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March 15, 2006

Sensenbrenner takes the gloves off ... will the judiciary fight back?

As I explained in posts here and here, I read the US Sentencing Commission's impressive (and massive) Booker report to suggest major Booker fix legislation is not needed.  But, as evidenced by the fiery statements in this press release from House Judiciary Committee Chair James Sensenbrenner, one can have a different take on the post-Booker world.  Here are snippets from Sensenbrenner's statement:

Last year, I stated that the Judiciary Committee would take no action in response to the Supreme Court's decision, but would evaluate this issue one year later after there was sufficient experience with the "advisory" guideline system.

The data is now in and the picture is not pretty.  The Sentencing Commission's report shows that unrestrained judicial discretion has undermined the very purposes of the Sentencing Reform Act, and jeopardized the basic precept of our federal court system that all defendants should be treated equally under the law.

The PROTECT Act enacted in 2003 ensured that appropriate sentences would be administered to sex offenders, pedophiles, child pornographers, and those who prey on our children.  Thus, I am troubled that the Commission's Report shows that these fundamental sentencing reforms have been effectively eliminated.  That is neither good nor acceptable for justice and public safety.

While the overall average sentence length increased after the Booker decision, such an increase reflects the fact that Congress amended numerous criminal statutes, thereby increasing the applicable sentencing range for crimes such as identity theft, terrorism, cybercrime, and sex offenses.  Even with these increased guideline ranges, the sentencing data shows that Federal judges have not embraced, and in many cases, have undermined, Congress' specific intent in these areas.

In response to the problems described in this report, the Judiciary Committee intends to pursue legislative solutions to restore America's confidence in a fair and equal federal criminal justice system.  I look forward to working with the Sentencing Commission, the Justice Department, and others to bring together a practical and effective solution to this problem.

I am highly discouraged by Sensenbrenner's heated rhetoric and troubled by a number of his claims.  The idea that Booker produces "unrestrained judicial discretion" is inaccurate, as is the suggestion that federal judges are undermining the purposes of the Sentencing Reform Act or Congress' specific intent.  And this statement certainly indicates that Sensenbrenner is eager to pursue Booker fix legislation.

Of course, if Sensenbrenner was truly committed to a "fair and equal federal criminal justice system," he could propose legislation 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 (1) clearly be constitutional, (2) make the guidelines mandatory again, and (3) produce a "practical and effective solution" to the problems Sensenbrenner claims to be concerned about.

March 15, 2006 at 12:58 AM | Permalink


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The Sentencing Guidelines was and is a good idea, defendants should be able to know the exact sentence they face if they are convicted or plead guilty. It is the relevant conduct provisions that are an unknown entity which can be manipulated. A charge offense system is what our 5th and 6th Amendments envisioned, and the real offense should be charged if punishment is sought. Eliminate relevant conduct and the unconstitutionality of the guidelines disappears. Early critics of the Guidelines foretold the minefield of allowing uncharged conduct to drive sentencing.

Posted by: Barry Ward | Mar 15, 2006 8:27:53 AM

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