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.