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April 24, 2005

Pondering the future of the plain error mess

This law.com article — which discusses the recent sparing by 11th Circuit judges in Rodriguez over circuit's approach to Booker plain error (discussed previously here) — has me thinking about the current state and possible future of the Booker plain error issues.  Over two months ago, I was already asking in this post whether the Supreme Court would clean up the plain error mess, and over a month ago, I documented in this post the well-entrenched three-way split on Booker plain error.  But, as time goes by, I wonder if this intricate legal debate still merits the Supreme Court's attention.

As I said back in February, a strong case can be made, especially with the Booker remedial majority extolling the goal of sentencing uniformity, that SCOTUS needs to resolve conclusively how a large group of Booker pipeline cases should be handled.  However, as time and caseloads march forward, the number of plain error pipeline cases must be diminishing.  Moreover, even if the Supreme Court granted cert. on this issue soon, it would still be many months before an opinion would be handed down; by then, the number of "live" Booker plain error cases would be smaller still.  And, of course, the Supreme Court has no shortage of other critical Blakely/Booker issues to address that are of much greater long-term importance to state and federal sentencing (e.g., the status and scope of the prior conviction exception, Blakely's applicability to judicial determinations of non-prison sentences or consecutive sentences, etc.)

In some sense, the future development of plain error serves as an interesting test case for the true importance of national sentencing uniformity relative to other goals and interests.  Federal defendants are, because of the different circuit plain error rules, clearly receiving unequal justice in the wake of Booker.  But, though the consequences of unequal justice may be quite significant for individual defendants, the consequences may not be so profound for the entire system to merit Supreme Court correction.  (It is interesting to speculate whether and how other institutions, such as Congress or the US Sentencing Commission, might intervene to clean up the plain error mess.  But this would be pure academic speculation because, to my knowledge, neither body is inclined to address this issue in any way.)

At the circuit level, we are still awaiting plain error rulings from the en banc courts of the 8th and 9th Circuits, though I doubt those rulings could change the basic dynamics of the national Booker plain error story.  Among the reasons I am eager, as suggested in this post, to see some post-Booker circuit data from the US Sentencing Commission is to be able to take stock of overall importance of the plain error story.  Of course, the Department of Justice likely has been taking stock of all the plain error developments, and I continue to wonder if DOJ plans to seek cert. from any of the plain error decisions that have not gone its way.

Since I am just "thinking out loud" on these issues, I encourage feedback in the comments on these plain error musings from interested (or disinterested) readers.

UPDATE: Peter Henning over at the White Collar Crim Prof Blog adds some interesting Booker plain error insights in this post.

April 24, 2005 at 05:09 PM | Permalink


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Tracked on Apr 25, 2005 12:36:08 AM


I have a couple of cases that will depend heavily on the retroactivity (if any) given to Booker by the circuits and eventually SCOTUs....What has been the experience of you folks out ther?


Posted by: Luis F. Gomez | Apr 25, 2005 2:10:01 AM

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