Sunday, November 20, 2005

Dead Booker walking?: an introduction

Comments at recent Booker events in Chicago and Houston once again gave me the cold feeling that congressional action in response to Booker is all but inevitable.  As previously detailed in posts here and here, the beltway buzz is that both the House and the Senate may jump into Booker action come the one-year anniversary of the Booker decision.  (I sort of imagine a giant cake being rolled onto the House floor on January 12, out of which will jump AG Alberto Gonzales holding the Booker fix minimum guidelines bill that the Justice Department wants enacted.)

In anticipation of the brewing Booker fix debate, I am starting a series of posts under the title "Dead Booker walking?".  The goal of this series is to explore, one by one, the arguments which might be made in support of new sentencing legislation in response to Booker.  In this introduction, I have assembled below the concerns expressed by AG Alberto Gonzales when calling for a legislative "Booker fix" in a speech this past summer (basics here, commentary here and here and here). 

Chief arguments/reasons for a Booker fix

  1. Concerns about "increasing disparity in sentences"
  2. Concerns about "a drift toward lesser sentences"
  3. Concerns about "key witnesses [being] increasingly less inclined to cooperate with prosecutors"
  4. Concerns about defendants "receiving sentences dramatically lower than the guidelines range without any explanation, or on the basis of factors that could not be considered under the guidelines"
  5. The need to "secure a system of tougher, fairer, and greater justice for all"

In subsequent "Dead Booker walking?" posts in the coming weeks, I hope to explore each of these issues one-by-one.  In the meantime, I encourage readers to use the comments to suggest other arguments or reasons for a Booker fix beyond those which have been articulated in AG Gonzales' speeches.

November 20, 2005 in Legislative Reactions to Booker and Blakely | Permalink | Comments (0) | TrackBack

Tuesday, November 01, 2005

SLR issue on federal sentencing now on-line

In recent posts here and here, I have lavished praise on the October symposium issue of the Stanford Law Review, which brings together leading sentencing scholars in a project entitled "A More Perfect System: Twenty-Five Years of Guidelines Sentencing Reform."  (Of course, I'm a bit biased because my offense/offender article appears in the issue.)

During my recent Monterey trip, I had the chance to read the issue's substantive introduction authored by Professors Robert Weisberg and Marc Miller.  That introduction is a masterpiece; it effectively sets up the articles that follow and is full of astute insights about modern federal sentencing dynamics.  And, joyfully, this page now reveals that the Stanford Law Review has made fully available on-line all 18 article from its sentencing issue.

As I suggested in this post about brewing Booker fixes, I wish every members of Congress could be required to read this entire SLR issue (as well as the Federal Sentencing Reporter's latest issue asking "Is a Booker Fix Needed?") before moving forward with any sentencing legislation.  And everyone else, while taking in all this great sentencing scholarship, should take up the opportunity, discussed more fully in this post, to author a short commentary for FSR addressing the question "How should Congress and the U.S. Sentencing Commission respond to Booker?".

November 1, 2005 in Federal Sentencing Guidelines, Legislative Reactions to Booker and Blakely | Permalink | Comments (0) | TrackBack

Friday, October 28, 2005

Mark your Booker fix calenders

A few weeks ago I noted growing "Booker fix" buzz, and now I have heard from various folks that in January both the House and the Senate may jump into Booker action come the one-year anniversary of the Booker decision.  Thus, the numerous academic conferences discussing federal sentencing this Fall will be a fitting prelude to possible legislative Booker action this Winter.

In this recent post, I suggested the US Sentencing Commission ought to get out in front by conducting a major public hearing about the post-Booker sentencing world before Congress gets into the act.  However, I surmise that the USSC may just continue its (limited) data releases until it is ready to produce a full Booker report in the Spring.  Let's hope the USSC's Booker report will not end up being a day late and a dollar short. 

Notably, scholarly publications are getting a head start on serious Booker fix talk.  As discussed here and here, the Stanford Law Review is sending to all members of Congress its special symposium issue, which presents "a variety of perspectives on the issues that Congress will likely have to consider in order to reshape the Federal Sentencing Guidelines." 

In addition, now available is the Federal Sentencing Reporter's latest issue asking "Is a Booker Fix Needed?".   Also, as detailed more fully in this post, FSR is now soliciting commentaries, for publication in its December issue, that address the question "How should Congress and the U.S. Sentencing Commission respond to Booker?".   

If only we could somehow make members of Congress read all the Blakely and Booker academic commentary before moving forward with any legislative proposals...

October 28, 2005 in Legislative Reactions to Booker and Blakely | Permalink | Comments (1) | TrackBack

Wednesday, October 26, 2005

More on SLR and "More Perfect" sentencing

As detailed in this recent post, the October issue of the Stanford Law Review is a symposium bringing together many leading sentencing scholars in a project entitled "A More Perfect System: Twenty-Five Years of Guidelines Sentencing Reform."  More details on this amazing issue, which includes my recent offense/offender article, are now available here at the SLR website

At the SLR website, you can find a press release and an informational letter and the issue's table of contents.  In addition, you can also access the issue's substantive introduction authored by Professors Robert Weisberg and Marc Miller.  This article is entitled "Sentencing Lessons," and here is a passage from this terrific piece's introduction:

Sentencing has become a complex and varied field, and the world of sentencing law — indeed much of legal world — looks very different in 2005 than it did thirty years ago before the first modern structured-sentencing system was created.  The Stanford Law Review editors believed that leading sentencing scholars could articulate the key lessons from all modern sentencing reforms and offer their knowledge in the form of collective and structured scholarly testimony to Congress.  While Congress and the federal system are the principal audience for this Issue, we believe the insights in these chapters have much to offer judges, scholars, policymakers, and lawyers at both the state and federal levels.

Produced in conjunction with the new Stanford Criminal Justice Center, this Issue reflects such an effort to restate the major lessons about sentencing reform from the past twenty-five years, and to do so in a manner that will assist further efforts at reform. Authors were invited to address specific topics so that the entire Issue would encompass the core philosophical, structural, policy, and practical lessons and challenges in designing a successful sentencing system.  The chapters in this Issue address the various purposes of sentencing, the special role of federal criminal justice in our federal system, the institutions and actors at the rulemaking and adjudicative stages (including Congress, the Commission, trial and appellate judges, and advocates), and the basic substantive and structural elements of sentencing systems. In conceiving this Issue, our goal was to provide an overview of knowledge about all essential aspects of the federal system....

We offer this Issue in the hope that Congress will look seriously at revising the federal system in light of Blakely and Booker and that, in the spirit of the SRA, Congress will want to draw on contemporary expertise and the evolving "intellectual history" of sentencing knowledge in further reforming the federal sentencing system.

October 26, 2005 in Legislative Reactions to Booker and Blakely | Permalink | Comments (0) | TrackBack

Tuesday, September 27, 2005

A judicious retort to AG Gonzales' proposed Booker fix

There has already been a lot of commentary critical of AG Alberto Gonzales' advocacy of a legislative response to Booker in the form of "the construction of a minimum guideline system."  (Some editorials assailing the Gonzales proposal are noted here and here and here and here; the speech in which Gonzales set out his proposal was first discussed here, and followed by commentary here and here and here.)  To the list of critiques can be added this thoughtful commentary in the National Law Journal, entitled "AG's Misguided Proposals," authored by US District Judge Lynn Adelman and his clerk Jon Deitrich.

Echoing some points recently developed by ND Ohio Chief Judge James Carr in his recent article in the latest issue of the Federal Sentencing Reporter, Judge Adelman and Deitrich assert that the Booker remedy is "manifestly more fair than the mandatory regime and is working well," and they call the Gonzales proposal "unbalanced" and "constitutionally suspect."  The entire commentary merits a close read, and here are the closing paragraphs:

The advisory guideline regime should not be evaluated based on anecdotes.  However, the question of how it should be judged is an important one. We believe that the appropriate standard is not whether the average sentence is more severe or more lenient than it was previously, or how many sentences remain within the guidelines, but rather whether in individual cases judges are doing justice.  To answer this question, policymakers and scholars must carefully consider the quality of judicial reasoning underlying the sentences imposed, a factor that often goes unmentioned during the debate about sentencing. This task is not simple, and it will not be accomplished over night.

In the meantime, the attorney general's calls for change do not advance the discussion.  His speeches seem to reflect DOJ's anxiety about the fact that, under the advisory guideline system, judges actually have the authority to determine defendants' sentences.  However, under our system of justice, judges, not prosecutors, are supposed to sentence defendants. Unless the attorney general has solid evidence that judges when sentencing are not sufficiently taking into account public safety (which he does not), he should refrain from calling for radical changes in our sentencing system.

September 27, 2005 in Booker in district courts, Federal Sentencing Guidelines, Legislative Reactions to Booker and Blakely | Permalink | Comments (1) | TrackBack

Saturday, September 17, 2005

Is the Booker remedy here to stay?

A forthcoming issue of the Federal Sentencing Reporter asks the policy question, "Is a Booker Fix Needed?".  But lately I have been pondering the practical question of whether a Booker fix seems likely, at least in the near future.  I am starting to think that, for political and legal reasons, the Booker remedy may persist for some time.

Political reasons for the persistence of the Booker remedy:  Though I was grumpy that criminal justice issues did not arise during the Roberts hearing (wrap up here, rev up here), the lack of discussion of crime and punishment perhaps suggests that the overall political salience of these issues is relatively low right now.  And, through the fall, we should probably expect the public to remain focused on hurricane aftermath, and expect the Senate Judiciary Committee to remain focused on Supreme Court nominees.

Of course, at any moment, the House "Booker fix" provision of HR 1528 could come back to life and AG Gonzales could step up his advocacy for the creation of a minimum guideline system (background here).  Nevertheless, because the Booker remedy managed to preserve so much of the pre-Blakely status quo, it will be difficult to make a case politically that developing a Booker fix is more pressing than other matters of public policy.

Legal reasons for the persistence of the Booker remedy: As I note in my introductory commentary to the latest FSR issue, even though Booker clarified the legal meaning and impact of Blakely for the federal sentencing system, any effort to significantly alter the structure of federal sentencing remains fraught with doctrinal uncertainty because of the continued uncertainty that surrounds Harris and Almendarez-Torres.  Indeed, as first explained here way back in June, the on-going transitions in the composition of the Supreme Court make the uncertain precedents of Harris and Almendarez-Torres even more uncertain (especially given the current SCOTUS head-count on Apprendi-Blakely issues).

Though I am bad at predicting how and when the Supreme Court will act, I expect and sincerely hope the the Supreme Court will grant cert, sometime in the next few months, on at least one of the many pressing post-Blakely and post-Booker questions that need to be answered.  Once cert is granted, especially if the case involves a big issue like the Almendarez-Torres prior conviction exception, it will be quite easy (and perhaps quite sensible) for policy-makers and advocates to urge holding off on any legislative action until the Supreme Court further clarifies the meaning and reach of Blakely and Booker.

September 17, 2005 in Legislative Reactions to Booker and Blakely | Permalink | Comments (5) | TrackBack

Thursday, September 15, 2005

FSR Issue asks: Is a Booker Fix Needed?

I am happy to announce that another issue of the Federal Sentencing Reporter is about to go to press.  This forthcoming issue asks in its title "Is a Booker Fix Needed?".  Following up themes first covered in FSR's issue entitled "The Booker Aftershock", this latest issue examines the state of federal sentencing after Booker and gives particular attention to whether, when, and how Congress should respond to Booker.

My opening commentary to this FSR issue, "Assessing Federal Sentencing After Booker," can be downloaded below, and in this post I previously discussed and posted the great article in the issue from Judge James Carr, the Chief Judge of the US District Court for the Northern District of Ohio.  The full contents of this latest FSR issue are listed below, and the Federal Sentencing Reporter can be ordered here and accessed electronically here




September 15, 2005 in Legislative Reactions to Booker and Blakely | Permalink | Comments (0) | TrackBack

Thursday, September 01, 2005

Still more criticism of House anti-gang bill

In May, the US House of Representatives passed anti-gang bill, HR 1279, which includes many new and increased federal mandatory minimum sentences (background here and here).  That bill, as detailed in posts here and here and here, generated an enormous amount of criticism in newspaper editorials back in May.  And, thanks to this informative post at TalkLeft, I now see that the Washington Post this morning has this potent editorial on the bill.  Here's a snippet:

A bill backed by the Bush administration and already passed by the House would unwisely federalize many local street crimes, stripping them from state prosecution if they could be tied even tenuously to gang activity. The so-called gangbusters bill would also establish mandatory minimum sentencing requirements, which remove much flexibility from sentencing and make little allowance for the circumstances of individual defendants; similar federal and state schemes have proved unfair and harmful....

Bush has proposed spending $150 million over three years to prevent gang involvement, with the funds to be dispersed through grants to faith-based and community organizations that attempt to steer at-risk youths away from gangs and into supportive social programs. The House and Senate have each cut that request but appear likely to appropriate some funds. The success of that program, not just draconian sentencing or increased numbers of federal investigations and prosecutions, will be a critical test of whether the administration's commitment to combating gangs is real or just a rhetorical priority.

September 1, 2005 in Legislative Reactions to Booker and Blakely, Offender Characteristics, Offense Characteristics, Race, Class, and Gender, Scope of Imprisonment | Permalink | Comments (1) | TrackBack

Monday, August 15, 2005

DOJ's Orwellian defense of mandatory minimum guidelines

I know it is 2005, but I sometimes conjure up images of 1984 when I hear the doublespeak coming from AG Alberto Gonzales or others in the Justice Department in support of a legislative response to Booker in the form of "the construction of a minimum guideline system" (basics here).  This morning the doublespeak is coming from John Richter, the Acting Assistant Attorney General in DOJ's Criminal Division, through this Letter to Editor in today's Washington Post.  (The Richter letter is in response to the Post editorial last week which suggested Gonzales is "seeking a legislative fix [to Booker] that would do far more harm than good.")

The Richter letter starts by extolling "the many positive aspects of the mandatory-guidelines system" and then states that the "minimum-guidelines system discussed in the attorney general's speech in June attempts to re-create positive aspects of the sentencing guidelines consistent with the Supreme Court's jurisprudence."  But, as I noted here following the AG's June speech and here when a departing John Ashcroft assailed advisory guidelines in his closing days, the simple way to get back to mandatory guidelines, "consistent with the Supreme Court's jurisprudence," would be to adopt the remedy suggested by Justices Scalia, Thomas and Stevens in Booker in which the guidelines would remain mandatory but contested aggravating facts that increase sentences would have to be proved beyond a reasonable doubt to juries. 

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 now have to be proven to a jury or admitted by the defendant.  The doublespeak chutzpah in the DOJ talk of a "minimum-guideline system" is that DOJ wants all the benefits of tough, mandatory guidelines but also wants to prevent defendants from having the benefits of the constitutional rights to a jury trial and proof beyond a reasonable doubt articulated in Apprendi and Blakely.

The Richter letter also asserts that "the minimum-guidelines system does not impose any greater risk of a higher sentence than today's advisory system."  I suppose this clever phrasing is accurate, since judges now can use their post-Booker authority to sentence above the guidelines in any case.  But, the chief complaints about a minimum-guidelines system is that it will reduce or eliminate judges' authority to impose a sentence below the guidelines based on a case's individual facts.  Thus, a minimum-guidelines system would impose a much greater risk that judges will not have the authority to hand down sentences they consider to be just.

August 15, 2005 in Booker and Fanfan Commentary, Federal Sentencing Guidelines, Legislative Reactions to Booker and Blakely, Procedure and Proof at Sentencing | Permalink | Comments (0) | TrackBack

Tuesday, August 09, 2005

Gonzales reiterates call for Booker fix

As detailed in this article, AG Alberto Gonzales gave a speech at the ABA Annual Meeting on Monday in which "Gonzales said his biggest concerns were the Federal Sentencing Reform Act, the Patriot Act and the Voting Rights Act."   In the ABA speech, which can be accessed here, Gonzales reiterated points first developed in a June speech in which he advocated a legislative response to Booker in the form of "the construction of a minimum guideline system."  (The June speech's basics are here, my earlier commentary on that speech can be accessed here and here and here and here, and editorial criticisms of that speech are here and here and here and here.) 

Here are some quotes from Gonzales' latest iteration of his support for a Booker fix involving "the construction of a minimum guideline system":

I fear it is inevitable over time that, with so many different individual judges involved, exercising their own individual discretion, in so many different jurisdictions, even greater disparities among sentences will occur under a system of advisory guidelines. I am concerned that under such a wholly voluntary system we will not be able to sustain the progress we've made and victims may be victimized once again by a system that is intended to protect them.

Since the Booker decision, numerous legislative proposals have been suggested in response and they should all be studied and discussed.  I continue to listen and keep an open mind, and one proposal that I have already indicated appears to preserve the protections and principles of the Sentencing Reform Act, and thus deserving of serious consideration, is the construction of a minimum guideline system.

The advantages of a minimum guideline system are many. It would preserve the traditional division of responsibility between judges and juries in criminal cases and retain the important function of the U.S. Sentencing Commission in providing guidelines to the courts regarding sentencing. It would also allow judges some flexibility for extraordinary cases.  And a minimum guideline system would be fully consistent with the Sixth Amendment, as interpreted by the Supreme Court.

Following Gonzales' June speech suggesting a minimum guideline system, I had this series of questions.  And two key questions still have not been directly addressed by Gonzales or others in DOJ: (1) If advisory guidelines are so bad, why did DOJ urge this remedy in post-Blakely litigation? (2) If the old mandatory guidelines were so effective, why the need to construct a new "minimum guideline system"?  In addition, as I explained here, now that the AG is weighing in on the post-Booker policy debate, I believe that DOJ should be making public whatever sentencing data it is collecting (especially since the USSC's post-Booker data, up through the latest data run, do not really seem to support Gonzales' complaints about the current post-Booker status quo).

August 9, 2005 in Legislative Reactions to Booker and Blakely | Permalink | Comments (2) | TrackBack

Monday, August 08, 2005

Editorial against Gonzales' Booker fix

The terrific 2005 NASC Conference begins in Washington DC this morning (and will take me off line for most of the day).  Though a lot of the NASC talk will be about state sentencing issues, the schedule includes some federal sessions as well.  Thus, perhaps it is fitting timing that this morning's Washington Post has this editorial criticizing the June speech given by AG Alberto Gonzales in which he advocated a legislative response to Booker in the form of "the construction of a minimum guideline system."  (The speech's basics are here, and commentary can be accessed here and here and here.) 

Echoing other editorials assailing the Gonzales speech (discussed here and here and here), the Post editorial notes the haste and imbalance in Gonzales' proposal to argue that he is "seeking a legislative fix that would do far more harm than good."  Here's a snippet:

If Mr. Gonzales is concerned about disparate sentencing, letting some people be sentenced harshly and arbitrarily — which could happen under the system he proposes — is as bad as allowing excessive leniency.  Allowing judges to be harsher, but not more lenient, than the guidelines suggest is a bad answer.

More fundamentally, while we disagreed with the court that the mandatory guidelines ought to be struck down, they were not without problems.  The guidelines tended to be rigid, inflexible and insensitive to the individual circumstances of those sentenced under them — particularly in drug cases. In principle, giving judges more discretion is desirable.  And the fact that some may be using the discretion the court has given them isn't necessarily a bad thing.  Nor is the evidence Mr. Gonzales cites of judges increasingly departing from the guidelines especially impressive.  The decline is modest, and it has been only a few months since the court ruled. It will take a lot longer than that to discern whether in practice the ruling is injecting objectionable disparities or a measure of common sense into criminal sentencing.  Congress and the attorney general ought to withhold judgment until a clearer picture emerges.

August 8, 2005 in Legislative Reactions to Booker and Blakely | Permalink | Comments (0) | TrackBack

Wednesday, July 27, 2005

Proposing a distinctive response to Booker and Blakely

Oregon trial judge Michael Marcus, who is according to his website "determined to aim the sentencing process at crime reduction," has submitted this interesting testimony to the US Sentencing Commission in response to its request for public comment on guideline priorities.  Judge Marcus has written a series of provocative articles (linked here) advocating that sentencing decision-making be based on empirical data about what sorts of sanctions and programs work on different sorts of offenders. 

Judge Marcus continues to emphasize the themes of public safety and a focus on data in his interesting submission to the USSC.  Here are some passages:

I write to urge that those of us responding to Booker and Blakely seize this opportunity to revise sentencing guidelines so that they promote sentences that best serve public safety within the available range of just and available sanctions.  Virginia is unique in having made substantial strides in this direction; Oregon has begun officially to consider the mere possibility of doing so; but state and federal guidelines otherwise have nothing intentionally to do with crime reduction.  We invest the resources of public agencies and private "think tanks" across the spectrum of penal philosophy, yet exclude their accumulated data from any role in sentencing.  We need to fix that, because the result is irresponsible cruelty to victims whose crimes smarter sentencing would have prevented.  Avoiding accountability for crime reduction is also irresponsible to the taxpayers who pay for a criminal justice system that yields unacceptable recidivism while squandering correctional resources....

I am not suggesting that we must be more severe or more lenient. I submit that we must be far smarter in our approach to sentencing — we must accept the challenge that science posed by finding so much treatment ineffective.... Criminologists have learned a great deal, and can now identify program characteristics that correlate with substantial reductions in recidivism, but we generally ignore such matters in sentencing....

I submit that the highest calling of sentencing commissions is to promote sentencing laws and practices that pursue best efforts at crime reduction with at least the same vigor that they pursue adherence to a matrix of expected severity. Few have taken that route — after all, merely publishing a matrix and monitoring how well judges adhere to it is far, far less challenging than the task I propose. It is also far, far less valuable for public safety or even fiscal responsibility — recidivism is not just cruel; it is also inefficient, as recidivists repeatedly tax our resources as they victimize our citizens.

July 27, 2005 in Legislative Reactions to Booker and Blakely, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (1) | TrackBack

Friday, July 22, 2005

More interesting criticism of HR 1528

Thanks to this post by David Kopel over at The Volokh Conspiracy, I see that Mike Krause and David have produced this potent Issue Paper for the Independence Institute which assails H.R. 1528, the drug sentencing bill with the tacked-on Booker fix provisions.  (Prior discussion and lots of commentary on this bill can be found at links here and here and here, and other opposition to H.R. 1528 is discussed here and here and here.)

The Issue Paper is titled "H.R. 1528: A Threat to Gun Owners, Families, and Privacy" and it dissects the many remarkable and disconcerting provisions of the bill.  Here are the concluding passages of the Issue Paper:

H.R. 1528 is in no way a "conservative" bill.  The bill:

• Assaults the Second Amendment.
• Assaults family privacy.
• Tries to turn family members, college students, and neighbors into informers.
• Recklessly intrudes into homes and other local spaces that are the proper concern of state and local governments, not the Congress.
• Imposes draconian mandatory sentences, which are contrary to fundamental principles of justice, and of letting the punishment fit the crime.

Nor does H.R. 1528 reflect the best "liberal" values of open-mindedness, tolerance, and empiricism. Rather, H.R. 1528 continues the failed drug war policies of the past. At a time when our nation is under attack by radical Islamic terrorists, H.R. 1528 would divert federal law enforcement resources that should be used to hunt down al Qaeda spies, not to prosecute parents who deal with their children's misbehavior without the need to call the police.

July 22, 2005 in Legislative Reactions to Booker and Blakely | Permalink | Comments (0) | TrackBack

Tuesday, July 12, 2005

What should be done about Sensenbrenner's letter?

Thanks to Howard at How Appealing, I see this interesting item from The Hill reporting that "Democrats yesterday were considering a response to a news report that House Judiciary Chairman James Sensenbrenner (R-Wis.) chastised the 7th U.S. Circuit Court of Appeals in Chicago for giving a drug courier what he considered to be a light sentence."  The background on Sensenbrenner's actions and his startling five-page missive to the Chief Judge of the Seventh Circuit are detailed in this fascinating front page article from Sunday's Chicago Tribune, which I discussed in this post.

The Hill story indicates that an "approach Democrats were considering was to ask the ethics committee ... to review the letter."  Interestingly, a commentor here asks whether Sensenbrenner's letter might qualify as an "ex parte communication that would subject a lawyer to discipline by the state bar as well."

July 12, 2005 in Drug Offense Sentencing, Legislative Reactions to Booker and Blakely, Scope of Imprisonment, Who Sentences? | Permalink | Comments (1) | TrackBack

Sunday, July 10, 2005

Talking points for the post-Booker world

At the conclusion of a panel on federal sentencing after Booker at the Sixth Circuit Judicial Conference that I participated in last month, James G. Carr, the Chief Judge of the US District Court for the Northern District of Ohio, rose from the audience to share a number of great insights about how judges and policy-makers should look at the post-Booker world.  Chief Judge Carr was kind enough to write up a version of his "Post-Booker Talking Points" and gave me blog posting permission.  (Also, an expanded version of Chief Judge Carr's insights will be published in a forthcoming issues of the Federal Sentencing Reporter.)

Given the news of Representative Sensenbrenner's eagerness to micro-manage sentencing outcomes from the halls of Congress, Chief Judge Carr's talking points about post-Booker sentencing are especially timely and should be must-reads for everyone in all three branches of the federal government.

Download carr_postbooker_talking_points.rtf

July 10, 2005 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 (0) | TrackBack

Thursday, July 07, 2005

NACDL releases report on "Gonzales Cases"

This afternoon, the National Association of Criminal Defense Lawyers has issued this press release in conjunction with its completion of a report, available here, entitled "Truth in Sentencing? The Gonzales Cases."  The report was stimulated by AG Alberto Gonzales speech last month in which, in the course of advocating a legislative Booker fix in the form of "the construction of a minimum guideline system," Gonzales described a few post-Booker cases and suggested these cases revealed why a Booker fix was needed. (The speech's basics are here, and my prior commentary on the speech can be accessed here and here and here.)

Here are passages from the introduction and the conclusion of the NACDL's "Truth in Sentencing?" report:

Criminal defense attorneys from the National Association of Criminal Defense Lawyers and the Federal Public and Community Defenders represent thousands of defendants every year in federal sentencing proceedings. Lawyers from these interested groups cooperated in closely examining the cases relied on by the Attorney General. Their analysis revealed that in each case the Attorney General's description was incomplete in important respects and failed fairly to describe the judges' reasons for imposing the sentence....

None of these cases reflects a failure of the judiciary or of the sentencing system: Each sentence was sufficient but not greater than necessary to achieve just punishment, deterrence, protection of the public, and needed education or treatment, taking into account the nature of the offense, the history and characteristics of the defendant, and the need to avoid unwarranted disparity as well as unwarranted uniformity.

July 7, 2005 in Booker in district courts, Legislative Reactions to Booker and Blakely, Who Sentences? | Permalink | Comments (1) | TrackBack

Tuesday, July 05, 2005

Another editorial against AG's proposed Booker fix

I have linked previously here and here to recent editorials assailing AG Alberto Gonzales speech last month advocating a Booker fix.  (The speech's basics are here, and my commentary can be accessed here and here and here.)  This morning, the The News Journal of Delaware adds this editorial entitled, "It's too soon to say judges are going soft on criminal sentences."  The piece concludes:

Attorney General Gonzales points to a number of similar cases in various states so far in 2005 that ended with disparate results.  His examples are too few to merit the degree of alarm he's trying to provoke.  Judges are still subject to the appeals process and potential reversal.

On the whole, unchaining the judgment of those on the bench returns the court system to the intended balance between prosecution and defense.

July 5, 2005 in Booker and Fanfan Commentary, Federal Sentencing Guidelines, Legislative Reactions to Booker and Blakely, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (0) | TrackBack

Thursday, June 30, 2005

News of note from a grand Booker discussion

I had a grand opportunity on Tuesday to speak to the Sixth Circuit Judicial Conference as part of a panel discussing federal sentencing after Booker.  Because of the grand location for the event, I could not resist analogizing Booker to the time travel movie Somewhere in Time, but I think you really had to be there for the analogy to work.

Besides my hackneyed movie reference, the panel included, inter alia, interesting reports from US Sentencing Commission Chair Ricardo Hinojosa and DOJ's ex-officio USSC member Deborah Rhodes.  Judge Hinojosa whet my ever-ravenous appetite for post-Booker data by indicating that a new data run, now including over 20,000 post-Booker sentencings, should be released by the USSC within the next few weeks.  And Assistant AG Rhodes slightly eased my anxiety over AG Gonzales' recent speech urging a Booker fix (basics here, commentary here and here and here) by indicating that the speech was just advocating consideration of so-called "topless guidelines" and was not meant as an endorsement of any specific pending legislative proposal (lots of background here).

June 30, 2005 in Booker and Fanfan Commentary, Federal Sentencing Guidelines, Legislative Reactions to Booker and Blakely, Who Sentences? | Permalink | Comments (0) | TrackBack

Monday, June 27, 2005

Another editorial criticizing the Gonzales speech

This morning, the Reading Eagle of Pennsylvania added itself to the group of papers editorializing against AG Alberto Gonzales speech last week advocating a Booker fix (basics here, commentary here and here and here).  I found this editorial especially interesting, not only because it is in blog format so readers can comments, but also because it connects the Gonzales speech the grousing by some members of Congress about "activist judges."  Here are some snippets from the editorial:

Talk about convoluted logic: The solution to judges legislating from the bench is for lawmakers to sentence convicts from the halls of Congress.  As we said in January after the Supreme Court ruled, judges must be allowed to use discretion in handing down sentences.  Without that discretion the judiciary, one of three equal branches of the federal government, becomes simply an administrative arm of the legislative branch.

Just as important, the legacy of mandatory minimums has been overcrowded prisons and the soaring costs of housing inmates, many of whom would benefit more from probation and placement in rehabilitation programs. It is more than a little ironic that many of the states that passed mandatory-minimum sentences in the law-and-order days of the 1980s have begun to back away from them because of the financial burdens they have created....

Congress must resist the urge to sentence from the Capitol. It's time to change tactics and start concentrating on alternatives to prison. In the long run, the country will be better off financially and socially.

June 27, 2005 in Booker and Fanfan Commentary, Federal Sentencing Guidelines, Legislative Reactions to Booker and Blakely, Who Sentences? | Permalink | Comments (0) | TrackBack

Friday, June 24, 2005

Will DOJ make public its Booker data?

As discussed in this post from February, at the US Sentencing Commission's first big public hearing on Booker, US Attorney Robert McCampbell noted that the Justice Department "will be collecting data" on post-Booker sentencing.  And in AG Alberto Gonzales' speech advocating a Booker fix in the form of "the construction of a minimum guideline system" (basics here, commentary here and here and here and here), Gonzales seemed to reference this collected data in his statement that "the evidence the Department has seen since the Booker decision suggests an increasing disparity in sentences, and a drift toward lesser sentences."

Now that the AG is weighing in on the post-Booker policy debate, it would be especially valuable for policymakers and others if DOJ would make public the sentencing data it is collecting.  The US Sentencing Commission has done a great job updating its data on its Booker page, but the federal system would surely benefit from another data-driven perspective on how the post-Booker world is unfolding.  DOJ should also make public the way it is collecting data, since I have heard reports that the data-collection forms now being used internally by DOJ may not be ideal. 

As detailed in this post, US District Judge Gregory Presnell of the Middle District of Florida recently requested that the local US Attorney make available the information DOJ is collecting on post-Booker sentencings.  That request, available here, astutely explained why DOJ's data collection "should be transparent and available for public inspection."  Judge Presnell's request was rejected in a brief letter, available here, that did close by stating that DOJ is "considering periodically disclosing certain information we are generating from [Booker Sentencing] Reports."

In the wake of the Gonzales speech, now might be a very good time for DOJ to start a program of  post-Booker periodic disclosure.

June 24, 2005 in Booker and Fanfan Commentary, Federal Sentencing Guidelines, Legislative Reactions to Booker and Blakely, Who Sentences? | Permalink | Comments (0) | TrackBack