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March 14, 2006

Initial reflections on the USSC Booker report

As noted before, the US Sentencing Commission's impressive (and massive) Booker report (available here) is a bit overwhelming.  Nevertheless, having completed a quick first pass, I want to explain why the report reinforces my view that major Booker fix legislation does not seem necessary.

To begin, we must recall key reasons why the pre-Booker system cannot be the sole metric for judging the post-Booker world.  As I explained in this Legal Affairs debate with Frank Bowman:

[There are] two fundamental reasons why pre-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.

With this important backdrop, three findings from the report especially caught my attention:

Add all this up, and I come to the basic conclusion that federal judges are, generally speaking, using their new post-Booker discretion quite cautiously and wisely.  As the old proverb goes, "If it ain't broke, don't fix it."  I see little evidence in the USSC's report of federal sentencing being broken (or at least being broken in new ways).

Of course, federal sentencing has arguably become a bit more complex and harsh after Booker, even as it has become slightly less rigid.  I would favor reforms that would ease the complexity and harshness of the current system (though these reforms could and should come from the USSC after further study).  Disconcertingly, the "minimum guideline system" that the Justice Department fancies would increase the rigidity and the harshness of federal sentencing — while also, of course, raising new constitutional and practical questions that would also increase complexity.

Some recent Booker fix posts:

March 14, 2006 at 04:51 PM | Permalink


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A system in which the average sentence is longer isn't broken? That's awful.

Moreover, I know that a lot of people are afraid of what Congress will do if they start looking at minimum sentences, but there are very real costs to fundamental priniciples of our democracy with the status quo. Congress has the legitimacy of being elected; the federal courts do not. The federal courts are moving in the direction of returning to "Guidelines in name only" jurisprudence, which subverts the Rule of Law within the judiciary itself. Finally, the importance of the jury for fact-finding (in case we've forgotten, the basis for Booker in the first place) is subverted by a the remedial majority's "Opinion of the Courts of Appeals" remedy, particularly as it is playing out Circuit to Circuit.

If we don't trust democracy at work, let's just get a king and be done with this whole experiment in self-government.


Posted by: Mark | Mar 14, 2006 6:59:28 PM

I find it hard to believe that you (Berman) of all people don't think that the post-Booker situation isn't broken. You've certainly pointed out any number of flaws.

1. It is very hard to square the continuing viability of allowing acquitted conduct to b e considered in sentencing decisions with the justification for Booker in the first place, which was to demand greater deferrence to jury rights of an accused defendant. Prior to Booker it wasn't clear that such constitutional considerations were serious.

2. You note the emerging split among circuits over the deferrence to be given to guideline sentences, with the 8th Circuit taking a hard line that all guideline sentences are presumptively reasonable, often affirming upward departures and rarely affirming downward depatures, while other Circuits take a wide variety of otehr views. You also note that with the exception of a couple of heroic exceptions, most judges seem to have overlooked the "least harsh necessary" language in the statute that should be playing an important role in sentencing practice as it is one of the primary guidelines to federal judges that is binding.

3. You have noted before the apparent Justicve Department policy of ignoring that Booker ever happened, contrary to legal ethics that demand greater respect for binding U.S. Supreme Court authority.

4. You have noted the patent ambiguity over whether or not judges can revisit fundamental policy decisions enshrined in the USSG, such as the power cocaine-crack cocaine disparity, upon which circuits have responded differently, or only issues like cooperation, criminal history and family responsibilities.

5. The extent to which Booker applies to offender specific facts is still muddy.

6. The U.S. Supreme Court has not shown a particular enthusiasm for stepping into the thicket that they created when the decided Booker. Equally important, because the system is a product of a remedy for an unconstitutional USSG system, rather than one designed at the outset to be Booker friendly, it is still entirely possible that the U.S. Supreme Court's next intervention into the fray could go contrary to one of the emerging resolutions of the issues described above in many circuits, forcing another massive wave of appellate litigation, uncertainty, and individual cases where defendants are hurt (or proescutions are hampered) because the attorneys involved failed to have sufficiently accurate crystal balls.

For example, suppose that the U.S. Supreme Court rules that the 8th Circuit presumptively reasonable test, which is spreading throughout the system to some extent, is too great a deference to the unconstitutional USSG, and that any decision made under that rule is plain error for which resentencing is permitted. This would certainly be an outcome within the range of possibility.

Indeed, the addition to Alito to the U.S. Supreme Court is something of a wild card. His great expertise in the area will no doubt give him a say far in excess of his single vote on the Court on the issue, and while he might instinctively move to defend a close semblance of the system, he could equally well conclude that half a loaf is worse than none at all and force legislative action by deciding that some key aspect of post-Booker implementation is flawed.

Posted by: ohwilleke | Mar 15, 2006 1:52:00 PM

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