Fascinating fight over fast-track

I find fascinating the post-Booker debate over fast-track programs and sentencing disparities, which has already triggered fascinating opinions from Judge Adelman and Judge Cassell and Judge Presnell and others.  I was thus pleased to receive an e-mail, accompanied by set of filings, from a public defender reporting that this issue is being briefed before SDNY Judge Louis Kaplan.  (Judge Kaplan previously decided in US v. Bonnet-Grullon, 53 F. Supp.2d 430, 435 (S.D.N.Y. 1999), that the disparities created by fast-track programs were unwarranted, but he concluded that Second Circuit precedent precluded a departure based on such disparities.)

The Government in its filing, which is available below (in a very big pdf file), raises a number of interesting arguments in an effort to dissuade Judge Kaplan from mitigating a sentence based on fast-track realities.  These arguments include claims that (1) Congress' approval of fast-track in the PROTECT Act constitutes a finding that the disparities are "warranted," and (2) that variances on the basis of these disparities would improperly invade prosecutorial discretion. The Government also claims that a variance on the basis of these disparities would itself lead to unwarranted disparities, since many other judges have rejected that argument.

In addition to making these interesting arguments, the government's filing also includes a wealth of infortmation about fast-track programs nationwide.  And, also available for download below, is the the letter-brief filed by defendant's counsel which responds to the government's claims.

Download 61005_govt_opposition_to_sg_variance_due_to_fasttrack.pdf

Download krukowski_fasttrack_submission.pdf