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January 12, 2020

Seeking guest postings for "Reflections on Booker at 15"

44508843On this day 15 years ago, January 12, 2005, the Supreme Court (not-so-) radically transformed the federal sentencing system through its ruling in Booker v. United States.  I noted in this post exactly five years ago that Booker received very fanfare when it turned 10 in January 2015, so I suppose I am not surprised that it seems I may be one of the few to now highlight (or even realize) that today marks another big milestone in the history of the federal sentencing system.

I am inclined to call year 15 the biggest birthday for Booker because, prior to the ruling, the federal sentencing guidelines operated  as a "mandatory" or "presumptive" sentencing system for roughly 15 years from 1989 to 2004.  Then along came Blakely v. Washington and Booker finding this mandatory system constitutionally flawed and "fixing" the problem by making the guidelines "effectively advisory."  Notably, the US Sentencing Commission in November 2004, right between the Blakely and Booker rulings, released this 250-page report titled "Fifteen Years of Guidelines Sentencing: An Assessment of How Well the Federal Criminal Justice System is Achieving the Goals of Sentencing Reform."  I am not aware of any big forthcoming report from the USSC with any assessment of fifteen years of advisory guideline sentencing, though I think it could be very valuable for the USSC and others to reflect at length (and with lots of data) on what fifteen years of advisory guidelines have wrought.

So, in an effort to fill this 15 year Booker birthday void, I am eager to here solicit guest postings from anyone and everyone eager to reflect on the Booker world that has now proven to be so enduring.  In other words, if you follow or participating in the federal sentencing system, send me thoughts via email that I can repost in this space.

In some coming posts, I may do some of my own commentary under the headlined "Reflections on Booker at 15," but I am especially eager to hear other perspectives on the state of the federal sentencing world 15 years after Booker.  I will start the commentary here (and finish this post) with the notable paragraph from Justice Breyer after his embrace of an advisory guideline remedy:

Ours, of course, is not the last word: The ball now lies in Congress’ court. The National Legislature is equipped to devise and install, long-term, the sentencing system, compatible with the Constitution, that Congress judges best for the federal system of justice.

Based on the passage of 15 years without even the introduction of a major bill that makes any serious effort to change the advisory guideline sentencing system, it seems that Congress has ultimately judged the Booker-created sentencing system to be best for the federal system of justice (or at least good enough for government work).

January 12, 2020 at 10:25 PM | Permalink


I was an inmate incarcerated in Federal prison when Booker was decided by the U.S. Supreme Court, and observed first-hand its impact as thousands of sentences were vacated and remanded for re-sentencing in light of Booker. Most defendants were re-sentenced to the same sentence they received the first time, so much of the exercise was a waste of time and energy. I write here to being to the attention of Doug and other criminal defense attorneys a footnote to the failed implementation of the Booker decision in the Eleventh Circuit Court of Appeals. In all of the other Circuits, the new issue was easily brought up in so-called pipeline cases, which were pending on direct appeal when Booker was decided. Most Circuits let the defendants and their attorneys raise the new issue by letter briefs, after the initial appellant's brief had been filed before Booker was decided. The Eleventh Circuit used a different rule than every other Federal Circuit Court, and refused to permit most inmates with appeals pending there when Booker was decided by the Supreme Court to raise the Booker issue. The 11th Circuit Rule is that any issue not raised by the defendant in his initial appellate brief is deemed to have been waived, and that includes issues from cases not yet decided by the U.S. Supreme Court. Thus, 11th Circuit appellants who had already filed their initial brief were barred by Circuit precedent (called a "prudential rule") from being raised later by letter brief or otherwise in that Circuit. From U.S. Penitentiary-1, Coleman, Florida, I researched, drafted and typed three Petitions for Certiorari to the U.S. Supreme Court on the waiver rule that only the Eleventh Circuit had and enforced on the new Booker decision. Despite the obvious inequities of 11th CIrcuit appellants with pipeline cases no being able to get Booker relief, when defendants in the other 11 Federal Circuit Courts could and did, the Supreme Court denied certiorari on the Petitions that I and hundreds of attorneys filed on the issue. It still seems to me that the result was unconscionable. We should not lose sight of that on the 15th anniversary of the Booker decision.

Posted by: James Gormley | Jan 14, 2020 11:55:04 AM

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