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September 23, 2004

More brief brief thoughts

I have now finished a very quick read of all the amicus briefs filed in support of the respondents in Booker and Fanfan (available here). Though all these briefs deserve a close re-reading, I already have a lot of reactions.

First, I must say that I find the briefs' analysis of the initial question — whether Blakely applies to the federal guidelines — not all that exciting (perhaps because the answer to this question seems obvious to me). Nevertheless, each amicus contributes something interesting to this discussion, and collectively the briefs successfully debunk the fictions discussed here that the guidelines are not statutory and that the US Sentencing Commission is an independent agency in which judges make sentencing rules for themselves. (The NACDL's coverage of this issue, along with its dense 8-page Appendix of congressional meddling with the USSC and the guidelines, is particularly effective.)

Second, the different approaches that the amici take on the issue of severability are fascinating. Though a full exegesis of this issue could fill dozens of posts, it is so interesting to see NAFD highlight how easy it is to work Blakely into the existing guidelines, while FAMM urges the rejection of the SG's approach to advisory guidelines as it outlines its own more just vision of advisory guidelines, while the NACDL flags significant Ex Post Facto and Double Jeopardy issues.

Third, I am troubled a bit by what seems missing from some of the amicus briefs — namely, a truly compelling account of the injustices which can result from an adminitrative system of sentencing (detailed here) in which civil standards of proof and hearsay evidence can lead to massive enhancements of prison terms. Because amici do not have to focus on legalese, I was expecting to see a bit more discussion of the equities and a call for invigorating broader principles of justice and due process in federal sentencing. In this respect, the powerful Wall Street Journal article by Laurie Cohen and Gary Fields earlier this week highlighting the human stories behind the operation of the federal sentencing system (discussed here) may still be the most potent "amicus" effort to date.

September 23, 2004 at 02:11 PM | Permalink


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