May 14, 2012
Professor Bowman's latest potent pitch for a Booker fix
I have long respected (and even have sometimes agreed with) Frank Bowman's informed perspectives on federal sentencing policy and practice. Thus I am pleased to see his latest and greatest advocacy for reform of the post-Booker system now available on SSRN. This latest piece, which is forthcoming in the Federal Sentencing Reporter, is titled "Nothing is Not Enough: Fix the Absurd Post-Booker Federal Sentencing System." Here is the abstract:
This article is an elaboration of testimony I gave in February 2012 at a U.S. Sentencing Commission hearing considering whether the advisory guidelines system created by the Supreme Court’s 2005 decision in United States v. Booker should be modified or replaced. I argue that it should.
First, the post-Booker advisory system is conceptually indefensible. It retains virtually every feature excoriated by critics of the original sentencing guidelines. Its extreme ‘advisoriness,’ while partially ameliorating some problems with the original guidelines, reintroduces the very concerns about unreviewable judicial arbitrariness that spawned the structured sentencing movement in the first place. More importantly, the post-Booker system does not solve the biggest problem with the pre-Booker system — that its architecture and institutional arrangements predisposed the Commission’s rule-making process to become a one-way upward ratchet which raised sentences often and lowered them virtually never. Its sole relative advantage — that of conferring additional (and effectively unreviewable) discretion on sentencing judges — is insufficient to justify its retention as a permanent system.
Second, there exist a number of constitutionally permissible alternatives to the court-created Booker system, one of which — that originally proposed by the Constitution Project and more recently endorsed by Judge William Sessions, former Chair of the U.S. Sentencing Commission — is markedly superior to the present system.
Third, the difficult problem is not designing a sentencing mechanism better than either the pre- or post-Booker guidelines, but ensuring that such a system, once in place, does not replicate pre-Booker experience and become a one-way upward ratchet prescribing ever higher sentences. I offer suggestions about how this difficulty might be solved. However, I concede both the difficulty of this problem and the justice of the concern that, however imperfect the advisory system, it may be the best that can be achieved given the present constellation of institutional and political forces.
May 14, 2012 at 01:32 PM | Permalink
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"The defense community's support of advisory guidelines is only explainable as the outgrowth of a perception that the advisory system produces more favorable (i.e., more lenient) sentences for some appreciable class of defendants."
Well, I'm a member of the "defense community" (if being a criminal-defense attorney counts), and I support an advisory guidelines system because I think it will make for better, individualized sentences. Some of these will be higher, some will be lower. In the main, the data indicates that they will be lower -- which to me is only proof that the SRA over-sentenced the average defendant. If it turns out that sentencing judges, on average, give higher sentences, I'm quite comfortable with that. It would be proof that the prior system was too lenient.
I'm also perfectly happy to have high statutory minimum sentences set by Congress, as well as complete factfinding by juries upon which to have binding sentencing factors. If Congress (or a sentencing commission -- depending on the setup because I believe that Mistretta was wrongly decided) creates very high sentences, I'm ok with that. I'm very much not ok with the pre-Booker system, however. In my opinion, it was a system that was irrational, rigid, and entirely unpredictable. It was so irrational that "Kafka-esque" hardly sufficed as an appropriate adjective.
So I don't like the good professor suggested "fix." To me, his system is just a former prosecutor's myopic attempt to recreate a once-failed system. It's just lipstick on a pig.
Posted by: Mark Pickrell | May 14, 2012 6:25:54 PM
prof. bowman is so right---the most important thing is that a sentencing system be conceptually acceptable to professors whose job is to make up stuff for a living. if that stuff treats actual people unfairly, well those people should be more togethre conceptually. or maybe tenured, so they'd have more time to see why their parituclar cases are important only as fodder for academia.
gross. i remain convinced that booker is idiotic and constitutionally indefensible on its own terms. it's also been a godsend. the guidelines are bureaucracy and conceptualism at their worst. people should be sentenced, not offenses or concepts. yes, there were injustices under the old system. some of them have been reduced as society has become more fair. yes, there are some injustices under the post-booker system, but few than under the old completely discretionary system. and fewer than under a guidelines system in which a handful of people, mostly judges with too much DOJ input, decide what is "right" in every case.
Posted by: big bad wolf | May 15, 2012 12:34:13 AM