Panel 2 Senate hearing highlights

After introductions, the Senate hearing's second panel got off to a fiery start by the usually fiery Professor Frank Bowman. He effectively hightlighted that Blakely is not the real problem, but a symptom of "profound, on-going, systemic dysfunction" in the federal sentencing system. He then stressed that there really is turmoil in the federal courts and that all the rapid court rulings are a sign of the coming "national judicial trainwreck." Frank said the new prospect, after the Fifth and Second Circuit decisions, of rapid Supreme Court consideration of Blakely's impact in the federal system changed his view about whether a quick congressional fix was needed now. But he also (rightfully in my view) highlighted that even a quick decision from the Supreme Court would not likely solve the uncertainty in the courts now or the underlying problems with the federal sentencing system.

Professor Rachel Barkow followed by stressing her concerns about the historic place of juries in the criminal justice system. She criticized the "Bowman proposal" (background here) for being a short-term fix that does not safeguard the place of juries, but only safeguards the place of the existing guidelines. She suggested an alternative short-term fix would be to make the guidelines simply advisory, and she advocated a long-term fix in which there is an effort to identify a short list of core aggravating circumstances that for all cases should be treated as distinct elements leading to full trial rights.

Ronald Weich highlighted the challenge that Blakely creates for effectively balancing competing concerns of fairness in sentencing, and he noted that his written testimony highlighted a range of fairness worries in federal sentencing even before the Blakely ruling. He then suggested Congress should do nothing in the short term, but if feeling compelled to do something, the only thing Congress should consider would be to make the federal guidelines simply advisory (which, he highlighted, would only require changing only one provision of the current US Code).

Alan Vinegrad urged short-term and long-term responses, and said some short-term action may be needed in part bacause an additional decision by the Supreme Court would not alone stem the on-going turmoil. Without specifying a short-term fix, he then outlined in some detail his approach to a long-term fix. But Senator Jeff Sesssions quickly followed up by suggesting that his proposed long-term fix was an effort to just "split the baby in half" which might not be viable. Alan, in turn, said he thought such compromises were exactly what gets done in the halls of Congress.

In questions, Senator Jeff Sesssions (who was now presiding) did his very best to argue that the Blakely decision ought to be reversed and he even predicted that "Justice O'Connor's view would ultimately prevail." He thereafter engaged in a dialogue with all the witnesses about deeper problems with the federal guideline system, and then came even closer to calling Justice Scalia an activist judge in a loaded question to (former Scalia clerk) Rachel Barkow concerning whether Justice Scalia would strike down any sentencing system he did not like. Senator Sesssions also indicated that he thought the statutory "25% rule," which defines the limits of the federal sentencing ranges under the current guidelines, might too tightly limit judicial discretion. Frank Bowman jumped in to stress his view that this "25% rule" is a significant structural impediment to meaningful federal sentencing reform.