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January 19, 2012

New paper say there "is no need for a 'Booker fix'; Booker is the fix."

The quote in this title of this post comes from the end of the abstract of this new paper by Amy Baron-Evans and Professor Kate Stith entitled "Booker Rules."  Here is the full abstract:

For the first time, this paper examines the fateful 1987 statutory amendment that was interpreted by the Supreme Court to authorize the Sentencing Commission to make its guidelines, policy statements, and commentary binding on sentencing judges. The mandatory nature of the Commission's product ultimately led the Court to hold in United States v. Booker (2005) that the guidelines were unconstitutional.

The advisory guideline system wrought by Booker has brought balance to federal sentencing and has reduced unwarranted disparity.  The proposal of Judge (and former Commission Chair) William K. Sessions for Congress to reenact mandatory guidelines raises substantial constitutional issues, including separation-of-powers issues not previously addressed by the Supreme Court.  The recent proposals of the Commission to establish more tightly constraining Guidelines would appear to violate Booker and subsequent cases.  The purported bases for these proposals, in particular a Commission study concluding that racial disparity has increased, are unproven and methodologically flawed.  There is no need for a "Booker fix"; Booker is the fix.

January 19, 2012 at 05:40 AM | Permalink


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amen. i think blakely/booker are wrong in the sense that i still cannot find the supposed sixth amendment violation, but i think that the booker fix has created a much fairer system. small-fry offenders and family guys who get in trouble but are essentially decent people now get some consideration for the relative unseriousness of their offenses and for the things they have done right in life. that did not happen under the guideline system. it didn't happen becuase the commission didn't let it happen---adjustments went up and policy statements kept the judges from going down---the commission was always right in every single case. sadly the commission hasn't wavered in that beleif. i hope there is no fix. for those who would lament that some people some places get lower sentences than they would give, i would note that the government is considderably more successful in appealing out of guideline sentences than defendants are.

Posted by: big bad wolf | Jan 19, 2012 10:25:11 AM

I agree with the wolf except that my objection to Booker was the remedial opinion. I think there was a 6th Amendment violation, but I think the Court *way* overstepped its bounds by basically designing a new legislative scheme that there was no evidence that Congress would have intended/preferred. They should have just struck the statute, indicated what made it unconstitutional and maybe added some suggestions for how a discretionary guidelines regime would be one alternative that was likely to be upheld as constitutional, and left the ball in Congress's court.

However, given that that is water under the bridge, I do think the current system is better and fairer.

Posted by: Anon | Jan 20, 2012 11:03:18 AM

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