action.

Ex post facto, due process and cases in the pipeline

In this post and in my testimony in November to the US Sentencing Commission, I spotlighted ex post facto issues as a reason for Congress and the USSC to react cautiously to Booker.  Because it seems unlikely that any "Booker fix" can be applied to cases currently in the pipeline, I continue to fear that any short-term legislative changes in coming weeks "risks sowing greater confusion and uncertainty — and lots and lots of litigation — about applicable federal sentencing laws and practices."

And yet, even before we see any legislative response to Booker, we should all be fully cognizant of the legal doctrines which may limit the immediate application of the "judicial fix" to Blakely that Justice Breyer has engineered through the Booker decision.  As discussed by Peter Goldberger at White Collar Crim Prof Blog here and as noted by commentors here, there are strong due process arguments that, in Peter's words, "a post-Booker sentence for a crime committed prior to Jan. 12, 2005, cannot be higher than the top of the applicable guideline range ... [and thus, for] some time to come, post-Booker discretion must, as a matter of constitutional law, be a one-way ratchet favoring lower sentences."

Though I have not (yet) fully thought through the issue, I think Peter may be right that due process doctrines prevent judges from using their new post-Booker discretion to impose sentences higher than the guidelines in cases currently "in the pipeline."  But I imagine there may be some, especially prosecutors, who do not agree with this due process/ex post analysis.  I hope perhaps the comments to this post might be a forum for debating this very important issue concerning how the tens of thousands of cases in the federal sentencing pipeline can now be sentenced.

In praise of Booker

Howard Bashman at How Appealing has assembled here a collection of today's editorials and op-eds on Booker.  A quick read of these pieces shows fairly consistent praise of the Booker outcome and the (competing?) notions that juries should have a role in sentencing fact-finding and that judges should have more discretion at sentencing.

Considering today's pieces in praise of Booker — as well as prior editorials that run consistently pro-Booker from papers in states as diverse as Colorado, Florida, Georgia, Kentucky, Iowa, Maryland, Massachusetts, Missouri, New York, Pennsylvania, Rhode Island, Texas, Utah, Wisconsin — highlights that the newspapers nationwide are strongly backing the decision and consistently urging Congress to give judges a chance to work within the new system Booker has created.

Another big week for sentencing drama?

With the issuance — finally!! — of Booker and Fanfan and all the responsive sentencing buzz, last week's sentencing developments were truly historic.  (Some collected commentary on all that transpired is here and here.)  And yet, I forecast no shortage of sentencing dramas in the week ahead:

1. Following up Judge Paul Cassell's noteworthy work in Wilson (basics here, commentary here and here), I expect at least a few other judges will issue opinions this week setting forth views on the meaning and application of Booker.
2. Though the inauguration is a focus for most folks inside the Beltway, I still expect we will soon hear something official from the US Sentencing Commission and/or Congress about Booker.  Though I have in this post already given advice to Congress and the USSC, I hope both institutions will conduct public hearings so that various persons might share views about how best to move the federal sentencing system forward.
3. With Booker now decided — and providing precious little elaboration on the meaning and limits of Blakely — I anticipate that state Blakely rulings will continue apace; we might even soon see major Blakely rulings from more than a few state supreme courts.  (In this recent post, I suggested that the federal sentencing story after Booker is a relatively minor (headline-grabbing) solar system within a vast Blakely universe.  This reality should be highlighted during the exciting state sentencing conference taking place at Columbia Law School at the end of this week.)
4. As detailed here by CrimProf Blog, the US Supreme Court is scheduled to hear argument on Tuesday in two cases involving sentencing issues.
5. The state of California in less than 24-hours is scheduled to execute Donald Beardslee unless Governor Schwarzenegger grants his plea for clemency or the Supreme Court takes up his last-ditch legal appeal.  This article from the New York Times details the final efforts to halt Beardslee's execution, and this editorial from the Los Angeles Times asserts that Beardslee's case "demonstrates the caprice, unfairness and waste woven through California's death penalty."

A buzzing Booker blogsphere

I am back on-line after a long drive home from North Carolina, and I am pleased to find the blogsphere a buzz with Booker:

• Howard Bashman at How Appealing has Monday's round-up of newspaper articles and editorials on Booker linked here.  (See also Potent Quotables for more of same.)

• Peter Henning at White Collar Crime Prof Blog has a post here suggesting that "in the public corruption area the effect of Booker may be increased sentences."  (See also the article linked at Morning Booker insights.)

• Tom Lincoln at the PRACDL Blog has a post here providing all the basic highlights of Booker, as well as this post with the full text of 18 USC 3553(a) which Justice Breyer made the centerpiece of post-Booker sentencing. (See also links and pieces at Booker basics and more commentary.)

More collected Booker (and Wilson) commentary

I am about to hit the road to travel to home to Ohio from North Carolina, and thus I will have to be off-line the rest of the day.  In this post before my trip to NC, I collected my first dozen substantive Booker posts (which now also have more than 200 substantial and insightful comments from readers).  Below are some (topically organized) highlights of the substantive posts since then:

ABOUT THE BOOKER DECISION

• Booker basics and more commentary
• Eureka!! Tangible evidence of a flip-flop
• Copious commentary from SL&P's Booker Tonight
• Booker and provocation of Congress
• Severability as a Ouija Board

REACTING TO THE BOOKER DECISION

• Why Congress should go slow, and what the USSC should say
• Potent Quotables
• Report your Booker stories here
• Remembering the Blakely state stories

ABOUT JUDGE CASSELL'S WILSON DECISION

• What Wilson got wrong
• Understanding and appreciating Judge Cassell's Wilson opinion
• Judge Cassell proves his brilliance, who's next
• Judge Paul Cassell speaks first again!!

Morning Booker insights

There are a range of interesting Booker items this morning. 

• In this Los Angeles Times commentary, Professor Alan Dershowitz discusses the Supreme Court Justices as "Prima Donnas in Robes" and has particularly harsh words for Justice Ginsburg's failure to explain her votes and for Chief Justice Rehnquist's failure to "to get individual justices to act as an institution."

• In today's Wall Street Journal, Gary Fields examines, in an article entitled "Ruling on Sentencing Guidelines May Also Affect Corporate Crime," what Booker might mean for the federal corporate sentencing guidelines.  You need an on-line subscription to get the article here, but Peter Henning at the White Collar Crime Prof Blog has a terrific post here discussing the article and explaining why Booker's "effect on corporate prosecutions will be minimal, if non-existent, for at least three reasons."

In addition, an insightful reader has encouraged me to spotlight this article from the weekend out of New Orleans, which shows that more than a few judges may want to use their new discretion to impose sentences that are, in some cases, harsher than what the federal guidelines previously allowed.  (Of course, whether due process will allow that to happen for crimes committed before the Booker ruling is one of the many complicated legal issues that will need to be sorted out in the weeks and months ahead.)

Interesting plans for figuring out Booker

Though I have spotlighted notable quotes about Booker from newspaper stories here, what caught my eye in this Denver Post article was a report on how US District Judge Edward Nottingham has decided to figure out post-Booker federal sentencing realities:

The judge said he would hold a hearing in which attorneys from a half-dozen such troubling cases would make oral arguments about how to proceed in the new world of criminal sentencing.  "I've now decided I'm going to set them for consolidated oral argument," Nottingham said.

In addition to being intrigued by all the different possible suggestions that might be made at Judge Nottingham's consolidated oral argument, this account documents that judges will be sorting through Booker issues in a variety of ways.  Some may act surprisingly fast like Judge Cassell (basics here, commentary here are here), while others may devise a much more deliberative process for charting a path in the post-Booker world.

In praise of advisory guidelines

A few months ago, I received for possible publication in the Federal Sentencing Reporter a terrific article about advisory guidelines by Kim Hunt, executive director of the DC Sentencing Commission, and Michael Connelly, executive director of the Wisconsin Sentencing Commission.  At the time, we no longer had space in our final FSR Blakely issue, but I suggested to the authors that the piece could run in a subsequent issue. 

With Booker now making advisory guidelines a reality in the federal system, this article on "Advisory Guidelines in the Post-Blakely Era" could not possibly be more timely.  The authors have done a post-Booker update of the article, which is available for downloading below, and here is the opening paragraph:

With its rulings in Booker and Fanfan, the Supreme Court has redirected attention to the application of advisory sentencing guidelines.  Advisory guidelines, operating in ten states, are sentencing guidelines that do not require a judge to impose a recommended sentence, but may require the judge to provide justification for imposing a different sentence.  Although some commentators have questioned the efficacy of advisory systems in addressing sentencing disparity and predictability, this article will show that, properly constituted and overseen, these systems have produced results in many ways comparable to those of prescriptive sentencing  systems, which themselves have not always achieved or sustained the ambitious goals they have set.  The article concludes that, if done with an eye to the successes of states with advisory systems and the conditions necessary for those successes, the sentencing world of Booker and Fanfan can, in fact, accomplish the original objectives of the federal structured sentencing system.

In addition, the article ends with an important call for continued data-driven study and analysis of all sentencing systems:

It should be clear by this point that the authors view the paucity of reliable scientific evidence regarding the performance of all sentencing systems as a major obstacle to informed choice.  It is incumbent on all sentencing commissions, legislatures, and independent researchers to address this problem through joint efforts at data sharing, analysis, and performance monitoring.

Download fsr_advisory_guidelines_draft.doc

What Wilson has wrong

In a prior post here, I have detailed the reasons why Judge Cassell's path-breaking post-Booker decision in Wilson (available here) "merits far more praise than criticism."  Though I believe, as I suggested here, that Wilson is a brilliant effort, many comments in prior posts have rightly spotlighted that Wilson is also a flawed effort.  This post, drawing on some of the comments and my own reflections, sets forth possible criticisms of Wilson:

1.  Consider the statute: To his credit, Judge Cassell considers the statutory parsimony mandate of 3553(a).  See Wilson slip op. at 21-23; see also my parsimony post here.  But another critical part of the statute, the requirement in 3553(a)(1) that a judge "shall consider ... the history and characteristics of the defendant," gets very short shrift in Judge Cassell's Wilson opinion.  Other than a very brief account of Wilson's criminal history, id. at 29, Judge Cassell's opinion does not discuss in any way defendant Wilson's personal history or characteristics. 

2.  Consider the timing: Though Judge Cassell merits praise for providing immediate guidance for lawyers and defendants facing sentencings in his court, he also perhaps merits criticism for not giving the parties an initial opportunity to file post-Booker briefs before issuing his opinion.  Judge Cassell did give the parties 10 days to file objections, but in many ways the die is cast.  (Notably, Judge Cassell engaged with points raised in my parsimony post, see id. at 21-23; he might well have also engaged with arguments raised by counsel.)  Though Judge Cassell was "reluctant to delay the sentencing," he still could have asked for letter briefs by Friday and come out with his ruling this Tuesday after the long weekend.

3.  Consider the dicta: At various points, Judge Cassell says he would give the guidelines "heavy weight" and depart only in "unusual cases for clearly identified and persuasive reasons."  Id. at 3, 25-26.  But elsewhere he asserts the guidelines will be followed in "all but the most unusual cases," id. at 6, and that they "should be followed in all but the most exceptional cases."  Id. at 25.  Perhaps this is semantics, but the latter comments suggest an unduly rigid approach to departures (especially since, as detailed in Table 9 of this set of USSC official statistics, recent data reveal that judges in the district of Utah had departed from the mandatory guidelines in more than 22% of all cases).

4.  Consider the purposes IN CONTEXT: Judge Cassell explains why the US Sentencing Commission is well positioned to consider sentencing purposes such as just punishment and deterrence from a system-wide perspective, id. at 10-19, but only a sentencing judge can assess these purposes from a case-specific perspective.  At page 14 of Wilson, Judge Cassell recognizes that crime control purposes implicate both "general deterrence" and "specific deterrence" and then says it is "difficult for an individual judge to make such determinations."  Though it surely is difficult for a judge to assess general deterrence, it is truly impossible for anyone but a judge to make a refined assessment of "specific deterrence" because this requires a focus on the history and characteristics of a particular defendant (see point 1 above).

More generally, after giving 20 pages to a wide-ranging discussion of purposes in general, id. at 6-26, Judge Cassell's opinion has only a single boiler-plate sentence asserting that his consideration of purposes for defendant Wilson prompts him to follow the guidelines.  Id. at 31-32.  The conclusory application of purposes to defendant Wilson reflects again Judge Cassell's systemic failure to seriously engage with the history and characteristics of the defendant throughout his Wilson ruling.

Though I could nitpick some other aspects of Wilson, I will stop here in part because I do not want all my commentary to unduly suggest that this one opinion should become a de facto precedent for other district judges.  I believe each individual judge has a constitutional obligation to reach her or his own judgments about the meaning and application of Booker and 18 USC 3553(a), which now both govern federal sentencing.  And, as I highlighted previously here, the new federal sentencing world will be built opinion by opinion, and Wilson should be seen as only the first (brilliant and flawed) brick.