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July 12, 2004

The "Bowman Proposal": White Knight or Force of Darkness?

During the coming week, and especially during Tuesday's Senate hearing, we will likley hear a lot about the "Bowman proposal." This will be a reference to an ingenious Blakely-fix that Professor Frank Bowman suggested in a memo sent to the US Sentencing Commission three days after Blakely was decided. The essence of the proposal is a legislative fix to essentially take the top off the existing guideline ranges -- i.e. "amend the sentencing ranges on the Chapter 5 Sentencing Table to increase the top of each guideline range to the statutory maximum of the offense(s) of conviction." The idea is that then guideline calculations technically become adjustments to only minimums and have no impact on applicable maximums. The current buzz is that this fix is the leading candidate for congressional action in response to Blakely.

Professor Bowman's memo in support of this approach is brilliant and a required read for anyone thinking about what should happen now. Here is a copy of Frank's original memo to the USSC (which I know has already been widely circulated):
Download frank_bowman_original_memo_to_ussc_on_blakely.doc

Frank has asked me to highlight that his original proposal and thoughts have evolved a bit since this original memo was sent. He wanted me to stress that "the version now receiving most consideration would (a) be sunsetted, and (b) include a right of appellate review on an abuse of discretion standard for any sentence above the guideline minimum, and that one consideration in the abuse of discretion determination would be whether the sentence was 6 months or 25% greater than the minimum." Frank may have a final "new and improved version" of his legislative proposal for me to post in the next few days.

This proposal has engendered diverse reactions and diverse predictions about what would happen if it became law. It has emerged as a compromise, short-term solution that might or might not be a great way for Congress to start dealing with Blakely, but likely has the most chance of any suggested proposals. With this memo now in hand, I will leave you to decide for yourself whether the Bowman proposal should be championed as a white knight or a force of darkness in the post-Blakely world.

July 12, 2004 at 08:44 AM | Permalink


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Professor Bowman's proposal troubles me--I vote for force of darkness. I understand that it is designed as a "stopgap" to get the federal courts out of the quagmire they are currently in, but I'm too concerned that it would be seen as the quick and easy fix that truly subverts the spirit of Blakely. In fact, it does exactly what the Apprendi dissenters warn: Congress increases the "statutory maximum" for all crimes to avoid the constitutional requirements. The result is that no one wins. Defendants don't win because all the "sentencing factors" go back in to the penumbras the judge's consideration in a quasi-indeterminant sentence. We basically have indeterminant sentencing with mandatory minima. Sentencing reformers don't win because disparity will reign supreme again. Prosecutors don't really win because there is little certainty in the system, which makes bargaining more difficult. The judges who have been complaining about the Guidelines don't win because their discretion can only ratchet up the sentences. But Congress would win, because they would could enact a simple solution, which the public would consider tough on crime, to thwart that crazy supreme court and those activist judges like Justice Scalia.
One counterpoint might be that the offense levels that are used as starting points in the Guidelines are sometimes relatively low, even for high-punishment crimes. See USSG s. 2B1.1 (base offense level for theft is 6-7). Therefore, there might be a fair range at the low end, even if the Guideline range stretches to the statutory maximum. This also might spur Congress to make significant real changes to the Guidelines rather than to apply the Band-Aid and forget it.

Posted by: District Clerk Battling Blakely | Jul 12, 2004 11:36:04 AM

How do think the Supreme Courts decision will affect tried defendants who have been found guilty but await sentence. If the guidelines are found to be unconstitutional and the pre 1984 rules apply, what about defendants tried under the guidelines where, say, the sentence, without enhancements was 1month to 1year?
What are your arguments for severability and retroactive applicfation under the 6th amendment?

Posted by: Moris Weissman | Aug 4, 2004 3:56:30 PM

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Posted by: laptop battery | Oct 14, 2008 5:16:36 AM

I understand that it is designed as a "stopgap" to get the federal courts out of the quagmire they are currently in, but I'm too concerned that it would be seen as the quick and easy fix that truly subverts the spirit of Blakely.

Posted by: Robe de Cocktail Pas Cher | Dec 12, 2012 2:49:18 AM

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