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June 5, 2005

DOJ's post-Booker litigation policies and plans

I learned so much from my all-too-brief San Antonio trip to talk to federal defenders at the National Seminar for Federal Defenders, but perhaps of greatest moment was what I heard about the Justice Department's litigation policies and plans.  The DOJ details recounted below all come from hearsay reports; but since hearsay is often good enough for federal prosecutors at sentencing, I think it is good enough for me to report on what federal prosecutors are now doing about sentencing.

First, concerning initial sentencings, I heard a report that line prosecutors have generally been instructed (formally? informally?) to seek only within-guideline sentences.  (I also heard, however, that some prosecutors in some districts in some cases have requested above-guideline sentences.)  Given that due process/ex post facto principles may place limits on increasing a post-Booker sentence based on pre-Booker conduct (background/links here), it seems wise for DOJ to generally urge within-guideline sentences for crimes committed before Booker.  But I wonder if this approach will change when sentencings involved only post-Booker criminal conduct.

Second, concerning sentencing appeals, I heard that DOJ official Bill Mercer stated at the recent big Booker event in San Francisco (details here) that there were five types of sentencing decisions that would be appealed in every instance: (1) any sentence with a variance of straight probation; (2) any sentence with a variance based on crack/powder cocaine disparity; (3) any sentence with a variance based on fast-track disparity; (4) any sentence with a variance based on comparison to state sentencing laws; and (5) any sentence with a variance based on substantial assistance in the absence of a 5K letter.  This appellate approach should produce some interesting (and, I would anticipate, somewhat disparate) circuit court rulings about the meaning of reasonableness. 

It is quite possible these hearsay reports are a bit off, and I encourage anyone in the know to make any needed clarifications in the comments.

June 5, 2005 at 05:40 PM | Permalink


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Members of the Constitution Project’s Bipartisan Blue-Ribbon Sentencing Initiative Will Release Principles
Meese, Heymann Among Those Urging Focus on Proportional Punishment, Crime Control

Date: Tuesday, June 7, 2005
Time: 10:00 a.m.
Place: The Heritage Foundation
214 Massachusetts Avenue NE
Washington, D.C.

Members of the Constitution Project’s bipartisan blue-ribbon Sentencing Initiative will hold a press conference on Tuesday, June 7th to release a set of guiding principles for the reform of criminal sentencing systems in the United States.

The Sentencing Initiative committee’s co-chairs, Edwin Meese III and Phillip Heymann, will present the “Principles for the Design and Reform of Sentencing Systems” at the press conference. Mr. Meese served as U.S. Attorney General under President Ronald Reagan and is currently the Ronald Reagan Distinguished Fellow in Public Policy at the Heritage Foundation; Mr. Heymann served as Deputy Attorney General under President Bill Clinton and is currently the James Barr Ames Professor of Law at the Harvard Law School.* Other committee members will be present and available for questions.

According to Mr. Meese, “There are certain basic principles that should guide any attempt at reforming our nation’s criminal sentencing system. The current system has many problems, at the federal level and in many states. By sticking to principles of proportional punishment and crime control, we can turn our criminal justice system into something that both protects public safety and respects constitutional rights.”

The Constitution Project’s Sentencing Initiative was established in response to the U.S. Supreme Court’s June 2004 decision in Blakely v. Washington, which invalidated Washington State’s sentencing guidelines system and called into question the federal sentencing guidelines, leading to the Court’s subsequent decision in U.S. v. Booker. The other members of the Sentencing Initiative committee are:

Judge Samuel Alito, U.S. Court of Appeals for the Third Circuit
Zachary W. Carter, Partner, Dorsey & Whitney LLP, and former U.S. Attorney for the Eastern District of New York
Judge Paul Cassell, U.S. District Court for the District of Utah
James Felman, Partner, Kynes, Markman & Felman PA, Tampa, Florida
Judge Nancy Gertner, U.S. District Court for the District of Massachusetts
Judge Isabel Gomez, Hennepin County District Court, Minnesota
Thomas W. Hillier II, Federal Public Defender for the Western District of Washington
Judge Renée Cardwell Hughes, Court of Common Pleas, First Judicial District, Philadelphia, Pennsylvania
Miriam Krinsky, former Assistant U.S. Attorney, Central District of California
Norman Maleng, State’s Attorney, King County, Washington
Judge Jon O. Newman, U.S. Court of Appeals for the Second Circuit
Thomas Perez, Assistant Professor of Law, University of Maryland School of Law; Councilmember, Montgomery County Council, and former U.S. Deputy Assistant Attorney General for Civil Rights
Barbara Tombs, Director, Minnesota Sentencing Guidelines Commission, and former Director of the Kansas Sentencing Commission
Ronald Wright, Professor of Law, Wake Forest University School of Law

The full text of the Principles will be available at the press conference and at www.constitutionproject.org.

The Constitution Project seeks to formulate bipartisan solutions to contemporary constitutional and legal issues by combining high-level scholarship and public education. It is based at the Georgetown University Public Policy Institute in Washington, D.C.

*Organizational affiliations of committee members are listed for identification purposes only.

Posted by: Howard O. Kieffer | Jun 6, 2005 9:25:59 AM

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