Sentencing Law and Policy

Questions about the brewing Booker fix

The Booker fix which is brewing in the US House of Representatives (basics here and here) has my mind racing with questions.  Here are just a few of the queries which leap to mind:

1.  Did the Justice Department have a hand in drafting this Booker fix?  At recent USSC hearings, DOJ representatives expressed possible interest in a "Bowman fix," but they seemed to disavow interest in mandatory minimum sentences.  The Booker fix appearing now as section 12 of H.R. 1528 (linked here) is something of a combination of the Bowman fix and the original extreme Feeney Amendment; the proposed fix, in FAMM's words, "would effectively make the federal sentencing guidelines a system of mandatory minimum sentences."

2.  Did the US Sentencing Commission have any warning concerning this Booker fix?  The USSC was blind-sided by Congress with the Feeney Amendment, and I have heard the USSC has been working hard throughout the last year to build a more effective working relationship with Congress.  I sensed that this relationship had been pretty positive in the post-Blakely and post-Booker periods, but the abrupt development of this Booker fix suggests that there is not perfect harmony inside the Beltway.

3.  What is likely to become of this Booker fix?  In the wake of Booker, the House has been the most fiery in its rhetoric about the need for a legislative response, while the Senate has seemed calm (almost to the point of indifference) about Booker.  This proposal could just be more rhetoric that will have no traction in the Senate.  Notably, this Wall Street Journal article about the bill reports that a "Senate Republican Judiciary Committee staff member said the staff members weren't consulted about the House bill and had no companion proposal in the works."  But recall that, though clever procedural maneuvers, the backers of the Feeney Amendment got that legislation through Congress in just a matter of weeks despite reservations expressed by some Senators.

4.  Will federal judges jump into the policy debate over a Booker fix?  In this post back in November, I pondered whether judges might become actively involved in policy debates over the future of the federal sentencing system.  And that was before Booker created a remedy that seem to be to the liking of most of the federal bench.  Sadly, given the ugly judge-bashing in DC these days, I fear that the views of federal judges won't be given the respect they deserve even if they do actively engage in the post-Booker policy dialogue.

5.  Is this Booker fix constitutional, or does it make Harris and/or Mistretta shaky?  This Booker fix relies upon the Supreme Court's 5-4 decision in Harris, which allows judges to find facts that raise minimum sentences.  But in light of Blakely and Booker, the votes of Justices Breyer and Scalia (and maybe Kennedy) are not certain if Harris is really put to the test through this Booker fix.  Also, even if no current Justice has a changed view, the expected replacement of Chief Justice Rehnquict (or later Justice O'Connor) could prove to be a swing vote on this matter. 

In addition, recall that Judge Panner in Detwiler concluded that the Feeney Amendment undermined key concepts that supported the Supreme Court's decision in Mistretta and thus rendered the whole federal system structurally unconstitutional (Detwiler is discussed here with commentary here).  I think Judge Panner's Detwiler result and reasoning becomes even more compelling if this Booker fix becomes law.

6.  Is this Booker fix a symptom of the post-Schiavo attack on the judiciary? Congress and the federal judiciary have been sparing over sentencing matters for a number of years, and this sort of Blakely/Booker fix was feared long before the recent Schiavo happenings.  But it had seemed that Congress was prepared to let the post-Booker world develop for some months, perhaps because the most recent statistics from the USSC (which I hope will be updated ASAP) suggest that the post-Booker world looks a lot like the pre-Booker world.  And yet, despite evidence suggesting not much needs fixing, suddenly in the midst of all the ugly judge-bashing rhetoric we get a dramatic sentencing proposal which reads like a massive broad-side attack on judicial sentencing discretion.

Readers with possible answers to any of these questions, or with additional questions about the brewing Booker fix, are encouraged to speak up in the comments.

Is there a "new right" on criminal sentencing issues?

I have noted in previous posts the interesting new reality that now Republicans, far more than Democrats, are promoting what might be called progressive sentencing reform.  Recall that, as detailed here, it was Republican Senators on the Senate Judiciary Committee who were questioning AG nominee Alberto Gonzales about prison reform and rehabilitation.  (Kansas Sen. Brownback spoke of prison reform as "a compassionate conservative topic"; Oklahoma Sen. Coburn said, "As a physician, I believe that we ought to be doing drug treatment rather than incarceration."; Pennsylvania Sen. Specter spoke of the importance of providing some prisoners with "literacy training and job training and drug rehabilitation.")

Moreover, as noted previously here and here, Republicans Governors have often led efforts in many states to cut back on harsh mandatory sentences and to expand treatment-centered alternatives to incarceration.  (Recall, as just one recent example detailed in this LA Times article, that Republican Governor Arnold Schwarzenegger has announced a plan for California's prisons to "emphasize rehabilitation, marking a shift away from an era when punishment was the overriding mission.")

Part of what makes these issues so interesting and dynamic is that sentencing reform (especially in the federal system) can appeal in various ways to different wings of the Republican party.  Republicans who favor small government (or at least small federal government) might well be distressed by the size and power of the federal criminal justice machine.  Consider in this vein the advocacy of Timothy Lynch, director of the Cato Institute's Project on Criminal Justice, in this piece about Booker which appeared in Legal Times yesterday.  Lynch urges President Bush and Congress in response to Booker "to consult the long-term, strategic vision that can be found in the legal opinions of Justices Antonin Scalia and Clarence Thomas."  For Lynch this means, inter alia, that "Congress should jettison the real-offense sentencing paradigm and move to a convicted-offense model" and that "President Bush and Congress should appoint a blue-ribbon commission with a mandate to propose a rollback of the federal criminal code." 

Meanwhile, for the religious wing of the Republican party, concepts of redemption and forgiveness have often made religion a progressive criminal justice force in areas ranging from advocating abolition of the death penalty to faith-based prison programming.  (I touched on some of these issues in this prior post.)  Consider in this vein the advocacy of Mark Early, the President of the Prison Fellowship.  In this commentary praising Booker, Early asserts, based on his experiences counseling prisoners, that the federal guidelines "have not produced justice, only bitterness."  He likewise calls upon Congress to do better and says "Christians, who understand that doing justice is a matter of wisdom, not fear, should give their representatives the permission they need to resist political posturing and undo past mistakes. Then, perhaps the fairness and wisdom of our system will also be beyond any reasonable doubt."

Of course, the coming debate over the post-Booker future of the federal sentencing system will be a dramatic and important test of whether there really is a new political order in the arena of sentencing reform.  Perhaps Blakely and Booker, in the votes of Justices Scalia and Thomas, can be seen as an example of this "new right" in the judicial branch.  It will be interesting to see if other examples may emerge in the legislative and executive branches in the days ahead.

Ex post facto, due process and cases in the pipeline

In this post and in my testimony in November to the US Sentencing Commission, I spotlighted ex post facto issues as a reason for Congress and the USSC to react cautiously to Booker.  Because it seems unlikely that any "Booker fix" can be applied to cases currently in the pipeline, I continue to fear that any short-term legislative changes in coming weeks "risks sowing greater confusion and uncertainty — and lots and lots of litigation — about applicable federal sentencing laws and practices."

And yet, even before we see any legislative response to Booker, we should all be fully cognizant of the legal doctrines which may limit the immediate application of the "judicial fix" to Blakely that Justice Breyer has engineered through the Booker decision.  As discussed by Peter Goldberger at White Collar Crim Prof Blog here and as noted by commentors here, there are strong due process arguments that, in Peter's words, "a post-Booker sentence for a crime committed prior to Jan. 12, 2005, cannot be higher than the top of the applicable guideline range ... [and thus, for] some time to come, post-Booker discretion must, as a matter of constitutional law, be a one-way ratchet favoring lower sentences."

Though I have not (yet) fully thought through the issue, I think Peter may be right that due process doctrines prevent judges from using their new post-Booker discretion to impose sentences higher than the guidelines in cases currently "in the pipeline."  But I imagine there may be some, especially prosecutors, who do not agree with this due process/ex post analysis.  I hope perhaps the comments to this post might be a forum for debating this very important issue concerning how the tens of thousands of cases in the federal sentencing pipeline can now be sentenced.

In praise of advisory guidelines

A few months ago, I received for possible publication in the Federal Sentencing Reporter a terrific article about advisory guidelines by Kim Hunt, executive director of the DC Sentencing Commission, and Michael Connelly, executive director of the Wisconsin Sentencing Commission.  At the time, we no longer had space in our final FSR Blakely issue, but I suggested to the authors that the piece could run in a subsequent issue. 

With Booker now making advisory guidelines a reality in the federal system, this article on "Advisory Guidelines in the Post-Blakely Era" could not possibly be more timely.  The authors have done a post-Booker update of the article, which is available for downloading below, and here is the opening paragraph:

With its rulings in Booker and Fanfan, the Supreme Court has redirected attention to the application of advisory sentencing guidelines.  Advisory guidelines, operating in ten states, are sentencing guidelines that do not require a judge to impose a recommended sentence, but may require the judge to provide justification for imposing a different sentence.  Although some commentators have questioned the efficacy of advisory systems in addressing sentencing disparity and predictability, this article will show that, properly constituted and overseen, these systems have produced results in many ways comparable to those of prescriptive sentencing  systems, which themselves have not always achieved or sustained the ambitious goals they have set.  The article concludes that, if done with an eye to the successes of states with advisory systems and the conditions necessary for those successes, the sentencing world of Booker and Fanfan can, in fact, accomplish the original objectives of the federal structured sentencing system.

In addition, the article ends with an important call for continued data-driven study and analysis of all sentencing systems:

It should be clear by this point that the authors view the paucity of reliable scientific evidence regarding the performance of all sentencing systems as a major obstacle to informed choice.  It is incumbent on all sentencing commissions, legislatures, and independent researchers to address this problem through joint efforts at data sharing, analysis, and performance monitoring.

Download fsr_advisory_guidelines_draft.doc

Take a deep breath.....

As I have suggested in some prior posts, I think the only certainty about the future of federal sentencing after Booker is uncertainty.  Uncertainty about how Booker will be interpreted and applied, uncertainty about how individuals and courts should react, uncertainty about how Congress and the US Sentencing Commission can and should respond.

But I am certain that everyone (myself included) should take a deep breath and not even expect to be able to figure all this out instantly.  In particular, I think it is especially important for Congress to act cautiously, hold hearings, consult in an open and deliberative way with the US Sentencing Commission, the Justice Department, defense groups and judges of all sorts to chart a sound and sensible path for the future of the federal criminal justice system.

In many ways, I think the "Go Slow" advice I gave to Congress in July after Blakely remains fully in force.  Moreover, I think every member of Congress ought to review the US Sentencing Commission's recently released 15-year report, a report which deserves, in my view, far more attention than it has received to date. (The full report can be accessed here, its executive summary can be accessed here, and my summary of the executive summary is here.)  How can Congress decide where it wants to go with federal sentencing until it completely understands where it has been?

On the same theme, I just received this letter signed by 50 diverse organizations delivered to members of House and Senate Judiciary Committees encouraging a "go slow" approach to any legislative changes and consideration of the full impact of federal sentencing policy.  Here is the heart of the letter:

We, the undersigned organizations, write to encourage you to consider two key issues in regard to any legislative action in this area:

1. In order to create a sensible, long-term sentencing policy, Congress should avoid the temptation to create a "quick fix." There is no real quick fix, and seeking an end run around the important issues could have unintended negative consequences.  A proposal to allow much longer sentences while retaining current restrictions on judicial discretion to mitigate punishment (the so-called "Bowman fix") should be rejected.

2. In order to have punishments that fit the crimes committed, Congress must closely evaluate the past 20 years of sentencing policy and the broader implications of those policies. Mandatory minimum sentences and other problems should be fixed in the process.

In closing, we urge you to work toward meaningful sentencing reform. Congress must strike an appropriate balance among competing goals, and must do so carefully and with meaningful participation from all of the affected parties, including the judiciary, the Sentencing Commission, criminal justice practitioners (including community and institutional corrections), academic experts, victims, and the public at large.

New resources from The Sentencing Project

I just noticed that The Sentencing Project, a non-profit organization which does terrific research and advocacy work on a range of criminal justice issues, has on its website new resources on Blakely and on the scope of imprisonment.

On a page appropriately titled "Awaiting the Supreme Court," Executive Director Malcolm Young provides extensive background on Blakely and the pending Booker and Fanfan.  This discussion of the cases also effectively integrates (and links to) other important recent sentencing reform developments.

And a document entitled "New Prison Figures: Rising Population Despite Falling Crime Rates" provides an effective and compelling summary of the latest prison data released by the Bureau of Justice Statistics last month (discussed here).  The document also discusses nationwide sentencing developments and has an amazing final graph of different countries' incarcertaion rates (which shows that the US rate of incarceration is more than 5 times China's, more than 10 times Japan's and more than 20 times India's rate of incarceration).

Advice from a former USSC Commissioner

At last month's hearing before the US Sentencing Commission (detailed here), Professor (and former Commissioner) Michael Goldsmith advocated that, if Blakely is applied to the federal system, the Commission ought to move toward the development of simplified, Blakely-ized guidelines.  (The battle over what might happen if/when Blakely is applied to the federal system is discussed a bit in this post and this post.)

Professor Goldsmith has now finished drafting, for publication in a coming issue of the Federal Sentencing Reporter, his "five step approach" to preserving the constitutionality of federal sentencing guidelines.   You can download Professor Goldsmith's thoughtful essay, in which he suggests his proposal "would both satisfy the demands of Blakely and best achieve the noble goals of the Sentencing Reform Act," here:

Download goldsmith_on_fsg.doc

Debating the structure of post-Blakely sentencing

This article from the Seattle Post Intelligencer entitled "Lawyers work to recraft sentencing guidelines" provides a thoughtful and intriguing account of the on-going debate in Washington over how to amend the state's guidelines to best accommodate the demands of Blakely.  The article details that prosecutors and defense attorneys are dickering over how to define and structure aggravating and mitigating sentencing factors, although there are apparently significant points of consensus:

Defense attorneys and prosecutors agree that prosecutors should declare their intention to seek above-standard sentences when they file charges, and that juries generally would consider aggravating circumstances during the trial.

The article closes by noting that some of Washington's state judges are actually advocating the most radical response to Blakely.  According to the article, the "state Superior Court Judges' Association favors a simple solution: making the guidelines voluntary."

How and how fast might Congress react to Booker and Fanfan?

If Booker and Fanfan are handed down Tuesday morning and if Blakely is held applicable to the federal guidelines (both of which are big ifs), I wonder how and how quickly Congress might seek to respond to the decision. 

Obviously, exactly what is said (and not said) in Booker and Fanfan will profoundly shape any congressional response.   But I also suspect how the media and the public — not to mention the Justice Department, the USSC and federal judges — perceives what is said in Booker and Fanfan, as well as fortuities of timing and other congressional concerns, could also greatly impact what happens after we see a Booker and Fanfan decision.

Many followers of federal sentencing reform, who recall how quickly the dramatic Feeney Amendment became law, are understandably concerned about a hasty and potentially rash congressional response to a ruling in Booker and Fanfan.  Yet, if the decision is cast by the High Court and perceived by the press and public as a vindication of the role of juries, which is how Blakely has be viewed by some, then cries to "undo" Booker and Fanfan may have less political traction.  Then again, if the decision is perceived as giving a break to undeserving criminals, a "tough-on-crime" response to the may be politically unavoidable (as recently suggested by representative Tom Feeney himself).

As noted previously here, the NACDL and a broad group of other organizations have already written this letter to the House and Senate Judiciary Committees opposing any hasty legislative fix in the wake of a decision in Booker and Fanfan.  Similarly, the Federal Sentencing Guidelines Task Force of the Federal Bar Association's DC Chapter (of which I am a member) on Monday sent a similar letter to the House and Senate Judiciary Committees.  This letter, which can be downloaded below, not only advocates "careful deliberation" by Congress in any response to Booker and Fanfan, but also collects numerous public statements by leading policy-makers and judges opposing reliance on mandatory minimum sentencing provisions.

Download fbadc_task_force_letter_to_congress.pdf

Feeney speaks about Blakely

This intriguing Orlando Sentinel article — which covers sentencing topics ranging from Florida's three strikes law to how cost concerns have prompted many states in recent years to reconsider mandatory-sentencing laws — includes some fascinating quotes from Tom Feeney, the US Representative from Florida who introduced the notorious Feeney Amendment to the 2003 PROTECT Act (details here from the NACDL). 

Not surprisingly, Rep. Feeney states, quite aggressively, that Congress could respond to invalidation of the federal guidelines by passing a raft of mandatory sentencing provisions.  But, somewhat surprisingly, Rep. Feeney also suggests he thinks some sentencing terms could be reduced.  Here are the Feeney highlights, which includes a brief defense of the Feeney Amendment, from the article:

"If they come down and undermine the whole way the sentencing guidelines work, the only option for Congress may have is to enact enhanced mandatory sentences," said U.S. Rep. Tom Feeney, R-Oviedo, who has been a leader in Congress in passing tougher sentencing measures. "If the courts throw out the sentencing wholesale, we will have a really big battle."

Feeney is author of the Feeney Amendment, which pressures federal judges to stick to sentencing guidelines by forcing those who vary to explain why.
"What we were finding was the federal judiciary was blatantly -- overtly in some circuits -- almost totally ignoring the guidelines," he said. His provision has drawn harsh criticism, even from Supreme Court justices, who say it interferes with a judge's discretion to weigh factors such as a defendant's background and attitude.

Still, Feeney doesn't expect the court to totally reject federal sentencing rules.  "Most court analysts say you can expect the guidelines to be thrown out," Feeney said. "I think that's unlikely. I think they realize they could be going out of the kettle and into the fire. They do not trust Congress to come up with a better solution."...

But even Feeney, Bush's running mate in a 1994 race for governor, thinks some sentences should be lighter. "Mandatory sentences may be appropriate for some crimes but may not be appropriate for all crimes," Feeney said. "If you're not a massive pusher of drugs, what's the best approach? Throw you in prison, or try to rehabilitate you? That's a very legitimate debate."  Feeney, who railed against higher taxes as Florida House Speaker, said he's troubled by prison costs, even though Florida is in better financial shape than most states.

The USSC's wonderful data plans

I have on good authority that we will be seeing early next week the US Sentencing Commission's long awaited "15 year report."  I know the USSC has been working very hard on this project for a number of years, and the report should be chock-full of data and analysis of the pre-Blakely state of federal sentencing.  And I expect that the information and conclusions from the Commission’s comprehensive pre-Blakely assessment of the operation and efficacies of the federal guidelines should be of enormous value to everyone contemplating the post-Blakely direction of federal sentencing reforms.

In addition, I was also giddy to hear from a very trustworthy source that the USSC may also try to release this month, perhaps even before Thanksgiving, some of the preliminary data the USSC has collected concerning the post-Blakely state of federal sentencing.  In my testimony to the USSC earlier this week, I stressed the value of public dissemination of that data, and Judge Castillo indicated the Commission would try to release the data as soon as possible.  I am both amazed and very gratified to learn that we may possibly see this data within a matter of weeks (and maybe even before John Madden does his annual turkey nonsense).

Of course, if you need a USSC fix before the data deluge, remember that you can access all the written testimony from this week's hearings here, as well as a transcript of the panels (which includes the interesting Q & A portions) here.  (My prior summaries of the USSC hearings are here and here.) The transcript of the session with Christopher Wray, Assistant Attorney General, Criminal Division, US DOJ is here, and you can in the Q & A count how often he stressed that he is "not endorsing but merely describing" (quite favorably) the Bowman fix.

Brief summary of USSC hearing highlights

Though others surely do not share my obsessions, two days of USSC hearings on Blakely was pure rapture to this sentencing geek.  I could easily write a book about all the (big and small) developments and insights to be drawn from the hearings, but the realities of time means a few summary posts here will have to suffice.  But I highly encourage all Blakely addicts to make the time to read the written testimony the USSC has effectively assembled here.  There are gems in each and every piece, and I won't be able give all the important items their due.

To begin, I want to complement the Commission for running the hearings so well and also complement all the Commissioners both for their cordiality and for the insightfulness of their questions and comments.  I believe this was Judge Hinojosa's first hearings as Chair, and he kept the sessions moving along effectively and added a needed touch of levity at times.  Indeed, perhaps the most exciting moment was when Judge Hinojosa hinted that, after the USSC dealt with Blakely, he personally was going to bring order to the college football BCS system (though, with Judge Hinojosa at the helm, I suspect his beloved Longhorns might move up even higher in the BCS rankings).

In a series of subsequent posts, I plan to review distinctly the views from the judges, from the litigants (defense bar and DOJ), and from the academy.  However, I think a series of summary  points might be a good way to start:

1. Everyone seemed to endorse the concept of binding guidelines — there was virtually no support for a wholly advisory system from any quarter (although the judges, who might be most likely to endorse such a system, did not expressly weigh in with any specific recommendations).
2. Nearly everyone stressed the importance of trying to simplify the federal sentencing guidelines, although precisely what features of the existing guidelines most needed to be simplified was not always clearly stated.
3. There was a lot of interesting and dynamic discussion of the timing and timelines for post-Booker/Fanfan changes to the guidelines.  The judges stressed the need for clear guidance in the wake of a SCOTUS ruling, and the Commissioners seemed to appreciate the need to move fast after Booker/Fanfan come down.  But whether and how there could/should be a short-term fix followed by a long-term fix was a subject of much debate.
4. The long-term vitality of Harris, the decision approving judicial factfinding for mandatory minimum sentencing, was also the subject of interesting and dynamic discussion.  Of course, Harris' vitality is extraordinarily important if Congress and/or the USSC adopt the so-called Bowman fix (aka "topless guidelines") in the wake of Booker/Fanfan.
5. The essential idea of simplified, Blakely-ized guidelines was probably the favored proposal put forth by most of the presenters, but the USSC's ability to make that happen — both as a matter of timing and as a matter of the USSC's authority — pose a number of tough issues.
6. Professor (and former Commissioner) Michael Goldsmith made the very sound suggestion that the Commission try to speak with a unified voice when offering specific proposals and recommendations to Congress.  But the Commissioners' diverse questions (combined with the many tough legal, political and practical issues that lie ahead) suggest that unity may be easier said than done.
7. I came away with the feeling that both the holding and the dicta in Booker/Fanfan will have a profound impact on whether (assuming Blakely applied to the federal system) the Bowman fix or simplified, Blakely-ized guidelines becomes the immediate front-runner for the future of federal sentencing.

I could — and later will — go on and on.  But for now, Ellen Pogdor over at White Collar Crime Prof Blog has a lot of insightful points here about the apparent move by DOJ toward the Bowman fix.

Ivory tower optimism meets inside the Beltway realism

I explained earlier this week here why I am optimistic about the future of sentencing reform, but I have conceded here that meaningful sentencing reform may seem much more possible when considered from the ivory tower than from inside the Beltway. Additional proof of these dynamics comes from a set of "DC Observations" I received from Baylor Law Professor Mark Osler this morning.

Long-time readers know that Professor Osler (writing now, of course, from the ivory tower) has suggested one of the most sensible and straight-forward "solutions" to reforming federal sentencing after Blakely. (Professor Osler's thoughtful "3x Solution" can be accessed here.) But, after a trip to DC for research purposes, Professor Osler shares these sobering observations of the future of federal sentencing reform:

Below are my four principle observations from my DC adventure:

1. In the end, Booker and Fanfan aren't very important (unless the Court does not apply Blakely to the Guidelines). As you have written, given the composition of the Blakely majority it is hard to believe that anyone in the majority will defect, and it is clear that Blakely will be applied to federal sentencing. All of our fussing about severability, however, will be pointless. Once Blakely is applied to federal sentencing, Congress will act, regardless if all or part of the Guidelines fall. It is Congress, not the Court or the USSC, that will remake sentencing — the Court's role will be just to provide the impetus for change, and the USSC's job will be to follow very specific Congressional mandates, ala Feeney.

2. Once the Guidelines fall, there will be no great debate on what comes next. Rather, as with Feeney, the new rules will come down without significant debate. Newt Gingrich has a lot to do with this. When he became House Majority Leader, he did two things to the process: (1) He curtailed the power of the committee chairs, increasing the power of the party whips; and (2) He halved the staffs of the committees. This latter change had profound effects. Because there are no longer enough staffers to write legislation, this job is largely performed now by lobbyists. On any given bill, the Republican powers assemble relevant lobbyists to draft legislation (at least on the House side) and pass it in party-line votes. For sentencing matters, the relevant lobbyists are from DOJ — they will, in the end, write the new legislation in the House. This means more mandatory minimums are on the way because that will be Main Justice's preference (as evidenced by the recent letter-to-the-editor campaign by DOJ bolstering current minimums), despite the opposition to same from AUSA's who actually try cases.

3. Don't count on decision-makers caring much what you think. Once I was convinced that the House was not approachable based on the above, I put on a full-court press to meet with someone from the office of Sen. John Cornyn (R-Tex), who is on the Senate Judiciary Committee. I contacted Cornyn's office by phone, email, and fax seeking only a few minutes with a staff member. In my communications, I made it clear that I was a constituent, and that I was a former AUSA who now teaches sentencing law in Texas. My pleas were ignored, and my calls went unreturned.

4. Finally, in all of the academic discussion of these matters, almost no one has discussed what may be ultimately most important: The election. That may be because many of us (myself included) are not very partisan politically. However, we can't ignore politics in making our prognostications. If Bush wins (and a Republican majority remains in the House, a near-certainty), all of the above will remain true. If Kerry wins, all of the above may also remain true, but there is a chance it won't. If the new legislation is stalled until a new administration comes in, the difference won't be at the end of the process (Kerry's ability to veto) but the front end — it is likely that the new AG will be less inclined to lobby for mandatory minimums, and will have a broader mind as to what reforms will be considered.

All of Professor Osler's observations are trenchant and provocative, and I hope I might reflect and comment on them late tonight. But, as I will explain in a following post, I am soon to be heading inside the Beltway myself, and I am now ever more fearful of what I will discover upon leaving the lovely confines of the ivory tower.

Luna and R.E.M. are humming in Philadelphia

Post from Ron:
Professor Erik Luna, on the law faculty at University of Utah, today published this op-ed in the Philadelphia Inquirer. After noting that the Supreme Court granted cert in Booker and Fanfan, Luna has this reaction: "I can't help humming the refrain from R.E.M.'s 1987 rock ditty: 'It's the end of the world as we know it, and I feel fine.'" Luna points out that the disruptive Blakely doctrine should be seen, above all, as an opportunity to address a system that had serious problems. Here's his short prescription for change:

A constitutionally sound and morally just solution would start all over, creating real guidelines that guide rather than dictate and permit the entirety of an offender's situation and his offense to be taken into account. This would not mean a punishment free-for-all. Trial judges would have to provide written explanations for their application and/or deviation from sentencing principles, always subject to appellate review. They might be guided by a computer database of information about previous criminal cases.

Although the Supreme Court's Excellent Sixth Amendment Adventure has indeed created much turmoil, there is truly a chance for us to come out on the other side with an improved system.

Monday To-Do List: Revise Federal Sentencing Laws

Post from Ron:
Ah, Monday morning. Time to survey the wreckage on the desktop from last week, clear a little new space, draft a fresh To Do List: "(1) answer email, (2) revise draft article, (3) rewrite federal sentencing system in light of Blakely."

I've got good news for you on this last task. Larry Kupers, a former assistant federal public defender in the Northern District of California, formerly the Federal Public Defenders’ visiting counsel to the United States Sentencing Commission, currently completing a temporary duty assignment with the Office of Defender Services of the Administrative Office of the United States Courts, has drafted a short article proposing a long-term vision for a restructured system. Larry is willing to share his current draft through this blog, so you can find the link below.

The ideas in this draft are subtle and interesting. This is not a stop-gap repair, but a new system that would take significant legislative effort. It goes beyond the idea that the guidelines should remain advisory within the broader statutory ranges.

Instead, the system that Kupers envisions involves several interlocking elements that do not resemble current law very closely at all:

(1) The Sentencing Commission (not the Congress) should select a "base guideline range" within the statutory minimum and maximum, a fairly wide "base range" that will determine the outcome for a majority of cases based only on the charge of conviction.
(2) The judge can depart down from this range, based on reasons that can be reviewed for reasonableness on appeal.
(3) The judge can depart up based on a limited number of statutory "enhancements" (Kupers suggests 10), to be alleged in the indictment and proven at trial, much in the manner of current firearms enhancements.
(4) The Sentencing Commission should issue truly voluntary guidance to the courts on how to select sentences within the broad base guideline range, and how much to depart.

What can we anticipate would happen to various pieces of this proposal as it works through the legislative mill?

Download Kupers.pdf

What should Congress be doing?

Various folks I have spoken with today have shared my puzzlement over the Senate's quick consideration and passage of a "Concurrent Resolution" urging quick Supreme Court action on Blakely (basics here, commentary here). Helpfully, in the comments of a prior post, a reader pointed me to this link, which has the remarks of Senators Hatch and Leahy in support of the resolution. These remarks are quite thoughtful and informative, and they essentially summarize some conclusions that seemed to be drawn from last week's Senate Judiciary Committee hearing.

Helpfully, the law school academy is hard at work developing ideas and suggestions for when Congress is ready to jump fully into the Blakely pool. Specifically, I am pleased to be able to post two distinct recommendations for how Congress should respond to Blakely from Professors Albert Alschuler and Mark Osler. Both documents thoughtfully examine where we are and need to go in the world of federal sentencing, though they produce significantly different recommendations. Both efforts are required reading for anyone thinking seriously about appropriate legislative reponses to Blakely.
Download alschuler_blakely_response.doc
Download osler_on_the_blakely_problem_and_the_3x_solution.doc

Wednesday's work by the Legislative Branch

Perhaps tired of standing on the sidelines, Congress also got into the act on Wednesday through the Senate's consideration and passage of a "Concurrent Resolution" urging quick Supreme Court action on Blakely (background here). A quick read of the document makes it seem harmless enough; it concludes by asserting the "sense of Congress that the Supreme Court of the United States should act expeditiously to resolve the current confusion and inconsistency in the Federal criminal justice system by promptly considering and ruling on the constitutionality of the Federal Sentencing Guidelines." Though the idea of one branch ordering another to act quickly seems a bit unsavory to me, I am disinclined to complain about Congress joining lower courts and observers in pleading for the Supreme Court to move fast.

But I can complain -- or at least question -- some of the language tucked into the resolution. Specifically, consider Paragraphs 5 and 6:

... [para 5] Whereas the statutory maximum penalty is the maximum penalty provided by the statute defining the offense of conviction, including any applicable statutory enhancements, and not the upper end of the guideline sentencing range promulgated by the Sentencing Commission and determined to be applicable to a particular defendant;
[para 6] Whereas both Congress and the Sentencing Commission intended the Federal Sentencing Guidelines to be applied as a cohesive and integrated whole, and not in a piecemeal fashion;...

This language jumped out at me because Paragraph 5 seems to adopt concepts and terminology from Judge Easterbrook's dissent in Booker in an effort to distinguish the federal guidelines from the Blakely holding. Whether this resolution and its language will matter one whit to the Supreme Court seems unlikely, but it is interesting that Congress is using Paragraph 5 of the resolution to try to shield the federal guidelines from Blakely's reach. And then, as Marty Lederman at the SCOTUSBlog has already noted here, Paragraph 6 seems to be speaking to (and trying to resolve) the issue of severability.

In short, the language of Paragraphs 5 and 6 is clearly crafted to influence the on-going consideration of the very two issues the High Court will face when it takes a federal Blakely case. And my first reaction is to complain of untoward congressional meddling; but perhaps a healthy perspective would lead me to call all this appropriate inter-branch dialogue.

Congress clears its throat!!

Though I have not gotten official word, I think today we have had a three-branch trifecta. It is, of course, now old news that the judicial branch spoke up again through the Ninth Circuit's decision in Ameline (here), and we also now have heard from the executive branch through the SG's papers filed with the Supreme Court seeking review in Booker and Fanfan (here).

Apparently not wanting to be left out of all the action, it seems the legislative branch has also been busy. I have now heard from two sources that Congress is working on a "Concurrent Resolution," through which Congress will express its collective view that the US Supreme Court should act expeditiously to resolve the confusion caused to the criminal justice system by Blakely v. Washington.

I will post more on this front and provide commentary when possible. But, after quite a day, it is time for a break.

UPDATE: I have received copy of the resolution which has apparently already been passed by the Senate and likely will be passed by the House before the end of this week (or so I am told). Here's the text:
Download senate_resolution.pdf

End of day news and commentary

The Blakely news and corresponding media coverage is growing as everyone figures out how big this story is. The Wall Street Journal (which unfortunately does not provide content on-line without a subscription) may have on Wednesday another in its series of thoughtful articles about the Blakely fall out. In addition, here's a brief (and surely incomplete) run-down of other noteworthy Blakely news.

Federal Developments: this AP story reports that U.S. District Judge Stewart Dalzell (ED Pa.) sentenced Frederick Leach to a 15-year term in a drug case instead of the guideline recommended 30-year term citing Blakely; Martha Stewart's sentencing is scheduled for Friday though U.S. District Judge Miriam Goldman Cedarbaum has not yet ruled on Stewart's lawyers' request to declare the federal sentencing guidelines unconstitutional -- this thoughtful article details the strategic challenges Stewart faces in deciding whether to speak at the sentencing.
MORE: This article dicusses Blakely issues in a Virginia District Court; this article reports that U.S. District Judge Michael J. Reagan of SD Ill. has continued all his sentencings to September or October; this article reports that U.S. District Judge John Manos has concluded that "the Blakely case does not affect federal law"; and this article quotes Deb Phillips of the U.S. attorney's office in Nashville saying, ''Right now, [Blakely will] just be a blip.''

State Developments: according to this article, Tennessee Criminal Court Judge Rebecca Stern sentenced a man convicted of raping an 82-year-old woman to a minimum 25-year sentence on Monday and said her sentence was limited by the Blakely ruling; and according to this article, Washington State Superior Court Judge Richard Strophy reduced by 19 months the sentence of a convicted murderer Monday relying on Blakely.

Other Commentary: Jason Hernandez over at the Blakely Blog provides this thoughtful run-down of issues raised during today's Senate hearing; Professor Kyron Huigens over at Punishment Theory continues his analysis of the problems he has with Justice Breyer's metaethics.

My own two cents: I found the Senate hearing very heartening with its consistently thoughtful and balanced discussion of many tough issues and its hints that at least a few Senators might want to re-think some major elements of the existing federal sentencing scheme. In the debate over the current "chaos" and the need for a quick fix, I continue to think it is very signficant that the USSC asserts "that a majority of the cases sentenced under the federal guidelines do not receive sentencing enhancements that could potentially implicate Blakely." USSC Written Testimony at p.2 (emphasis added). Finally, since DOJ representative Willaim Mercer's suggested that the time for legislative action might be in August, I am fearful that DOJ, if it feels that judges are low-balling sentences post-Blakely, will return to the Hill later this summer to seek a pro-prosecution "fix."

Written Senate testimony and comments

As promised earlier, I can and will now post here copies of the written Senate testimony that I have in hand which may not be otherwise available. In addition, as of this writing, you can find (only) the testimony of DOJ representative Bill Mercer and the statement of Senator Orrin Hatch on the Judiciary's Committee's official site here. I encourage readers to use the comments to discuss what they might have thought was especially noteworthy in these proceedings (or anything I missed in my summaries). I will also post additional testimony as I receive it and it is not otherwise available 9and recall you can access my testimony here).

Here's Judge Paul Cassell's written testimony (which has the most comprehensive account of Blakely coping efforts by district courts that I've seen):
Download cassell_final_blakely_senate_testimony.pdf

Here's Ronald Weich's written testimony (which thoughfully details key considerations for thinking about short-term and long-term congressional fixes):
Download final_ron_weich_senate_testimony.doc

AND NOW I also discovered that the US Sentencing Commission has posted here the joint testimony of Commissioner John R. Steer and Judge (and Commissioner) William K. Sessions, III.

AND NOW Jason Hernandez over at the Blakely Blog has pdf versions of the testimony of Rachel Barkow and Alan Vinegrad here.

UPDATE: It now appears that all of the testimony (in html form) can now be found on theJudiciary's Committee's official site here.