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May 17, 2005

Effective overview of the Booker fallout

The Times Picayune of Louisiana yesterday ran this quite effective review of the Booker fallout in the federal courts, and it led by spotlighting the disparities resulting from the three-way circuit split on Booker plain error issues (basics here and here).  The article had a few especially quotable quotes from federal district judges:

The case "left us with many unresolved issues," said U.S. District Judge Ginger Berrigan, chief judge of the Eastern District of Louisiana. "Trial and appellate judges will be working to sort out answers to these questions over the upcoming months and perhaps years."...

[U.S. District Judge Martin L.C. Feldman of New Orleans], who said he thinks the guidelines have made sure that white-collar criminals got more than just slaps on the wrist, agrees with the Supreme Court's conclusion in the Booker case that it's unconstitutional for judges to make fact findings that enhance a sentence. But Feldman called the court's remedy for fixing the problem "needlessly confusing."

"The Supreme Court's opinion says the remedy is that as long as the guidelines are advisory, and not mandatory, they can be followed," he said. "Well, that means a judge can do everything he wants as long as it's reasonable, including fact finding."  The court could have simply ordered that juries decide what information can enhance a sentence, Feldman said. "In my humble opinion, the remedy portion of the Booker decision is a great example of Medieval alchemy, because it changes everything and changes nothing," Feldman said.

May 17, 2005 at 06:02 PM | Permalink


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