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April 12, 2006

US Sentencing Commission's recent guideline amendments

In some posts linked below, I bemoaned in various ways that the US Sentencing Commission has largely ignored Booker (not to mention Blakely) its guideline amendment process.  Rather than repeat those points, I will react to this recent USSC press release about the latest guideline amendments by noting the one-way upward ratchet we regularly see in the guideline amendment process.  By my rough count, all seven formal changes to the guidelines involve the addition of upward sentencing enhancements.

That said, there are two amendments that indirectly soften some rough edges of the guidelines.  This amendment cycle includes a revised policy statement regarding Bureau of Prisons' motions for sentence reductions and revised commentary concerning what an organization must do to receive credit for cooperation at sentencing.  This latter development is discussed at length in this recent National Law Journal article.

Some related posts on USSC amendment process:

April 12, 2006 at 11:16 AM | Permalink

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Professor Berman, see the recent denial of rehearing by the 5th Circuit, even though civil, the bewailing sounds across the Bill of Rights from the Seventh to the Fifth and Sixth Amendments.
The Fifth Circuit judges lament the denial of panel rehearing or rehearing en banc and lament the loss of the jury protections in civil proceedings and point to review on a “cold record” as sitting in “monastic chambers” looking at only the record and deciding what was reasonable…See RICKEY BROWN versus PARKER DRILLING No. 03-30782 Revised April 11, 2006

CARL E. STEWART, Circuit Judge, with whom KING, HIGGINBOTHAM, WIENER, BENAVIDES, and DENNIS, Circuit Judges, join dissenting from the denial of rehearing en banc.

Judge Stewart begins the laments:
“Today, the full court countenances the panel majority’s usurpation of the jury’s constitutionally defined role as fact-finder, irreparably harming the jury system in this circuit.” And continues mourning, “the lamentable message that the panel majority’s decision sent to the bench and bar throughout the Fifth Circuit–no jury verdict is invulnerable before this court”, placing civil trial proceeding alongside criminal jury verdicts as only preliminary dictates to satisfy the constitution so justice can then be done by the courts.
And Judge Weiner joins the dirge. “I write only to supplement Judge Stewart’s latest dissent with a more detailed explication of where, with respect, I perceive my colleagues of the panel majority (and those who failed to vote to rehear it en banc) to have violated our venerable precedent, thereby —— unintentionally, I am sure——doing damage to the federal courts’ civil jury system and thus to the Seventh Amendment to the United States Constitution.”
In continued laments, ”what the panel majority did in its initial appellate opinion, viz., reverse the jury by conducting a constitutionally impermissible appellate review of the facts. And it did so despite our long-settled and well-established standard of appellate review under these circumstances”. Why not apply the presumption of reasonableness which has worked so well in usurping the jury verdict in criminal trials.

Then Judge Weiner recognizes how absurd it is to replace the district court and jury’s on the spot decisions with their own appellate verdict. “Unlike the district judge (who, like the jury, observed Brown and all other witnesses firsthand), the two appellate judges of the panel majority overruled the district court —— and thus the jury’s verdict for Brown —— on nothing more than the ‘cold record.’”
Judge Weiner continues his laments and I join in mourning the loss of a jury as the great bastion between oppressive government and the people’s rights, whether it be civil or criminal.
“We simply cannot sit in our remote, monastic chambers, look only at the record on appeal, then say that these cold facts point so strongly in favor of the vessel owner that reasonable jurors could not have arrived at a verdict for the seaman.”

Posted by: Barry Ward | Apr 12, 2006 1:40:21 PM

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