Wednesday, March 15, 2006

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

March 15, 2006 in Booker and Fanfan Commentary, Federal Sentencing Guidelines, Legislative Reactions to Booker and Blakely, Who Sentences? | Permalink | Comments (0) | TrackBack

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."

March 15, 2006 in Legislative Reactions to Booker and Blakely | Permalink | Comments (0) | TrackBack

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:

Recent posts on Booker fix issues:

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."

March 15, 2006 in Legislative Reactions to Booker and Blakely | Permalink | Comments (0) | TrackBack

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.

March 15, 2006 in Federal Sentencing Guidelines, Legislative Reactions to Booker and Blakely, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing | Permalink | Comments (0) | TrackBack

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.

March 15, 2006 in Booker and Fanfan Commentary, Federal Sentencing Guidelines, Legislative Reactions to Booker and Blakely, Who Sentences? | Permalink | Comments (1) | TrackBack

Tuesday, March 14, 2006

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:

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:

March 14, 2006 in Booker and Fanfan Commentary, Booker in district courts, Booker in the Circuits, Federal Sentencing Guidelines, Legislative Reactions to Booker and Blakely, Who Sentences? | Permalink | Comments (2) | TrackBack

Friday, March 10, 2006

Bad Booker fix arising?

Ccr 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:

March 10, 2006 in Legislative Reactions to Booker and Blakely | Permalink | Comments (0) | TrackBack

Thursday, March 09, 2006

Buzz about the House hearing on Booker

As detailed here, next week is going to be about brackets and Booker hearings.  And I now have more information about the likely witnesses for the House Subcommittee's oversight hearing scheduled for Thursday March 16 on "US v. Booker: One Year Later — Chaos or Status Quo?".  The four persons likely to testify will be:

Among the many interesting storylines will be whether DOJ will use this hearing to push for a "minimum guideline system" Booker fix (aka topless guidelines).  Recall that AG Alberto Gonzales endorsed this idea when calling for a legislative "Booker fix" in a speech this past summer (basics here, commentary here and here and here).  Relatedly, I wonder if the Sentencing Commission will make any specific legislative recommendations or will just be content to set forth data and express its eagerness to work with Congress.

Anticipating a Booker fix showdown, I can provide lots of background on the brewing Booker fix debate.  For example, there is my on-going "Dead Booker walking?" series which explores arguments that DOJ might make in support of a Booker fix:

Additional useful background can also be found in the recent Legal Affairs' Debate Club at this link where Professor Frank Bowman and I explored the future of federal sentencing.  And, of course, three recent issues of the Federal Sentencing Reporter linked below have Booker coverage galore:

March 9, 2006 in Legislative Reactions to Booker and Blakely | Permalink | Comments (1) | TrackBack

Booker March madness set to begin with a hearing double-header

Though I would rather be obsessing over seedings than hearings this time of year, everyone interested in the future of federal sentencing will have to find some Booker time next week while filling out NCAA brackets.  Today, official notices have been posted about two big Booker-related hearings scheduled for next week.

First and foremost, confirming buzz I had been hearing, the House Judiciary Committee's Subcommittee on Crime, Terrorism, and Homeland Security has scheduled for 10am next Thursday (March 16) this oversight hearing interestingly entitled "United States v. Booker: One Year Later -- Chaos or Status Quo?".  I expect a lot more details about this hearing will emerge in the days ahead, but my understanding is that there will be four witnesses to help the House Subcommittee take stock of the post-Booker world.

Second, the US Sentencing Commission has moved its planned March hearing up to Wednesday, March 15.  As detailed here, the USSC has both a public hearing and a public meeting set for March 15, and the "purpose of the public hearing is for the Commission to gather testimony from invited witnesses regarding possible changes to the sentencing guidelines."   Regular readers will recall that, as detailed here, the USSC's 88-page discussion of new proposed guideline amendments released in January fails to even mention the Booker ruling.  However, I suspect there will have to be some Booker talk at the USSC hearing and meeting.

Adding to the March Booker madness, I have heard reliable buzz that, in anticipation of this hearing double-dip, the Commission is going to release its comprehensive Booker report very soon.  Needless to say, I am eager to see what this report has to say, and I hope it includes the detailed data, discussed here and here, needed for a truly complete view of the post-Booker world.

March 9, 2006 in Legislative Reactions to Booker and Blakely | Permalink | Comments (3) | TrackBack

Sunday, March 05, 2006

Dead Booker walking?: a "drift toward lesser sentences"

Recently updated statistics from the US Sentencing Commission (details here) inspires me to return to my "Dead Booker walking?" series.  As detailed in this post, this series explores arguments which might be made in support of new sentencing legislation in response to Booker.  In this installment, I will focus on the concern expressed by AG Alberto Gonzales about "a drift toward lesser sentences" when he called for a legislative "Booker fix" in a speech last summer (basics here, commentary here and here and here). 

In my Editor's Observations in the latest FSR issue on the post-Booker world (details here), I noted that "the Sentencing Commission's post-Booker data reveal that average and median sentences in all major categories of crimes are virtually unchanged from pre-Booker levels."  Indeed, what is most notable from a review of sentence length data (at pp. 13-15) in the latest post-Booker data report is that, from 2001 to pre-Blakely 2004, there was a significant drift toward higher sentences for all crimes and in all major categories of crime except immigration offenses. 

Turning specifically to a comparison of pre-Blakely 2004 and post-Booker sentences, we do now see a one-month drop in the average sentence in all cases (from 56 to 55 months) and similar slight declines in immigration and firearm cases.  However, average and median sentence length for these periods are identical in drug cases and there is a slight increase in theft/fraud cases.  And, notably, in all categories except immigration, average and median sentences post-Booker are all significantly higher than they were as recently as FY 2002.  Put simply, sentencing in the year after Booker has been as tough or tougher than sentencing in the years before Booker.

On this record, I have a hard time identifying a "drift toward lesser sentences," though one might point to the halting of a prior drift toward higher sentences as evidence of Booker's impact.  Moreover, the Justice Department might reasonably be concerned that, if the current culture of guideline compliance starts to change, lower sentences may follow.  However, given reasonableness review patterns — with all within-guideline sentences and nearly all above-guidelines sentences are being found reasonable, while nearly all below-guideline sentences are being reversed as unreasonable — DOJ has no reason to worry that the culture of guideline compliance will change any time soon.

Prior posts in this series:

March 5, 2006 in Legislative Reactions to Booker and Blakely | Permalink | Comments (2) | TrackBack

Tuesday, February 28, 2006

Who wins from a Booker remedy? It depends.

As detailed in media reports, Ohio prosecutors are celebrating and Ohio defense attorneys are lamenting the Ohio Supreme Court's big Blakely decision in Foster (basics here, commentary here), which decided to "Booker-ize" Ohio's sentencing laws by severing Ohio's mandatory sentencing requirements for enhanced sentences.  Those familiar with only the federal sentencing system might be surprised by these reactions, since in the federal system it is prosecutors leading the charge for some sort of Booker fix.  But the Ohio realities show yet again that Blakely, Booker and structured sentencing developments are always full of nuance concerning sentencing doctrines and practices.

In the federal system, prosecutors favor having the guidelines mandatory because the federal guidelines typically drive sentences up through the application of an array of sentencing enhancements.  In contrast, Ohio's structured sentencing rules had operated to keep sentences down because judges had to give low sentences unless they made certain types of particularized findings.  Eliminating guideline mandates in the federal system gives judges more leeway to be lenient, but eliminating structured sentencing rules in Ohio gives judges more leeway to be harsh.

Of course, as Booker has shown for the federal system, a major Supreme Court ruling serves as just another chapter in an always evolving sentencing story.  The ultimate impact of Blakely and Foster in Ohio will be determined by how other Ohio institutions and sentencing players — the Ohio Criminal Sentencing Commission, the Ohio legislature, lower court judges and prosecutors and defense attorneys — respond to the Foster ruling.

February 28, 2006 in Legislative Reactions to Booker and Blakely | Permalink | Comments (2) | TrackBack

Thursday, February 23, 2006

The latest must-read on Blakely/Booker

Professor Ron Wright, throughout his copious work on federal and state sentencing systems, always adds an insightful and distinctive perspective to our understanding of sentencing reform.  (Bias acknowledgment: Ron is a co-author on my casebook, Sentencing Law and Policy: Cases, Statutes and Guidelines.)  Ron's latest paper (available here), entitled "The Power of Bureaucracy in the Response to Blakely and Booker," is no exception.  Here is part of the abstract:

How will different jurisdictions respond to the recent Supreme Court decisions in Blakely v. Washington and United States v. Booker, which require jury fact-finding to support certain types of sentences?  The best clues in predicting the answer to this question come from the people who know this world best, the sentencing bureaucracy.  Sentencing commissions, mostly for benign reasons, hope to preserve their own place in the sentencing structure, or to expand their role if possible.  The particulars shift from place to place, but this powerful tendency of bureaucracies for self-preservation offers a reliable way to predict the reactions of sentencing systems to the upset from Blakely and Booker.

February 23, 2006 in Blakely Commentary and News, Blakely in the States, Booker and Fanfan Commentary, Federal Sentencing Guidelines, Legislative Reactions to Booker and Blakely, State Sentencing Guidelines, Who Sentences? | Permalink | Comments (0) | TrackBack

Dead Booker walking?: disparity in theory and practice

AG Alberto Gonzales' speech last week may foreshadow a Booker fix proposal coming from DOJ before long (details here), which inspires me to return to my "Dead Booker walking?" series.  As detailed in this post, this series explores arguments which might be made in support of new sentencing legislation in response to Booker.  In this installment, I will focus on sentencing disparity in theory and in practice.

Since Booker was decided, the Justice Department has warned that an advisory guideline system might increase sentencing disparities.  And, in a speech last summer calling for a Booker fix (basics here, commentary here and here and here), Gonzales asserted that "evidence the Department has seen since the Booker decision suggests an increasing disparity in sentences."  But, for sensible policy debate, it is important to unpack the concept of sentencing disparity in theory and in practice.

Sentencing disparity in theory (the challenge of assessing "true" disparity):  Some may point to different "guideline compliance" rates to suggest unwarranted sentencing disparity from region to region.  However, Justice Alito has effectively explained — in this 1992 Federal Sentencing Reporter article entitled "Reviewing the Sentencing Commission's 1991 Annual Report," 5 Fed. Sent'g Rep. 166 — why simple "comparisons of departure rates of different circuits and districts [are] unsound":

[D]ifferent districts — generally for sound reasons — prosecute very different mixes of cases.... Consequently, no reliable inter-district comparisons can be made without controlling for differences in the mix of offenses prosecuted....  Do I mean to say that all inter-district disparities indicated by the Commission's statistics can be attributed to such differences in their case mix?  Absolutely not.  The "true" disparities, if I may use the term, may be smaller than those suggested by the Commission's numbers, or they may actually be even greater.  The point is that we just can't tell from the Commission's statistics, and we will not be able to tell until a much more sophisticated analysis of each district's cases is performed.

Moreover, beyond Justice Alito's astute insights about case mix, one must realize that the federal guidelines themselves can produce or exacerbate certain disparities, which in turn make differences in "guideline compliance" rates a poor proxy for "true" sentencing disparity.  Professor Albert Alshuler makes this important point effectively in his recent contributon to the Stanford Law Review's great sentencing reform issue: "When viewed from any coherent normative perspective, the Federal Sentencing Guidelines have failed to reduce disparity and probably have increased it.  Even on paper, these Guidelines often fail to treat like offenders alike, and the Guidelines are worse in practice than on paper."

Sentencing disparity in practice (the realities of prosecutorial discretion): Beyond theoretical problems with using "guideline compliance" rates to assess "true" disparity, the Sentencing Commission's post-Booker data highlight that prosecutorial discretion has a much bigger impact on "guideline compliance" rates than does judicial discretion.  As the latest USSC data document, nationwide sentences below the guidelines are twice as likely to be the result of a prosecutor's recommendation to impose a lower sentence than the result of an independent determination by the sentencing judge. 

This reality provides important perspective on data concerning post-Booker "variances."  The USSC data show that judges nationwide are using their new post-Booker authority to reduce sentences below the range in less than 1 out of every 10 cases.  But prosecutors nationwide are using their long-standing authority to request sentences below the range in nearly 1 out of every 4 cases.  If Congress really believes that the overall "guideline compliance" rate is of fundamental importance, it should call in DOJ officials to account for their practices before worrying too much about how sentencing judges are using their new discretion after Booker.

Moreover, the post-Booker sentencing process reinforce why any federal policy-maker genuinely concerned about sentencing disparities ought to focus on the exercise of prosecutorial discretion before worrying too much about judicial discretion.  Even after Booker, district judges have to provide a reasoned explanation for the exercise of their discretion, and each sentencing decision is subject to appellate review.  Prosecutors never have to explain their exercise of discretion, nor are their decisions subject to serious review.

Prior posts in this series:

February 23, 2006 in Legislative Reactions to Booker and Blakely | Permalink | Comments (0) | TrackBack

Monday, February 13, 2006

Professor Bowman's latest fix on the post-Booker world

Now available via this link at SSRN is Professor Frank Bowman's latest opus, "The Year of Jubilee...or Maybe Not: Some Preliminary Observations about the Operation of the Federal Sentencing System After Booker."  As the SSRN abstract explains, Frank's article explores "available data on the operation of the federal sentencing system during the eleven months" following Booker.  Providing a much fuller elaboration of some points rehearsed in this Debate Club debate, Frank's article is chock full of important observations and trenchant insights about post-Booker developments.

There is much to highlight in this work, and I especially recommend Frank's concluding thoughts in the final part of the article.  Here is a sample from that section:

[C]onsider four facts about 2005.  First, in 2005, the majority of all federal judges were appointed by Republican presidents and the United States Department of Justice was in the hands of a Republican Administration.  Second, in 2005, prosecutors initiated sentences below the guideline range twice as often as did judges.  Third, in 2005, prosecutors as well as judges sought sentences below the guideline range more often than they had in 2004.  Fourth, during 2005, in an advisory sentencing guidelines system operated by a predominantly Republican judiciary and a markedly conservative Republican Justice Department, almost forty percent of all sentences were outside the guideline range and the ratio of sentences below the applicable guideline range to those above it was roughly 22-to-1.

These facts about the post-Booker experience reinforce conclusions many observers have reached about federal sentencing throughout the Guidelines era.  First, the behavior of the careful, cautious, public-safety-conscious judges and prosecutors who run the federal criminal justice system strongly suggests that they believe the severity of sentences called for by the guidelines is often (though by no means always) greater than necessary to achieve the ends of justice.  Second, the high severity levels that characterize the federal system can only be maintained by unremitting efforts at central control of the federal criminal process....

The simplest lesson is that we have a federal sentencing system with a severity level that, at least for some common offenses, is pegged higher than the day to day judgments of the legal professionals who operate it will support.  Because the severity level of the system is consistently at odds with the professional judgments of federal judges and prosecutors, only tight centralized controls can keep it propped up.  Those tight central controls in turn breed resentment, evasion, and institutional conflict.  If one is willing to grant that the judgment of frontline sentencing actors is entitled to considerable deference when making sentencing rules, one component of any post-Booker reform proposal should surely be a serious, bipartisan, inter-branch, and interdisciplinary re-examination of at least those sentencing levels and guidelines rules most productive of evasion by the front-line actors who know the system best....

[S]omeone needs to remind federal policymakers of an obvious truth — if laws are widely and persistently evaded by the very officials assigned to enforce them, at some point one should start questioning the wisdom of the laws rather than the fidelity of the enforcers.  In the end, one very good way to promote guidelines compliance is to write guidelines that produce outcomes those who run the system are happy to accept.

February 13, 2006 in Booker and Fanfan Commentary, Federal Sentencing Guidelines, Legislative Reactions to Booker and Blakely | Permalink | Comments (1) | TrackBack

Thursday, February 09, 2006

Might the NSA kerfuffle and the AG's Senate showing impact any brewing Booker fix?

Jack Balkin provides this comical account of AG Alberto Gonzales' testimony before the Senate Judiciary Committee concerning the Bush Administration's eavesdropping programs.  But this editorial about the sparring between Gonzales and Republicans raises the serious question of whether the AG in the NSA kerfuffle may be greatly damaging his credibility — and thus impacting his ability to argue effectively for a legislative "Booker fix".

As the editorial notes, Gonzales' testimony created a "skeptical bloc of committee Republicans — the chairman, Arlen Specter, Pa.; Lindsey Graham, S.C.; Mike DeWine, Ohio; and Sam Brownback, Kan."  These are folks whom, I believe, would be critical voices and votes in any future legislative debate over new sentencing legislation that the Justice Department might seek.  Especially important would seem to be Committee Chair (and former prosecutor) Arlen Specter, who had this reaction to what Gonzales was saying:

Specter said the administration's reading of the law "just defies logic and plain English." He was even sterner later when he said of Gonzales to a Washington Post reporter, "He's smoking Dutch cleanser."

Not only could Specter's reaction to the AG's work impact the Justice Department's advocacy for sentencing legislation, it also makes a great line for defense lawyers arguing with prosecutors over interpretations of Booker and 3553(a).  Any time a prosecutor states a guideline sentence is presumptively reasonable, perhaps the retort should be that too much Dutch cleanser is being smoked inside DOJ.

February 9, 2006 in Legislative Reactions to Booker and Blakely | Permalink | Comments (0) | TrackBack

Friday, February 03, 2006

Timelines for USSC Booker report and more detailed Booker data?

With Supreme Court transitions now complete and the history of federal crime-and-punishment legislation in election years, I fear that discussion of a legislative response to the Booker ruling may heat up in the weeks and months ahead.  That's why I was so disappointed, as explained here and here, that the US Sentencing Commission's recently proposed new amendments do not even mention the Booker ruling nor address any post-Booker "hot spots" like the crack guidelines.

USSC indicated in this statement of priorities that it planned "a report on the effects of Booker on federal sentencing, including an analysis of sentencing data collected within the first year of that decision."  Now that we are now almost a full month since Booker's anniversary, I am starting to wonder about the USSC's planned timeline for this important report.  I sincerely hope that this report does not end up days late and dollars short to impact any coming debates over Booker.

Relatedly, as I have stressed in a number of prior posts here and here, a lot more detailed data are needed from the USSC in order to develop a complete and balanced view of the the post-Booker world of federal sentencing.  Even if we do not see a full Booker report from the USSC in the days ahead, I hope a lot more post-Booker data will be forthcoming very soon.

February 3, 2006 in Booker and Fanfan Commentary, Booker in district courts, Federal Sentencing Guidelines, Legislative Reactions to Booker and Blakely, Who Sentences? | Permalink | Comments (1) | TrackBack

Wednesday, January 11, 2006

Insightful report and analysis of Booker on crack

The Sentencing Project, which has done ground-breaking work on a range of critical sentencing topics, has now completed an important new report which analyzes post-Booker sentencing through a close look at published decisions in crack cocaine cases.  Though only examining a tiny (and perhaps not fully representative) slice of the federal sentencing system, this report provide essential new insights into one significant facet of the post-Booker sentencing world.

The report, which is entitled "Sentencing with Discretion: Crack Cocaine Sentencing After Booker" and can be accessed here, has far too many large and small insights to effectively summarize. Here is the report's nuanced conclusion:

A survey of the sentencing memoranda of the written decisions on crack cocaine cases post-Booker reveals the emergence of a new methodology of judicial deliberation.  While not an exhaustive analysis of every post-Booker crack cocaine sentence in the federal system, this report indicates the emergence of a sentencing model that judges are employing which is grounded in rational jurisprudence and thoughtful statutory interpretation. Booker's remedy directing the courts to evaluate all statutorily prescribed factors has had a significant impact on the sentencing landscape. Generally, the courts appear to be granting all such factors equal deference, and the former hierarchical approach, with the Guideline range preeminent, is unable to satisfy the statutory requirements of sentencing. Once the courts consider all factors on equal footing, the memoranda illustrate mounting tension between the Guideline range and the other elements related to the circumstances of the offense and the characteristics of the defendant.

Most notably, the severity of Guideline ranges seemed to many courts to mandate sentences greater than necessary to meet the prescribed goals of sentencing. In addition, the 100-to-1 disparity exacerbated inequalities in enforcement practices that frequently resulted in unwarranted sentencing disparities. For these courts, the solution was to turn to the Commission recommendations for reform of the 100-to-1 ratio and to use these as a framework for sentencing. The post-Booker world has changed the mechanics of crack cocaine sentencing and opened up opportunities for judges to contemplate a host of relevant factors to determine a sentence that is appropriate for the defendant, while still maintaining principles of fairness, equity, and the opportunity for rehabilitation.

Here are links to some prior blog coverage of a few of the decisions discussed in this report:

January 11, 2006 in Booker in district courts, Drug Offense Sentencing, Federal Sentencing Guidelines, Legislative Reactions to Booker and Blakely | Permalink | Comments (0) | TrackBack

Sunday, January 08, 2006

How will the USSC be celebrating Booker's birthday?

As noted in this January preview, the coming Thursday marks the one-year anniversary of the Booker decision.  As discussed here and here, there are rumors that both Congress and the Justice Department may celebrate this date with Booker fix activity, although the distraction of the Alito hearings and other higher-profile legal happenings might well delay any planned Booker action from Congress and DOJ.

One body which should not be distracted by other legal goings on is the US Sentencing Commission. I cannot help but wonder if the USSC has something in the works for January 12.  Notably, the USSC homepage now notes that the Commission has a public meeting scheduled for this coming Wednesday afternoon, right before Booker's anniversary.  However, the meeting's announced agenda suggests that nothing Booker special is planned.

For more on what the Commission has been up to lately, check out this interesting Q & A with USSC Chair Ricardo Hinojosa from the December issue of the Third Branch.  In the colloquy, Judge Hinojosa reiterates that "this spring" the Commission "plans to release a report on the impact of Booker on federal sentencing." 

I hope that the USSC, through the release of more data (suggestions here and here) and fresh analysis, tries to be at the forefront of any Booker fix policy debate that may develops in the months ahead.  In addition, as suggested here, since it has now been a full 11 months since the USSC convened a big public hearing to discuss the impact of Blakely and Booker on the federal sentencing system, I think the USSC ought to have another big public meeting about the federal sentencing world after Booker ASAP. 

January 8, 2006 in Booker and Fanfan Commentary, Legislative Reactions to Booker and Blakely, Who Sentences? | Permalink | Comments (0) | TrackBack

Tuesday, January 03, 2006

Dead Booker walking?: incentives to cooperate

The news of two recent high-profile plea deals that include agreements to cooperate — involving Enron CAO Richard Causey and lobbyist Jack Abramoff — has inspired me to revive my long-dormant "Dead Booker walking?" series.  As detailed in this post, in anticipation of the brewing Booker fix debate, I hope in this series to explore those arguments which might be made in support of new sentencing legislation in response to Booker

One possible argument for a Booker fix, which was expressed by AG Alberto Gonzales in a speech last summer (basics here, commentary here and here and here), is that the advisory guideline system created by Booker harmfully dilutes the incentive for defendants to cooperate with authorities.  Here is how AG Gonzales explained this concern:

Our U.S. Attorneys consistently report that a critical law enforcement tool has been taken from them.  Under the sentencing guidelines, defendants were only eligible to receive reductions in sentences in exchange for cooperation when the government petitioned the court.  Under the advisory guidelines system, judges are free to reduce sentences when they believe the defendant has sufficiently cooperated.  And since defendants no longer face penalties that are serious and certain, key witnesses are increasingly less inclined to cooperate with prosecutors.  We risk a return to the pre-guidelines era, when defendants were encouraged to "play the odds" in our criminal justice system, betting that the luck of the draw — the judge randomly assigned to their case — might result in a lighter sentence.

I think there would be a strong argument for at least tweaking Booker if there is considerable evidence that key witnesses are now "increasingly less inclined to cooperate with prosecutors."  But the recent Causey and Abramoff deals suggest that "key witnesses" remain willing to cooperate even though the guidelines are no longer mandatory.  And evidence of continued post-Booker cooperation comes not only from high-profile cases, but also from the latest US Sentencing Commission statistics: these stats show post-Booker rates of cooperation that are comparable to pre-Booker rates of cooperation.

The persistence of cooperation not surprising given that Booker only made federal penalties somewhat less "certain," and Booker did not make federal penalties any less "serious."  Moreover, the guidelines and other post-Booker sentencing realities still ensure in various ways that true cooperation gets rewarded at sentencing. 

Of course, prosecutors might respond that the post-Booker disinclination to cooperate is reflected in the dynamics of plea negotiations — i.e., after Booker, prosecutors might have to work harder, or offer greater concessions, to get defendants to agree to cooperate.  But given the extraordinary power that federal prosecutors have always had (and always will have) in plea negotiations, Booker's (slight?) recalibration of plea negotiating dynamics may be a virtue more than a vice.

Finally, in all the post-Booker debate over advisory guidelines, it is always critical to keep in mind, as I have stressed here and here, that (1) it was the Justice Department who vigorously urged the remedy of advisory guidelines if Blakely was deemed applicable to the federal system, and (2) the easiest (and most constitutionally sound) way to restore mandatory sentencing guidelines would be for Congress to adopt the remedy suggested by Justices Scalia, Thomas and Stevens in Booker.  As Justice Stevens noted, that remedy would not require any changes to the Sentencing Reform Act or the guidelines, it would simply require Congress to express its intent for the guidelines to be mandatory even though aggravating facts triggering longer guideline sentences would now have to be proven to a jury or admitted by the defendant.

Prior posts in this series:

January 3, 2006 in Legislative Reactions to Booker and Blakely | Permalink | Comments (2) | TrackBack

Thursday, November 24, 2005

A sentencing turkey for Thanksgiving

I had planned to celebrate one of my favorite holidays by doing a reprise of my Giving Thanks post from last year.  However, news I received via e-mail suggests I should devote my one post today to relay news that House Judiciary Chair James Sensenbrenner is working on a real sentencing turkey.  Here are the highlight — really lowlights — of the report I received about new crime legislation in the works:

Rep. Sensenbrenner is planning an omnibus crime bill package that would pass the House on the suspension calendar (so it could not be amended) and be sent to the Senate in hopes that it, or some more palatable version of it, could pass by unanimous consent there before the end of the year.  It could include H.R. 1279 (gang bill); HR 3132 (sex offenses, including obnoxious habeas provision); and HR 1751 (court security bill).

The House sponsor appears to be willing to pare some unpopular parts of the bill to lure the Senate, maybe including the mandatory minimums (like the one for failure to register as a sex offender), maybe other stuff.  They are banking on the fact that the Senate wants a court security bill and maybe others.  The language for this omnibus should be ready by the time the members return from recess.

This is a story to watch closely after the holiday weekend.

November 24, 2005 in Legislative Reactions to Booker and Blakely | Permalink | Comments (3) | TrackBack