August 17, 2006
Extraordinary paper on post-Booker sentencing
Amy Baron-Evans, the National Sentencing Resource Counsel to the Federal Public and Community Defenders, has produced an extraordinary memorandum entitled "The Continuing Struggle for Fair, Effective and Constitutional Sentencing After United States v. Booker." This document, which can be downloaded below, is filled with 70+ pages of insights worth quoting. Here is just one of many passages worth highlighting:
Defense counsel must help to ensure that judges retain and exercise their sentencing power by providing arguments to support reasoned decisions that will be upheld on appeal (or not appealed at all), that Congress can respect, and that the public can understand. There are powerful arguments to be preserved below and raised in petitions for certiorari that post-Booker sentencing violates the sentencing law under basic principles of statutory construction, the Sixth Amendment right to jury trial, the Fifth Amendment right to proof beyond a reasonable doubt, and the Sixth Amendment right to confront and cross-examine adverse witnesses. But, as we have seen, legal arguments are not enough.
Even in circuits that have rejected presumptive guidelines, the guidelines provide a comfortable numerical anchor, and many judges have little knowledge of the guidelines' history and development other than what they are being told by advocates of the status quo.... Thus, regardless of what circuit you are in or what stage of the litigation, it is necessary to demonstrate as a factual matter that the guidelines do not comply with 18 U.S.C. § 3553(a), and that a lower sentence does a far superior job.
August 17, 2006 at 01:58 PM | Permalink
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The link only covers the paper through section E, Firearms. Is there a link to the rest of the paper somewhere?
Posted by: Amy Falcon | Aug 21, 2006 1:08:09 PM
The paper is also available at http://www.fd.org/pdf_lib/struggle.pdf.
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