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January 13, 2005

Take a deep breath.....

As I have suggested in some prior posts, I think the only certainty about the future of federal sentencing after Booker is uncertainty.  Uncertainty about how Booker will be interpreted and applied, uncertainty about how individuals and courts should react, uncertainty about how Congress and the US Sentencing Commission can and should respond.

But I am certain that everyone (myself included) should take a deep breath and not even expect to be able to figure all this out instantly.  In particular, I think it is especially important for Congress to act cautiously, hold hearings, consult in an open and deliberative way with the US Sentencing Commission, the Justice Department, defense groups and judges of all sorts to chart a sound and sensible path for the future of the federal criminal justice system.

In many ways, I think the "Go Slow" advice I gave to Congress in July after Blakely remains fully in force.  Moreover, I think every member of Congress ought to review the US Sentencing Commission's recently released 15-year report, a report which deserves, in my view, far more attention than it has received to date. (The full report can be accessed here, its executive summary can be accessed here, and my summary of the executive summary is here.)  How can Congress decide where it wants to go with federal sentencing until it completely understands where it has been?

On the same theme, I just received this letter signed by 50 diverse organizations delivered to members of House and Senate Judiciary Committees encouraging a "go slow" approach to any legislative changes and consideration of the full impact of federal sentencing policy.  Here is the heart of the letter:

We, the undersigned organizations, write to encourage you to consider two key issues in regard to any legislative action in this area:

1. In order to create a sensible, long-term sentencing policy, Congress should avoid the temptation to create a "quick fix." There is no real quick fix, and seeking an end run around the important issues could have unintended negative consequences.  A proposal to allow much longer sentences while retaining current restrictions on judicial discretion to mitigate punishment (the so-called "Bowman fix") should be rejected.

2. In order to have punishments that fit the crimes committed, Congress must closely evaluate the past 20 years of sentencing policy and the broader implications of those policies. Mandatory minimum sentences and other problems should be fixed in the process.

In closing, we urge you to work toward meaningful sentencing reform. Congress must strike an appropriate balance among competing goals, and must do so carefully and with meaningful participation from all of the affected parties, including the judiciary, the Sentencing Commission, criminal justice practitioners (including community and institutional corrections), academic experts, victims, and the public at large.

January 13, 2005 at 12:37 PM | Permalink


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Why shouldn't we just embrace the Breyer solution and be done with it?

If you go back to where this all started -- Marvin Frankel's Criminal Sentencing: Law Without Order -- the good judge didn't recommend sentencing rules. His strongest endorsement and the greater part of his chapter on remedies was on the appealability of discretionary sentences and the development of a common law of sentencing. That's what we now have in federal courts.

Why aren't Frankel's descendants and disciples happy?


Posted by: Kyron J Huigens | Jan 13, 2005 1:36:48 PM

Considering that most Members of Congress don't read the legislation before them, no matter the subject, and that (by design?) many major peices of legislation (100+ pages) are released in final form hours or days before voting begins, "Go Slower" is advice that is applicable to most everything Congress does.

I'm a Member of Congress wanna-be, former C-SPAN junkie, intermittent programmer (mostly for Wall St.), and ex-Marine.

This is the first time I've read your blog, linked from TaxProfBlog. Congratulations on the mention in Steven's dissent.

Posted by: Josh Narins | Jan 13, 2005 2:26:15 PM

Judge Randy Crane, Southern District of Texas had sentenced two brothers last week, within the guidelines (41 months and 60,000 dollars for conspiracy, mail fraud and extortion exposed thru a sting operation that produced physical evidence of four tires. The rest was all circumstanial. The judge resentenced and departed upwards to 54 months and $15000 more in fines,75000 in all, he said a departure was due because he "thought" one brother was the ring leader. The judge had no evidence to that other than that's the way he felt. He also indicated that he thought the defendant had money stashed somewhere. The judge had previously indicated that his pet peeve was crooked elected officials. There was no amount indicated during the trial and there were no victims who suffered monetary loss. A one-two punch was used throughout the trial, the judge was entirely sided with the USA and alowed hearsay and third party evidence during the whole precedure. Judge Crane is 37 years old and seems to want to make a name for himself. These were firsr offenders and respected educators that got caught in a sting that begin with an attempt to help a salesman get started in the area (TURNED OUT TO BE AN UNDERCOVER AGENT)who at first couln't get them to bite until one defendant's daughter needed tires for her vehicle and were obtained thru another "unidicated conspirator" and round about. IT will be interesting to see how other judges without the same "pet peeve" will sentence defendants for the same crime. Will defendants get a chance to appeal on the basis of personal feelings of judges with pet peeves.

Posted by: l vasquez | Jan 20, 2005 6:39:04 PM

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