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February 10, 2005

A viewer's guide to Thursday's House hearing

I do not believe the Oversight Hearing on "The Implications of the Booker/Fanfan Decisions for the Federal Sentencing Guidelines" to be conducted Thursday morning by the House Judiciary Committee's Subcommittee on Crime, Terrorism, and Homeland Security will be webcast.  Consequently, I suppose this post is really more of "reader's guide" than a "viewer's guide," since those of us outside the Beltway will only be able to read all the action once a transcript is made available.  Nevertheless, it still seems valuable here to provide a preview of what we might expect.

As detailed before, the scheduled witnesses are Professor Frank Bowman, USSC Chair Ricardo Hinojosa, former Associate Deputy AG Daniel Collins, and Assistant AG Christopher Wray.  Here are a few quick thoughts concerning each witness:

Professor Frank Bowman: TalkLeft here is warning "Beware of Bowman and his proposed fix," but I do not expect Frank to push hard for so-called topless guidelines.  Frank put forth his "Bowman fix" as only a short-term remedy to try to avoid immediate post-Blakely chaos, but that ship has essentially already sailed.  Notably, at the November USSC hearings and in (pre-Booker) academic writings, Frank has been advocating a form of simplified Blakely-ized guidelines as a long-term solution to Blakely issues. 

USSC Chair Ricardo Hinojosa: From the prepared testimony already made public here on the USSC website, we know what US Sentencing Commission Chair Judge Ricardo Hinojosa plans to say.  I found especially interesting in that testimony the assertion that the USSC "firmly believes that sentencing courts should give substantial weight to the Federal Sentencing Guidelines in determining the appropriate sentence to impose, and that Booker should be read as requiring such weight."  Recall that Judge Cassell has used the term "heavy weight" in his Wilson opinions, and we can all ponder how much lighter "substantial" is than "heavy."  (The post-Booker sentencing data in Judge Hinojosa's testimony, briefly noted here, merits its own future post.)

Daniel Collins: Now in private practice, former Associate AG Collins played a central role in the development of legislative restrictions on departure authority found in the Feeney Amendment to the PROTECT Act.  In this testimony on behalf of DOJ two years ago to this same subcommittee, Collins urged broad legislation which would "prohibit departures on any ground that the Sentencing Commission has not affirmatively specified as a permissible ground for a downward departure."  That statement suggests Collins is not a big fan of judicial sentencing discretion, but it remains to be seen what he has to say now that he is no longer speaking on behalf of DOJ.

Assistant AG Christopher Wray: At the November USSC hearings, Wray "described" but did not officially endorse the Bowman proposal if Blakely were held applicable to the guidelines (testimony here, analysis here).  But that was before DOJ got the remedial outcome it essentially advocated from the Supreme Court in Booker.  And since sentences seem to be hovering around the guidelines post-Booker, I would expect Wray's testimony might echo some themes in Judge Hinojosa's testimony.  DOJ is an apparent fan of the guidelines having "heavy weight" and it may be content to adopt a "go slow" approach for now.  But, as with the Collins' testimony, I will be particularly eager to see the specifics of what Wray now has to say on behalf of DOJ.

There is, perhaps unsurprisingly, a bit of a prosecutorial bias in this group: everyone other than USSC Chair Hinojosa is a current or former prosecutor.  Nevertheless, I still expect we will get a rich set of views expressed at the hearing, and I plan to post more written testimony and any reports from persons in attendance when available.

February 10, 2005 at 01:30 AM | Permalink


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