The rhetoric and reality surrounding the brewing Booker fix

I received today a copy of a fascinating one-page document that reportedly was developed by Representative James Sensenbrenner's office to explain section 12, the Booker fix section, of the proposed drug sentencing bill, H.R. 1528.  (Links assembled in this post provide extensive materials and commentary on this bill, its Booker-inspired provisions, and yesterday's House hearing on the bill.)

The document, which I provide for downloading below, is titled "Provisions of HR 1528 are not the legislative fix to Booker."  It correctly highlight aspects of Booker that Section 12 would not alter.  However, the document suggests that the chief goal of the section is to "establish procedures to assure that there is an adequate appellate and public record so that courts of appeals can apply the new Booker 'reasonableness' standard of review and so that Congress can review the sentencing practices as it considers a Booker fix." 

Though the document does note that Section 12 "prohibits judges from using enumerated factors to sentence below the guideline range," the document does not explain the strikingly unbalanced nature of its proposed "procedures."  As written, Section 12 would rigidly restrict the bases on which a judge can sentence below an applicable guideline range (and would impose burdensome procedural requirements before a judge could depart or vary), but the section does not in any way regulate judicial decisions to sentence at or above the guideline range on any ground.  Professor Frank Bowman's letter dissecting and assailing Section 12, which is available here, is far more accurate and forthright in detailing its terms and impact.

Apparently there are now conflicting reports on whether H.R. 1528 will be marked up in full committee next Wednesday.  But it is clear anyone concerned about this sort of congressional response to Booker should work to help ensure that rhetoric does not eclipse reality as the legislative process unfolds.

Download document_on_hr1528_section_12.rtf