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March 22, 2009

Seeking Sunday federal sentencing speculations

Amazingly, the five-year anniversary of the Supreme Court's blockbuster Blakely ruling is only a few months away.  And, even more amazingly, since the Supreme Court decided how it would apply Blakely to the federal system in Booker, the basic law and practice of the federal sentencing has been remarkably stable.  Despite lots and lots of predictions that Congress would respond to Blakely and Booker in all sorts of ways — and also lots and lots of recommendations from various quarters about how Congress should respond to Blakely and Booker — the post-Booker federal sentencing system has been largely free from significant congressional or executive changes.

The story of post-Booker stability has lots of facets, but one part surely involves political instability in both Congress and the Department of Justice.  By the time everyone started figuring out the impact of Booker in early 2006, Republicans were getting worried (rightly so) about staying in power in Congress.  And not long after Democrats took over Congress, then-AG Alberto Gonzales was starting to have his own troubles.

But, despite inevitable partisan bickering inside the Beltway, there is now a new political stability in DC.  The same party controls Congress and the White House, and a whole bunch of new people (some really new and some familiar) are not in power at the Department of Justice.  Some hope that these developments could bring progressive changes in mandatory minimum statutes, while other likely still worry (sensibly?) that any congressional work on sentencing statutes are more likely to be harsh and harmful.

Against this backdrop, I would like to hear from readers (whether in the know or just speculating) about what they think the federal sentencing system's future might look like.

March 22, 2009 at 10:44 AM | Permalink


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These decisions coincided with the stopping of a steep decline in murders, and in overall crime victimizations.


Crime victimizations rates are not available after 2005.

It is too early to tell the full impact of these decisions. Only 3% of arrests go to trial. One has to estimate the effect on the plea offers of prosecutors. I will predict sentences will get shorter than before these decisions. Prosecutors may overcome the deterrent effect of these decisions by upgrading the charges to compensate. I hope they. I hope I am proven wrong, and sentences do not get significantly shorter.

The bottom line outcomes are the crime victimization rates. The data are not in. I am predicting a reversal of the downward trend in rates after the guidelines took effect. If there is a strong Scalia Bounce, with a big leap in crime, he should be impeached for mass murder with scienter. If my mistakes or intentional decisions at work killed thousands of people, I would resign. He is a rent seeking lawyer, and has no such scruples.

Posted by: Supremacy Claus | Mar 22, 2009 1:45:54 PM

Obviously someone wasn't deterred from using drugs.

Posted by: S.cotus | Mar 22, 2009 8:19:44 PM

I can't tell if both Supremes are the same person or not, but this is getting annoying.

Jeff Fisher (counsel for petitioners in Crawford and Blakely) has filed another sentencing cert petition:

Posted by: ab | Mar 23, 2009 8:10:28 AM

The civil rights issue of our time centers on the imposition of sentences in our criminal "justice" system. The future of sentencing will not be moderated by the Congress or the Executive, but centers on the composition of the present Supreme Court and the course that it pursues on the waters known as the Sixth Amendment. The so-called liberals five years ago were in favor of sentencing "reform" (Breyer having been an advocate for a member of Congress along that story) and did not stand tall for the Sixth Amendment jury right. "Welcome to Apprendi-land", was a comment Justice Scalia made in one of the decisions.

Where Roberts and Alito go on this issue in the next few years will decide the outcome. Congress and the Executive do not care about sentencing or excessive punishment as long as these issues do not break the budget. The cost of providing medical care to inmates in order to keep them alive (much less healthy)is rearing its ugly head. The lessons of Andersonville in our Civil War teach that it is inhumane (and a crime) to lock someone up if one can not feed them or provide medical attention. Hopefully the lessons of the California budget crisis (estimated $10 Billion shortfall for state prison medical care)will give the Congress and our Executive some focus. We have in excess of 2.3 Million humans locked up. This is a consequence of Nixon's "War On Crime". I recall those billboards imploring Congress to impeach Earl Warren sprouting up on our highways. It is ironic that Scalia is the champion of the Sixth Amendment on this Court. This sentencing problem will not be ameliorated unless others on the Court follow Scalia's lead on the Sixth Amendment. If Mr. Obama is to provide new direction he must appoint a champion of the Sixth Amendment and not some Breyer-like visionary of "reform". As a recent Constitutional law professor at the University of Chicago, this President should perceive the perils of appointing someone from the reform camp. It is time for change.

Posted by: mpb | Mar 23, 2009 8:29:24 AM

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