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November 15, 2004

Collection of USSC written testimony

With many thanks to the participants for sending their efforts my way, I can now post a sizeable collection of the written testimony submitted by persons scheduled to testify at the US Sentencing Commission Blakely hearing over the next two days.   (The hearing details are here and here.)  Specifically, I have testimony from:

Stephanos Bibas, Associate Professor, The University of Iowa College of Law

Download bibas_ussc_testimony.pdf

Douglas A. Berman, Professor, Michael E. Moritz College of Law, The Ohio State University

Download berman_1117_ussc_hearing_testimony.pdf

Mark W. Osler, Associate Professor, Baylor Law School

Download written_testimony_of_mark_w. Osler-Final.doc

David M. Porter, Assistant Federal Defender, Federal Defender’s Office, Sacramento, CA

Download sands_and_porter_testimony.rtf

Paul Rosenzweig, Senior Legal Research Fellow, The Heritage Foundation, Adjunct Professor, George Mason University School of Law

Download ussc_nov_172004_rosenzweig.pdf

November 15, 2004 at 06:14 PM | Permalink


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Fascinating testimony. I'm slightly surprised, though, at the number of experts recommending some sort of modified "Bowman proposal" -- that is, changing the ranges, or levels, or reversing the Guidelines to essentially keep what we've got now but conforming it to Blakely's requirements. Blakely isn't about changing the numbers on the back page of the Guidelines Manual or changing plusses to minuses. And as much as "old school" judges may want unfettered discretion, I think we all see that that will never happen because (1) our politics won't allow it, and (2) for a lot of reasons, it's not a good idea.
Blakely is really about defendants who got arrested because they "did something," and then getting screwed by the system because they were punished for doing something much worse, or perhaps altogether different from what they were charged with. It's about the family members of those defendants who leave comments on this blog, pleading for help because their brother/friend/husband, who may have smoked a little crack and sold some to his friends to support his habit, got 20 years because his upchain suppliers, who he had never met, had kilos of the stuff. Or the guy who's arrested for felon in possession and gets 20 years because one of his prior convictions, for a burglary of an abandoned warehouse, is considered a "violent felony." Or, in general terms, the guy who was found with a little bit of contraband and had no real choice but to plead guilty but was severely enhanced for conduct that he didn't really do and had no way of proving his innocence. As Professor Bibas has previously written, the guidelines may be the scalpal compared to the hatchet of mandatory minima, in the hands of a person without the background knowledge needed to use the instrument and the knowledge of the background of a patient, even a scalpal can hack a body to bits.
As long as the focus of reform centers on real truth-in-sentencing, then we'll move in the right direction. Judicial discretion may be a small part of the equasion but cannot be the primary focus. Thus, a "3X" approach, or the Bowman Proposal, or advisory guidelines that equate to a return to indeterminate sentencing cannot be long-term solutions to the Blakely problem.
While Mr. Rosenzweig's proposal is interesting--boiling sentencing down to the first principles of Criminal Law I (how evil was your mind, how widespread was the damage, how vulnerable was the victim, how great was your role, and how bad have you been before) and any sort of code reform would seem to be a welcome advance, I don't know that it solves the root of the Blakely problem--finding a way to ensure that the defendant did what he's being sentenced for, to make sure his punishment fits HIS crime, and to make sure his punishment would be relatively the same regardless of the sentencing judge.

I wish the academy and the commission good luck. But I think you're right, Prof. Berman, to say that the courts can and have been adapting to Blakely, Booker, Fanfan, and their future effects. As Jeff Lebowski said: "The dude abides."

Posted by: District Clerk Battling Blakely | Nov 16, 2004 10:45:15 AM

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