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January 9, 2006

Framing Pho: keeping the decision from seeming too wrong

After useful dialogues with a lot of smart folks and further reflection, I have come to view and frame the First Circuit's troubling decision crack/powder in Pho (basics here, commentary here and here) in a way that perhaps keeps it from seeming too wrong.  As detailed in this post, I have a hard time squaring Pho with the mandates of 3553(a), and this Providence Journal article spotlights the related point that rulings like Pho risk reinstating de facto the mandatory guideline system struck down in Booker.  But, to keep Pho from creating too much trouble, the decision should be read as simply a declaration that sentencing courts, even after Booker, should not construct their own "alternative guideline" rules (such as establishing a firm alternative crack/powder ratio).

Even framed this way, I still think Pho is questionable in light of the commands of 3553(a) and Booker.  I have a hard time seeing what's "unreasonable" about a sentencing court's decision to follow the US Sentencing Commission's forceful and unanimous declaration that an alternative crack/powder ratio of 20:1 would better serve congressional goals than the 100:1 ratio.  Nevertheless, I can understand the instinct of a circuit court believing that, though a district court is authorized not to follow the 100:1 ratio, it should not be in the business of creating and applying a firm "alternative guideline" ratio.

The key point is that Judge Torres on remand, and other judges throughout the country, still retain their critical post-Booker authority to refuse to follow the crack guidelines.  Judges just need to articulate their reasons for rejecting the crack penalty levels without creating and applying an "alternative guideline" system.  Consequently, it should be sufficient for Judge Torres (and other district judges) to simply say, e.g.: "this case before me evidences all the concerns stressed by the USSC when explaining the ways in which the 100:1 ratio undermines congressional sentencing goals — e.g., this particular crack offense was not accompanied by serious violence, and the amount of drugs involved do not suggest that this offense is likely to produce community harms that are as great as would 100 times more powder cocaine.  Ergo, based on the facts of this cases and the mandates of 3553(a), I will not follow the crack guidelines in this case."

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January 9, 2006 at 07:26 AM | Permalink

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» CA1: Berman on Pho (crack disparity case) from Appellate Law
Professor Berman continues his coverage of US v. Pho, No. 05-2461, No. 05-2461, with this insightful post, which notes, The key point is that Judge Torres on remand, and other judges throughout the country, still retain their critical post-Booker autho... [Read More]

Tracked on Jan 9, 2006 9:43:05 AM

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