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November 18, 2004

The brewing battle over the Bowman fix

As detailed by the media here and lamented already by some here and here, the testimony presented to the US Sentencing Commission by Christopher Wray, Assistant Attorney General, Criminal Division, US Department of Justice suggested that DOJ is growing to view the so-called Bowman fix (aka "topless guidelines") as the best response if/when SCOTUS applies Blakely to the federal sentencing guidelines.  (You can access the Wray testimony here, and get background on the Bowman fix here and here.)  I should note that Wray repeatedly stressed to the USSC that he was just "describing and not endorsing" the Bowman proposal, but it seemed clear to everyone at the hearings that he was suggesting this was DOJ's preferred response to Blakely.

However, as detailed in this prior post, there was far more support from other witnesses for simplified, Blakely-ized guidelines as a better response in the federal system.  Interestingly, even Professor Frank Bowman stressed that he saw his "fix" as only a short-term solution and that he favored simplified, Blakely-ized guidelines as a better long-term fix.  Likewise, Professors Bibas and Rosenzweig, the only other witnesses expressly endorsing the Bowman fix, both favored it only as a short-term solution and advocated simplified, Blakely-ized guidelines for the long-term.  However, it appears that DOJ is favoring the Bowman fix (aka "topless guidelines") as a long-term solution.

I will have a lot of comments in the coming days about the litigation headaches that I see inherent in the Bowman fix, but for now I can only spotlight the interesting tussle which might ensure if and when DOJ starts actively endorsing the Bowman fix, while other groups start actively pushing for simplified, Blakely-ized guidelines.  One group favoring the simplified, Blakely-ized guidelines is the American Bar Association, and Jim Felman sent to me today a general statement of principles supporting the ABA's approach.  Similarly, Professor (and former Commissioner) Michael Goldsmith also endorsed simplified, Blakely-ized guidelines, and I can also provide below the outline of his proposal as well.

Download aba_blakely_consensus_memo.doc

Download goldsmith_proposal.doc

November 18, 2004 at 04:31 PM | Permalink


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It's no surprise to me that the DOJ favors the Bowman fiz as a permanent proposal. They retain all of the power they have seized over the years. In fact, with this "fix", they gain more power to sentence defendants to even longer terms using untested hearsay and rumors in the way of relevant conduct.

This "fixes" the constitutional infirmity while still leaving the defendant with all of the symptoms of the disease. Brilliant work Doctor Bowman (sarcastic).

When we couldn't trust the DOJ and PSI people with the unchecked limited discretion they have had for so many years, why would anyone want to trust these people with topless guidelines? They have abused their authority and need to be reigned in, for the sake of this entire nation.

I'm not exaggerating. This country is warehousing so many productive people that the Bowman fix will only make overcrowded prisons explode with fresh meat. Are we interested in true sentencing reform, or just interested in fixing a constitutional glitch? Because we can do both. The DOJ just wants to fix the constitutional problem (i.e. force more pleas, have less appeals, go home early). They need to take the "J" out of their name and add "C" for Convictions so they are the DOC. This is beginning to focus more on maintaining power and increasing budgets than it is about what is a very simple word, "justice".

I beginning to lose faith in this country's leaders. It's frightening that our rights are even up for debate.

And a quick quote for any new employee at the DOJ:

"although you are a sheep walking among wolves, be wary you do not become one of them."

Posted by: bob | Nov 18, 2004 5:10:41 PM

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