February 3, 2006
Friday afternoon ranting about the post-Booker world
I feel as though I have been ranting a lot lately, whether about the SCOTUS's lethal injection scrum or about excessive attention given to the death penalty, or about the ugly look of reasonableness review, or the USSC's failure to address crack sentencing after Booker. Consequently, I was somewhat relieved today to get an e-mail about the post-Booker world from an informed and thoughtful sentencing observer which came with the heading "A Friday Rant." I have received permission to share this (amusing? depressing? spot-on?) rant:
First, the Sentencing Commission should be de-funded and abolished. What would the public's reaction be if the director of FEMA issued the agency's annual report without mention of Katrina? I find that equivalent to the Commission issuing what amounts to its State of the Union paper without mention of a case that rocks the universe of federal sentencing and should have everything to do with the Commission's current mission.
Second, why is no one apparently commenting on what I perceive as DOJ's lawlessness. If I understand things correctly, every federal prosecutor in America is, in every case, required to stand before the courts and proclaim the guideline sentence to be the appropriate sentence. Well hasn't the nation's highest court said otherwise? And, if so, what does it say about our Justice Department that it has adopted a policy contrary to law?
Third, I, like you, am perplexed by the increasing and not entirely surprising presumption of correctness being given to the guidelines. Pursuant to Section 994, the Guidelines were created under orders that meaningful consideration not be given to the characteristics of the offender. How then can a sentence determined pursuant to those guidelines be presumptively reasonable under 3553 when the latter expressly requires consideration of offender characteristics? To treat a guideline sentence as presumptively reasonable strikes me as endorsing sentencing without consideration of offender characteristics. Isn't that a judicially-crafted constructive redaction of the statute?
February 3, 2006 at 06:28 PM | Permalink
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The key focus is not in the sentencing process, itself. Many US Attorneys will continue to seek the highest sentencing they can get from the Court influencing the probation officers to find facts necessary for enhancements and Judges to find the necessary facts by the preponderance of the evidence contained in the probation report and at sentencing hearing, whether the guidelines are advisory or not. The frontal attack must be over the sixth admendment, where Justice Scalia has boldly asserts that "every defendant has the right to insist that the prosecutor prove to a jury all facts legally essential to the punishment,"
This is where the fight should be, not in the reasonableness of the sentence, guidelines interpretation, or policies or procedural errors by Judges in application of 3553. These are fall back positions.
Hopefully Justice Scalia will not give up by convincing the two newest member of the SC to revisit the sixth admendment in this area.
Posted by: seaton | Feb 6, 2006 1:42:02 AM