A viewer's guide to Booker House hearing

The Oversight Hearing on post-Booker developments to be conducted Thursday morning by the House Judiciary Committee's Subcommittee on Crime, Terrorism, and Homeland Security will be webcast live starting at 10:30am and can be accessed from this link. I have the honor of speaking today at the Ohio Northern University Petit College of Law (details here), so I will miss all the fun.  Nevertheless, I think I can predict much of what one should expect to see at the House hearing.

As detailed before here and here, the scheduled witnesses are USSC Chair Judge Ricardo Hinojosa, Judge Paul Cassell, attorney James Felman and Principle Associate Deputy AG William Mercer.  I have heard a lot of buzz suggesting that the Department of Justice will use this hearing to push for a "minimum guideline system" Booker fix (aka topless guidelines).  Recall that AG Alberto Gonzales endorsed this idea when calling for a legislative "Booker fix" in a speech last summer (basics here, commentary here and here and here).  Meanwhile, as is already clear from their written testimony (available here), Judge Paul Cassell and attorney James Felman will explain why they do not believe any major Booker fix legislation is needed and also why a topless guidelines system would be a very bad idea.  Judge Cassell's testimony call topless guidelines a "scheme [that] looks like a gimmick."

The big question for the hearing is whether USSC Chair Hinojosa will make any specific legislative recommendations or will just set forth data and express the Commission's eagerness to work with Congress.  The USSC's impressive (and massive) Booker report released this week (discussed here and here) has a lot of intricate data analysis, but relatively few broad assessments of the post-Booker world.  I am hopeful, but not confident, that Judge Hinojosa will tell the House Subcommittee that major Booker fix legislation is not needed and could undermine the broader goals of sentencing reform.

Based on the recent comments from members of Congress (background here and here and here), we should expect a lot of focus on sentencing in sex offense cases post-Booker.  Of course, folks in the know realize that very few sex offenses are sentenced in federal court, as these cases occupy less than .5% of the federal criminal docket.  In addition, the USSC statistics show that sex offense sentences have gone up after Booker, even though there have been more below-guideline sentences.

As I have detailed before, lots of general background on the brewing Booker fix debate can be found in recent issues of the Federal Sentencing Reporter and also through my "Dead Booker walking?" series which explores arguments that DOJ might make in support of a Booker fix:

• FSR Issue 18.2: Defense Perspectives on the Post-Booker World
• FSR Issue 17.5: Is a Booker Fix Needed?
• FSR Issue 17.4: The Booker Aftershock
• Dead Booker walking?: an introduction
• Dead Booker walking?: incentives to cooperate
• Dead Booker walking?: disparity in theory and practice
• Dead Booker walking?: a "drift toward lesser sentences"

Additional useful background can also be found in the recent Legal Affairs' Debate Club at this link where Professor Frank Bowman and I explored the future of federal sentencing.