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July 30, 2004

Wherefore art thou USSC?

A month ago, I was energized by the thought that the Blakely earthquake might provided a unique opportunity for sentencing commissions to play a leading role in reforming sentencing reform (background here). Though I suppose I can still hope, a month later the idea that the US Sentencing Commission would become a leader seems like wishful thinking.

According to the Acting Solicitor General, federal sentencing law is in a state of unprecedented turmoil (details here) in the wake of Blakely. Yet the only Blakely resource the US Sentencing Commission provides on its website is the (now quite dated) written testimony of Commissioners Steer and Sessions before the Senate Judiciary Committee. In that testimony, the Commissioners indicate that the USSC has been "work[ing] intensively with Congress, the Department of Justice, representatives of the federal judiciary, and other interested persons to analyze the impact of the Supreme Court’s decision and help guide the discussion concerning the future of the federal sentencing guidelines system." That sounds great, but I cannot resist trotting out a well-worn political slogan: "Where's the beef?"

The USSC surely is collecting lower court Blakely decisions concerning the federal guidelines; why hasn't the USSC made these decisions publically available in one official location?

The USSC likely has unique insights and opinions about which post-Blakely cases the Supreme Court ought to consider and how the "Questions Presented" ought to be cast; why hasn't the USSC filed an amicus brief with the Court addressing these critical matters?

The USSC likely is analyzing key data about the possible impact of Blakely on past, present and future federal sentences; why hasn't the USSC made any official statements about this important data (while avoiding questionable unofficial statements)?

I am confident that the USSC Commissioners and staff have been hard at work since Blakely was decided, but I am disappointed the USSC has not played a more public and effective role in the on-going dialogue about the future of federal sentencing. Because we are only in the midst of the first chapter of a very long story, there is still plenty of time for the USSC to shine. But it is hard to be encouraged by what we have seen so far, which prompts not just the question where is the USSC, but why?

July 30, 2004 at 02:54 PM | Permalink


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For what it's worth, I happened to run into one of the Commissioners yesterday and asked if the Commission was planning on doing anything about Blakely. The Commissioner responded that, for the time being, it was going to see what the Supreme Court did. I know this Commissioner but not particularly well, so this could have been a somewhat tongue-in-cheek comment intended to brush my inquiry aside. Knowing what I know about this person, however, I would tend to take it at face value.

I have posted this anonymously for obvious reasons.

Posted by: Anonymous Source | Jul 30, 2004 7:40:56 PM

Thanks for the report, which I'd take at face value. It seems the USSC has been content to be a reactive rather than a proactive institution. Needless to say, I think the Commission should be proactive -- I certainly think that's what Marvin Frankel had in mind when he suggested the creation of a "Commission on Sentencing" and I also think that's what Congress had in mind when it created the USSC.

Posted by: Doug B. | Jul 30, 2004 7:45:12 PM

Maybe, although considering the current political nature of it and Congress, I'm not sure I'd really want them to act before the Supreme Court. At this point, I have more faith in the Court than them (I can't believe I'm saying that after so many post-Warren years!).

Posted by: Anonymous Source | Jul 30, 2004 8:15:11 PM

I noted the link to the Commissioner's comments on Blakely to the effect that only 20% of federal sentences would be affected because only 20% involved departures. This logic is dubious at best (particularly since every "published" opinion to reach the issue other than Pineiro and its progeny has concluded that Blakely applies to facts which determine the Guideline range, not merely those that authorize departure). Nonetheless, it is food for thought for practitioners in the Fifth Circuit. Might this be a basis for distinguishing Pineiro in cases involving upward departures? In other words there may be a certain logic in saying that the "myriad" of factual determinations establishing the defendant's guidelines range in the federal system and Congress' use of the sentencing commission as an intermediary create a meaningful difference from the system at issue in Blakely. Nonetheless it seems a lot more difficult to distinguish the federal guidelines from those used in Washington once the defendant's guideline range has been established. In both systems, the legislature itself requires the defendant to be sentenced to his or her guidelines range in the absence of (reasonably simple and discreet) special factual findings, and in both systems the legislature itself has enumerated what those findings are. If a member of the sentencing commission saw Blakely as fundamentally a case about the defendant's constitutional entitlement to be sentenced within the range deemed applicable to him or her by the court, perhaps another panel or a district judge can be persuaded to require jury determination of the facts that authorize departure from that range...

Posted by: Joel Page | Jul 31, 2004 11:05:43 PM

Nonetheless it seems a lot more difficult to distinguish the federal guidelines from those used in Washington once the defendant's guideline range has been established.

Posted by: Robe de Soirée 2013 | Dec 14, 2012 1:09:17 AM

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