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April 18, 2005

Update on academic letter concerning H.R. 1528

As detailed in this post, Professor Michael O'Hear has drafted a thoughtful letter criticizing the Booker fix and drug sentencing provisions of H.R. 1528, a bill moving through the House of Representatives (basics here, commentary here and here and linked here).  Already 50 law teachers have agreed to sign their name to the letter, and Michael plans to send the letter off at the close of business today.  If you are interested in adding your name to the letter, which can be read here, please contact Michael via e-mail at this link no later than 4:30pm this afternoon.

April 18, 2005 at 02:27 PM | Permalink


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my two cents on the fix that Senator Sensenbrenner's staff claims not to be a Booker-fix:

In my humble opinion Section 12 violates the 6th Amendment rights defined in Booker and leaves too little discretion to permit the remedy that Booker fashioned. Harris does not need to be revisited for Section 12 to be held unconstitutional. The guidelines and the sentencing structure put in place by 3553(a) remains constitutional after Booker, without the requirement for jury fact-finding beyond a reasonable doubt, only because of the judicial discretion to select a sentence once the guideline range is calculated. Section 12 retains discretion in only one direction (above the range) while all but eliminating discretion to sentence below the range. I don't see what discretion is left to a judge to select a sentence under Section 12. The only things left to consider is a sentence increase above the guideline range. And thus, I don't see how the system that would be in place were section 12 to be enacted into law complies with the judicial discretion that is a necesssary prerequisite to the Booker remedy. The nearly total restrictions that Section 12 places on a judge's discretion to depart below the range, coupled with the elimination of 18 USC section 3553(a)(2)(D), makes Section 12 unconstitutional in light of Booker.

I predict that if it passes, you will see lower federal courts invalidating Section 12 on Booker grounds or alternatively, requiring the government to comply with the Booker merits majority requirements -- jury findings beyond a reasonable doubt.

Posted by: Carmen Hernandez | Apr 19, 2005 1:25:30 AM

A good and important point, Carmen.

Posted by: Doug B. | Apr 19, 2005 7:35:10 AM

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