The Booker battles: questions of perspective

Though it is not quite the Eagles versus the Pats, teams of circuit and district judges are assembling and tussling in fascinating jurisprudential battles over Booker.  In the circuit courts, the battle is over plain error and who may can secure resentening after Booker.  In the district courts, the battle is over how much weight to give the (advisory) guidelines in sentencings after Booker.  Though neither battle can be summarized in a few sentences (both now comprise hundreds of pages of opinions), it is valuable to note how the battles both reflect questions of perspective.  Let me explain:

The Booker Battle over plain error: process versus outcomes

In the decisions of Hughes from the Fourth Circuit and Oliver from the Sixth Circuit and Crosby from the Second Circuit, we see circuits courts particularly concerned with the process through which sentences are imposed.  Since courts conducting sentencings before Booker did not use — really could not have possibly used — the unexpected new 3553(a)-centered process established for federal sentencing by Booker, these courts are inclined to require or permit post-Booker resentencings.

In contrast, Bruce from the Sixth Circuit and especially Rodriguez from the Eleventh Circuit show circuit courts concerned particularly with sentencing outcomes.  Since post-Booker sentencing outcomes can — and perhaps often will for some classes of defendants — mirror pre-Booker outcomes, these courts are inclined to neither require nor permit post-Booker resentencings.

This battle is especially intriguing since both the plain error standard and the Booker decision mixes procedure and substance.  For that reason, I am especially drawn to the Second Circuit's middle-ground approach in Crosby which calls for limited remands to allow district courts to reconsider whether it should conduct full resentencings.  But then again, I am also moved by the Eleventh Circuit's funny observation in Rodriguez that the Second Circuit has called for "a do-over to decide if there should be a do-over."  (For more on do-overs, see this long ago post on Do-overs? and a more recent post here further discussing the Eleventh Circuit's pre-Booker discussion of do-overs.)

The Booker Battle over guidelines' weight: system-wide versus case-specific

In the views of Judge Cassell in Wilson I and Wilson II and Judge Kopf in Wanning, the work of the US Sentencing Commission in the guidelines fully reflects the 3553(a) purposes of punishment and judges should not readily seize upon those purposes to justify a "variance" from the now-advisory guidelines.  In other words, for Judges Cassell and Kopf, the system-wide view on purposes provided by the USSC should predominate in individual cases and thus the guidelines should still be given "heavy weight."

But Judge Adelman in Ranum and Judge Pratt in Myers identify in various ways how they think the guidelines fail to fully reflect the 3553(a) purposes of punishment.  Consequently, they clearly believe a case-specific view on purposes should predominate in individual cases and thus the guidelines should be one of the many important considerations that now come to bear at sentencing.

To play a legal John Madden, I will predict a winner in this battle: I think the case-specific perspective better fits and fulfills the language and structure of 3553(a) and the spirit and terms of Booker.  Of course, on this issue I am a bit biased: most of my early academic writings stressed why federal judges should have broad discretion even within mandatory federal guidelines to be attentive to case-specific realities that system-wide rules cannot fully capture.  See Balanced and Purposeful Departures: Fixing a Jurisprudence that Undermines the Federal Sentencing Guidelines, 77 NOTRE DAME LAW REVIEW 21 (2000); A Common Law for This Age of Federal Sentencing: The Opportunity and Need for Judicial Lawmaking, 11 STANFORD LAW & POLICY REVIEW 93 (1999).