Booker Debate Club highlights

As I had hoped, the Legal Affairs' Debate Club was a great setting to discuss post-Booker realities.  The full debate is available at this link, and Legal Affairs has graciously granted permission for the full text to be reprinted in a forthcoming issue of the Federal Sentencing Reporter.  Below I have excerpted some highlights of the extended exchanges I had with Professor Frank Bowman in our debate about the future of federal sentencing: 

DOUG: Congress should steadfastly resist any proposed quick fixes for the federal sentencing system. Congress should give the U.S. Sentencing Commission and other interested groups ample time to conduct in-depth analyses and assessments of post-Booker sentencing realities.

FRANK:  A year has passed since the Booker decision [and] we have a very good idea about how the post-Booker system has worked so far.... The Federal Sentencing Guidelines survived Booker.  They are advisory, but remain a legally relevant, and in some jurisdictions dominant, factor in determining federal sentences.  Nonetheless, since Booker, the rate of compliance with the Guidelines, by which I mean the percentage of cases sentenced within the guideline range calculated by the sentencing judge, has declined by about 11% nationally — from about 72% to about 61%.

DOUG:  [P]re-Booker realities cannot nor should not be our gold standard for assessing the current state of federal sentencing: (1) the pre-Booker sentencing system, according to the Supreme Court, violated defendants' Sixth Amendment rights, and (2) the pre-Booker sentencing system, according to nearly all observers, distinguished itself by virtue of its overall complexity, rigidity and harshness.  Consequently, because the pre-Booker sentencing system was both unconstitutional and unsound, evidence of "decreased compliance" with the guidelines perhaps should be a cause for celebration and not concern. 

Indeed, I have been disappointed to discover that a culture of guideline compliance is so entrenched in the federal sentencing system.... [W]hen I look over the post-Booker landscape, I am actually most concerned by how little change we've seen in judicial sentencing practices.

FRANK:  There is a substantial group of folks who, a year or so ago, were withering in their criticism of the pre-Booker guidelines and passionate in their cries for abolition of that assertedly awful system, but who are now arguing passionately that the post-Booker guidelines should be left unmolested....  What's going on here?  Why has a new system so very close in design, operation, and outcomes to the old one so many loved to hate suddenly become the apple of so many eyes?  The answer plainly lies in considerations of political pragmatism.

DOUG:  [T]hough I agree that pragmatism more than principle explains Booker's fans, I also think devotion to Booker is grounded in its potential.... But Booker's potential will be wasted if judges and the Sentencing Commission continue to cling to the existing guidelines like Linus clutching his security blanket.  I fear that it is some judges and members of the Sentencing Commission whose reaction to Booker has been unduly shaped by pragmatism rather than principle.  I sense many are still embracing and even extolling the current guidelines out of fear that Congress might over-react to any efforts to bring more humanity to sentencing decision-making.  But, rather than be stifled by such an understandable but unhealthy fear, judges and the Sentencing Commission should seize this unique post-Booker moment as an opportunity to begin incrementally developing a more fair and effective federal sentencing system.

FRANK:  In the end, I think the post-Booker system neither will nor should survive for long....  [W]hat will drive the Justice Department is its perception of what it has lost, and not what it has held onto. Moreover, though post-Booker sentencing practice viewed through the lens of national averages has changed surprisingly modestly so far, the direction of the observable changes is plain and not congenial to either Congress or the Justice Department.  Still more importantly, as time goes on and judges become more accustomed to the restoration of a measure of their old authority, they will surely exercise it more....  In consequence, whatever DOJ policymakers may think of the current state of things, they will act based on predictions of a future they will see as growing ever less attractive.

DOUG:  You are absolutely right that "what will drive the Justice Department is its perception of what it has lost, and not what it has held onto."  But ... post-Booker prosecutors have not lost the ability to help achieve justice in individual cases.  Rather, what prosecutors seem to have lost (though only somewhat) as a result of Booker is (1) their considerable power to roll over defendants during plea negotiations through the threat of harsh mandatory sentencing terms, and (2) their unfettered discretion to dictate precise federal sentencing outcomes through their charging and plea decisions.

FRANK:  If a fundamental reconfiguration of federal sentencing structures is to occur, someone or some institution outside of Congress, the Justice Department, and the robed judiciary will have to take the lead in formulating and advancing it.  Congress lacks the expertise for the job. DOJ has the expertise but not the motivation.  The judges don't do legislation.  Institutionally, that leaves the Sentencing Commission.  One of the most puzzling features of the post-Booker landscape is the absence of the Commission as anything other than a gatherer of data.  The Commission has the time, the expertise, the data, and (one would think) the motivation to take a leading role in molding thinking about where we should go from here.  But the silence from the second floor of the Thurgood Marshall Building has been deafening.