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July 9, 2006

Will there be any Booker fireworks this summer?

A few weeks ago, I noted here how quiet the post-Booker world seems.  After Congressman James Sensenbrenner sent up incediary Booker bottle rockets back in March (details here and here), I was prepared for a summer filled with Booker fix fireworks.  But, with July 4th now come and gone, I am thinking we might have an unusually calm pre-election sentencing summer. 

Though my ivory-tower perspective may be skewed in various ways, here is my current branch-by-branch take on the post-Booker landscape:

The legislative branch:  The Booker ruling put the sentencing ball in Congress's court, but Congress has shown little interest in playing over the last 18 months.  A few bills for topless guidelines have been discussed, but no serious Booker fix momentum has ever developed.  I am, of course, pleased that the many dire predictions about what Congress would do after Booker have not (yet) come true.  Post-Booker legislative (non)developments provide another reminder of the complicated and dynamic political and practical realities that surround sentencing reform.

The executive branch: The Justice Department has been advocating a "minimum guideline system" since last summer, but its push for such a system seems tepid.  My latest thinking is that DOJ does not want all the messy litigation and uncertainty that would follow enactment of a topless guideline system.  Rather, advocacy of such has been an effective means for encouraged federal judges to play nice with advisory guidelines, which in turn has presereved much of the pre-Booker system.

The judicial branch:

  1. The Sentencing Commission has crunched a lot of numbers since Booker, but it has done precious little policy work and has avoids post-Booker "hot spots" like crack sentencing or the use of acquitted conduct.  Because the guidelines have remained king after Booker, it is perhaps not surprising that the USSC is content to produce lots of data and few recommendations.
  2. The lower courts have divided over many post-Booker particulars, but the circuits have ensured that the guidelines are still the center of the federal sentencing universe.
  3. The Supreme Court has steered clear of any Booker follow-up so far, but next Term's consideration of Blakely's applicability in California in Cunningham could have significant ramifications for federal sentencing after Booker.  Also, if Congress continues to show little interest in a Booker fix, I suspect the Court will seriously consider taking up some post-Booker issues directly next Term.

July 9, 2006 at 11:44 AM | Permalink


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