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January 26, 2005

A Booker laboratory of the district courts?

The comments here concerning Chief Judge Holmes' intriguing opinion in Barkley (basics here) have been none too kind.  Though the opinion is a fascinating read, I do think Barkley could have better defended the decision to Blakely-ize the guidelines as Chief Judge Holmes is obviously wont to do. 

I think the outcome in Barkley would have been on more solid ground if it had adopted and built upon some of the ideas in Judge Cassell's opinion in Wilson (basics here, commentary here and here).  As the commentors note, the opinion currently reads as a disagreement with the Breyer remedial majority and as an adoption of the dissenters' proposed remedy.  However, I think Barkley could have said that to serve the uniformity principles championed by Justice Breyer, as well as to serve all the other principles codified in 3553(a) (including the command "to promote respect for the law"), a Blakely-ized system giving the guidelines very heavy weight will be more effective than a system built on judicial fact-finding and discretionary judgments.  In other words, rather than suggesting in Barkley that the dissenters had a better remedy, I think Chief Judge Holmes could have asserted that, even following Justice Breyer's mandates and instructions in Booker, he believes a Blakely-ized system will better serve both the Court's and Congress's stated goals.

That all said, I find very interesting Barkley's effort to justify Blakely-ization based on the importance of showcasing this system to provide insights and information to the US Sentencing Commission and Congress as it contemplates post-Booker reforms.  The idea brings to mind, of course, Justice Brandeis' advocacy for a "laboratory" of the states in his famed New State Ice opinion.  Especially since, as detailed in this speech, Justice Breyer is an obvious fan of Justice Brandeis, perhaps Justice Breyer would not be all that troubled by what Chief Judge Holmes is trying to do in Barkley.

Of course, a more important and immediate question right now is whether the Justice Department is troubled by what Chief Judge Holmes is trying to do in Barkley.  I imagine that Barkely is the kind of opinion that could prompt the government to seek mandamus in the Tenth Circuit.  But whether DOJ wants to go through that effort, and how the Tenth Circuit might respond, are all very interesting questions.

January 26, 2005 at 11:32 AM | Permalink


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I think one good thing about Holmes'opinion is the fact that hundreds of judges (and their clerks) are monitoring your site and after Holmes' attempt at brilliance (either you got it or you don't)will be a warning to other judges who are thinking of using their up coming opinions to wax poetic and have their day in the sun.

Holmes acted like he was on the Supreme Court and that his opinion would change the sentencing world. Instead, he changed the minds of certain judges who are contemplating doing likewise.

Thank you Judge Holmes. You did more good than bad by this.

Too many very smart people are watching...

Posted by: Fred | Jan 26, 2005 12:14:16 PM

Thank you, Prof. Berman, for tempering our fiery critique. And I disagree with Fred that other judges couldn't "Blakely-ize" the Guidelines --I just take issue with Judge Holmes's proposition that the Guidelines will be MANDATORY in the exercise of his "discretion." If he would have appropriated at least some of the language from Judge Cassell's opinion, no one would have a problem with Holmes's plan (and many would applaud it).
Regarding the "laboratory" idea-- I'm not sure that having a "laboratory" approach to federal sentencing is a good idea, since one of the goals repeated by both Breyer and Stevens in the remedy opinions is uniformity-- the Guidelines are supposed to promote uniformity across the country so that, for example, a money laundering defendant doesn't get harsher treatment in Florida (where there are tons of elderly potential victims) compared to New York (where some might view the conduct as Wall Stree hijinks). Of course there are exceptions (like fast track immigration in the Southwest and the priorities that each USA's office places on particular crimes to "remove" from state court or charge) but all in all, we want a federal criminal system. Perhaps SCOTUS did want experimentation (so they would later know how to modify the remedy or to provide Congress evidence that the new system isn't unworkable). It's difficult to know what Breyer (and RBG, for that matter) was thinking when the remedial language was devised. Perhaps in 50 years, when their notes are released....

And as to the mandamus question: I dunno... maybe the DOJ would be happier with certainty and a "mandatory" system rather than risk Holmes's discretion, especially since ND Okla seems to have invented a post-Blakely "system" that apparently works pretty well (although the footnote in the opinion, indicating Holmes would have sentenced to life, might change this calculus). My guess is that defendants will appeal sentences more quickly than the government will seek mandamus.

Posted by: District Clerk Battling Booker | Jan 26, 2005 1:19:10 PM

there is an inmate that got sentenced unfair on 2/2003 and trying to find out about the new law to see what we can do to help the inmate.

Posted by: guadalupe mendoza | Mar 16, 2005 2:39:11 AM

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