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April 24, 2006

Judge McConnell on "The Booker Mess"

Thanks to a tip from a helpful reader, I see here that Tenth Circuit Judge Michael W. McConnell has authored the Foreword to the latest issue of the Denver University Law Review on a topic dear to my heart.  Judge McConnell's article is entitled "The Booker Mess," and the full cite for the article, is 83 Denv. U. L. Rev. 665 (2006).  The article, which is available at this link, discusses the data on post-Booker reversal rates and sentencing trends.  After a quote from the Disney movie version of the Pirates of the Caribbean: The Curse of the Black Pearl, the article starts with this paragraph:

Each year, over 65,000 criminal defendants are sentenced in the federal courts; about 1,200 are sentenced each week.  Since 1984, Congress has required sentences to be determined according to a strict and detailed set of Sentencing Guidelines.  On January 12, 2005, in United States v. Booker, the Supreme Court declared this sentencing system unconstitutional.  The Justices left many questions unanswered regarding how the lower courts should treat defendants sentenced under the prior regime and how to sentence defendants in the future.  These issues occupied much of the attention of federal courts during 2005.  The Tenth Circuit alone rendered two en banc decisions and some 226 panel decisions (as of this writing), addressing how to deal with defendants who were sentenced before Booker was decided.  Nationwide, this retrospective question produced a four-way circuit split and literally thousands of panel decisions.  And it will require many more decisions to figure out how to apply Booker moving forward.

And Judge McConnell's article closes with these sentiments:

I am inclined to think that a modest increase in the discretion of district judges, exercised judiciously, could enhance justice.  In this sense, I welcome the Booker result, even though I cannot endorse its reasoning.  But it was more important to take a serious look at the statutes governing sentencing.  This is a matter for Congress.  I fear that Booker, by putting forward an extravagant claim of constitutional principles coupled with an anemic and self-contradictory remedy, may have set back the cause of reform, to relatively little purpose.

April 24, 2006 at 12:14 PM | Permalink


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Notably, the McConnell piece opens with the following memorable quotation:

"The [Pirate] Code is more of what you would call guidelines than actual rules."

--Barbossa, Pirates of the Carribean

Posted by: | Feb 12, 2007 9:32:23 AM

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