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March 5, 2006

A look at the post-Booker world in Alabama

Today in the Mobile Register you can find two thoughtful articles exploring post-Booker sentencing in Alabama.  The basic themes of the articles, available here and here, are clear from their headlines: "Judges hold back on newly won sentencing discretion" and "Mobile cases: Some judges deviated from sentencing guidelines, as Supreme Court now allows."  Here are some sections from a very effective article:

[I]n the year since the Supreme Court's U.S. vs. Booker decision, judges in southwest Alabama and nationally have stuck to the old practices more than 90 percent of the time, according to statistics compiled by the U.S. Sentencing Commission.... [T]he federal court in Mobile has continued to operate largely as before [Booker]....

"The guidelines, themselves, are still pretty influential," said Ginny Granade, the chief judge of the federal court in Mobile. "You really, under current case law, need to have a pretty good reason not to follow the guidelines."  For defense lawyers, that has proved frustrating. "The guidelines are very severe and harsh.  They enjoy sending poor people to jail," said Robert "Cowboy Bob" Clark, a well-known Mobile lawyer. "Why do we have judges?"... 

Some legal analysts have said that judges are hewing close to the recommended sentences because of uncertainty. Appellate courts have yet to define what constitutes a "reasonable" departure from the advisory guidelines.  In the absence of clear direction, Clark said, judges find comfort in the guidelines.  Following them reduces the chances that their decisions will be overturned, he said. 

But in a sentiment echoed by many, Clark said he believes judges will feel more free to ignore the guidelines as time wears on.  "The longer we get away from (the Booker decision), the guidelines are going to be dead," he said.  Even judges, themselves, said they think that might happen in time. "I think the further we go, the guidelines will seem to be advisory," said [District Judge William] Steele....  But Steele added that the guidelines remain a useful tool for judges. "I don't think we'll ever get away from the guidelines.  And I do think they are important, because they do have this structure."...

Judges' willingness to set aside the guidelines in at least some cases has prompted some lawyers to shift strategy. Under the guideline system, lawyers rarely put on character witnesses during sentencing hearings because judges largely could not consider such testimony. Dennis Knizley said he put on several such witnesses for a pair of child pornography defendants in the past year. "In the past, I would have never done this," he said.  Federal Defender Carlos Williams predicted that as lawyers become more adept at setting their clients apart from other defendants, judges will use sentencing discretion more often. "The defense has to be become better at explaining why," said Williams, who represents defendants who cannot afford lawyers.

March 5, 2006 at 09:15 AM | Permalink

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