Sentencing Law and Policy

"Judicial Discrection: A Look Back and a Look Forward Five Years After Booker"

The title of this post is the title of this terrific symposium about federal sentencing law in which I am participating today.  Though sponsored by the University of Utah, I am actually about to head to DC to participate in the event from inside the Beltway, along with some of the other of these impressive participants:

• William K. Sessions III, U.S. District Court Judge, Vermont and Chair, U.S. Sentencing Commission
• Paul Cassell, Ronald N. Boyce Presidential Professor of Criminal Law, Univ. of Utah S.J. Quinney College of Law
• Benjamin McMurray, Adjunct Professor of Law, Univ. of Utah S.J. Quinney College of Law
• Steven L. Chanenson, Professor of Law, Villanova University School of Law
• Jonathan Wroblewski, Director, Office of Policy and Legislation, Criminal Division, U.S. Department of Justice
• Erik Luna, Professor of Law, Washington and Lee School of Law

Here is how the promotional materials describe the event:

This symposium will explore issues surrounding judicial discretion and sentencing.  After opening remarks from Judge William K. Sessions III, Chair of the U.S. Sentencing Commission, panelists will explore the extent to which the sentencing guidelines continue to provide useful guidance to judges five years after the Supreme Court’s decision in United States v. Booker.  The panelists will also explore mandatory minimum sentencing schemes and ask whether they usefully impose tough punishment or inappropriately restrict the ability of judges to make the punishment fit the crime.  The symposium will conclude with a general discussion of sentencing issues and provide an opportunity to audience members to ask questions of the participants.

Excitingly, folks can watch this event live online (as well as comment below) thanks to the magic of the internet and a link at dashboard.law.utah.edu.

Is legislation to lower federal sentences a real possibility in 2008?

In this recent post, I hinted at my own pessimism about the prospects of legislation to lower federal sentences during an election year.  But this new article from the Houston Chronicle strike a distinctly more optimistic tone.  Here a excerpts:

The tough-on-crime crackdown of the 1980s and 1990s is getting a second look in Congress. Some lawmakers, including Houston Rep. Sheila Jackson Lee, are questioning whether the soaring incarceration rates brought about by changes in federal sentencing laws have actually deterred crimes....

Jackson Lee, who serves on the House Judiciary Committee's crime subcommittee, is part of the vanguard re-examining a criminal justice system that has seen the federal prison population double from 1.1 million inmates in 1990 to 2.3 million today [sic: these numbers are national incarceration, not the federal prison population]....

The momentum for change reaches beyond liberal lawmakers and left-leaning interest groups. The Supreme Court and the Sentencing Commission recently moved to give judges more discretion in sentencing crack cocaine offenders....

Rep. Lamar Smith of San Antonio, the top Republican on the Judiciary Committee, will be among those standing in Jackson Lee's way.  After the Sentencing Commission's decision to allow judges to retroactively reduce crack offenders' sentences slightly — though not less than the mandatory minimums — Smith introduced his own legislation seeking to block any early releases. "In addition to endangering our communities, allowing the early release of criminals back into society would cripple our re-entry programs by overburdening probation officers and flood the courts with additional litigation," Smith said....

Jackson Lee, who also is pushing to cut prison rates by half for nonviolent federal offenders who are over the age of 45 and have served at least 50 percent of their sentence, said she is hopeful that the new Democratic majority in Congress will be able to prevail on criminal justice changes.  "The question of liberty is so important to me, and the question of having faith in the integrity of the criminal justice system," she said. "There is a sense of urgency to make right which has been wrong, to improve what has not worked, and to find ways to rehabilitate, to protect the American public from crime but at the same time give people a second chance."  Her views are far from universally shared. Jackson Lee acknowledged the legislation faces a strong challenge, though the congresswoman said she has high hopes of getting it into law this year.

For lots and lots and lots of political and practical reasons, I doubt significant sentencing reforms will emerge from Congress in 2008.  But perhaps I am being too pessimistic at a time when everyone seems to be getting on the change bandwagon. 

Might Congress move ahead with sound sentencing reforms?

In the two-plus years since Booker, Congress has been remarkable quiet on the sentencing front.  Though there have been proposals for large and small sentencing reform from all quarters, Congress has shown relatively little interest in radically changing (or even seriously studying) post-Booker sentencing realities.

As documented here and here at FAMM, however, some members of Congress now appear interested in exploring possible sentencing reforms.  Specifically, later this month brings these two notable congressional events (as described by FAMM):

• Summit on crime policy:  On June 21, FAMM president Julie Stewart will testify at a federal summit on crime policy, "Violent Crime — Prevention and Solutions from the Experts."  The summit is hosted by Representative Robert C. "Bobby" Scott, Chairman, Subcommittee on Crime, Terrorism and Homeland Security House Judiciary Committee.

• Hearing on mandatory sentences: On June 26 at 10:00 a.m., the Subcommittee on Crime Terrorism and Homeland Security of the House Judiciary committee is holding a hearing that relates to federal mandatory minimum sentencing laws.

AG Gonzales talking again about a mandatory minimum guideline system

Perhaps deciding that the best defense is a good offense, Attorney General Gonzales today announced a set of new initiatives for combating violent crime.  (I would think that not firing well-regarded US Attorneys would be part of any effective crime-fighting program, but....)

As detailed in this lengthy official press release, one part of the AG's proposed plan is another pitch for a "topless guideline" Booker fix that would make mandatory again "the bottom of the guideline range for each offense."  There are lots and lots of particulars to the AG's proposed "new legislation to help prevent and combat violent crime," and it is not clear that anything is new in the Booker fix discussion.  In addition, it strikes me as very unlikely that any "topless guideline" system would be well received in Congress.  Nevertheless, it is interesting and notable that, after nearly six months of ugly developments involving the AG, he and his Justice Department are starting what should be a hot summer with some old school "tough on crime" talk.

Early reactions to topless guidelines bill

As detailed here, House Judiciary Chair James Sensenbrenner has finally introduced his "topless guidelines" legislative Booker fix, a proposal about which I have already written a lot (in this article and in so many posts).  I am thus pleased to see other bloggers weighing in with astute observations about the misguided aspects of this Booker fix proposal.

Ellen Podgor at White Collar Crime Prof Blog here notes that sentences are going up in a key area after Booker and she asks this insightful question: "Is there really any need for topless guidelines if the sentences are going up in the one area, white collar crime, that seems to be of enormous concern?"

Anthony J. Colleluori, aka That Lawyer Dude, here provides a fuller critique in a post entitled "Congressman Sensenbrenner Goes Topless In The House Of Representatives: Lies Our Congressmen Tell Us."  Here is one of many sharp passages in his post:

Lie No. 3: Senselessbrenner states in [his press] release that "Two of the hallmarks of our judicial system, fairness and equity, have been undermined since the Supreme Court's Booker decision last year."... [But] the bipartisan committee of the Constitution Project (Chaired by Reagan Attorney General Edwin Messe and Clinton's Deputy AG Phillip Heymann) said that "topless guidelines are unconstitutional." Other commentators have noted that the guidelines now allow the sentencing courts to get the sentence right and allow the Circuits to keep everyone in line.... If Sensenbrenner really wants to protect children from exploitation, let him start on Capital Hill.

Sensenbrenner officially introduces topless guidelines Booker fix

I heard word today that House Judiciary Committee Chairman, F. James Sensenbrenner, Jr. has (finally) officially introduced a legislative Booker fix in the form of HR 6254 (available for download below).  Though some resist the label "topless guidelines," that label is the easiest way to describe a bill that is formally called the "Sentencing Fairness and Equity Restoration Act of 2006."  I likely will spend the weekend discussion this (somewhat expected) development, but I have an afternoon with more fun that blogging planned.  Plus, as revealed below, I have already blogged aplenty about these matters.

Download booker_introduction_draft.pdf

Just some of many posts on topless guidelines and other Booker fix buzz:

• Sensenbrenner Booker fix drafted
• Will the fall bring any Booker fix action?
• News on the Booker fix front
• Constitution Project urges post-Booker reforms
• Full draft of Tweaking Booker
• Latest FSR issue develops model federal guidelines
• FSR Issue 18.3: Taking Stock a Year after Booker
• FSR Issue 18.2: Defense Perspectives on the Post-Booker World
• FSR Issue 17.5: Is a Booker Fix Needed?

Posts in my (now dated) "Dead Booker walking?" series:

• Dead Booker walking?: an introduction
• Dead Booker walking?: incentives to cooperate
• Dead Booker walking?: disparity in theory and practice
• Dead Booker walking?: a "drift toward lesser sentences"

Will the fall bring any Booker fix action?

As detailed in this post, in July at the 2006 National Sentencing Policy Institute, there was much talk that September would bring congressional hearings on Booker and perhaps the introduction of Booker fix legislation.  However, continuing a recent trend noted here and here, talk of a legislative response to Booker remains surprisingly muted; lately I have not heard any serious buzz about planned congressional hearings on Booker.

Of course, primarily as a result of interesting court rulings, the summer has been full of Booker action (highlights here).  And, with fascinating en banc hearings in the works in the Third Circuit on burdens of proof (basics here) and in the Ninth Circuit on reasonableness review (basics here), we should expect more of the same this fall.  The Supreme Court will also be back in the mix through its Blakely work in Cunningham and Burton (although decisions in those cases likely won't arrive until the winter months).

Last September in this post, I set out a few political and legal reasons why I thought the Booker remedy might endure.  I am intrigued and surprised to discover that these insights from last year remain quite timely.  Consequently, for exciting action this fall, think baseball finales and Buckeye football, not Booker fixes.

News on the Booker fix front

At the start of this week, I returned from my "vacation" by jumping deep into the post-Booker world at the 2006 National Sentencing Policy Institute in Washington DC.  Though not an event open to the public, I think I can report publicly discussed news. 

Of particular interest was a panel with congressional counsel talking about legislative reactions to Booker and a speech by Deputy AG Paul McNulty about DOJ's continued support for Booker fix legislation.   Here are a few highlights on Booker fixes and other sentencing legislation:

1.  A Sensenbrenner "topless guidelines" Booker fix proposal is likely to be introduced in the House in September, though serious action on the bill before the November elections seems unlikely.

2.  The Senate Judiciary Committee is likely to hold some sort of hearings on Booker in September, although serious action on any legislation seems unlikely this fall.

3.  The Justice Department continues to support a "minimum guideline system" (which they do not like having called topless guidelines), and DOJ seems likely to start pushing hard for such a system in the months ahead.

4.  We can and should expect to see continued interest in mandatory minimums from some members of Congress as long as the guidelines are advisory; the latest notable example of mandatory minimums appears in the new child safety legislation (noted here and here) that became law yesterday.

5.  The Second Chance Act is a fascinating bipartisan bill that sounds as though it has a lot of really good provisions to help on a range of important re-entry issues.

Some related Booker fix posts:

• Full draft of Tweaking Booker
• FSR Issue 18.3: Taking Stock a Year after Booker
• FSR Issue 18.2: Defense Perspectives on the Post-Booker World
• FSR Issue 17.5: Is a Booker Fix Needed?

A Senate bill to reduce crack/powder disparity

The Washington Times is reporting this exciting news from the Senate:

A bipartisan group of four U.S. senators, all former state attorneys general, presented legislation yesterday to reduce the disparity in prison sentences for those caught with crack cocaine and those caught with powdered cocaine. That disparity in federal sentencing guidelines is currently 100-to-1. It would be reduced to 20-to-1 under a measure introduced yesterday by Republican Sens. Jeff Sessions of Alabama and John Cornyn of Texas and Democratic Sens. Mark Pryor of Arkansas and Ken Salazar of Colorado.

The Drug Sentencing Reform Act of 2006 would reduce the disparity by decreasing the amount of crack cocaine necessary to trigger the mandatory minimum sentencing and introducing a "modest increase on powders," said Mr. Sessions, who presented a similar Senate bill in 2001.  Currently, possession of 500 grams of powdered cocaine results in a five-year mandatory minimum sentencing. It takes only 5 grams of crack cocaine to warrant a similar sentence. The senators propose shifting the sentencing amounts to 400 grams of powder and 20 grams of crack cocaine.

The bill would bring about "tougher sentences on the worst and most violent drug offenders and less severe sentences on lower-level, nonviolent offenders," said Mr. Sessions, adding that the measure would shift the emphasis in sentencing from drug quantity to the type of criminal act committed in distributing drugs. "This does not signal that we are going soft on crime," Mr. Sessions told reporters yesterday. He said that "much crime is driven by drug use," but that as a former federal prosecutor, he has "valid concerns in the disparity between crack and powder." Mr. Cornyn said his prior experience as attorney general of Texas showed him that "laws should be firm but fair. We not only need just laws, but they need the appearance and reality of fairness."

The crack/powder sentencing disparity -- which has resulted in higher incarceration rates for blacks convicted of drug crimes -- long has been targeted by groups such as the Leadership Conference on Civil Rights and the American Civil Liberties Union. In 2000, more than 84 percent of those sentenced for crack cocaine distribution were black, while 9 percent were Hispanic and 5 percent were white. By contrast, 30 percent of those sentenced for powdered cocaine were black, 50 percent were Hispanic and 15 percent were white.

This local story from an Alabama paper on the bill provides some more perspectives on the issue.

Many critics of current federal sentencing laws are surely eager for drug sentencing reform that goes beyond this relatively minor tinkering in the cocaine area (such as the elimination of all statutory mandatory minimums).  However, just the introduction of this bill marks a significant step forward inthe crack/powder debate.  It would be especially exciting and valuable if the Senate were to hold hearings on this bill to give these issues a wider airing and if the US Sentencing Commission were to follow-up the introduction of this bill by (finally) doing something bold in this arena.

Some related posts:

• The biases in crack sentencing
• Crack sentencing and the anti-parsimony pandemic
• Crackin' good arguments, Gromit!
• Reflecting 20 years after the crack panic
• Noticing different legislative reactions to meth and crack
• What is the Sentencing Commission fiddling while the crack guidelines burn?
• New ACS issue brief on crack sentencing disparity
• Insightful report and analysis of Booker on crack

UPDATE: The folks at FAMM has this reaction to the new bill.  Here is a snippet:

Instead of tinkering with drug weights, the senators should reform mandatory minimum sentencing laws so that drug weights alone don't determine sentence length. Sentences should be based on traditional factors such as culpability, role in the offense, and the use of weapons or violence. Congress needs to allow the Courts to consider all factors of the offense and the offender to insure a fair and proportionate sentencing system.

Constitution Project urges post-Booker reforms

With perhaps not enough fanfare, the Constitution Project's Sentencing Initiative last week  released another important report from its blue-ribbon Committee working on post-Booker sentencing reforms.  Details about the new report and access to it are available at this page, and here is a brief official account of the report's mission and particulars:

The Constitution Project's bipartisan Sentencing Initiative [has] issued specific recommendations for improving federal sentencing. The Initiative's Recommendations for Federal Criminal Sentencing in a Post-Booker World, which can be found at this link, provide guidance for simplifying existing sentencing guidelines, improving due process for criminal defendants, and increasing participation by crime victims. They also offer alternative options for an entirely new sentencing scheme.

The blue-ribbon Sentencing Initiative, an ideologically diverse committee co-chaired by Edwin Meese III, Attorney General during the Reagan Administration, and Philip Heymann, Deputy Attorney General during the Clinton Administration, has been examining various aspects of criminal sentencing since 2004.  The committee's latest recommendations were prompted by the U.S. Supreme Court's decision last year in U.S. v. Booker, in which the Court ruled that the previously mandatory Federal Sentencing Guidelines must be treated as advisory in order to be constitutional.

According to Co-chair Meese, "The Sentencing Initiative's bipartisan recommendations should guide any attempt to reform our nation's criminal sentencing system.  Simplification of the Federal Sentencing Guidelines, combined with improving discovery for defendants and participation by victims, will produce a sentencing scheme that is more fair and effective and that both protects public safety and defendants' constitutional rights."

Engaging review of "Tweaking Booker"

Over at PrawfBlawg, Dan Markel here provides a long and thoughtful "review" of my "Booker fix" article, Tweaking Booker: Advisory Guidelines in the Federal System (noted before here and available via SSRN from this web page).  For now, I won't review this review, but instead will be content to point interested readers to Dan's interesting perspective and to thank him for his many kind words and for engaging so fully with my article.

Sensenbrenner Booker fix drafted

I am in sentencing nerd nirvana here at the Miami FSG conference (though feeling a bit overwhelmed).  All the morning plenary sessions were absolutely amazing (especially a panel with the former and current USSC chairs), and I even got in a good one-liner during my panel.  I wish I could attend all the afternoon break-out sessions all at once and also be on-line and also talk to everyone I am meeting in the hallways. 

Helpfully, though I lack the energy to even try to live-blog the event, Anthony J. Colleluori, aka That Lawyer Dude, is trying to live blog here (and also maybe here later).  I'd be eager to link to anyone else writing about the conference, especially since my comments still are not working right.

The biggest news, beyond the release of new USSC stats that I'll discuss later, is that the Sennsenbrenner "topless guidelines" Booker fix bill is fully drafted and perhaps will soon be introduced.  It carries the audacious title "Sentencing Fairness and Equity Restoration Act of 2006."  Needless to say, I doubt I'm the only one put off by the suggestion that judges and others who have been working so hard after Booker to be fair and equitable need such a "Restoration Act" in the form of the proposed (harsh) mandatory minimum guidelines.  Put another way, I do not think topless guidelines fulfill any notion of restorative justice that I have ever heard of.

As of this writing, it seem uncertain exactly when (or even if) the Sensenbrenner bill will be introduced.  But the title alone suggests that polticial rhetoric and not policy realism will be the coin of the realm in any coming Booker fix debates.

Latest issue of FSR off to press

I am happy to announce that another issue of the Federal Sentencing Reporter is about to go to press.  This forthcoming issue (Volume 18, No. 3) is titled "Taking Stock a Year After Booker" and it follows up themes covered in these three recent FSR issues covering Booker and post-Booker developments:

• FSR Issue 17.4: The Booker Aftershock
• FSR Issue 17.5: Is a Booker Fix Needed?
• FSR Issue 18.2: Defense Perspectives on the Post-Booker World

(Regular readers may recall a Blakely interlude is all the Booker coverage through FSR Issue 18.1: State of Blakely in the States.)

My opening commentary to this latest FSR Booker issue, entitled "Now What? The Post-Booker Challenge for Congress and the Sentencing Commission," can be downloaded below.  The full contents of this latest FSR issue are listed below, and the Federal Sentencing Reporter can be ordered here and accessed electronically here. 

EDITOR'S OBSERVATIONS

• Douglas A. Berman, Now What? The Post-Booker Challenge for Congress and the Sentencing Commission (Download fsr_18.3 Ed Obs.pdf)

ARTICLES

• Lynn Adelman & Jon Deitrich, Disparity: Not a Reason to "Fix" Booker
• Mark Osler, Ball in a Cup: The Case for Stability and Patience
• Carissa Byrne Hessick, Prioritizing Policy Before Practice After Booker
• Stephen R. Sady, Guidelines Appeals: The Presumption of Reasonableness and Reasonable Doubt
• Adam Lamparello, The Unreasonableness of "Reasonableness" Review: Assessing Appellate Sentencing Jurisprudence After Booker
• Douglas A. Morris, FYI: Supervised Release and How the PROTECT Act Changed Supervised Release
• Evan Lee, Should the ALI Take a Position on Capital Punishment?

ADDITIONAL MATERIALS

• U.S. Sentencing Commission, Executive Summary of Booker Report (March 2006)
• Judge Paul Cassell, Statement as Chairman of the Committee on Criminal Law on Behalf of the Judicial Conference of the United States (March 2006)
• U.S. Attorney William W. Mercer, Statement Before the House Judiciary Subcommittee on Behalf of the United States Department of Justice (March 2006)
• The Constitution Project Sentencing Initiative, Principles For The Design And Reform Of Sentencing Systems: A Background Report (March 2006)

SSRN version of Tweaking Booker

I will use other bloggers' interesting discussion of SSRN realities here and here as an excuse to highlight that my "Booker fix" paper, Tweaking Booker: Advisory Guidelines in the Federal System (noted before here) can now be accessed via SSRN from this web page.   Interestingly, the e-mail I got from SSRN encouraged me to link to my SSRN Author Home Page.  Mission accomplished.

Full draft of Tweaking Booker

The terrific editors of the Houston Law Review have just sent me a clean copy of the latest proofs of my article on post-Booker federal sentencing entitled "Tweaking Booker: Advisory Guidelines in the Federal System." The piece, which can be downloaded below, perhaps serves as a fitting companion to Judge McConnell's recent article "The Booker Mess" (discussed here) for anyone trying to get up-to-speed on the post-Booker federal sentencing world.  Here is a snippet from my introduction:

If writing on a blank slate, few would likely advocate the precise sentencing system resulting from the Supreme Court's decision in Booker.  Nevertheless, in this Article, I contend that policymakers should consider playing the peculiar Booker hand that the Court has dealt for federal sentencing. Especially because any significant alteration of the structure of federal sentencing remains legally treacherous and fraught with uncertainty, Congress and the U.S. Sentencing Commission should focus their efforts and energies on improving the advisory guideline system that Booker has produced.  I suggest that, though the sentencing scheme created by Booker is far from perfect, a program of modulated incremental changes is likely to provide the soundest course for the post-Booker development of the federal sentencing system.

Download tweaking_booker_final_draft.pdf

House Booker hearing follow-up

Today I received a copy of very interesting supplemental written testimony from attorney James Felman, who testified at the March 16 House hearing on Booker (and whose original testimony can be accessed here).  This supplemental written testimony, which can be downloaded below and is a very interesting read, addresses issues such as sex offender sentencing and cooperation discounts that were some of the focal points during the House hearing.

Download felman_supplemental_congressional_testimony.pdf

Some related prior posts:

• Topless guidelines bill in the works from Sensenbrenner
• A viewer's guide to Booker House hearing
• Following the standard script at House hearing
• More reports from House Booker hearings
• Sensenbrenner takes the gloves off ... will the judiciary fight back?
• Quotes from Sensenbrenner press conference
• Updates on Booker hearings
• Let's get ready to Booker rumble...

Topless guidelines bill in the works from Sensenbrenner

I have now heard from two different sources that House Judiciary Chair James Sensenbrenner intends to introduce a bill mandating topless guidelines, and that there will be a hearing concerning the solution to the post-Booker sentencing problems that he identifies sometime in early May.  My impression from the House hearing earlier this month was that most of the witnesses did a powerful job urging Congress to leave Booker alone for now, but apparently Sensenbrenner was unconvinced.  Needless to say, this is a story to watch, and the links below provide plenty of background.

BOOKER REPORT AND OTHER USSC DEVELOPMENTS AND COMMENTARY

• Sentencing Commission releases Booker report!
• Initial reflections on the USSC Booker report
• Editorial on USSC Booker report and reaction
• Interesting testimony at USSC hearing
• Where's the USSC's Booker report!?!?
• The USSC Booker report is back (with corrections)

BOOKER HOUSE HEARING DEVELOPMENTS AND COMMENTARY

• A viewer's guide to Booker House hearing
• Following the standard script at House hearing
• More reports from House Booker hearings
• Sensenbrenner takes the gloves off ... will the judiciary fight back?
• Quotes from Sensenbrenner press conference
• Updates on Booker hearings
• Let's get ready to Booker rumble...

GENERAL BOOKER FIX POSTS AND RESOURCES

• FSR Issue 18.2: Defense Perspectives on the Post-Booker World
• FSR Issue 17.5: Is a Booker Fix Needed?
• FSR Issue 17.4: The Booker Aftershock
• Dead Booker walking?: an introduction
• Dead Booker walking?: incentives to cooperate
• Dead Booker walking?: disparity in theory and practice
• Dead Booker walking?: a "drift toward lesser sentences"
• Bad Booker fix arising?

More reports from House Booker hearings

Though yesterday's House Booker hearing (basics here and here) has received relatively little attention, I can provide some additional views of the event.  For starters, the Sentencing Project has a brief recap of the hearing at this link.  In addition, an article about the hearing ran yesterday in CQ Today entitled "Justice Official Urges 'Minimum Guidelines System' to Limit Sentencing by Judges."  Here are snippets from that article:

Members of Congress adopted a wait-and-see posture after the Booker decision.  But House Republicans, citing a new report by the U.S. Sentencing Commission released this week, are now calling for a legislative response to curb judges' discretion.

Howard Coble, R-N.C., chairman of the House Judiciary Committee's Subcommittee on Crime, Terrorism and Homeland Security, which held Thursday's hearing, said he would think through the testimony before endorsing any legislative approach. Judiciary Chairman F. James Sensenbrenner Jr., R-Wis., did not attend the hearing but said a day earlier that he and the attorney general "are going to be on the same page on this."...

Panel Republicans, Democrats and their witnesses drew sharply different conclusions about the Sentencing Commission's latest report on post-Booker sentencing practices and whether it justified congressional intervention.

In addition, soon after the hearing yesterday, Nkechi Taifa, a Senior Policy Analyst of the Open Society Institute circulated an e-mail with her "quick notes" on the event.  Nkechi was kind enough to permit me to post her notes on the blog, and then can now be downloaded below.

Download taifa_quick_notes_on_booker_hearing.rtf

Following the standard script at House hearing

TI have just returned from speaking at the Ohio Northern University Pettit College of Law (where I was wonderfully hosted), and I see that today's House Booker hearing is now web archived at this link along with the written testimony of all four witnesses.  I surmise from the written testimony that each witness largely played the expected roles: DOJ representative Bill Mercer pushed for topless guidelines as a Booker fix, while everyone else highlighted that there was no need for an immediate legislative response to Booker.

I hope to comment more about the House hearing after having a chance to watch the full webcast late tonight.  (First, keeping my priorities straight, I have to watch some basketball and check my brackets.)  But one line in Mercer's written testimony really caught my eye.  In calling for a Booker fix, Mercer says DOJ believes "the simplest, most efficient, and most effective way of reinstituting mandatory sentencing is through a minimum guidelines system."

In at least one sense, this is blatant falsehood: the simplest way to reinstitute mandatory sentencing would be for Congress to adopt the remedy suggested by Justices Scalia, Thomas and Stevens in Booker.  As Justice Stevens explained, that remedy would not require any changes to the Sentencing Reform Act; Congress could simply express its intent for the guidelines to be mandatory even though aggravating facts triggering longer sentences would have to be proven to a jury or admitted by the defendant.  This solution would clearly be constitutional and reinstitute mandatory sentencing, but DOJ does not seek a legislative solution that — gasp! — might actually give defendants the procedural rights that Blakely and Booker were supposedly about.

Editorial on USSC Booker report and reaction

The Massachusetts newspaper The Republican this morning has this notable editorial entitled "Study on sentencing ought to quell critics," which discusses US Sentencing Commission's Booker report (details here and here) and congressional reaction.  Here is a taste:

A 277-page report released by the U.S. Sentencing Commission, the body that sets the guidelines for judges, ought to have calmed critics of the Supreme Court's ruling. But it hasn't. The chairman of the House Judiciary Committee, Rep. James Sensenbrenner, R-Wis., not only didn't find any solace in the study, he saw in the report reason to try to write new laws that would keep the judges from judging.

The problem with a book of rules delineating criminal sentences ought to be obvious. A crime that might appear on the surface to be like another crime — at least according to what is stipulated in the sentencing rulebook — could well, in fact, be quite different. That's where a judge comes in — to look at the facts of the case at hand.

But for Sensenbrenner — and others of a similar bent — that's not good enough. Congress is good at many things, but deciding that lawmakers know better than federal judges — no matter the case — is not one of them.

Federal judges have a set of sentencing guidelines that they follow in the great majority of cases. But they also have the knowledge and wisdom and experience to pursue a different course when the situation so warrants.  The Supreme Court's ruling 14 months ago sought to ensure that judges retain that power.  Lawmakers would do well to let that decision stand as it is.

Updates on Booker hearings

Tomorrow at 10:30 am is the big oversight hearing in the House Judiciary Committee's Subcommittee on Crime, Terrorism, and Homeland Security entitled "United States v. Booker: One Year Later -- Chaos or Status Quo?". Subcommittee Chair Rep. Howard Coble (R-N.C.) has issued this news advisory which confirms the witness list I detailed in this post and reveals that testifying on behalf of DOJ will be William Mercer.

Today, the comments by House Judiciary Committee Chair James Sensenbrenner's (detailed here and here) overshadowed the hearing held by the US Sentencing Commission.  The USSC just posted this agenda/witness list from the hearing, and I would be eager to hear a report from anyone in attendance. 

Back to the House heing, the US Courts has this press release about Judge Paul Cassell's planned testimony on behalf of the Criminal Law Committee of the Judicial Conference of the United States.  As the press release details:

Congress is being told there is "no need for ... 'Booker fix' legislation" because federal judges' practices in sending convicted criminals to prison remain much the same as they were before the Supreme Court's 2005 decision that invalidated mandatory sentencing guidelines.

Judge Cassell's full prepared written testimony (all glorious 80 pages) which fills out this point — and many other astute points — can be accessed at this link.  And when you've consumed Judge Cassell's amazing effort, you can then also read the prepared written testimony of attorney James Felman, who kindly sent his text for me to post here: Download felman_testimony.pdf

Quotes from Sensenbrenner press conference

The latest version of this AP piece on the USSC's Booker report and congressional reaction now has these additional notable passages:

Sensenbrenner said at a news conference Wednesday that House Republicans are contemplating several pieces of legislation to rein in what he said were lenient judges, although it will be months before a proposal is drafted and introduced. 

Rep. Howard Coble, R-N.C., chairman of a House subcommittee on crime, said that last year Chief Justice William Rehnquist advised him to hold up on any congressional action until enough time had passed to gauge the effect of the ruling. Rehnquist died last September. "He suggested that we keep our powder dry, be calm and deliberate, which we've done," Coble said. "We are not guilty of knee-jerk reactions."

UPDATE: The Wall Street Journal's Washington Wire blog has this blurb about this brouhaha, which includes this discussion of the press conference:

[S]ome Republicans on the House Judiciary Committee held a press conference Wednesday to reiterate their concern that sentences are more lenient than Congress intended, especially for sex crimes against children. Florida Republican Tom Feeney said he found it "deplorable that some judges are working to undermine tough legislation that is designed to protect our children."

Let's get ready to Booker rumble...

To follow up his fiery statement (discussed here) about the US Sentencing Commission's impressive (and massive) Booker report (details here and here), House Judiciary Committee Chair James Sensenbrenner has a press conference scheduled for 1:30pm today in Washington DC.  Details are in this news advisory issued yesterday, which includes this explanation:

[T]he United States Sentencing Commission released its Report on the Impact of United States v. Booker on Federal Sentencing. In 2003, Congress passed the PROTECT Act to address many of the sentencing problems [this] report shows have resurfaced since the Supreme Court threw out the Federal Sentencing Guidelines.  Given the problems found in the Sentencing Commission's report and Congress' interest in ensuring that federal judges are not giving lenient, below-guideline range sentences to pedophiles, child sex offenders, and child pornographers, legislation is likely and will be discussed at Wednesday's press conference.

I suspect every federal judge will be quite surprised to learn that in Booker "the Supreme Court threw out the Federal Sentencing Guidelines."  But no one should be surprise to see Sensenbrenner wasting no time in heating up "tough on crime" rhetoric.

Recent posts on USSC report and Thursday's House hearing:

• Sensenbrenner takes the gloves off ... will the judiciary fight back?
• Sentencing Commission releases Booker report!
• Initial reflections on the USSC Booker report
• Booker March madness set to begin with a hearing double-header
• Buzz about the House hearing on Booker

Recent posts on Booker fix issues:

• Bad Booker fix arising?
• FSR Issue 17.5: Is a Booker Fix Needed?
• Dead Booker walking?: an introduction
• Dead Booker walking?: incentives to cooperate
• Dead Booker walking?: disparity in theory and practice
• Dead Booker walking?: a "drift toward lesser sentences"

UPDATE: Gina Holland from the AP has this piece on the USSC's Booker report and Sensenbrenner's reaction.  The report includes this ominous line: "House Judiciary Committee Chairman James Sensenbrenner, R-Wis., said that his committee would begin drafting a new system for sentencing people convicted in federal courts."

Constitution Project releases report on sentencing reforms

In a timely move as the Booker fix story heats up (background here and here), the Constitution Project's Sentencing Initiative has officially released the background report produced by its blue-ribbon Committee for its "Principles for the Design and Reform of Sentencing Systems."  This report serves as an elaboration of the ideas and principles for reform of criminal sentencing systems set forth by the Constitution Project's Sentencing Initiative last summer (and first discussed here and here).

This background report can be downloaded at this link.  Here is a snippet from the report's introduction, which provides more information of the Committee's work:

The Committee has approached its work in two phases. First, the Committee studied the history and present situation of American criminal sentencing, with particular emphasis on federal sentencing, and agreed upon a set of principles for the design and reform of sentencing systems.  This Report enumerates these principles and summarizes the thinking that led to their adoption.  The first ten principles are applicable to both state and federal sentencing systems, while the final two focus on the federal structure built around the Federal Sentencing Guidelines.  In the second, ongoing, phase of its work, the Committee is attempting to craft recommendations aimed at making the federal sentencing system consistent with the principles.  The Committee anticipates issuing a second report detailing these recommendations.

Sensenbrenner takes the gloves off ... will the judiciary fight back?

As I explained in posts here and here, I read the US Sentencing Commission's impressive (and massive) Booker report to suggest major Booker fix legislation is not needed.  But, as evidenced by the fiery statements in this press release from House Judiciary Committee Chair James Sensenbrenner, one can have a different take on the post-Booker world.  Here are snippets from Sensenbrenner's statement:

Last year, I stated that the Judiciary Committee would take no action in response to the Supreme Court's decision, but would evaluate this issue one year later after there was sufficient experience with the "advisory" guideline system.

The data is now in and the picture is not pretty.  The Sentencing Commission's report shows that unrestrained judicial discretion has undermined the very purposes of the Sentencing Reform Act, and jeopardized the basic precept of our federal court system that all defendants should be treated equally under the law.

The PROTECT Act enacted in 2003 ensured that appropriate sentences would be administered to sex offenders, pedophiles, child pornographers, and those who prey on our children.  Thus, I am troubled that the Commission's Report shows that these fundamental sentencing reforms have been effectively eliminated.  That is neither good nor acceptable for justice and public safety.

While the overall average sentence length increased after the Booker decision, such an increase reflects the fact that Congress amended numerous criminal statutes, thereby increasing the applicable sentencing range for crimes such as identity theft, terrorism, cybercrime, and sex offenses.  Even with these increased guideline ranges, the sentencing data shows that Federal judges have not embraced, and in many cases, have undermined, Congress' specific intent in these areas.

In response to the problems described in this report, the Judiciary Committee intends to pursue legislative solutions to restore America's confidence in a fair and equal federal criminal justice system.  I look forward to working with the Sentencing Commission, the Justice Department, and others to bring together a practical and effective solution to this problem.

I am highly discouraged by Sensenbrenner's heated rhetoric and troubled by a number of his claims.  The idea that Booker produces "unrestrained judicial discretion" is inaccurate, as is the suggestion that federal judges are undermining the purposes of the Sentencing Reform Act or Congress' specific intent.  And this statement certainly indicates that Sensenbrenner is eager to pursue Booker fix legislation.

Of course, if Sensenbrenner was truly committed to a "fair and equal federal criminal justice system," he could propose legislation to adopt the remedy suggested by Justices Scalia, Thomas and Stevens in Booker.  As Justice Stevens explained, that remedy would not require any changes to the Sentencing Reform Act; Congress could simply express its intent for the guidelines to be mandatory even though aggravating facts triggering longer sentences would have to be proven to a jury or admitted by the defendant.  This solution would (1) clearly be constitutional, (2) make the guidelines mandatory again, and (3) produce a "practical and effective solution" to the problems Sensenbrenner claims to be concerned about.

Initial reflections on the USSC Booker report

As noted before, the US Sentencing Commission's impressive (and massive) Booker report (available here) is a bit overwhelming.  Nevertheless, having completed a quick first pass, I want to explain why the report reinforces my view that major Booker fix legislation does not seem necessary.

To begin, we must recall key reasons why the pre-Booker system cannot be the sole metric for judging the post-Booker world.  As I explained in this Legal Affairs debate with Frank Bowman:

[There are] two fundamental reasons why pre-Booker realities cannot nor should not be our gold standard for assessing the current state of federal sentencing: (1) the pre-Booker sentencing system, according to the Supreme Court, violated defendants' Sixth Amendment rights, and (2) the pre-Booker sentencing system, according to nearly all observers, distinguished itself by virtue of its overall complexity, rigidity and harshness.  Consequently, because the pre-Booker sentencing system was both unconstitutional and unsound, evidence of "decreased compliance" with the guidelines perhaps should be a cause for celebration and not concern.

With this important backdrop, three findings from the report especially caught my attention:

• "Despite the increase in the rate of imposition below-range sentences in the post-Booker era, the average length of sentences imposed actually has increased in the caseload taken as a whole."  USSC Report at p. 69.

• "In general, sentence reductions in the post-Booker era tend to be distributed more heavily among the smaller reductions than among the large ones."  USSC Report at p. 63.

• It appears that, generally speaking, post-Booker departures and variances are going to offenders who perhaps most merit a small break from the guidelines (e.g., first offenders and those with overstated criminal histories; offenders with small roles in offenses; offenders with significant family ties and responsibilities).

Add all this up, and I come to the basic conclusion that federal judges are, generally speaking, using their new post-Booker discretion quite cautiously and wisely.  As the old proverb goes, "If it ain't broke, don't fix it."  I see little evidence in the USSC's report of federal sentencing being broken (or at least being broken in new ways).

Of course, federal sentencing has arguably become a bit more complex and harsh after Booker, even as it has become slightly less rigid.  I would favor reforms that would ease the complexity and harshness of the current system (though these reforms could and should come from the USSC after further study).  Disconcertingly, the "minimum guideline system" that the Justice Department fancies would increase the rigidity and the harshness of federal sentencing — while also, of course, raising new constitutional and practical questions that would also increase complexity.

Some recent Booker fix posts:

• Booker March madness set to begin with a hearing double-header
• Buzz about the House hearing on Booker
• Latest FSR Issue on post-Booker world
• Professor Bowman's latest fix on the post-Booker world
• Dead Booker walking?: disparity in theory and practice
• Dead Booker walking?: a "drift toward lesser sentences"
• Bad Booker fix arising?

Bad Booker fix arising?

The possibility that the Justice Department might use next week's House hearing on Booker (details here and here) to push for a "minimum guideline system" Booker fix (a.k.a. topless guidelines) has provided inspiration for another Booker-skewed musical number.  With apologies to John Fogerty, here is a rendition of "Bad Moon Rising" for these Booker times:

I see the bad fix arising.
I see topless guidelines on the way.
I see appeals and circuit splitting.
I see bad times today.

Don't go down tonight,
Well, your bound to be reversed,
There's a bad fix on the rise.

I hear DOJ ablowing.
I worry the end is coming soon.
I fear dockets over flowing.
I hear defendants' rage and ruin.

Don't go down tonight,
Well, your bound to be reversed,
There's a bad fix on the rise.

Hope you got your motions together.
Hope you are prepared to go up High.
Looks like we're in for nasty litigation.
One eye is taken for an eye.

Other Blakely and Booker song parodies and musical fun:

• Take a Walk on the Blakely Side
• 'Twas the Night Before Booker
• Same as it ever was...
• A musical summary of Booker appeals
• Songs in the key of 3553

Buzz about the House hearing on Booker

As detailed here, next week is going to be about brackets and Booker hearings.  And I now have more information about the likely witnesses for the House Subcommittee's oversight hearing scheduled for Thursday March 16 on "US v. Booker: One Year Later — Chaos or Status Quo?".  The four persons likely to testify will be:

• USSC Chair Judge Ricardo Hinojosa
• Criminal Law Committee Chair Judge Paul Cassell
• Attorney James Felman (who should, I think, be able to present an ABA position)
• A representative of the Department of Justice

Among the many interesting storylines will be whether DOJ will use this hearing to push for a "minimum guideline system" Booker fix (aka topless guidelines).  Recall that AG Alberto Gonzales endorsed this idea when calling for a legislative "Booker fix" in a speech this past summer (basics here, commentary here and here and here).  Relatedly, I wonder if the Sentencing Commission will make any specific legislative recommendations or will just be content to set forth data and express its eagerness to work with Congress.

Anticipating a Booker fix showdown, I can provide lots of background on the brewing Booker fix debate.  For example, there is my on-going "Dead Booker walking?" series which explores arguments that DOJ might make in support of a Booker fix:

• Dead Booker walking?: an introduction
• Dead Booker walking?: incentives to cooperate
• Dead Booker walking?: disparity in theory and practice
• Dead Booker walking?: a "drift toward lesser sentences"

Additional useful background can also be found in the recent Legal Affairs' Debate Club at this link where Professor Frank Bowman and I explored the future of federal sentencing.  And, of course, three recent issues of the Federal Sentencing Reporter linked below have Booker coverage galore:

• FSR Issue 18.2: Defense Perspectives on the Post-Booker World
• FSR Issue 17.5: Is a Booker Fix Needed?
• FSR Issue 17.4: The Booker Aftershock

Booker March madness set to begin with a hearing double-header

Though I would rather be obsessing over seedings than hearings this time of year, everyone interested in the future of federal sentencing will have to find some Booker time next week while filling out NCAA brackets.  Today, official notices have been posted about two big Booker-related hearings scheduled for next week.

First and foremost, confirming buzz I had been hearing, the House Judiciary Committee's Subcommittee on Crime, Terrorism, and Homeland Security has scheduled for 10am next Thursday (March 16) this oversight hearing interestingly entitled "United States v. Booker: One Year Later -- Chaos or Status Quo?".  I expect a lot more details about this hearing will emerge in the days ahead, but my understanding is that there will be four witnesses to help the House Subcommittee take stock of the post-Booker world.

Second, the US Sentencing Commission has moved its planned March hearing up to Wednesday, March 15.  As detailed here, the USSC has both a public hearing and a public meeting set for March 15, and the "purpose of the public hearing is for the Commission to gather testimony from invited witnesses regarding possible changes to the sentencing guidelines."   Regular readers will recall that, as detailed here, the USSC's 88-page discussion of new proposed guideline amendments released in January fails to even mention the Booker ruling.  However, I suspect there will have to be some Booker talk at the USSC hearing and meeting.

Adding to the March Booker madness, I have heard reliable buzz that, in anticipation of this hearing double-dip, the Commission is going to release its comprehensive Booker report very soon.  Needless to say, I am eager to see what this report has to say, and I hope it includes the detailed data, discussed here and here, needed for a truly complete view of the post-Booker world.

Dead Booker walking?: a "drift toward lesser sentences"

Recently updated statistics from the US Sentencing Commission (details here) inspires me to return to my "Dead Booker walking?" series.  As detailed in this post, this series explores arguments which might be made in support of new sentencing legislation in response to Booker.  In this installment, I will focus on the concern expressed by AG Alberto Gonzales about "a drift toward lesser sentences" when he called for a legislative "Booker fix" in a speech last summer (basics here, commentary here and here and here). 

In my Editor's Observations in the latest FSR issue on the post-Booker world (details here), I noted that "the Sentencing Commission's post-Booker data reveal that average and median sentences in all major categories of crimes are virtually unchanged from pre-Booker levels."  Indeed, what is most notable from a review of sentence length data (at pp. 13-15) in the latest post-Booker data report is that, from 2001 to pre-Blakely 2004, there was a significant drift toward higher sentences for all crimes and in all major categories of crime except immigration offenses. 

Turning specifically to a comparison of pre-Blakely 2004 and post-Booker sentences, we do now see a one-month drop in the average sentence in all cases (from 56 to 55 months) and similar slight declines in immigration and firearm cases.  However, average and median sentence length for these periods are identical in drug cases and there is a slight increase in theft/fraud cases.  And, notably, in all categories except immigration, average and median sentences post-Booker are all significantly higher than they were as recently as FY 2002.  Put simply, sentencing in the year after Booker has been as tough or tougher than sentencing in the years before Booker.

On this record, I have a hard time identifying a "drift toward lesser sentences," though one might point to the halting of a prior drift toward higher sentences as evidence of Booker's impact.  Moreover, the Justice Department might reasonably be concerned that, if the current culture of guideline compliance starts to change, lower sentences may follow.  However, given reasonableness review patterns — with all within-guideline sentences and nearly all above-guidelines sentences are being found reasonable, while nearly all below-guideline sentences are being reversed as unreasonable — DOJ has no reason to worry that the culture of guideline compliance will change any time soon.

Prior posts in this series:

• Dead Booker walking?: an introduction
• Dead Booker walking?: incentives to cooperate
• Dead Booker walking?: disparity in theory and practice

Who wins from a Booker remedy? It depends.

As detailed in media reports, Ohio prosecutors are celebrating and Ohio defense attorneys are lamenting the Ohio Supreme Court's big Blakely decision in Foster (basics here, commentary here), which decided to "Booker-ize" Ohio's sentencing laws by severing Ohio's mandatory sentencing requirements for enhanced sentences.  Those familiar with only the federal sentencing system might be surprised by these reactions, since in the federal system it is prosecutors leading the charge for some sort of Booker fix.  But the Ohio realities show yet again that Blakely, Booker and structured sentencing developments are always full of nuance concerning sentencing doctrines and practices.

In the federal system, prosecutors favor having the guidelines mandatory because the federal guidelines typically drive sentences up through the application of an array of sentencing enhancements.  In contrast, Ohio's structured sentencing rules had operated to keep sentences down because judges had to give low sentences unless they made certain types of particularized findings.  Eliminating guideline mandates in the federal system gives judges more leeway to be lenient, but eliminating structured sentencing rules in Ohio gives judges more leeway to be harsh.

Of course, as Booker has shown for the federal system, a major Supreme Court ruling serves as just another chapter in an always evolving sentencing story.  The ultimate impact of Blakely and Foster in Ohio will be determined by how other Ohio institutions and sentencing players — the Ohio Criminal Sentencing Commission, the Ohio legislature, lower court judges and prosecutors and defense attorneys — respond to the Foster ruling.

The latest must-read on Blakely/Booker

Professor Ron Wright, throughout his copious work on federal and state sentencing systems, always adds an insightful and distinctive perspective to our understanding of sentencing reform.  (Bias acknowledgment: Ron is a co-author on my casebook, Sentencing Law and Policy: Cases, Statutes and Guidelines.)  Ron's latest paper (available here), entitled "The Power of Bureaucracy in the Response to Blakely and Booker," is no exception.  Here is part of the abstract:

How will different jurisdictions respond to the recent Supreme Court decisions in Blakely v. Washington and United States v. Booker, which require jury fact-finding to support certain types of sentences?  The best clues in predicting the answer to this question come from the people who know this world best, the sentencing bureaucracy.  Sentencing commissions, mostly for benign reasons, hope to preserve their own place in the sentencing structure, or to expand their role if possible.  The particulars shift from place to place, but this powerful tendency of bureaucracies for self-preservation offers a reliable way to predict the reactions of sentencing systems to the upset from Blakely and Booker.

Dead Booker walking?: disparity in theory and practice

AG Alberto Gonzales' speech last week may foreshadow a Booker fix proposal coming from DOJ before long (details here), which inspires me to return to my "Dead Booker walking?" series.  As detailed in this post, this series explores arguments which might be made in support of new sentencing legislation in response to Booker.  In this installment, I will focus on sentencing disparity in theory and in practice.

Since Booker was decided, the Justice Department has warned that an advisory guideline system might increase sentencing disparities.  And, in a speech last summer calling for a Booker fix (basics here, commentary here and here and here), Gonzales asserted that "evidence the Department has seen since the Booker decision suggests an increasing disparity in sentences."  But, for sensible policy debate, it is important to unpack the concept of sentencing disparity in theory and in practice.

Sentencing disparity in theory (the challenge of assessing "true" disparity):  Some may point to different "guideline compliance" rates to suggest unwarranted sentencing disparity from region to region.  However, Justice Alito has effectively explained — in this 1992 Federal Sentencing Reporter article entitled "Reviewing the Sentencing Commission's 1991 Annual Report," 5 Fed. Sent'g Rep. 166 — why simple "comparisons of departure rates of different circuits and districts [are] unsound":

[D]ifferent districts — generally for sound reasons — prosecute very different mixes of cases.... Consequently, no reliable inter-district comparisons can be made without controlling for differences in the mix of offenses prosecuted....  Do I mean to say that all inter-district disparities indicated by the Commission's statistics can be attributed to such differences in their case mix?  Absolutely not.  The "true" disparities, if I may use the term, may be smaller than those suggested by the Commission's numbers, or they may actually be even greater.  The point is that we just can't tell from the Commission's statistics, and we will not be able to tell until a much more sophisticated analysis of each district's cases is performed.

Moreover, beyond Justice Alito's astute insights about case mix, one must realize that the federal guidelines themselves can produce or exacerbate certain disparities, which in turn make differences in "guideline compliance" rates a poor proxy for "true" sentencing disparity.  Professor Albert Alshuler makes this important point effectively in his recent contributon to the Stanford Law Review's great sentencing reform issue: "When viewed from any coherent normative perspective, the Federal Sentencing Guidelines have failed to reduce disparity and probably have increased it.  Even on paper, these Guidelines often fail to treat like offenders alike, and the Guidelines are worse in practice than on paper."

Sentencing disparity in practice (the realities of prosecutorial discretion): Beyond theoretical problems with using "guideline compliance" rates to assess "true" disparity, the Sentencing Commission's post-Booker data highlight that prosecutorial discretion has a much bigger impact on "guideline compliance" rates than does judicial discretion.  As the latest USSC data document, nationwide sentences below the guidelines are twice as likely to be the result of a prosecutor's recommendation to impose a lower sentence than the result of an independent determination by the sentencing judge. 

This reality provides important perspective on data concerning post-Booker "variances."  The USSC data show that judges nationwide are using their new post-Booker authority to reduce sentences below the range in less than 1 out of every 10 cases.  But prosecutors nationwide are using their long-standing authority to request sentences below the range in nearly 1 out of every 4 cases.  If Congress really believes that the overall "guideline compliance" rate is of fundamental importance, it should call in DOJ officials to account for their practices before worrying too much about how sentencing judges are using their new discretion after Booker.

Moreover, the post-Booker sentencing process reinforce why any federal policy-maker genuinely concerned about sentencing disparities ought to focus on the exercise of prosecutorial discretion before worrying too much about judicial discretion.  Even after Booker, district judges have to provide a reasoned explanation for the exercise of their discretion, and each sentencing decision is subject to appellate review.  Prosecutors never have to explain their exercise of discretion, nor are their decisions subject to serious review.

Prior posts in this series:

• Dead Booker walking?: an introduction
• Dead Booker walking?: incentives to cooperate

Professor Bowman's latest fix on the post-Booker world

Now available via this link at SSRN is Professor Frank Bowman's latest opus, "The Year of Jubilee...or Maybe Not: Some Preliminary Observations about the Operation of the Federal Sentencing System After Booker."  As the SSRN abstract explains, Frank's article explores "available data on the operation of the federal sentencing system during the eleven months" following Booker.  Providing a much fuller elaboration of some points rehearsed in this Debate Club debate, Frank's article is chock full of important observations and trenchant insights about post-Booker developments.

There is much to highlight in this work, and I especially recommend Frank's concluding thoughts in the final part of the article.  Here is a sample from that section:

[C]onsider four facts about 2005.  First, in 2005, the majority of all federal judges were appointed by Republican presidents and the United States Department of Justice was in the hands of a Republican Administration.  Second, in 2005, prosecutors initiated sentences below the guideline range twice as often as did judges.  Third, in 2005, prosecutors as well as judges sought sentences below the guideline range more often than they had in 2004.  Fourth, during 2005, in an advisory sentencing guidelines system operated by a predominantly Republican judiciary and a markedly conservative Republican Justice Department, almost forty percent of all sentences were outside the guideline range and the ratio of sentences below the applicable guideline range to those above it was roughly 22-to-1.

These facts about the post-Booker experience reinforce conclusions many observers have reached about federal sentencing throughout the Guidelines era.  First, the behavior of the careful, cautious, public-safety-conscious judges and prosecutors who run the federal criminal justice system strongly suggests that they believe the severity of sentences called for by the guidelines is often (though by no means always) greater than necessary to achieve the ends of justice.  Second, the high severity levels that characterize the federal system can only be maintained by unremitting efforts at central control of the federal criminal process....

The simplest lesson is that we have a federal sentencing system with a severity level that, at least for some common offenses, is pegged higher than the day to day judgments of the legal professionals who operate it will support.  Because the severity level of the system is consistently at odds with the professional judgments of federal judges and prosecutors, only tight centralized controls can keep it propped up.  Those tight central controls in turn breed resentment, evasion, and institutional conflict.  If one is willing to grant that the judgment of frontline sentencing actors is entitled to considerable deference when making sentencing rules, one component of any post-Booker reform proposal should surely be a serious, bipartisan, inter-branch, and interdisciplinary re-examination of at least those sentencing levels and guidelines rules most productive of evasion by the front-line actors who know the system best....

[S]omeone needs to remind federal policymakers of an obvious truth — if laws are widely and persistently evaded by the very officials assigned to enforce them, at some point one should start questioning the wisdom of the laws rather than the fidelity of the enforcers.  In the end, one very good way to promote guidelines compliance is to write guidelines that produce outcomes those who run the system are happy to accept.

Might the NSA kerfuffle and the AG's Senate showing impact any brewing Booker fix?

Jack Balkin provides this comical account of AG Alberto Gonzales' testimony before the Senate Judiciary Committee concerning the Bush Administration's eavesdropping programs.  But this editorial about the sparring between Gonzales and Republicans raises the serious question of whether the AG in the NSA kerfuffle may be greatly damaging his credibility — and thus impacting his ability to argue effectively for a legislative "Booker fix".

As the editorial notes, Gonzales' testimony created a "skeptical bloc of committee Republicans — the chairman, Arlen Specter, Pa.; Lindsey Graham, S.C.; Mike DeWine, Ohio; and Sam Brownback, Kan."  These are folks whom, I believe, would be critical voices and votes in any future legislative debate over new sentencing legislation that the Justice Department might seek.  Especially important would seem to be Committee Chair (and former prosecutor) Arlen Specter, who had this reaction to what Gonzales was saying:

Specter said the administration's reading of the law "just defies logic and plain English." He was even sterner later when he said of Gonzales to a Washington Post reporter, "He's smoking Dutch cleanser."

Not only could Specter's reaction to the AG's work impact the Justice Department's advocacy for sentencing legislation, it also makes a great line for defense lawyers arguing with prosecutors over interpretations of Booker and 3553(a).  Any time a prosecutor states a guideline sentence is presumptively reasonable, perhaps the retort should be that too much Dutch cleanser is being smoked inside DOJ.

Timelines for USSC Booker report and more detailed Booker data?

With Supreme Court transitions now complete and the history of federal crime-and-punishment legislation in election years, I fear that discussion of a legislative response to the Booker ruling may heat up in the weeks and months ahead.  That's why I was so disappointed, as explained here and here, that the US Sentencing Commission's recently proposed new amendments do not even mention the Booker ruling nor address any post-Booker "hot spots" like the crack guidelines.

USSC indicated in this statement of priorities that it planned "a report on the effects of Booker on federal sentencing, including an analysis of sentencing data collected within the first year of that decision."  Now that we are now almost a full month since Booker's anniversary, I am starting to wonder about the USSC's planned timeline for this important report.  I sincerely hope that this report does not end up days late and dollars short to impact any coming debates over Booker.

Relatedly, as I have stressed in a number of prior posts here and here, a lot more detailed data are needed from the USSC in order to develop a complete and balanced view of the the post-Booker world of federal sentencing.  Even if we do not see a full Booker report from the USSC in the days ahead, I hope a lot more post-Booker data will be forthcoming very soon.

Insightful report and analysis of Booker on crack

The Sentencing Project, which has done ground-breaking work on a range of critical sentencing topics, has now completed an important new report which analyzes post-Booker sentencing through a close look at published decisions in crack cocaine cases.  Though only examining a tiny (and perhaps not fully representative) slice of the federal sentencing system, this report provide essential new insights into one significant facet of the post-Booker sentencing world.

The report, which is entitled "Sentencing with Discretion: Crack Cocaine Sentencing After Booker" and can be accessed here, has far too many large and small insights to effectively summarize. Here is the report's nuanced conclusion:

A survey of the sentencing memoranda of the written decisions on crack cocaine cases post-Booker reveals the emergence of a new methodology of judicial deliberation.  While not an exhaustive analysis of every post-Booker crack cocaine sentence in the federal system, this report indicates the emergence of a sentencing model that judges are employing which is grounded in rational jurisprudence and thoughtful statutory interpretation. Booker's remedy directing the courts to evaluate all statutorily prescribed factors has had a significant impact on the sentencing landscape. Generally, the courts appear to be granting all such factors equal deference, and the former hierarchical approach, with the Guideline range preeminent, is unable to satisfy the statutory requirements of sentencing. Once the courts consider all factors on equal footing, the memoranda illustrate mounting tension between the Guideline range and the other elements related to the circumstances of the offense and the characteristics of the defendant.

Most notably, the severity of Guideline ranges seemed to many courts to mandate sentences greater than necessary to meet the prescribed goals of sentencing. In addition, the 100-to-1 disparity exacerbated inequalities in enforcement practices that frequently resulted in unwarranted sentencing disparities. For these courts, the solution was to turn to the Commission recommendations for reform of the 100-to-1 ratio and to use these as a framework for sentencing. The post-Booker world has changed the mechanics of crack cocaine sentencing and opened up opportunities for judges to contemplate a host of relevant factors to determine a sentence that is appropriate for the defendant, while still maintaining principles of fairness, equity, and the opportunity for rehabilitation.

Here are links to some prior blog coverage of a few of the decisions discussed in this report:

• Booker and crack/powder cocaine sentencing
• Judge Adelman strikes again
• Another (and different) view on the crack guidelines
• More district court action on crack/cocaine disparity
• Still more cracks in crack sentencing guidelines
• Effective article covering crack/powder cocaine developments

How will the USSC be celebrating Booker's birthday?

As noted in this January preview, the coming Thursday marks the one-year anniversary of the Booker decision.  As discussed here and here, there are rumors that both Congress and the Justice Department may celebrate this date with Booker fix activity, although the distraction of the Alito hearings and other higher-profile legal happenings might well delay any planned Booker action from Congress and DOJ.

One body which should not be distracted by other legal goings on is the US Sentencing Commission. I cannot help but wonder if the USSC has something in the works for January 12.  Notably, the USSC homepage now notes that the Commission has a public meeting scheduled for this coming Wednesday afternoon, right before Booker's anniversary.  However, the meeting's announced agenda suggests that nothing Booker special is planned.

For more on what the Commission has been up to lately, check out this interesting Q & A with USSC Chair Ricardo Hinojosa from the December issue of the Third Branch.  In the colloquy, Judge Hinojosa reiterates that "this spring" the Commission "plans to release a report on the impact of Booker on federal sentencing." 

I hope that the USSC, through the release of more data (suggestions here and here) and fresh analysis, tries to be at the forefront of any Booker fix policy debate that may develops in the months ahead.  In addition, as suggested here, since it has now been a full 11 months since the USSC convened a big public hearing to discuss the impact of Blakely and Booker on the federal sentencing system, I think the USSC ought to have another big public meeting about the federal sentencing world after Booker ASAP. 

Dead Booker walking?: incentives to cooperate

The news of two recent high-profile plea deals that include agreements to cooperate — involving Enron CAO Richard Causey and lobbyist Jack Abramoff — has inspired me to revive my long-dormant "Dead Booker walking?" series.  As detailed in this post, in anticipation of the brewing Booker fix debate, I hope in this series to explore those arguments which might be made in support of new sentencing legislation in response to Booker. 

One possible argument for a Booker fix, which was expressed by AG Alberto Gonzales in a speech last summer (basics here, commentary here and here and here), is that the advisory guideline system created by Booker harmfully dilutes the incentive for defendants to cooperate with authorities.  Here is how AG Gonzales explained this concern:

Our U.S. Attorneys consistently report that a critical law enforcement tool has been taken from them.  Under the sentencing guidelines, defendants were only eligible to receive reductions in sentences in exchange for cooperation when the government petitioned the court.  Under the advisory guidelines system, judges are free to reduce sentences when they believe the defendant has sufficiently cooperated.  And since defendants no longer face penalties that are serious and certain, key witnesses are increasingly less inclined to cooperate with prosecutors.  We risk a return to the pre-guidelines era, when defendants were encouraged to "play the odds" in our criminal justice system, betting that the luck of the draw — the judge randomly assigned to their case — might result in a lighter sentence.

I think there would be a strong argument for at least tweaking Booker if there is considerable evidence that key witnesses are now "increasingly less inclined to cooperate with prosecutors."  But the recent Causey and Abramoff deals suggest that "key witnesses" remain willing to cooperate even though the guidelines are no longer mandatory.  And evidence of continued post-Booker cooperation comes not only from high-profile cases, but also from the latest US Sentencing Commission statistics: these stats show post-Booker rates of cooperation that are comparable to pre-Booker rates of cooperation.

The persistence of cooperation not surprising given that Booker only made federal penalties somewhat less "certain," and Booker did not make federal penalties any less "serious."  Moreover, the guidelines and other post-Booker sentencing realities still ensure in various ways that true cooperation gets rewarded at sentencing. 

Of course, prosecutors might respond that the post-Booker disinclination to cooperate is reflected in the dynamics of plea negotiations — i.e., after Booker, prosecutors might have to work harder, or offer greater concessions, to get defendants to agree to cooperate.  But given the extraordinary power that federal prosecutors have always had (and always will have) in plea negotiations, Booker's (slight?) recalibration of plea negotiating dynamics may be a virtue more than a vice.

Finally, in all the post-Booker debate over advisory guidelines, it is always critical to keep in mind, as I have stressed here and here, that (1) it was the Justice Department who vigorously urged the remedy of advisory guidelines if Blakely was deemed applicable to the federal system, and (2) the easiest (and most constitutionally sound) way to restore mandatory sentencing guidelines would be for Congress to adopt the remedy suggested by Justices Scalia, Thomas and Stevens in Booker.  As Justice Stevens noted, that remedy would not require any changes to the Sentencing Reform Act or the guidelines, it would simply require Congress to express its intent for the guidelines to be mandatory even though aggravating facts triggering longer guideline sentences would now have to be proven to a jury or admitted by the defendant.

Prior posts in this series:

• Dead Booker walking?: an introduction

A sentencing turkey for Thanksgiving

I had planned to celebrate one of my favorite holidays by doing a reprise of my Giving Thanks post from last year.  However, news I received via e-mail suggests I should devote my one post today to relay news that House Judiciary Chair James Sensenbrenner is working on a real sentencing turkey.  Here are the highlight — really lowlights — of the report I received about new crime legislation in the works:

Rep. Sensenbrenner is planning an omnibus crime bill package that would pass the House on the suspension calendar (so it could not be amended) and be sent to the Senate in hopes that it, or some more palatable version of it, could pass by unanimous consent there before the end of the year.  It could include H.R. 1279 (gang bill); HR 3132 (sex offenses, including obnoxious habeas provision); and HR 1751 (court security bill).

The House sponsor appears to be willing to pare some unpopular parts of the bill to lure the Senate, maybe including the mandatory minimums (like the one for failure to register as a sex offender), maybe other stuff.  They are banking on the fact that the Senate wants a court security bill and maybe others.  The language for this omnibus should be ready by the time the members return from recess.

This is a story to watch closely after the holiday weekend.

Dead Booker walking?: an introduction

Comments at recent Booker events in Chicago and Houston once again gave me the cold feeling that congressional action in response to Booker is all but inevitable.  As previously detailed in posts here and here, the beltway buzz is that both the House and the Senate may jump into Booker action come the one-year anniversary of the Booker decision.  (I sort of imagine a giant cake being rolled onto the House floor on January 12, out of which will jump AG Alberto Gonzales holding the Booker fix minimum guidelines bill that the Justice Department wants enacted.)

In anticipation of the brewing Booker fix debate, I am starting a series of posts under the title "Dead Booker walking?".  The goal of this series is to explore, one by one, the arguments which might be made in support of new sentencing legislation in response to Booker.  In this introduction, I have assembled below the concerns expressed by AG Alberto Gonzales when calling for a legislative "Booker fix" in a speech this past summer (basics here, commentary here and here and here). 

Chief arguments/reasons for a Booker fix

1. Concerns about "increasing disparity in sentences"
2. Concerns about "a drift toward lesser sentences"
3. Concerns about "key witnesses [being] increasingly less inclined to cooperate with prosecutors"
4. Concerns about defendants "receiving sentences dramatically lower than the guidelines range without any explanation, or on the basis of factors that could not be considered under the guidelines"
5. The need to "secure a system of tougher, fairer, and greater justice for all"

In subsequent "Dead Booker walking?" posts in the coming weeks, I hope to explore each of these issues one-by-one.  In the meantime, I encourage readers to use the comments to suggest other arguments or reasons for a Booker fix beyond those which have been articulated in AG Gonzales' speeches.

SLR issue on federal sentencing now on-line

In recent posts here and here, I have lavished praise on the October symposium issue of the Stanford Law Review, which brings together leading sentencing scholars in a project entitled "A More Perfect System: Twenty-Five Years of Guidelines Sentencing Reform."  (Of course, I'm a bit biased because my offense/offender article appears in the issue.)

During my recent Monterey trip, I had the chance to read the issue's substantive introduction authored by Professors Robert Weisberg and Marc Miller.  That introduction is a masterpiece; it effectively sets up the articles that follow and is full of astute insights about modern federal sentencing dynamics.  And, joyfully, this page now reveals that the Stanford Law Review has made fully available on-line all 18 article from its sentencing issue.

As I suggested in this post about brewing Booker fixes, I wish every members of Congress could be required to read this entire SLR issue (as well as the Federal Sentencing Reporter's latest issue asking "Is a Booker Fix Needed?") before moving forward with any sentencing legislation.  And everyone else, while taking in all this great sentencing scholarship, should take up the opportunity, discussed more fully in this post, to author a short commentary for FSR addressing the question "How should Congress and the U.S. Sentencing Commission respond to Booker?".

Mark your Booker fix calenders

A few weeks ago I noted growing "Booker fix" buzz, and now I have heard from various folks that in January both the House and the Senate may jump into Booker action come the one-year anniversary of the Booker decision.  Thus, the numerous academic conferences discussing federal sentencing this Fall will be a fitting prelude to possible legislative Booker action this Winter.

In this recent post, I suggested the US Sentencing Commission ought to get out in front by conducting a major public hearing about the post-Booker sentencing world before Congress gets into the act.  However, I surmise that the USSC may just continue its (limited) data releases until it is ready to produce a full Booker report in the Spring.  Let's hope the USSC's Booker report will not end up being a day late and a dollar short. 

Notably, scholarly publications are getting a head start on serious Booker fix talk.  As discussed here and here, the Stanford Law Review is sending to all members of Congress its special symposium issue, which presents "a variety of perspectives on the issues that Congress will likely have to consider in order to reshape the Federal Sentencing Guidelines." 

In addition, now available is the Federal Sentencing Reporter's latest issue asking "Is a Booker Fix Needed?".   Also, as detailed more fully in this post, FSR is now soliciting commentaries, for publication in its December issue, that address the question "How should Congress and the U.S. Sentencing Commission respond to Booker?".   

If only we could somehow make members of Congress read all the Blakely and Booker academic commentary before moving forward with any legislative proposals...

More on SLR and "More Perfect" sentencing

As detailed in this recent post, the October issue of the Stanford Law Review is a symposium bringing together many leading sentencing scholars in a project entitled "A More Perfect System: Twenty-Five Years of Guidelines Sentencing Reform."  More details on this amazing issue, which includes my recent offense/offender article, are now available here at the SLR website. 

At the SLR website, you can find a press release and an informational letter and the issue's table of contents.  In addition, you can also access the issue's substantive introduction authored by Professors Robert Weisberg and Marc Miller.  This article is entitled "Sentencing Lessons," and here is a passage from this terrific piece's introduction:

Sentencing has become a complex and varied field, and the world of sentencing law — indeed much of legal world — looks very different in 2005 than it did thirty years ago before the first modern structured-sentencing system was created.  The Stanford Law Review editors believed that leading sentencing scholars could articulate the key lessons from all modern sentencing reforms and offer their knowledge in the form of collective and structured scholarly testimony to Congress.  While Congress and the federal system are the principal audience for this Issue, we believe the insights in these chapters have much to offer judges, scholars, policymakers, and lawyers at both the state and federal levels.

Produced in conjunction with the new Stanford Criminal Justice Center, this Issue reflects such an effort to restate the major lessons about sentencing reform from the past twenty-five years, and to do so in a manner that will assist further efforts at reform. Authors were invited to address specific topics so that the entire Issue would encompass the core philosophical, structural, policy, and practical lessons and challenges in designing a successful sentencing system.  The chapters in this Issue address the various purposes of sentencing, the special role of federal criminal justice in our federal system, the institutions and actors at the rulemaking and adjudicative stages (including Congress, the Commission, trial and appellate judges, and advocates), and the basic substantive and structural elements of sentencing systems. In conceiving this Issue, our goal was to provide an overview of knowledge about all essential aspects of the federal system....

We offer this Issue in the hope that Congress will look seriously at revising the federal system in light of Blakely and Booker and that, in the spirit of the SRA, Congress will want to draw on contemporary expertise and the evolving "intellectual history" of sentencing knowledge in further reforming the federal sentencing system.

A judicious retort to AG Gonzales' proposed Booker fix

There has already been a lot of commentary critical of AG Alberto Gonzales' advocacy of a legislative response to Booker in the form of "the construction of a minimum guideline system."  (Some editorials assailing the Gonzales proposal are noted here and here and here and here; the speech in which Gonzales set out his proposal was first discussed here, and followed by commentary here and here and here.)  To the list of critiques can be added this thoughtful commentary in the National Law Journal, entitled "AG's Misguided Proposals," authored by US District Judge Lynn Adelman and his clerk Jon Deitrich.

Echoing some points recently developed by ND Ohio Chief Judge James Carr in his recent article in the latest issue of the Federal Sentencing Reporter, Judge Adelman and Deitrich assert that the Booker remedy is "manifestly more fair than the mandatory regime and is working well," and they call the Gonzales proposal "unbalanced" and "constitutionally suspect."  The entire commentary merits a close read, and here are the closing paragraphs:

The advisory guideline regime should not be evaluated based on anecdotes.  However, the question of how it should be judged is an important one. We believe that the appropriate standard is not whether the average sentence is more severe or more lenient than it was previously, or how many sentences remain within the guidelines, but rather whether in individual cases judges are doing justice.  To answer this question, policymakers and scholars must carefully consider the quality of judicial reasoning underlying the sentences imposed, a factor that often goes unmentioned during the debate about sentencing. This task is not simple, and it will not be accomplished over night.

In the meantime, the attorney general's calls for change do not advance the discussion.  His speeches seem to reflect DOJ's anxiety about the fact that, under the advisory guideline system, judges actually have the authority to determine defendants' sentences.  However, under our system of justice, judges, not prosecutors, are supposed to sentence defendants. Unless the attorney general has solid evidence that judges when sentencing are not sufficiently taking into account public safety (which he does not), he should refrain from calling for radical changes in our sentencing system.

Is the Booker remedy here to stay?

A forthcoming issue of the Federal Sentencing Reporter asks the policy question, "Is a Booker Fix Needed?".  But lately I have been pondering the practical question of whether a Booker fix seems likely, at least in the near future.  I am starting to think that, for political and legal reasons, the Booker remedy may persist for some time.

Political reasons for the persistence of the Booker remedy:  Though I was grumpy that criminal justice issues did not arise during the Roberts hearing (wrap up here, rev up here), the lack of discussion of crime and punishment perhaps suggests that the overall political salience of these issues is relatively low right now.  And, through the fall, we should probably expect the public to remain focused on hurricane aftermath, and expect the Senate Judiciary Committee to remain focused on Supreme Court nominees.

Of course, at any moment, the House "Booker fix" provision of HR 1528 could come back to life and AG Gonzales could step up his advocacy for the creation of a minimum guideline system (background here).  Nevertheless, because the Booker remedy managed to preserve so much of the pre-Blakely status quo, it will be difficult to make a case politically that developing a Booker fix is more pressing than other matters of public policy.

Legal reasons for the persistence of the Booker remedy: As I note in my introductory commentary to the latest FSR issue, even though Booker clarified the legal meaning and impact of Blakely for the federal sentencing system, any effort to significantly alter the structure of federal sentencing remains fraught with doctrinal uncertainty because of the continued uncertainty that surrounds Harris and Almendarez-Torres.  Indeed, as first explained here way back in June, the on-going transitions in the composition of the Supreme Court make the uncertain precedents of Harris and Almendarez-Torres even more uncertain (especially given the current SCOTUS head-count on Apprendi-Blakely issues).

Though I am bad at predicting how and when the Supreme Court will act, I expect and sincerely hope the the Supreme Court will grant cert, sometime in the next few months, on at least one of the many pressing post-Blakely and post-Booker questions that need to be answered.  Once cert is granted, especially if the case involves a big issue like the Almendarez-Torres prior conviction exception, it will be quite easy (and perhaps quite sensible) for policy-makers and advocates to urge holding off on any legislative action until the Supreme Court further clarifies the meaning and reach of Blakely and Booker.

FSR Issue asks: Is a Booker Fix Needed?

I am happy to announce that another issue of the Federal Sentencing Reporter is about to go to press.  This forthcoming issue asks in its title "Is a Booker Fix Needed?".  Following up themes first covered in FSR's issue entitled "The Booker Aftershock", this latest issue examines the state of federal sentencing after Booker and gives particular attention to whether, when, and how Congress should respond to Booker.

My opening commentary to this FSR issue, "Assessing Federal Sentencing After Booker," can be downloaded below, and in this post I previously discussed and posted the great article in the issue from Judge James Carr, the Chief Judge of the US District Court for the Northern District of Ohio.  The full contents of this latest FSR issue are listed below, and the Federal Sentencing Reporter can be ordered here and accessed electronically here. 

EDITOR'S OBSERVATIONS

• Douglas A. Berman, Assessing Federal Sentencing After Booker (Download berman_assessing_after_booker.pdf)

ARTICLE

• James G. Carr, Some Thoughts on Sentencing Post-Booker (available here)

PRIMARY MATERIALS

• Testimony of USSC Chair Hinojosa to Congress (Feb. 2005)
• Testimony of Assistant AG Wray to Congress (Feb. 2005)

• Provisions of Section 12 of House Bill H.R. 1528 (April 2005)
• Letter from Frank Bowman concerning H.R. 1528 (April 2005)
• Letter from the Judicial Conference concerning H.R. 1528 (April 2005)
• Letter from Federal Defenders concerning H.R. 1528 (April 2005)

• Federal Sentencing Guidelines Speech by AG Gonzales (June 2005)
• NACDL Report, Truth in Sentencing? The Gonzales Cases (July 2005)

• ABA Criminal Justice Section, Report and Recommendation on Booker (Jan. 2005)
• The Constitution Project's Sentencing Initiative, Principles for Sentencing Reform (June 2005)
• USSC, Post-Booker Sentencing Statistics (Aug. 2005)
• USSC, Notice of Final Priorities for the 2005–2006 Amendment Cycle (Aug. 2005)

Still more criticism of House anti-gang bill

In May, the US House of Representatives passed anti-gang bill, HR 1279, which includes many new and increased federal mandatory minimum sentences (background here and here).  That bill, as detailed in posts here and here and here, generated an enormous amount of criticism in newspaper editorials back in May.  And, thanks to this informative post at TalkLeft, I now see that the Washington Post this morning has this potent editorial on the bill.  Here's a snippet:

A bill backed by the Bush administration and already passed by the House would unwisely federalize many local street crimes, stripping them from state prosecution if they could be tied even tenuously to gang activity. The so-called gangbusters bill would also establish mandatory minimum sentencing requirements, which remove much flexibility from sentencing and make little allowance for the circumstances of individual defendants; similar federal and state schemes have proved unfair and harmful....

Bush has proposed spending $150 million over three years to prevent gang involvement, with the funds to be dispersed through grants to faith-based and community organizations that attempt to steer at-risk youths away from gangs and into supportive social programs. The House and Senate have each cut that request but appear likely to appropriate some funds. The success of that program, not just draconian sentencing or increased numbers of federal investigations and prosecutions, will be a critical test of whether the administration's commitment to combating gangs is real or just a rhetorical priority.

DOJ's Orwellian defense of mandatory minimum guidelines

I know it is 2005, but I sometimes conjure up images of 1984 when I hear the doublespeak coming from AG Alberto Gonzales or others in the Justice Department in support of a legislative response to Booker in the form of "the construction of a minimum guideline system" (basics here).  This morning the doublespeak is coming from John Richter, the Acting Assistant Attorney General in DOJ's Criminal Division, through this Letter to Editor in today's Washington Post.  (The Richter letter is in response to the Post editorial last week which suggested Gonzales is "seeking a legislative fix [to Booker] that would do far more harm than good.")

The Richter letter starts by extolling "the many positive aspects of the mandatory-guidelines system" and then states that the "minimum-guidelines system discussed in the attorney general's speech in June attempts to re-create positive aspects of the sentencing guidelines consistent with the Supreme Court's jurisprudence."  But, as I noted here following the AG's June speech and here when a departing John Ashcroft assailed advisory guidelines in his closing days, the simple way to get back to mandatory guidelines, "consistent with the Supreme Court's jurisprudence," would be to adopt the remedy suggested by Justices Scalia, Thomas and Stevens in Booker in which the guidelines would remain mandatory but contested aggravating facts that increase sentences would have to be proved beyond a reasonable doubt to juries. 

As Justice Stevens noted, that remedy would not require any changes to the Sentencing Reform Act or the guidelines, it would simply require Congress to express its intent for the guidelines to be mandatory even though aggravating facts triggering longer guideline sentences now have to be proven to a jury or admitted by the defendant.  The doublespeak chutzpah in the DOJ talk of a "minimum-guideline system" is that DOJ wants all the benefits of tough, mandatory guidelines but also wants to prevent defendants from having the benefits of the constitutional rights to a jury trial and proof beyond a reasonable doubt articulated in Apprendi and Blakely.

The Richter letter also asserts that "the minimum-guidelines system does not impose any greater risk of a higher sentence than today's advisory system."  I suppose this clever phrasing is accurate, since judges now can use their post-Booker authority to sentence above the guidelines in any case.  But, the chief complaints about a minimum-guidelines system is that it will reduce or eliminate judges' authority to impose a sentence below the guidelines based on a case's individual facts.  Thus, a minimum-guidelines system would impose a much greater risk that judges will not have the authority to hand down sentences they consider to be just.

Gonzales reiterates call for Booker fix

As detailed in this article, AG Alberto Gonzales gave a speech at the ABA Annual Meeting on Monday in which "Gonzales said his biggest concerns were the Federal Sentencing Reform Act, the Patriot Act and the Voting Rights Act."   In the ABA speech, which can be accessed here, Gonzales reiterated points first developed in a June speech in which he advocated a legislative response to Booker in the form of "the construction of a minimum guideline system."  (The June speech's basics are here, my earlier commentary on that speech can be accessed here and here and here and here, and editorial criticisms of that speech are here and here and here and here.) 

Here are some quotes from Gonzales' latest iteration of his support for a Booker fix involving "the construction of a minimum guideline system":

I fear it is inevitable over time that, with so many different individual judges involved, exercising their own individual discretion, in so many different jurisdictions, even greater disparities among sentences will occur under a system of advisory guidelines. I am concerned that under such a wholly voluntary system we will not be able to sustain the progress we've made and victims may be victimized once again by a system that is intended to protect them.

Since the Booker decision, numerous legislative proposals have been suggested in response and they should all be studied and discussed.  I continue to listen and keep an open mind, and one proposal that I have already indicated appears to preserve the protections and principles of the Sentencing Reform Act, and thus deserving of serious consideration, is the construction of a minimum guideline system.

The advantages of a minimum guideline system are many. It would preserve the traditional division of responsibility between judges and juries in criminal cases and retain the important function of the U.S. Sentencing Commission in providing guidelines to the courts regarding sentencing. It would also allow judges some flexibility for extraordinary cases.  And a minimum guideline system would be fully consistent with the Sixth Amendment, as interpreted by the Supreme Court.

Following Gonzales' June speech suggesting a minimum guideline system, I had this series of questions.  And two key questions still have not been directly addressed by Gonzales or others in DOJ: (1) If advisory guidelines are so bad, why did DOJ urge this remedy in post-Blakely litigation? (2) If the old mandatory guidelines were so effective, why the need to construct a new "minimum guideline system"?  In addition, as I explained here, now that the AG is weighing in on the post-Booker policy debate, I believe that DOJ should be making public whatever sentencing data it is collecting (especially since the USSC's post-Booker data, up through the latest data run, do not really seem to support Gonzales' complaints about the current post-Booker status quo).