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July 10, 2009

Effective and fascinating report on USSC regional hearing in NYC

I was pleased to see this report from Bloomberg news, headlined "Judges Call on U.S. to Simplify Sentencing Guidelines," covering yesterday's first day of the US Sentencing Commission's regional hearing in New York City.  Here are extended excerpts from an effective and interesting article:

The U.S. Sentencing Commission should work to simplify federal guidelines and keep them advisory, rather than return to a mandatory system, a group of federal judges said.  The judges spoke today at the U.S. Court of International Trade in New York, where the commission is holding the third in a series of public hearings on policy issues.

The seven-member commission should work with Congress to create a “politically viable” plan to simplify the sentencing rules, which are “ridiculed” in other countries, said Jon Newman, who sits on the appeals court in New York. Several other judges said they agreed with him.... 

Denny Chin, a district judge in Manhattan, praised the Supreme Court for its Booker decision. “Most if not all of my colleagues in the Southern District of New York would agree the system is better post-Booker,” Chin testified today. “We have more flexibility to do what we are supposed to do -- to judge -- and we are not limited to merely applying mechanical rules and doing mathematical calculations.” Last month, Chin sentenced Bernard Madoff to 150 years in prison for a decades-long fraud that cheated investors of billions of dollars.

Richard Arcara, a district judge in Buffalo, New York, also praised the Booker decision for returning sentencing discretion to judges. “Booker has improved the quality of the sentencing jurisprudence,” Arcara testified.  However, the new system is even more time-consuming for judges, Arcara said. In addition to performing guideline calculations, resolving objections and addressing motions for a reduced sentence, they must also now address motions for a sentence outside the advisory range, elaborately justifying each sentence, he said. 

The lone dissenter was Judge Brett Kavanaugh, who serves on the appeals court in Washington.... Acknowledging that Booker is “here to stay,” Kavanaugh argued that the Supreme Court’s Booker decision has increased disparities and that it invites judges to improperly apply personal and policy views when imposing a sentence.

William Carr, a vice chair of the Sentencing Commission, singled Kavanaugh out. “Judge Kavanaugh, you are unusual in longing for a return to the mandatory system,” Carr said. “Most district judges are happy with the advisory system.”  Kavanaugh proposed a remedy that would be a hybrid of the mandatory and advisory systems.  Newman said that he could live with that, as long as the proposed Congressional reform reduced the infinite calculations in the current system.

The reporter filing this story, Cynthia Cotts, kindly just  provides me via e-mail "some new material that you are free to post on your blog."  Specifically, "Raymond Dearie, a district judge in the Eastern District of New York, gave an impassioned speech this morning."  Here are excerpts from that speech by Judge Dearie:

"The post-Booker era presents a magnificent opportunity for the commission and Congress, and I urge you to take the lead.

We have created -- all of us -- a culture of incarceration.  We incarcerate more people for longer periods than any country in the world, at a cost of $50 billion annually.  One out of every 9 black men between the age of 20 and 34 in this land of the free is in jail.  The number of drug offenders in prison has increased by 1100 percent since 1980, the vast majority of whom are small-time, non-violent offenders.

There are other ways to address this problem.  It is not a time to tinker.  I agree with Judge Newman and others that it is time for fundamental reform.  We have not achieved truth in sentencing.  I do not agree that the commission is powerless to do anything about mandatory sentencing.  Simplify the guidelines.  Give us broad, empirically-based ranges with limited review if the sentence falls outside the range.  Give us more tools to fashion sentences that work for everyone. If necessary, start all over.  The truth is, you may be our only hope.  Raise your voice or voices.  We must rely on each of you to think outside the box."

According to this new report, "Judge Dearie said that he is confident his sentiments are shared by most, if not all of his colleagues in the Eastern District."  I am confident that I share his sentitment 100% and I am really pleased and gratified that the US Sentencing Commission is hearing these potent points.

July 10, 2009 at 10:12 AM | Permalink


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News flash: Judges think the world would be better if judges had more power.

Will wonders never cease???

Posted by: Bill Otis | Jul 10, 2009 10:38:21 AM

These are self-serving, criminal dependent, lazy, shiftless, incompetent, government workers. Only the smallest and most ineffective dissent was allowed to interrupt their criminal lover self-congratulatory love fest. This is a sickening display of immaturity, insensitivity, and total disregard for the public safety.

It is good argument to exclude the vile, rent seeking, criminal lover lawyer from all benches. They have no understanding of the purpose of the criminal law. There is good moral and intellectual justification for the families of crime victims to bring street justice to these biased, pro-criminal, cult criminals. There is no recourse for the 100's of victims of each of the lawyer clients. These are heartless, sickening criminal lovers. As they give no quarter to crime victims, especially minority ones, so should they expect none.

Judges of the future should not be lawyers. Judging is hard enough to do well to deserve a separate education, supervised practicum of judging, and licensure. Lawyers would be excluded from this education.

Posted by: Supremacy Claus | Jul 10, 2009 2:01:38 PM

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