January 4, 2007
What's the USSC doing these days?
As detailed here, the US Sentencing Commission had a very busy November: its staff conducted exciting roundtables exploring how to simplify the guidelines and improve the criminal history rules, and the whole USSC conducted a major public hearing on cocaine sentencing (discussed here and here and here). But, over the last two months, there has been barely a peep from the Commission even while numerous fascinating federal sentencing issues continue to swirl around. In this post from November, I set out a series of "Now what..." questions the USSC must be facing. I suppose I am not surprised — though I am a bit disappointed — that the Commission has not yet given even a clue of an answer to these questions.
These days, I am especially wondering whether and how the USSC might be planning to be involved in the Claiborne and Rita cases before the Supreme Court. In Mistretta and Booker, the USSC filed amicus briefs in support of the government's position, but those cases both questioned the constitutional validity of the guidelines. Claiborne and Rita are formally about the operation of reasonableness review after Booker, which is an issue that the USSC has so far avoided like the plague.
I am really curious about whether the USSC is working on a brief or otherwise planning to play any sort of public role in these big cases. Anyone in the know should, of course, feel free to use the comments to anonymously leaks news.
January 4, 2007 at 06:25 PM | Permalink
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I'm not in the loop at this time (so no leaks, sorry) but I would be astonished if the Commission has anything to do with Claiborne and Rita. In general, the Commission (and in this, it is led by Judge Hinajosa) is too scared of anything that might look like getting involved in the politics of Booker (which is sad since it's politics all the way down).
This is why, while Booker fires are raging, we are seeing another report on crack/powder and possibly a new round of proposed guidelines on that issue (you gotta do something with your time, right?). Now, I agree that the crack/powder disparity an important issue, but it's small bore when it is still unclear what role the guidelines should even have in the post Booker world.
A fear of politics might be a good quality in a Judge, but it is not serving the Commission well (perhaps Scalia had a point after all). The "Junior Varsity" needs to step up to the plate.
Posted by: D | Jan 5, 2007 2:17:01 AM
I think it is important to point out that the THE FEDERAL PUBLIC AND COMMUNITY DEFENDERS’ Amicus Brief pulls the Commission into the Rita/Claiborne fray, regardless of whether the USSC has thus far avoided taking an explicit position on issue of reasonableness review.
The brief has an entire section on the Sentencing Commission, which is introduced by this comment:
"In the wake of Booker, the Sentencing Commission ... acted swiftly to advance the argument that the Guidelines should be presumed reasonable because they already incorporate all of the purposes and factors in 18 U.S.C. § 3553(a), and other congressional directives. While this argument was no more than ipse dixit, it took hold, and spawned the presumption of reasonableness." Federal Defenders Brief at 3, (available at http://www.nycdl.org/ItemContent/3685NewsIndex.pdf).
The brief (dis)credits the USSC for fostering the rationale ultimately offered to justify the presumption. See id. at 5-6, 7. And in arguing against the presumption, the brief cites that the Guidelines have yet to even mention Booker. See id. at 5 ("This inattention to Booker in the Guidelines Manual is significant.").
While I am certainly not "in the know" about the inner workings of the Commission, if I were on the Commission I would feel it necessary to affirm or modify these well-taken points. And if I were on the Court, I would like to hear the USSC's response.
Posted by: DEJ | Jan 5, 2007 12:12:13 PM