July 28, 2006
News on the Booker fix front
At the start of this week, I returned from my "vacation" by jumping deep into the post-Booker world at the 2006 National Sentencing Policy Institute in Washington DC. Though not an event open to the public, I think I can report publicly discussed news.
Of particular interest was a panel with congressional counsel talking about legislative reactions to Booker and a speech by Deputy AG Paul McNulty about DOJ's continued support for Booker fix legislation. Here are a few highlights on Booker fixes and other sentencing legislation:
1. A Sensenbrenner "topless guidelines" Booker fix proposal is likely to be introduced in the House in September, though serious action on the bill before the November elections seems unlikely.
2. The Senate Judiciary Committee is likely to hold some sort of hearings on Booker in September, although serious action on any legislation seems unlikely this fall.
3. The Justice Department continues to support a "minimum guideline system" (which they do not like having called topless guidelines), and DOJ seems likely to start pushing hard for such a system in the months ahead.
4. We can and should expect to see continued interest in mandatory minimums from some members of Congress as long as the guidelines are advisory; the latest notable example of mandatory minimums appears in the new child safety legislation (noted here and here) that became law yesterday.
5. The Second Chance Act is a fascinating bipartisan bill that sounds as though it has a lot of really good provisions to help on a range of important re-entry issues.
Some related Booker fix posts:
- Full draft of Tweaking Booker
- FSR Issue 18.3: Taking Stock a Year after Booker
- FSR Issue 18.2: Defense Perspectives on the Post-Booker World
- FSR Issue 17.5: Is a Booker Fix Needed?
July 28, 2006 at 08:55 AM | Permalink
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I know that this blog is a big fan of the Maine District Court, and I think that one possibly interesting Booker development is coming from Maine's Judge Woodcock. In two of his 2006 cases, US v. McCarty (421 F.Supp.2d 220) and US v. Croll (2006 WL 2023573), Judge Woodcock has suggested that the fact that the guidelines are now advisory rather than mandatory might change the Ex Post Facto Clause's role in sentencing. He has not made any definitive statements, but he has implied that it might be possible to increase the advisory range of punishment for a crime after the crime has occurred without violating the Constitution. This might fly in the face of Supreme Court jurisprudence dating back to Calder v. Bull (1798), but I think it will be interesting to see whether he reaches any conclusions or whether any other judges pick up on his footnotes. It doesn't seem like any other judges have suggested such a change, but Judge Woodcock might be a visionary. (Posted by a student at Yale College)
Posted by: Jonathan | Jul 28, 2006 4:59:44 PM
Thanks, Jonathan. I have done some blogging on this topic in earlier posts and I know this issue is squarely before the 7th Circuit right now.
Posted by: Doug B. | Jul 28, 2006 5:06:48 PM