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September 29, 2004

A judicious judicial "amicus"

I know I am biased, but it seems that judges who used to be law professors do the most amazing sentencing work these days. (Realize that many authors of some of the most interesting and important Blakely decisions — including Judges Cassell, Easterbrook, Gertner, Posner, Sutton, Wilkinson (and, of course, Justices Scalia and Breyer) — once did or still do teach at a law school. And this list likely overlooks some other great judges/professors who have written on Blakely.)

Continuing this trend, former Columbia Law Professor Gerard Lynch, who was a an intellectual leader in the field of sentencing even before becoming a judge, has followed up his work in US v. Emmenegger (available here with commentary here), with what is another humdinger in US v. Jackson, 2004 U.S. Dist. LEXIS 19219 (Sept. 22, 2004).

Judge Lynch's analysis and commentary in Jackson is too sophisticated and nuanced to briefly summarize here. But through the quotes below, readers should get a sense of why Jackson is a must read. Indeed, as suggested by the title of this post and revealed in the following snippets, Jackson really serves as yet another "amicus brief" for the Supreme Court as it tries to sort through all the issues it faces in Booker and Fanfan:

This case presents sentencing issues that demonstrate the occasional complexity of the federal Sentencing Guidelines. Although the intricacies of the guideline application here are interesting and significant in themselves, the case also illustrates aspects of the Guidelines that are of crucial relevance to both the constitutional questions currently under consideration by the Supreme Court, and to questions of sentencing policy that should be of concern to the Commission and the Congress....

The guideline calculation in this case illustrates both the complexity of the system that follows from its excessive detail and the constitutional awkwardness of at least certain provisions of the Guidelines that require sentencing judges in effect to declare defendants guilty of crimes of which they have not been convicted by a jury. At the same time, the case illustrates why simplistic analysis of "the constitutionality of the Guidelines in light of Blakely," which purports to find the entire system unconstitutional, radically oversimplifies a complicated and diverse sentencing system which in many of its aspects presents no constitutional difficulties at all.

Jackson is noteworthy in part because, as Judge Lynch explains, the applicable guideline "apparently requires the Court to consider whether he is guilty of the far more serious offense of attempted first-degree murder, an offense with which he has never been charged, let alone convicted by a jury." It is also noteworthy because it highlights the operation and availability of upward departures in a way which shows that such departures may be a key mechanism for avoiding "sentencing windfalls" (as suggested here).

September 29, 2004 at 07:58 AM | Permalink


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I am a recent graduate from Columbia.

This isn't so much a comment as a question: where/how can one get a copy of Judge Lynch's US v Jackson opinion?

Posted by: John Ip | Sep 29, 2004 3:24:42 PM

I don't see a copy online but I read it using Lexis-Nexis.

The short form is, a felon with a machine gun shot another man
and was convicted on federal gun charges. The prosecution asked
that the sentence be based on the murder guideline, but the judge
ruled that the prosecution had not proved that the shooting was
murder rather than self-defense or some lesser crime (such as
"attempted manslaughter" which I thought was a legal impossibility).
However, he did depart upward because the defendant put himself in
a situation where use of the gun and resulting injury were likely.

The judge raised a concern I have long had with the guidelines: the
shooting ought to be purely a concern of state law, yet the guidelines
require the judge to consider conduct which Constitutionally is beyond
the jurisdiction of the Federal government. In a high profile case in
Rhode Island the defendants were on trial for murder and facing the
federal death penalty, but the federal jurisdiction was based solely on
the fact that they also stole a car and the crime they were charged with
was called "carjacking" and not "murder".

Perhaps in a future case the Supreme Court can be persuaded that there
needs to be a federal interest in sentence-enhancing factors (elements,
post-Apprendi/Blakely) of a crime founded on interstate commerce.

Posted by: John F. Carr | Sep 29, 2004 9:09:02 PM

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