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October 12, 2011

Early reactions to the (too) quick House hearing on post-Booker sentencing

Less than two hours after it started, today's hearing of the Subcommittee on Crime, Terrorism, and Homeland Security of the House Judiciary Committee, titled "Uncertain Justice: The Status of Federal Sentencing and the U.S. Sentencing Commission Six Years after U.S. v. Booker," has come to a close. As detailed in prior posts linked below, a lot happened in the 100 minutes of this hearing, though I seriously doubt that much is going to happen legislatively as a result of what just transpired.  Without too much reflection, here are a few quick reactions:

1.  There is clearly lots of bad blood among members of this subcommittee as reflected in a shouting match that broke out between Rep. Jackson Lee and Rep. Sensenbrenner

2.  Other than a precious few members, it is not obvious that many even on this subcommittee care too much about this subject.  Only about one-quearter of the 20 members of the subcommittee appeared to be in attendance and only a precious few asked questions suggesting they even understood how modern federal sentencing works.

3.  The absence of a Justice Department representative was both telling and disappointing, especially because it is very hard to predict how federal prosecutors would view proposals to abolish the US Sentencing Commission or to have a Blakely-compliant mandatory guideline system.

4.  The USSC's apparent recommendations to Congress to give reasonableness review more bite via statutory reform is very sound and very important and very constitutionally challenging, all of which in turn leads me to predict/fear that it is very unlikely to happen anytime soon.

5.  A lot of worrisome "smaller" federal sentencing issues that could benefit most from congressional oversight and legislative reform — the application of the Armed Career Criminal Act, child porn victim restitution awards, fast-track departures, the persistent growth of the federal criminal docket — did not even get mentioned.

6.  We desparately still need refined and consistent nomenclature to describe different potential kinds of federal guideline systems other than just advisory, presumptive and mandatory.  I especially urge readers to help me come up with a labels other than "presumptive" to describe the kind of revised advisory guideline systems — advisory with bite? advisory with great weight? — to describe what the USSC now seems to be advocating Congress to enact.

I could go on and on and on, but I have now said more than enough and need to get off the grid for awhile just to make sure my head does not explode as I have flash-backs from some of the worst moments of this morning's House hearing.

Some recent related posts about the House hearing:

October 12, 2011 at 12:13 PM | Permalink


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Disappointing, but certainly not unexpected from this group in Congress when individuals are asked to participate time after time, given lip service and in turn not even receiving the courtesy of a legitimate discussion forum. What a sham.

Posted by: comment | Oct 12, 2011 12:54:36 PM

I especially urge readers to help me come up with a labels other than "presumptive" to describe the kind of revised advisory guideline systems — advisory with bite? advisory with great weight? — to describe what the USSC now seems to be advocating Congress to enact.

Recommended? Standard? Standardized? Typical? Usual? Average? Ordinary? Sentence that (Congress thinks) should be given in a case with no unusual facts or circumstances? Sentence preferred by people far from the trenches? Congressionally correct?

Posted by: Paul | Oct 12, 2011 1:01:46 PM

I agree with Doug that the most curious thing about the hearing was the elephant not in the room, i.e., DOJ. I suspect there is a big internal stuggle there between those who want the return of mandatory sentencing guidelines and those who don't. Until that gets resolved, they can't very well show up at a hearing like this.

Posted by: Bill Otis | Oct 12, 2011 1:03:47 PM

"Presumptive" guidelines, however defined, are simply not a possibility under current law. They would push the guidelines back toward the mandatory pole without any of the reforms needed to get there under Blakely, and would do so at a time that, if you read Nelson and Spears, the Court has pointedly been telling sentence judges that the guidelines should be pushed further AWAY from the mandatory pole, not further towards it.

Presumptive guidelines also are not desirable from any angle you look at it. They are either (1) the advisory guidelines pig wearing lipstick, or (2) the mandatory guidelines invalid on crutches.

No thanks to both.

Posted by: Bill Otis | Oct 12, 2011 1:26:24 PM

I agree 100% with Bill on this one. Some choices are binary. We are either going to have mandatory "guidelines" or advisory guidelines. Anything in between is just mischief masquerading as sophistication.

Congress should decide which system they want. We now have advisory guidelines. If Congress wants mandatory "guidelines," they can easily create a system that is compliant with U.S. Constitution. It will just involve more detailed charges, trials, and jury decisionmaking.

Posted by: Mark Pickrell | Oct 12, 2011 3:37:33 PM

Reps. Jackson-Lee and Sensenbrenner were petulant fifth graders - altho that might be unfair to fifth graders. And who was the Democratic Rep. who spent his time (in the latter half of the hearing) bemoaning the fact that other members of the Committee only wanted to speak in talking points, rather than gather information, as he himself then launched into his own talking points? Finally, the Republican Rep. (again toward the end of the hearing) who seemed intent on "trapping" the ABA witness into admitting that "knowing" that particular judges have certain "predilections" regaring certain factors would assist the defense bar in "Judge Shopping"? As far as I know, all federal criminal cases are assigned by the Court, not chosen by defense counsel. I'm a federal employee charged with carrying out the mandates of these buffoons - have they no shame?

Posted by: anon | Oct 12, 2011 9:51:55 PM

Anon @ 9:51:

"I'm a federal employee charged with carrying out the mandates of these buffoons - have they no shame?"

Congress currently has NO SHAME nor have they for sometime, and these "buffoons" should not be establishing mandatory minimums.

Everything is a political calculus and has no bearing on ancient American concepts of justice, restitution and rehabilitation.

Both liberals and the tough on crime crowd (google John Bradley in Texas and his buddy Rick Perry) to see that the ultra-conservatives are no closer to reality than (gasp) libertarians.

Posted by: albeed | Oct 12, 2011 10:57:02 PM

Not so sure the Commission's proposals "to give reasonableness review more bite via statutory reform" are "very sound and very important" when the only teeth they add is greater review of sentencing judges' decisions. Many of the proposals--such as the presumption or reasonableness for within range sentences or heightened scrutiny of "policy disagreements"--- aim to DEfang the fledgling review of the Commission's own decisions that Booker seemed to promise.

Posted by: student | Oct 12, 2011 11:09:58 PM

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