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February 10, 2005

More advice encouraging Congress to go slow

With the exception of Daniel Collins, who in his testimony to the House Subcommittee today urged "that Congress act — and act promptly", the developing consensus seems to be the "go slow" approach in response to Booker.  (Consider that Professor Frank Bowman's testimony here in big, bold letters provides "A Counsel of Caution".)

Adding their voices to this consensus are the folks at The Constitution Project's Sentencing Initiative, a bipartisan blue-ribbon committee formed in the wake of Blakely (first discussed here, membership here).  In a letter to Congress, which can be downloaded below, the co-chairs of the Initiative — none other than Edwin Meese III, Attorney General under President Reagan, and Philip Heymann, Deputy Attorney General under President Clinton — state that "Congress should respond to the Booker decision with caution for at least four reasons."  The letter also points out long-term flaws in the federal guidelines that need fixing and recommends against "topless guidelines."

Download constitution_project_letter_to_congress.doc

In a similar vein, I received a copy (and provided for download below) an article about Booker by SDNY US District Judge Lewis Kaplan which reviews the new federal sentencing landscape and then closes with this heartening passage:

My central message instead is that this is a moment for reflection, not for hasty action.  We do not know how Booker will evolve if the courts are left to work out these problems.  That is something well worth knowing before the legislature acts.  Further, I respectfully suggest that the courts and the Congress are not, and should not become, adversaries here. Whatever the initial reaction to the sentencing guidelines may have been almost twenty years ago, and despite the well known controversy about the guidelines and the limitations they placed on judicial discretion, I suspect that the area of agreement between Congress and the courts may well be larger than either believes....  So let us try to remember that the things that bind us together are far greater than whatever may divide us.  Let us reason together.

Download judge_kaplan_on_booker_nysbalawjournal.pdf

February 10, 2005 at 05:15 PM | Permalink


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