Tuesday, January 18, 2005
Taking stock of advisory guideline systems
With Booker making advisory guidelines a reality in the federal system, a careful examination of our modern experiences with advisory systems are in order. As detailed in this post, the Federal Sentencing Reporter will soon be publishing a timely article entitled on "Advisory Guidelines in the Post-Blakely Era," authored by the executive directors of two sentencing commissions involved in the development of advisory guideline system. Relatedly, Adam Liptak has this thoughtful article today in the New York Times examining the operation of advisory guideline systems in the states.
In addition, because I am about to do a Chicago public radio show with University of Chicago Professor Albert W. Alschuler, I was reminded that Professor Alschuler was among the first to forcefully advocate advisory guidelines as the right federal response to Blakely (the original draft of Al's article is available here). Reviewing that pre-Booker article this morning, which is To Sever or not to Sever? Why Blakely Requires Action by Congress, 17 Federal Sentencing Reporter 11 (Oct 2004), I was terrifically amused by this wonderfully ironic paragraph in its introduction:
This commentary proposes a sentencing system that courts could not implement without Congressional action — one in which judges would be guided but not bound by sentencing guidelines, in which they would impose determinate sentences not subject to adjustment by a parole board, and in which their sentences would be subject to appellate review for reasonableness and proportionality. Id. at 11 (emphasis added).
Obviously, though Al might be exactly right about the value of advisory guidelines, he was apparently wrong, thanks to Justice Breyer and the remedial majority, that his proposed solution could not be implemented witout Congressional action.