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December 11, 2007

In praise of the USSC's recent crack work (so far)

As I await word on the US Sentencing Commission's hearing on crack retroactivity this afternoon (background here and here and from TalkLeft here), I want to take just a moment to praise the USSC's work on this important issue.  Though I have often been (justifiably?) hard on the Commission's post-Booker efforts, I have been quite impressed with both the commitment to justice and the political savvy shown by the Commission throughout 2007. 

I have argued in a number of recent articles (such as "Tweaking Booker..." and "Beyond Blakely...") that the Commission can and should be a leading voice for sound sentencing reforms in the wake of the Supreme Court's Blakely/Booker jurisprudential earthquake.  Though I hope and wish the Commission will get serious about deep systemic reform of a number of federal sentencing problems, its attentiveness to the crack/powder disparity shows that it is not afraid to take on a politically-charged issue when a true commitment to justice demands action.  Especially impressive has be the transparency with which the USSC has proceeded in the crack arena, informing all interested persons about its plans and giving everyone a reasonable opportunity to weigh in.

Of course, I may have to take back all this praise if the USSC does not have sufficient courage to make its new guidelines retroactive.  However, I am cautiously optimistic that the USSC will have the courage of its convictions and will enable previously-sentenced defendants to be eligible to get the benefit of the improved (though still imperfect) new crack guidelines.

December 11, 2007 at 02:51 PM | Permalink


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Of course, I may have to take back all this praise if the USSC does not have sufficient courage to make its new guidelines retroactive. However, I am cautiously optimistic that the USSC will have the courage of its convictions and will enable previously-sentenced defendants to be eligible to get the benefit of the improved (though still imperfect) new crack guidelines.

Second post this week in the general theme of "government officials who don't agree with me are unprincipled."

Hillary Clinton, Justice Alito, and the USSC go in the Sentencing Hall of Shame for daring to disagree without writing a law review article addressing Prof. Berman's critiques. Though the USSC may yet redeem itself.

On what basis do you allege that the USSC and Hillary Clinton both believe that revised crack guidelines should be retroactive? If their public words are to the contrary, it could mean (a) that they actually mean what they say and don't think that retroactivity is appropriate, or (b) they lack the courage of their convictions. You seem to assume it's (b). I'm curious about why.

Posted by: | Dec 11, 2007 3:25:13 PM

I am not sure what "principled" or "unprincipled" means, and I do not believe I have used this label for Hillary or Alito or the USSC. Or, if it makes you feel better anon commentor, I will readily concede that I am sometimes unprincipled in various ways. In other words, let's move away from the labels and talk about substance.

As for Alito, the fact that no other Justice reads Booker or 3553(a) the way he'd like supports my view that I have the sounder view on what Booker means. Of course, one could say --- as have Justices Stevens and Scalia and Thomas and now also Justice Alito --- that the Booker remedy is unprincipled. Of course, I have written two other articles that try to find a sound rationale for the Booker remedy, which I think is far more justifiable than most critics recognize.

As for Hillary, I am more troubled by how she seems to come to her positions than by their purported principles. Her press person suggested that her position on retroactivity was based mostly on fear of Rudy, not a sober analysis of the merits of the issue. Perhaps I am wrong, but I can only judge what I read in the papers. I am not looking for law review articles in response, just reasoned explanations.

Sorry to get under your skin, whomever you are anon commentor, when I call them like I see them on this blog.

Posted by: Doug B. | Dec 11, 2007 3:34:03 PM

Professor B.,

Any comment on Alito's apparent confusion over the concept of concurring versus dissenting? Isn't what he calls his dissent in Gall really a concurrence?

Posted by: appellate AFPD | Dec 11, 2007 3:40:19 PM

You have indeed applied the "unprincipled" label to Hillary Clinton in the comments to this post:


I assume it's roughly synonymous with not having the "courage of [one's] convictions" when one makes sentencing policy or writing a dissent that shows that one's "pro-prosecution instincts are stronger than his allegiance to statutory text."

As for Justice Alito, the fact that no one joined his dissent could mean a lot of different things. As some have pointed out, in some ways it resembles a concurrence more than a dissent, and it could be that other justices agreed with his sentiments but thought that his words were unnecessary in the particular case. The fact that a dissent is solo isn't probative of much.

Perhaps, as Prof. Kerr hinted in an earlier post, my objection is just to the rhetorical style.

Posted by: | Dec 11, 2007 3:45:10 PM

I guess, anon, I was being unprincipled when I mistakenly said I had not used this label for Hillary. Sometimes I am a bit hasty in my comment language.

Posted by: Doug B. | Dec 11, 2007 3:52:53 PM

new crack amendments retroactivity

Posted by: jubria | Dec 11, 2007 3:58:12 PM

"Unprincipled" is rather tame.

Hillary is a shameful, empty shark-like creature with ice water in her veins, kept afloat by corporate money and constantly moving, shifting through the dark, murky waters of Washington without a goal in mind other than consumption of the Presidency at any cost. She is liable to strike, without warning and tear away at innocents unreasonably, and then, without a second thought, quickly retreat again into the murk until her sixth political sense buzzes and she moves again with the flow of the current.

So lay off the Prof., he's still hoping for a cushy Federal Bench soon (and that natty robe!), so he's not going to call her an outright rough beast with the moral compass of a dead-eyed serpent and the compassion of Barbary Pirate. If he did he'd have to suffer Bill high-fiving him behind Hillary's back when he comes to town for his (speedy) confirmation.

Besides, calling a US Senator "unprincipled" is like calling a child molester "overtly sexual". It's true AND passe.

Posted by: dweedle | Dec 11, 2007 5:19:38 PM

Professor Berman, I know this is off topic, but why do you call Senator Clinton by her first name, and all of the Supreme Court justices by their last names?

Posted by: Melissa | Dec 11, 2007 5:36:44 PM

Melissa, the justices are worthy of respect. And Hillary is not.

Posted by: | Dec 11, 2007 6:01:41 PM

The problem, Melissa, is that using just the name Clinton could refer to Bill or Hillary. The same is not true for the Justices, though their first names could be confused. I suppose I could/should say Senator Clinton, although I have not made a habit of saying Senator Obama or Mayor Guiliani. Interesting point, though....

Posted by: Doug B. | Dec 11, 2007 6:27:54 PM

When both Fred Thompson and Tommy Thompson were potential Republican presidential candidates, would you have referred to them as Fred and Tommy?

Posted by: Melissa | Dec 12, 2007 9:27:50 AM

Ms. Melissa: How about "Souless Banshee" or "Senator Standsfornothing"? Would that be better?

Posted by: dweedle | Dec 12, 2007 3:26:13 PM

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