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March 15, 2007

What's up at the USSC? Is Booker on the agenda for its hearing next week?

I have not written much lately about the US Sentencing Commission because it is hard to know what the Commission is (or isn't) doing these days about Booker and the realities of federal sentencing.  As noted here and here, the USSC has produced some additional federal sentencing data; but the USSC's recent amendment history spotlights that the Commission still does not seem interested in operationalizing its data and expertise to genuinely improve the post-Booker operation and overall justice of the federal criminal justice system.

The continuing crack guideline debacle is, of course, the most obvious example of the USSC's unwillingness to operationalize its data and expertise into sound sentencing reform.  Over the past 12 years, USSC has written three extensive reports and received considerable evidence documenting the harms and inequities of the guidelines' approach to crack/powder cocaine sentencing.  And yet, even after Booker, as some judges — properly, in my view — read 3553(a) to call for a new approach to crack cases, the USSC still has not yet taken any tangible steps toward real guideline reform.  Tellingly, on the very last page of its 155-page January 2007 federal notice with proposed guidelines amendments (which never mention Booker), the USSC takes the bold and courageous step of inviting still more comments and suggestions on this issue.

Moreover, as informed readers know, the crack guidelines are only the clearest example of dysfunctional aspects of the guidelines.  Other drug and loss calculations issues, many criminal history definitions, many cross-references, and the departure guidelines all cry out for post-Booker attention.  (And don't even get me started on how the USSC should have responded to Blakely.)  Yet, the USSC still has not even in the guidelines acknowledged that Booker was decided, let alone seriously adjust the reality of the guidelines new advisory status. 

Of course, the USSC did manage to write to the Supreme Court about Booker to contend in this brief that "the Commission has produced an evolving set of Guidelines, the application of which produces a sentence that is reasonable in relation to Congress's purposes."  USSC SCOTUS brief at 5. I am still trying to figure out how this claim made to the Supreme Court jibes with this prior statement about crack guidelines in Chapter 8 of the USSC's 2002 crack report: "After carefully considering all of the information currently available — some 16 years after the 100-to-1 drug quantity ratio was enacted — the Commission firmly and unanimously believes that the current federal cocaine sentencing policy is unjustified and fails to meet the sentencing objectives set forth by Congress in both the Sentencing Reform Act and the 1986 Act."

Significantly, the USSC "has scheduled a public hearing for 9:00 a.m. on March 20, 2007," but it is still unclear from the USSC website what this hearing will be about, who will be attending, and whether there will be any serious Booker-related analysis or conversations forthcoming from the USSC.  Since next week is my Spring Break, I am tempted to make a day trip to DC to see what transpires at the hearing.  But I fear the hearing could end up being a lot more aggravating than enlightening.

March 15, 2007 at 01:31 PM | Permalink

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