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March 20, 2005

More Booker in the morning papers

Sunday morning brings more interesting  Booker stories in the papers.  This article from the Charlottesville Daily Progress provides background on Booker and details how the post-Booker world is playing out in the Western District of Virginia.  And this article from the Detroit News reports on the government's appeal of a post-Booker sentence of probation in a pornography case, and it also discusses some interesting plea developments:

In an effort to get more control over sentencing, the U.S. Attorney's Office has rewritten its plea agreements that allow it to withdraw from a deal if a judge goes below an agreed-upon sentence.  The defendant may withdraw if the judge exceeds the maximum agreed to under the deal.

Alan Gershel, chief of the criminal division for the U.S. Attorney's Office in Detroit, sent a letter to judges this month explaining its new policy.  Some defense lawyers have rejected these offers as not much of a deal, said Miriam Siefer, head of the Federal Defender Office, which represents most people charged with federal crimes.  Some judges also have rejected these arrangements.

March 20, 2005 at 02:32 AM | Permalink


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Are so called "escape clause" provisions, that is, provisions that set a floor in plea agreements, legal? Floors to a judge's sentencing discretion, particularly ones that cannot be determined until after the judge determines a defendant's advisory guidelines, are not specifically authorized by any provision in Rule 11. If you accept that plea agreements are essentially contracts of adhesion, could one argue that such provisions are unenforceable because they impermissibly restrict a district court's sentencing discretion under 18 USC Sec. 3553(a)?

Posted by: Bob Leen | Mar 20, 2005 8:39:45 AM

This is just ridiculous- As if prosecutors didn't have enough power and control in this system even post-Booker, they are dictating up front how low a judge can sentence? So if a judge believes the defendant deserves a lesser punishment, he/she can't give that sentence without damaging the defendant in causing him to lose his plea deal. This is of course after all the on record admissions etc that are required by the time a sentence is imposed... And yet again, defendants are at the mercy of how aggressive the defense and prosecuting attorneys are in getting to that floor?? More negotiated "justice" where it seems the more guilty you are, the better deal you get.. This is another obscene power grab by the DOJ to keep their collective thumb on this process and on anyone they pull into it.

Posted by: NL | Mar 21, 2005 3:08:37 PM

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Posted by: | Oct 14, 2008 8:26:43 AM

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