Sentencing Law and Policy

Is legislation to lower federal sentences a real possibility in 2008?

In this recent post, I hinted at my own pessimism about the prospects of legislation to lower federal sentences during an election year.  But this new article from the Houston Chronicle strike a distinctly more optimistic tone.  Here a excerpts:

The tough-on-crime crackdown of the 1980s and 1990s is getting a second look in Congress. Some lawmakers, including Houston Rep. Sheila Jackson Lee, are questioning whether the soaring incarceration rates brought about by changes in federal sentencing laws have actually deterred crimes....

Jackson Lee, who serves on the House Judiciary Committee's crime subcommittee, is part of the vanguard re-examining a criminal justice system that has seen the federal prison population double from 1.1 million inmates in 1990 to 2.3 million today [sic: these numbers are national incarceration, not the federal prison population]....

The momentum for change reaches beyond liberal lawmakers and left-leaning interest groups. The Supreme Court and the Sentencing Commission recently moved to give judges more discretion in sentencing crack cocaine offenders....

Rep. Lamar Smith of San Antonio, the top Republican on the Judiciary Committee, will be among those standing in Jackson Lee's way.  After the Sentencing Commission's decision to allow judges to retroactively reduce crack offenders' sentences slightly — though not less than the mandatory minimums — Smith introduced his own legislation seeking to block any early releases. "In addition to endangering our communities, allowing the early release of criminals back into society would cripple our re-entry programs by overburdening probation officers and flood the courts with additional litigation," Smith said....

Jackson Lee, who also is pushing to cut prison rates by half for nonviolent federal offenders who are over the age of 45 and have served at least 50 percent of their sentence, said she is hopeful that the new Democratic majority in Congress will be able to prevail on criminal justice changes.  "The question of liberty is so important to me, and the question of having faith in the integrity of the criminal justice system," she said. "There is a sense of urgency to make right which has been wrong, to improve what has not worked, and to find ways to rehabilitate, to protect the American public from crime but at the same time give people a second chance."  Her views are far from universally shared. Jackson Lee acknowledged the legislation faces a strong challenge, though the congresswoman said she has high hopes of getting it into law this year.

For lots and lots and lots of political and practical reasons, I doubt significant sentencing reforms will emerge from Congress in 2008.  But perhaps I am being too pessimistic at a time when everyone seems to be getting on the change bandwagon. 

Might Congress move ahead with sound sentencing reforms?

In the two-plus years since Booker, Congress has been remarkable quiet on the sentencing front.  Though there have been proposals for large and small sentencing reform from all quarters, Congress has shown relatively little interest in radically changing (or even seriously studying) post-Booker sentencing realities.

As documented here and here at FAMM, however, some members of Congress now appear interested in exploring possible sentencing reforms.  Specifically, later this month brings these two notable congressional events (as described by FAMM):

• Summit on crime policy:  On June 21, FAMM president Julie Stewart will testify at a federal summit on crime policy, "Violent Crime — Prevention and Solutions from the Experts."  The summit is hosted by Representative Robert C. "Bobby" Scott, Chairman, Subcommittee on Crime, Terrorism and Homeland Security House Judiciary Committee.

• Hearing on mandatory sentences: On June 26 at 10:00 a.m., the Subcommittee on Crime Terrorism and Homeland Security of the House Judiciary committee is holding a hearing that relates to federal mandatory minimum sentencing laws.

AG Gonzales talking again about a mandatory minimum guideline system

Perhaps deciding that the best defense is a good offense, Attorney General Gonzales today announced a set of new initiatives for combating violent crime.  (I would think that not firing well-regarded US Attorneys would be part of any effective crime-fighting program, but....)

As detailed in this lengthy official press release, one part of the AG's proposed plan is another pitch for a "topless guideline" Booker fix that would make mandatory again "the bottom of the guideline range for each offense."  There are lots and lots of particulars to the AG's proposed "new legislation to help prevent and combat violent crime," and it is not clear that anything is new in the Booker fix discussion.  In addition, it strikes me as very unlikely that any "topless guideline" system would be well received in Congress.  Nevertheless, it is interesting and notable that, after nearly six months of ugly developments involving the AG, he and his Justice Department are starting what should be a hot summer with some old school "tough on crime" talk.

Early reactions to topless guidelines bill

As detailed here, House Judiciary Chair James Sensenbrenner has finally introduced his "topless guidelines" legislative Booker fix, a proposal about which I have already written a lot (in this article and in so many posts).  I am thus pleased to see other bloggers weighing in with astute observations about the misguided aspects of this Booker fix proposal.

Ellen Podgor at White Collar Crime Prof Blog here notes that sentences are going up in a key area after Booker and she asks this insightful question: "Is there really any need for topless guidelines if the sentences are going up in the one area, white collar crime, that seems to be of enormous concern?"

Anthony J. Colleluori, aka That Lawyer Dude, here provides a fuller critique in a post entitled "Congressman Sensenbrenner Goes Topless In The House Of Representatives: Lies Our Congressmen Tell Us."  Here is one of many sharp passages in his post:

Lie No. 3: Senselessbrenner states in [his press] release that "Two of the hallmarks of our judicial system, fairness and equity, have been undermined since the Supreme Court's Booker decision last year."... [But] the bipartisan committee of the Constitution Project (Chaired by Reagan Attorney General Edwin Messe and Clinton's Deputy AG Phillip Heymann) said that "topless guidelines are unconstitutional." Other commentators have noted that the guidelines now allow the sentencing courts to get the sentence right and allow the Circuits to keep everyone in line.... If Sensenbrenner really wants to protect children from exploitation, let him start on Capital Hill.

Sensenbrenner officially introduces topless guidelines Booker fix

I heard word today that House Judiciary Committee Chairman, F. James Sensenbrenner, Jr. has (finally) officially introduced a legislative Booker fix in the form of HR 6254 (available for download below).  Though some resist the label "topless guidelines," that label is the easiest way to describe a bill that is formally called the "Sentencing Fairness and Equity Restoration Act of 2006."  I likely will spend the weekend discussion this (somewhat expected) development, but I have an afternoon with more fun that blogging planned.  Plus, as revealed below, I have already blogged aplenty about these matters.

Download booker_introduction_draft.pdf

Just some of many posts on topless guidelines and other Booker fix buzz:

• Sensenbrenner Booker fix drafted
• Will the fall bring any Booker fix action?
• News on the Booker fix front
• Constitution Project urges post-Booker reforms
• Full draft of Tweaking Booker
• Latest FSR issue develops model federal guidelines
• FSR Issue 18.3: Taking Stock a Year after Booker
• FSR Issue 18.2: Defense Perspectives on the Post-Booker World
• FSR Issue 17.5: Is a Booker Fix Needed?

Posts in my (now dated) "Dead Booker walking?" series:

• Dead Booker walking?: an introduction
• Dead Booker walking?: incentives to cooperate
• Dead Booker walking?: disparity in theory and practice
• Dead Booker walking?: a "drift toward lesser sentences"

Will the fall bring any Booker fix action?

As detailed in this post, in July at the 2006 National Sentencing Policy Institute, there was much talk that September would bring congressional hearings on Booker and perhaps the introduction of Booker fix legislation.  However, continuing a recent trend noted here and here, talk of a legislative response to Booker remains surprisingly muted; lately I have not heard any serious buzz about planned congressional hearings on Booker.

Of course, primarily as a result of interesting court rulings, the summer has been full of Booker action (highlights here).  And, with fascinating en banc hearings in the works in the Third Circuit on burdens of proof (basics here) and in the Ninth Circuit on reasonableness review (basics here), we should expect more of the same this fall.  The Supreme Court will also be back in the mix through its Blakely work in Cunningham and Burton (although decisions in those cases likely won't arrive until the winter months).

Last September in this post, I set out a few political and legal reasons why I thought the Booker remedy might endure.  I am intrigued and surprised to discover that these insights from last year remain quite timely.  Consequently, for exciting action this fall, think baseball finales and Buckeye football, not Booker fixes.

News on the Booker fix front

At the start of this week, I returned from my "vacation" by jumping deep into the post-Booker world at the 2006 National Sentencing Policy Institute in Washington DC.  Though not an event open to the public, I think I can report publicly discussed news. 

Of particular interest was a panel with congressional counsel talking about legislative reactions to Booker and a speech by Deputy AG Paul McNulty about DOJ's continued support for Booker fix legislation.   Here are a few highlights on Booker fixes and other sentencing legislation:

1.  A Sensenbrenner "topless guidelines" Booker fix proposal is likely to be introduced in the House in September, though serious action on the bill before the November elections seems unlikely.

2.  The Senate Judiciary Committee is likely to hold some sort of hearings on Booker in September, although serious action on any legislation seems unlikely this fall.

3.  The Justice Department continues to support a "minimum guideline system" (which they do not like having called topless guidelines), and DOJ seems likely to start pushing hard for such a system in the months ahead.

4.  We can and should expect to see continued interest in mandatory minimums from some members of Congress as long as the guidelines are advisory; the latest notable example of mandatory minimums appears in the new child safety legislation (noted here and here) that became law yesterday.

5.  The Second Chance Act is a fascinating bipartisan bill that sounds as though it has a lot of really good provisions to help on a range of important re-entry issues.

Some related Booker fix posts:

• Full draft of Tweaking Booker
• FSR Issue 18.3: Taking Stock a Year after Booker
• FSR Issue 18.2: Defense Perspectives on the Post-Booker World
• FSR Issue 17.5: Is a Booker Fix Needed?

A Senate bill to reduce crack/powder disparity

The Washington Times is reporting this exciting news from the Senate:

A bipartisan group of four U.S. senators, all former state attorneys general, presented legislation yesterday to reduce the disparity in prison sentences for those caught with crack cocaine and those caught with powdered cocaine. That disparity in federal sentencing guidelines is currently 100-to-1. It would be reduced to 20-to-1 under a measure introduced yesterday by Republican Sens. Jeff Sessions of Alabama and John Cornyn of Texas and Democratic Sens. Mark Pryor of Arkansas and Ken Salazar of Colorado.

The Drug Sentencing Reform Act of 2006 would reduce the disparity by decreasing the amount of crack cocaine necessary to trigger the mandatory minimum sentencing and introducing a "modest increase on powders," said Mr. Sessions, who presented a similar Senate bill in 2001.  Currently, possession of 500 grams of powdered cocaine results in a five-year mandatory minimum sentencing. It takes only 5 grams of crack cocaine to warrant a similar sentence. The senators propose shifting the sentencing amounts to 400 grams of powder and 20 grams of crack cocaine.

The bill would bring about "tougher sentences on the worst and most violent drug offenders and less severe sentences on lower-level, nonviolent offenders," said Mr. Sessions, adding that the measure would shift the emphasis in sentencing from drug quantity to the type of criminal act committed in distributing drugs. "This does not signal that we are going soft on crime," Mr. Sessions told reporters yesterday. He said that "much crime is driven by drug use," but that as a former federal prosecutor, he has "valid concerns in the disparity between crack and powder." Mr. Cornyn said his prior experience as attorney general of Texas showed him that "laws should be firm but fair. We not only need just laws, but they need the appearance and reality of fairness."

The crack/powder sentencing disparity -- which has resulted in higher incarceration rates for blacks convicted of drug crimes -- long has been targeted by groups such as the Leadership Conference on Civil Rights and the American Civil Liberties Union. In 2000, more than 84 percent of those sentenced for crack cocaine distribution were black, while 9 percent were Hispanic and 5 percent were white. By contrast, 30 percent of those sentenced for powdered cocaine were black, 50 percent were Hispanic and 15 percent were white.

This local story from an Alabama paper on the bill provides some more perspectives on the issue.

Many critics of current federal sentencing laws are surely eager for drug sentencing reform that goes beyond this relatively minor tinkering in the cocaine area (such as the elimination of all statutory mandatory minimums).  However, just the introduction of this bill marks a significant step forward inthe crack/powder debate.  It would be especially exciting and valuable if the Senate were to hold hearings on this bill to give these issues a wider airing and if the US Sentencing Commission were to follow-up the introduction of this bill by (finally) doing something bold in this arena.

Some related posts:

• The biases in crack sentencing
• Crack sentencing and the anti-parsimony pandemic
• Crackin' good arguments, Gromit!
• Reflecting 20 years after the crack panic
• Noticing different legislative reactions to meth and crack
• What is the Sentencing Commission fiddling while the crack guidelines burn?
• New ACS issue brief on crack sentencing disparity
• Insightful report and analysis of Booker on crack

UPDATE: The folks at FAMM has this reaction to the new bill.  Here is a snippet:

Instead of tinkering with drug weights, the senators should reform mandatory minimum sentencing laws so that drug weights alone don't determine sentence length. Sentences should be based on traditional factors such as culpability, role in the offense, and the use of weapons or violence. Congress needs to allow the Courts to consider all factors of the offense and the offender to insure a fair and proportionate sentencing system.

Constitution Project urges post-Booker reforms

With perhaps not enough fanfare, the Constitution Project's Sentencing Initiative last week  released another important report from its blue-ribbon Committee working on post-Booker sentencing reforms.  Details about the new report and access to it are available at this page, and here is a brief official account of the report's mission and particulars:

The Constitution Project's bipartisan Sentencing Initiative [has] issued specific recommendations for improving federal sentencing. The Initiative's Recommendations for Federal Criminal Sentencing in a Post-Booker World, which can be found at this link, provide guidance for simplifying existing sentencing guidelines, improving due process for criminal defendants, and increasing participation by crime victims. They also offer alternative options for an entirely new sentencing scheme.

The blue-ribbon Sentencing Initiative, an ideologically diverse committee co-chaired by Edwin Meese III, Attorney General during the Reagan Administration, and Philip Heymann, Deputy Attorney General during the Clinton Administration, has been examining various aspects of criminal sentencing since 2004.  The committee's latest recommendations were prompted by the U.S. Supreme Court's decision last year in U.S. v. Booker, in which the Court ruled that the previously mandatory Federal Sentencing Guidelines must be treated as advisory in order to be constitutional.

According to Co-chair Meese, "The Sentencing Initiative's bipartisan recommendations should guide any attempt to reform our nation's criminal sentencing system.  Simplification of the Federal Sentencing Guidelines, combined with improving discovery for defendants and participation by victims, will produce a sentencing scheme that is more fair and effective and that both protects public safety and defendants' constitutional rights."

Engaging review of "Tweaking Booker"

Over at PrawfBlawg, Dan Markel here provides a long and thoughtful "review" of my "Booker fix" article, Tweaking Booker: Advisory Guidelines in the Federal System (noted before here and available via SSRN from this web page).  For now, I won't review this review, but instead will be content to point interested readers to Dan's interesting perspective and to thank him for his many kind words and for engaging so fully with my article.

Sensenbrenner Booker fix drafted

I am in sentencing nerd nirvana here at the Miami FSG conference (though feeling a bit overwhelmed).  All the morning plenary sessions were absolutely amazing (especially a panel with the former and current USSC chairs), and I even got in a good one-liner during my panel.  I wish I could attend all the afternoon break-out sessions all at once and also be on-line and also talk to everyone I am meeting in the hallways. 

Helpfully, though I lack the energy to even try to live-blog the event, Anthony J. Colleluori, aka That Lawyer Dude, is trying to live blog here (and also maybe here later).  I'd be eager to link to anyone else writing about the conference, especially since my comments still are not working right.

The biggest news, beyond the release of new USSC stats that I'll discuss later, is that the Sennsenbrenner "topless guidelines" Booker fix bill is fully drafted and perhaps will soon be introduced.  It carries the audacious title "Sentencing Fairness and Equity Restoration Act of 2006."  Needless to say, I doubt I'm the only one put off by the suggestion that judges and others who have been working so hard after Booker to be fair and equitable need such a "Restoration Act" in the form of the proposed (harsh) mandatory minimum guidelines.  Put another way, I do not think topless guidelines fulfill any notion of restorative justice that I have ever heard of.

As of this writing, it seem uncertain exactly when (or even if) the Sensenbrenner bill will be introduced.  But the title alone suggests that polticial rhetoric and not policy realism will be the coin of the realm in any coming Booker fix debates.

Latest issue of FSR off to press

I am happy to announce that another issue of the Federal Sentencing Reporter is about to go to press.  This forthcoming issue (Volume 18, No. 3) is titled "Taking Stock a Year After Booker" and it follows up themes covered in these three recent FSR issues covering Booker and post-Booker developments:

• FSR Issue 17.4: The Booker Aftershock
• FSR Issue 17.5: Is a Booker Fix Needed?
• FSR Issue 18.2: Defense Perspectives on the Post-Booker World

(Regular readers may recall a Blakely interlude is all the Booker coverage through FSR Issue 18.1: State of Blakely in the States.)

My opening commentary to this latest FSR Booker issue, entitled "Now What? The Post-Booker Challenge for Congress and the Sentencing Commission," can be downloaded below.  The full contents of this latest FSR issue are listed below, and the Federal Sentencing Reporter can be ordered here and accessed electronically here. 

EDITOR'S OBSERVATIONS

• Douglas A. Berman, Now What? The Post-Booker Challenge for Congress and the Sentencing Commission (Download fsr_18.3 Ed Obs.pdf)

ARTICLES

• Lynn Adelman & Jon Deitrich, Disparity: Not a Reason to "Fix" Booker
• Mark Osler, Ball in a Cup: The Case for Stability and Patience
• Carissa Byrne Hessick, Prioritizing Policy Before Practice After Booker
• Stephen R. Sady, Guidelines Appeals: The Presumption of Reasonableness and Reasonable Doubt
• Adam Lamparello, The Unreasonableness of "Reasonableness" Review: Assessing Appellate Sentencing Jurisprudence After Booker
• Douglas A. Morris, FYI: Supervised Release and How the PROTECT Act Changed Supervised Release
• Evan Lee, Should the ALI Take a Position on Capital Punishment?

ADDITIONAL MATERIALS

• U.S. Sentencing Commission, Executive Summary of Booker Report (March 2006)
• Judge Paul Cassell, Statement as Chairman of the Committee on Criminal Law on Behalf of the Judicial Conference of the United States (March 2006)
• U.S. Attorney William W. Mercer, Statement Before the House Judiciary Subcommittee on Behalf of the United States Department of Justice (March 2006)
• The Constitution Project Sentencing Initiative, Principles For The Design And Reform Of Sentencing Systems: A Background Report (March 2006)

SSRN version of Tweaking Booker

I will use other bloggers' interesting discussion of SSRN realities here and here as an excuse to highlight that my "Booker fix" paper, Tweaking Booker: Advisory Guidelines in the Federal System (noted before here) can now be accessed via SSRN from this web page.   Interestingly, the e-mail I got from SSRN encouraged me to link to my SSRN Author Home Page.  Mission accomplished.

Full draft of Tweaking Booker

The terrific editors of the Houston Law Review have just sent me a clean copy of the latest proofs of my article on post-Booker federal sentencing entitled "Tweaking Booker: Advisory Guidelines in the Federal System." The piece, which can be downloaded below, perhaps serves as a fitting companion to Judge McConnell's recent article "The Booker Mess" (discussed here) for anyone trying to get up-to-speed on the post-Booker federal sentencing world.  Here is a snippet from my introduction:

If writing on a blank slate, few would likely advocate the precise sentencing system resulting from the Supreme Court's decision in Booker.  Nevertheless, in this Article, I contend that policymakers should consider playing the peculiar Booker hand that the Court has dealt for federal sentencing. Especially because any significant alteration of the structure of federal sentencing remains legally treacherous and fraught with uncertainty, Congress and the U.S. Sentencing Commission should focus their efforts and energies on improving the advisory guideline system that Booker has produced.  I suggest that, though the sentencing scheme created by Booker is far from perfect, a program of modulated incremental changes is likely to provide the soundest course for the post-Booker development of the federal sentencing system.

Download tweaking_booker_final_draft.pdf

House Booker hearing follow-up

Today I received a copy of very interesting supplemental written testimony from attorney James Felman, who testified at the March 16 House hearing on Booker (and whose original testimony can be accessed here).  This supplemental written testimony, which can be downloaded below and is a very interesting read, addresses issues such as sex offender sentencing and cooperation discounts that were some of the focal points during the House hearing.

Download felman_supplemental_congressional_testimony.pdf

Some related prior posts:

• Topless guidelines bill in the works from Sensenbrenner
• A viewer's guide to Booker House hearing
• Following the standard script at House hearing
• More reports from House Booker hearings
• Sensenbrenner takes the gloves off ... will the judiciary fight back?
• Quotes from Sensenbrenner press conference
• Updates on Booker hearings
• Let's get ready to Booker rumble...

Topless guidelines bill in the works from Sensenbrenner

I have now heard from two different sources that House Judiciary Chair James Sensenbrenner intends to introduce a bill mandating topless guidelines, and that there will be a hearing concerning the solution to the post-Booker sentencing problems that he identifies sometime in early May.  My impression from the House hearing earlier this month was that most of the witnesses did a powerful job urging Congress to leave Booker alone for now, but apparently Sensenbrenner was unconvinced.  Needless to say, this is a story to watch, and the links below provide plenty of background.

BOOKER REPORT AND OTHER USSC DEVELOPMENTS AND COMMENTARY

• Sentencing Commission releases Booker report!
• Initial reflections on the USSC Booker report
• Editorial on USSC Booker report and reaction
• Interesting testimony at USSC hearing
• Where's the USSC's Booker report!?!?
• The USSC Booker report is back (with corrections)

BOOKER HOUSE HEARING DEVELOPMENTS AND COMMENTARY

• A viewer's guide to Booker House hearing
• Following the standard script at House hearing
• More reports from House Booker hearings
• Sensenbrenner takes the gloves off ... will the judiciary fight back?
• Quotes from Sensenbrenner press conference
• Updates on Booker hearings
• Let's get ready to Booker rumble...

GENERAL BOOKER FIX POSTS AND RESOURCES

• FSR Issue 18.2: Defense Perspectives on the Post-Booker World
• FSR Issue 17.5: Is a Booker Fix Needed?
• FSR Issue 17.4: The Booker Aftershock
• Dead Booker walking?: an introduction
• Dead Booker walking?: incentives to cooperate
• Dead Booker walking?: disparity in theory and practice
• Dead Booker walking?: a "drift toward lesser sentences"
• Bad Booker fix arising?

More reports from House Booker hearings

Though yesterday's House Booker hearing (basics here and here) has received relatively little attention, I can provide some additional views of the event.  For starters, the Sentencing Project has a brief recap of the hearing at this link.  In addition, an article about the hearing ran yesterday in CQ Today entitled "Justice Official Urges 'Minimum Guidelines System' to Limit Sentencing by Judges."  Here are snippets from that article:

Members of Congress adopted a wait-and-see posture after the Booker decision.  But House Republicans, citing a new report by the U.S. Sentencing Commission released this week, are now calling for a legislative response to curb judges' discretion.

Howard Coble, R-N.C., chairman of the House Judiciary Committee's Subcommittee on Crime, Terrorism and Homeland Security, which held Thursday's hearing, said he would think through the testimony before endorsing any legislative approach. Judiciary Chairman F. James Sensenbrenner Jr., R-Wis., did not attend the hearing but said a day earlier that he and the attorney general "are going to be on the same page on this."...

Panel Republicans, Democrats and their witnesses drew sharply different conclusions about the Sentencing Commission's latest report on post-Booker sentencing practices and whether it justified congressional intervention.

In addition, soon after the hearing yesterday, Nkechi Taifa, a Senior Policy Analyst of the Open Society Institute circulated an e-mail with her "quick notes" on the event.  Nkechi was kind enough to permit me to post her notes on the blog, and then can now be downloaded below.

Download taifa_quick_notes_on_booker_hearing.rtf

Following the standard script at House hearing

TI have just returned from speaking at the Ohio Northern University Pettit College of Law (where I was wonderfully hosted), and I see that today's House Booker hearing is now web archived at this link along with the written testimony of all four witnesses.  I surmise from the written testimony that each witness largely played the expected roles: DOJ representative Bill Mercer pushed for topless guidelines as a Booker fix, while everyone else highlighted that there was no need for an immediate legislative response to Booker.

I hope to comment more about the House hearing after having a chance to watch the full webcast late tonight.  (First, keeping my priorities straight, I have to watch some basketball and check my brackets.)  But one line in Mercer's written testimony really caught my eye.  In calling for a Booker fix, Mercer says DOJ believes "the simplest, most efficient, and most effective way of reinstituting mandatory sentencing is through a minimum guidelines system."

In at least one sense, this is blatant falsehood: the simplest way to reinstitute mandatory sentencing would be for Congress to adopt the remedy suggested by Justices Scalia, Thomas and Stevens in Booker.  As Justice Stevens explained, that remedy would not require any changes to the Sentencing Reform Act; Congress could simply express its intent for the guidelines to be mandatory even though aggravating facts triggering longer sentences would have to be proven to a jury or admitted by the defendant.  This solution would clearly be constitutional and reinstitute mandatory sentencing, but DOJ does not seek a legislative solution that — gasp! — might actually give defendants the procedural rights that Blakely and Booker were supposedly about.

Editorial on USSC Booker report and reaction

The Massachusetts newspaper The Republican this morning has this notable editorial entitled "Study on sentencing ought to quell critics," which discusses US Sentencing Commission's Booker report (details here and here) and congressional reaction.  Here is a taste:

A 277-page report released by the U.S. Sentencing Commission, the body that sets the guidelines for judges, ought to have calmed critics of the Supreme Court's ruling. But it hasn't. The chairman of the House Judiciary Committee, Rep. James Sensenbrenner, R-Wis., not only didn't find any solace in the study, he saw in the report reason to try to write new laws that would keep the judges from judging.

The problem with a book of rules delineating criminal sentences ought to be obvious. A crime that might appear on the surface to be like another crime — at least according to what is stipulated in the sentencing rulebook — could well, in fact, be quite different. That's where a judge comes in — to look at the facts of the case at hand.

But for Sensenbrenner — and others of a similar bent — that's not good enough. Congress is good at many things, but deciding that lawmakers know better than federal judges — no matter the case — is not one of them.

Federal judges have a set of sentencing guidelines that they follow in the great majority of cases. But they also have the knowledge and wisdom and experience to pursue a different course when the situation so warrants.  The Supreme Court's ruling 14 months ago sought to ensure that judges retain that power.  Lawmakers would do well to let that decision stand as it is.

Updates on Booker hearings

Tomorrow at 10:30 am is the big oversight hearing in the House Judiciary Committee's Subcommittee on Crime, Terrorism, and Homeland Security entitled "United States v. Booker: One Year Later -- Chaos or Status Quo?". Subcommittee Chair Rep. Howard Coble (R-N.C.) has issued this news advisory which confirms the witness list I detailed in this post and reveals that testifying on behalf of DOJ will be William Mercer.

Today, the comments by House Judiciary Committee Chair James Sensenbrenner's (detailed here and here) overshadowed the hearing held by the US Sentencing Commission.  The USSC just posted this agenda/witness list from the hearing, and I would be eager to hear a report from anyone in attendance. 

Back to the House heing, the US Courts has this press release about Judge Paul Cassell's planned testimony on behalf of the Criminal Law Committee of the Judicial Conference of the United States.  As the press release details:

Congress is being told there is "no need for ... 'Booker fix' legislation" because federal judges' practices in sending convicted criminals to prison remain much the same as they were before the Supreme Court's 2005 decision that invalidated mandatory sentencing guidelines.

Judge Cassell's full prepared written testimony (all glorious 80 pages) which fills out this point — and many other astute points — can be accessed at this link.  And when you've consumed Judge Cassell's amazing effort, you can then also read the prepared written testimony of attorney James Felman, who kindly sent his text for me to post here: Download felman_testimony.pdf

Quotes from Sensenbrenner press conference

The latest version of this AP piece on the USSC's Booker report and congressional reaction now has these additional notable passages:

Sensenbrenner said at a news conference Wednesday that House Republicans are contemplating several pieces of legislation to rein in what he said were lenient judges, although it will be months before a proposal is drafted and introduced. 

Rep. Howard Coble, R-N.C., chairman of a House subcommittee on crime, said that last year Chief Justice William Rehnquist advised him to hold up on any congressional action until enough time had passed to gauge the effect of the ruling. Rehnquist died last September. "He suggested that we keep our powder dry, be calm and deliberate, which we've done," Coble said. "We are not guilty of knee-jerk reactions."

UPDATE: The Wall Street Journal's Washington Wire blog has this blurb about this brouhaha, which includes this discussion of the press conference:

[S]ome Republicans on the House Judiciary Committee held a press conference Wednesday to reiterate their concern that sentences are more lenient than Congress intended, especially for sex crimes against children. Florida Republican Tom Feeney said he found it "deplorable that some judges are working to undermine tough legislation that is designed to protect our children."

Let's get ready to Booker rumble...

To follow up his fiery statement (discussed here) about the US Sentencing Commission's impressive (and massive) Booker report (details here and here), House Judiciary Committee Chair James Sensenbrenner has a press conference scheduled for 1:30pm today in Washington DC.  Details are in this news advisory issued yesterday, which includes this explanation:

[T]he United States Sentencing Commission released its Report on the Impact of United States v. Booker on Federal Sentencing. In 2003, Congress passed the PROTECT Act to address many of the sentencing problems [this] report shows have resurfaced since the Supreme Court threw out the Federal Sentencing Guidelines.  Given the problems found in the Sentencing Commission's report and Congress' interest in ensuring that federal judges are not giving lenient, below-guideline range sentences to pedophiles, child sex offenders, and child pornographers, legislation is likely and will be discussed at Wednesday's press conference.

I suspect every federal judge will be quite surprised to learn that in Booker "the Supreme Court threw out the Federal Sentencing Guidelines."  But no one should be surprise to see Sensenbrenner wasting no time in heating up "tough on crime" rhetoric.

Recent posts on USSC report and Thursday's House hearing:

• Sensenbrenner takes the gloves off ... will the judiciary fight back?
• Sentencing Commission releases Booker report!
• Initial reflections on the USSC Booker report
• Booker March madness set to begin with a hearing double-header
• Buzz about the House hearing on Booker

Recent posts on Booker fix issues:

• Bad Booker fix arising?
• FSR Issue 17.5: Is a Booker Fix Needed?
• Dead Booker walking?: an introduction
• Dead Booker walking?: incentives to cooperate
• Dead Booker walking?: disparity in theory and practice
• Dead Booker walking?: a "drift toward lesser sentences"

UPDATE: Gina Holland from the AP has this piece on the USSC's Booker report and Sensenbrenner's reaction.  The report includes this ominous line: "House Judiciary Committee Chairman James Sensenbrenner, R-Wis., said that his committee would begin drafting a new system for sentencing people convicted in federal courts."

Constitution Project releases report on sentencing reforms

In a timely move as the Booker fix story heats up (background here and here), the Constitution Project's Sentencing Initiative has officially released the background report produced by its blue-ribbon Committee for its "Principles for the Design and Reform of Sentencing Systems."  This report serves as an elaboration of the ideas and principles for reform of criminal sentencing systems set forth by the Constitution Project's Sentencing Initiative last summer (and first discussed here and here).

This background report can be downloaded at this link.  Here is a snippet from the report's introduction, which provides more information of the Committee's work:

The Committee has approached its work in two phases. First, the Committee studied the history and present situation of American criminal sentencing, with particular emphasis on federal sentencing, and agreed upon a set of principles for the design and reform of sentencing systems.  This Report enumerates these principles and summarizes the thinking that led to their adoption.  The first ten principles are applicable to both state and federal sentencing systems, while the final two focus on the federal structure built around the Federal Sentencing Guidelines.  In the second, ongoing, phase of its work, the Committee is attempting to craft recommendations aimed at making the federal sentencing system consistent with the principles.  The Committee anticipates issuing a second report detailing these recommendations.

Sensenbrenner takes the gloves off ... will the judiciary fight back?

As I explained in posts here and here, I read the US Sentencing Commission's impressive (and massive) Booker report to suggest major Booker fix legislation is not needed.  But, as evidenced by the fiery statements in this press release from House Judiciary Committee Chair James Sensenbrenner, one can have a different take on the post-Booker world.  Here are snippets from Sensenbrenner's statement:

Last year, I stated that the Judiciary Committee would take no action in response to the Supreme Court's decision, but would evaluate this issue one year later after there was sufficient experience with the "advisory" guideline system.

The data is now in and the picture is not pretty.  The Sentencing Commission's report shows that unrestrained judicial discretion has undermined the very purposes of the Sentencing Reform Act, and jeopardized the basic precept of our federal court system that all defendants should be treated equally under the law.

The PROTECT Act enacted in 2003 ensured that appropriate sentences would be administered to sex offenders, pedophiles, child pornographers, and those who prey on our children.  Thus, I am troubled that the Commission's Report shows that these fundamental sentencing reforms have been effectively eliminated.  That is neither good nor acceptable for justice and public safety.

While the overall average sentence length increased after the Booker decision, such an increase reflects the fact that Congress amended numerous criminal statutes, thereby increasing the applicable sentencing range for crimes such as identity theft, terrorism, cybercrime, and sex offenses.  Even with these increased guideline ranges, the sentencing data shows that Federal judges have not embraced, and in many cases, have undermined, Congress' specific intent in these areas.

In response to the problems described in this report, the Judiciary Committee intends to pursue legislative solutions to restore America's confidence in a fair and equal federal criminal justice system.  I look forward to working with the Sentencing Commission, the Justice Department, and others to bring together a practical and effective solution to this problem.

I am highly discouraged by Sensenbrenner's heated rhetoric and troubled by a number of his claims.  The idea that Booker produces "unrestrained judicial discretion" is inaccurate, as is the suggestion that federal judges are undermining the purposes of the Sentencing Reform Act or Congress' specific intent.  And this statement certainly indicates that Sensenbrenner is eager to pursue Booker fix legislation.

Of course, if Sensenbrenner was truly committed to a "fair and equal federal criminal justice system," he could propose legislation to adopt the remedy suggested by Justices Scalia, Thomas and Stevens in Booker.  As Justice Stevens explained, that remedy would not require any changes to the Sentencing Reform Act; Congress could simply express its intent for the guidelines to be mandatory even though aggravating facts triggering longer sentences would have to be proven to a jury or admitted by the defendant.  This solution would (1) clearly be constitutional, (2) make the guidelines mandatory again, and (3) produce a "practical and effective solution" to the problems Sensenbrenner claims to be concerned about.

Initial reflections on the USSC Booker report

As noted before, the US Sentencing Commission's impressive (and massive) Booker report (available here) is a bit overwhelming.  Nevertheless, having completed a quick first pass, I want to explain why the report reinforces my view that major Booker fix legislation does not seem necessary.

To begin, we must recall key reasons why the pre-Booker system cannot be the sole metric for judging the post-Booker world.  As I explained in this Legal Affairs debate with Frank Bowman:

[There are] two fundamental reasons why pre-Booker realities cannot nor should not be our gold standard for assessing the current state of federal sentencing: (1) the pre-Booker sentencing system, according to the Supreme Court, violated defendants' Sixth Amendment rights, and (2) the pre-Booker sentencing system, according to nearly all observers, distinguished itself by virtue of its overall complexity, rigidity and harshness.  Consequently, because the pre-Booker sentencing system was both unconstitutional and unsound, evidence of "decreased compliance" with the guidelines perhaps should be a cause for celebration and not concern.

With this important backdrop, three findings from the report especially caught my attention:

• "Despite the increase in the rate of imposition below-range sentences in the post-Booker era, the average length of sentences imposed actually has increased in the caseload taken as a whole."  USSC Report at p. 69.

• "In general, sentence reductions in the post-Booker era tend to be distributed more heavily among the smaller reductions than among the large ones."  USSC Report at p. 63.

• It appears that, generally speaking, post-Booker departures and variances are going to offenders who perhaps most merit a small break from the guidelines (e.g., first offenders and those with overstated criminal histories; offenders with small roles in offenses; offenders with significant family ties and responsibilities).

Add all this up, and I come to the basic conclusion that federal judges are, generally speaking, using their new post-Booker discretion quite cautiously and wisely.  As the old proverb goes, "If it ain't broke, don't fix it."  I see little evidence in the USSC's report of federal sentencing being broken (or at least being broken in new ways).

Of course, federal sentencing has arguably become a bit more complex and harsh after Booker, even as it has become slightly less rigid.  I would favor reforms that would ease the complexity and harshness of the current system (though these reforms could and should come from the USSC after further study).  Disconcertingly, the "minimum guideline system" that the Justice Department fancies would increase the rigidity and the harshness of federal sentencing — while also, of course, raising new constitutional and practical questions that would also increase complexity.

Some recent Booker fix posts:

• Booker March madness set to begin with a hearing double-header
• Buzz about the House hearing on Booker
• Latest FSR Issue on post-Booker world
• Professor Bowman's latest fix on the post-Booker world
• Dead Booker walking?: disparity in theory and practice
• Dead Booker walking?: a "drift toward lesser sentences"
• Bad Booker fix arising?

Bad Booker fix arising?

The possibility that the Justice Department might use next week's House hearing on Booker (details here and here) to push for a "minimum guideline system" Booker fix (a.k.a. topless guidelines) has provided inspiration for another Booker-skewed musical number.  With apologies to John Fogerty, here is a rendition of "Bad Moon Rising" for these Booker times:

I see the bad fix arising.
I see topless guidelines on the way.
I see appeals and circuit splitting.
I see bad times today.

Don't go down tonight,
Well, your bound to be reversed,
There's a bad fix on the rise.

I hear DOJ ablowing.
I worry the end is coming soon.
I fear dockets over flowing.
I hear defendants' rage and ruin.

Don't go down tonight,
Well, your bound to be reversed,
There's a bad fix on the rise.

Hope you got your motions together.
Hope you are prepared to go up High.
Looks like we're in for nasty litigation.
One eye is taken for an eye.

Other Blakely and Booker song parodies and musical fun:

• Take a Walk on the Blakely Side
• 'Twas the Night Before Booker
• Same as it ever was...
• A musical summary of Booker appeals
• Songs in the key of 3553