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January 12, 2015

United States v. Booker is exactly 10 years old today, and...

apparently I am the only one to highlight (or perhaps even realize) that today marks a huge milestone in the history of the federal sentencing system and provides a unique moment for extended reflection on what a decade of advisory guidelines has wrought.

Given that sentencing jurisprudence never gets much respect from the usual constitutional law gurus, I suppose I am not all that surprised that the folks at SCOTUSblog or The Volokh Conspiracy  are not running some kind of "Booker at 10" commentary symposium.  But I suppose I was secretly hoping that maybe the US Sentencing Commission or the federal public defenders or the US Department of Justice or some of the bigger federal sentencing reform advocacy groups would have something notable on their websites about this milestone.

In an effort to fill this notable void, in some coming posts I may try to do some armchair data analyses and comment broadly on what I think a decade of advisory guidelines has wrought.  But for now I just wanted to link here to the full 124-page Booker opinion, note that this Booker anniversary is dog that is not barking, and encourage reader commentary about what the lack of attention might mean.

UPDATE:  A helpful reader reminded me that I should here note and praise that the Hastings Law Journal, as detailed here, is hosting a terrific symposium next month titled "Federal Sentencing Reform, Ten Years After United States v. Booker." I feel bad I did not flag this before, as I am one of the scheduled speakers on the second of these four planned panels:

January 12, 2015 at 12:37 PM | Permalink


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We are buried in 3582/retro drug motions (among other things), so we don't have time to write celebratory anniversary musings.


Federal Defender Community

Posted by: Federal Defender | Jan 12, 2015 1:17:08 PM

In honor of the 10-year anniversary of "substantive reasonableness review," I will just note that some circuits, the Tenth included, have never, not once, reversed a within-guideline sentence as too long.

Posted by: appellate AFPD | Jan 12, 2015 3:09:27 PM

Many thanks for the responses, defenders, which may end up becoming a big part of my own coming anniversary musings.

Posted by: Doug B. | Jan 12, 2015 4:07:33 PM

I would like to see an article on Post Booker holdings which uphold or denigrate Booker. I suppose I could go to Westlaw and look it up. Then I can comment on the cases later. Ten years! That is when I retired. But I tried ten jury trials since then as co counsel. Never had a Booker problem. Had one co counsel who was a Looker but she did not stray from Booker.

Posted by: Liberty1st | Jan 12, 2015 5:03:27 PM

Booker made the federal guidelines advisory from mandatory.

But its taken 10 yrs since to face and own up the dact that its way overboard.

The only, repeat ONLY reason some if the guidelines are being rolled back somewhat
Is purely financially.

But if we let the boys and girls that were on the panel that set them and most all Ausa and federal judges, the guidelines would continue to give longer and longer sentences.

These types of people just have no life. When a few yrs is paltry and not even worth the attention of Federal drug warriors. They are just too high and mighty.

These Federal thugs have no clue what it takes to run a business and meet a payroll, much less the struggles of the middle class.

The feds have resources that state asst attys would relish. Along with it they can buy witness at the drop if a hat.

Fedderalism needs to be rolled back. Please inform Pres Obama that we havent had a budget in how long, 6-8 yrs. oh well, lets make the first 2 yrs of community college free as long as those folks want to work for it.

Posted by: 187Midwest Guy | Jan 12, 2015 8:08:48 PM

It does take about 10 years for a law or change in the law to show its full effect. The crime rate has dropped. That means, neither the change in the law, nor the criminal law has a big effect on the crime rate. Not surprising since the criminal law is at the margin of crime. Only one in ten Index felonies is prosecuted or prosecuted. That list includes the common law crimes, no drug crimes, no financial crimes, no tax crimes. The criminal likely does not address one in 10 crimes, but more likely 1 in 100 crimes. So even major changes will not be measurable certainly not at the gut level.

This is a massive failure of the criminal law, rather than any kind of success. Imagine another business that fails 99% of the time.

Posted by: Supremacy Claus | Jan 15, 2015 3:37:32 AM

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