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October 1, 2006

Early reactions to topless guidelines bill

As detailed here, House Judiciary Chair James Sensenbrenner has finally introduced his "topless guidelines" legislative Booker fix, a proposal about which I have already written a lot (in this article and in so many posts).  I am thus pleased to see other bloggers weighing in with astute observations about the misguided aspects of this Booker fix proposal.

Ellen Podgor at White Collar Crime Prof Blog here notes that sentences are going up in a key area after Booker and she asks this insightful question: "Is there really any need for topless guidelines if the sentences are going up in the one area, white collar crime, that seems to be of enormous concern?"

Anthony J. Colleluori, aka That Lawyer Dude, here provides a fuller critique in a post entitled "Congressman Sensenbrenner Goes Topless In The House Of Representatives: Lies Our Congressmen Tell Us."  Here is one of many sharp passages in his post:

Lie No. 3: Senselessbrenner states in [his press] release that "Two of the hallmarks of our judicial system, fairness and equity, have been undermined since the Supreme Court's Booker decision last year."... [But] the bipartisan committee of the Constitution Project (Chaired by Reagan Attorney General Edwin Messe and Clinton's Deputy AG Phillip Heymann) said that "topless guidelines are unconstitutional." Other commentators have noted that the guidelines now allow the sentencing courts to get the sentence right and allow the Circuits to keep everyone in line.... If Sensenbrenner really wants to protect children from exploitation, let him start on Capital Hill.

October 1, 2006 at 09:08 AM | Permalink

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Comments

I renew my request not to use "topless" and "Sensenbrenner" in the same sentence. Yuck.

Posted by: Joy Bertrand | Oct 2, 2006 12:31:31 AM

FWIW, the Constitution Project Sentencing Initiative, for which I serve as co-reporter, has never said that so-called "topless guidelines" are unconstitutional. What we said is that this approach depends for its constitutionality on the continued viability of Harris v. United States, which may (but only may) be reconsidered in light of Blakely and Booker. So long as Harris is good law -- and it remains so at present -- the topless scheme encounters no constitutional obstacle. Congressman Sensenbrenner may be misguided in introducing this bill at the present time. And some of his stated justifications for doing so may be flimsy at best, but neither Mr. Colleluori nor anyone else should mischaracterize the work of the Constitution Project in order to respond to Congressman Sensenbrenner.

Frank Bowman
University of Missouri - Columbia

Posted by: | Oct 2, 2006 6:10:51 PM

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