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March 16, 2006

Following the standard script at House hearing

TI have just returned from speaking at the Ohio Northern University Pettit College of Law (where I was wonderfully hosted), and I see that today's House Booker hearing is now web archived at this link along with the written testimony of all four witnesses.  I surmise from the written testimony that each witness largely played the expected roles: DOJ representative Bill Mercer pushed for topless guidelines as a Booker fix, while everyone else highlighted that there was no need for an immediate legislative response to Booker.

I hope to comment more about the House hearing after having a chance to watch the full webcast late tonight.  (First, keeping my priorities straight, I have to watch some basketball and check my brackets.)  But one line in Mercer's written testimony really caught my eye.  In calling for a Booker fix, Mercer says DOJ believes "the simplest, most efficient, and most effective way of reinstituting mandatory sentencing is through a minimum guidelines system."

In at least one sense, this is blatant falsehood: the simplest way to reinstitute mandatory sentencing would be for Congress to adopt the remedy suggested by Justices Scalia, Thomas and Stevens in Booker.  As Justice Stevens explained, that remedy would not require any changes to the Sentencing Reform Act; Congress could simply express its intent for the guidelines to be mandatory even though aggravating facts triggering longer sentences would have to be proven to a jury or admitted by the defendant.  This solution would clearly be constitutional and reinstitute mandatory sentencing, but DOJ does not seek a legislative solution that — gasp! — might actually give defendants the procedural rights that Blakely and Booker were supposedly about.

March 16, 2006 at 04:45 PM | Permalink


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Yeah, but . . .

Prof. B., do you really think that the ranges would stay narrow? Do you really think that defendants would be better off in the end and more justice would result by adopting the Scalia approach? Process matters, of course. But don't lose sight of the practicalities. Just adopting jury factfinding will not make the results of the system much (if any) better.

Posted by: Yeahbut | Mar 17, 2006 8:28:50 AM

Requiring jury fact-finding for sentencing enhancements would make the system vastly superior. As things stood before Booker, the conviction was the tail that merely wagged the sentencing dog. The Guidelines are replete with enhancements, unrelated to the offense of conviction, that let prosecutors (and judges) decide how "serious" the crime really was. In particular, judges' ability to sentence based on ACQUITTED conduct was particularly subversive to the jury system. Scalia's remedy would return the jury to its ancient and legitimate role in standing between the accused and the State. That's a big deal, even if every jury in every case upholds every alleged enhancement forever. But of course, juries will reject many sentencing enhancements -- that is the result that the DoJ particularly despises. The shame is on them.

Now if we can just get back to having juries judge the law as well as the facts, we'll be getting somewhere.


Posted by: Mark | Mar 17, 2006 11:10:08 AM

I'm just a mom - with a wayward son in Ohio. He's He's in prison for a number of things - aggravated robbery, kidnapping, and impersonatiog a police officer. Prior to this outrageous behavior, he had no record. He got hooked on drugs when he suffered a shoulder injury that later required surgery. When the prescriptions run out, he became very depressed. His wife left him for another man and for awhile wouldn't let him see his child. He attempted suicide, was hospitalized in the psych ward - and then decided to use street drugs when the RX run out. Then he decided on a criminal career? By fact-finding, the Judge justified running sentences consecutively - and I understand that's unconstitutional - but this is Ohio - and the Court's solution is to just remove all the codes that were in effect at the time of sentencing. He wants to appeal, and I'm afraid that as a punishment for appealing, the Court will increase his sentence. This doesn't seem right, but I don't understand it all. Do you all want to explain some of it for me? Thanks.

Posted by: Mae | Mar 18, 2006 4:58:09 PM

If you do a crime in ohio..which was listed as identity theft, reciving stolen property, forgery, and theft..I believe that was the four charges..but the prosecutor gave 5 felonys, dropped one of them,so now there's 4 5th degree felonies all labeled on this individual, right? But it all was from taking a person's wallet, they presume - as they found the wallet in the bathroom trash in a bar..$10.00 is missing frrom the wallet, the owner said..plus her credit cards..Now this person accused took the credit card, this we do know, and used it. at walmart, lowe's and richwood cardinal..total came to $100.+, $103, or 106 and some odd cents.. The judge ran her terms for 6 months on all - consecutively, not concurrently .. and thus - gave her 1 1/2 yrs! was this right under ohio law! .. Plus she pleaded not guilty, the prosecutor and her public defender co-erced her into dropping the not guilty and then signing all paper work entering a guilty plea as they told her she would get 3 yrs probation, 200 hours of community service and repay the restitution if she pleaded guilty..she did and the sentence I just mentioned to you -- is what the judge done! she had no options at all when she came to the sentencing..he just, completely ignored the deal. Please send me some law cases if you feel any of her rights have been violated and ' what went wrong here' or what was done wrong ' > Thank you, Sincerely, Barbara Pocisk ( a friend of the family) .. *

Posted by: Barbara Pocisk | Dec 3, 2007 7:05:19 PM

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Posted by: | Oct 14, 2008 10:56:45 PM

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