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November 18, 2004

Brief summary of USSC hearing highlights

Though others surely do not share my obsessions, two days of USSC hearings on Blakely was pure rapture to this sentencing geek.  I could easily write a book about all the (big and small) developments and insights to be drawn from the hearings, but the realities of time means a few summary posts here will have to suffice.  But I highly encourage all Blakely addicts to make the time to read the written testimony the USSC has effectively assembled here.  There are gems in each and every piece, and I won't be able give all the important items their due.

To begin, I want to complement the Commission for running the hearings so well and also complement all the Commissioners both for their cordiality and for the insightfulness of their questions and comments.  I believe this was Judge Hinojosa's first hearings as Chair, and he kept the sessions moving along effectively and added a needed touch of levity at times.  Indeed, perhaps the most exciting moment was when Judge Hinojosa hinted that, after the USSC dealt with Blakely, he personally was going to bring order to the college football BCS system (though, with Judge Hinojosa at the helm, I suspect his beloved Longhorns might move up even higher in the BCS rankings).

In a series of subsequent posts, I plan to review distinctly the views from the judges, from the litigants (defense bar and DOJ), and from the academy.  However, I think a series of summary  points might be a good way to start:

  1. Everyone seemed to endorse the concept of binding guidelines — there was virtually no support for a wholly advisory system from any quarter (although the judges, who might be most likely to endorse such a system, did not expressly weigh in with any specific recommendations).
  2. Nearly everyone stressed the importance of trying to simplify the federal sentencing guidelines, although precisely what features of the existing guidelines most needed to be simplified was not always clearly stated.
  3. There was a lot of interesting and dynamic discussion of the timing and timelines for post-Booker/Fanfan changes to the guidelines.  The judges stressed the need for clear guidance in the wake of a SCOTUS ruling, and the Commissioners seemed to appreciate the need to move fast after Booker/Fanfan come down.  But whether and how there could/should be a short-term fix followed by a long-term fix was a subject of much debate.
  4. The long-term vitality of Harris, the decision approving judicial factfinding for mandatory minimum sentencing, was also the subject of interesting and dynamic discussion.  Of course, Harris' vitality is extraordinarily important if Congress and/or the USSC adopt the so-called Bowman fix (aka "topless guidelines") in the wake of Booker/Fanfan.
  5. The essential idea of simplified, Blakely-ized guidelines was probably the favored proposal put forth by most of the presenters, but the USSC's ability to make that happen — both as a matter of timing and as a matter of the USSC's authority — pose a number of tough issues.
  6. Professor (and former Commissioner) Michael Goldsmith made the very sound suggestion that the Commission try to speak with a unified voice when offering specific proposals and recommendations to Congress.  But the Commissioners' diverse questions (combined with the many tough legal, political and practical issues that lie ahead) suggest that unity may be easier said than done.
  7. I came away with the feeling that both the holding and the dicta in Booker/Fanfan will have a profound impact on whether (assuming Blakely applied to the federal system) the Bowman fix or simplified, Blakely-ized guidelines becomes the immediate front-runner for the future of federal sentencing.

I could — and later will — go on and on.  But for now, Ellen Pogdor over at White Collar Crime Prof Blog has a lot of insightful points here about the apparent move by DOJ toward the Bowman fix.

November 18, 2004 at 01:17 PM | Permalink


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