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October 3, 2004

Inside the Beltway and thinking about Congress

I am now inside the Beltway and gearing up for tomorrow's action in the Supreme Court. But Professor Mark Osler's sobering report from DC (details here) has me really thinking about the likely action in Congress after Booker and Fanfan are decided (whenever that might be).

In written testimony a few months ago, I encouraged Congress to "go slow" in response to Blakely (available here). But though Congress has been patient so far, Professor Osler's report suggests that Congress (aided by the Department of Justice) has its pencils sharpened with plans to write and enact a litany of mandatory minimum statutes if the existing federal structure is nicked in any way by the rulings in Booker and Fanfan. However, while in transit today, I thought of at least a few legal and policy factors that should give Congress pause before rushing forward with a raft of new mandatory minimum sentencing statutes:

1. The ruling in Harris is not rock solid. Though everyone seems to assume mandatory minimum sentencing is immune from the Apprendi/Blakely rule due to the High Court's decision in Harris, Justice Breyer expressed great reservations about his vote in that case. If Congress passes an array of mandatories after Booker and Fanfan, serious reconsideration of Harris might come sooner rather than later.

2. Judge Cassell might lead an Eighth Amendment charge against mandatories. Judge Cassell's serious questioning of the substance of mandatory sentencing outcomes in the Angelos case (discussed here) could set a model for other judges concerned about harsh mandatory outcomes. If Congress passes an array of mandatories after Booker and Fanfan, judicial questioning of the application of mandatory minimum statutes could become the norm rather than the exception.

3. High-profile cases show the flaws of severe mandatories. While Judge Cassell is putting the spotlight on the harsh possibilities of mandatory sentences, the lenient plea deal struck by football star Jamal Lewis spotlights the impact of prosecutorial discretion in the operation of these laws. As this article details, Lewis is accused of an offense with a 10-year mandatory minimum, but apparently a pending plea deal will mean he serves less than six months. If Congress passes an array of mandatories after Booker and Fanfan, scrutiny of prosecutorial discretion in the operation of these laws might become more significant.

4. The federalism revolution might really come to criminal law. As many SCOTUS preview articles highlight, another huge criminal case this fall considers, in the context of a medical marijuana case, Congress's authority to criminalize "local" drug crimes. If Congress passes an array of mandatories after Booker and Fanfan, the courts could get even more serious about requiring a serious connection to commerce before allowing federal criminal laws to operate.

October 3, 2004 at 11:29 PM | Permalink


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