Sentencing Law and Policy

Topical highlights from Day 2 of the USSC hearings

Rather than provide testimony highlights as I did here for USSC hearing day 1, I thought it might be more beneficial to spotlight some of the biggest topical issues developed during the second day and throughout all the hearings.  Though I urge review of the testimony linked here for a more thorough account of issued covered, here are just a few of the topics still spinning in my mind after the hearings.

1. The collection and presentation of post-Booker data: As stressed in this prior post, everyone is focused on the importance of district courts providing, and the USSC effectively analyzing, post-Booker data.  But a number of Commissioners astutely asked about how the data ought to be parsed.  Especially important, as a number of folks noted, was how cases involving a variance from the guidelines are coded, assessed and publically discussed.

2. The availability and nature of appeals: A few witnesses, including Robert McCampbell representing DOJ, suggested that the appellate review provisions of 3742 are still to be read to mean that sentences within the guidelines after Booker are not subject to appeal for general reasonableness (though, of course, the guideline calculations could still be challenged for all the "old" reasons).  This important and interesting issue of when appeals are even authorized will, I suspect, need to be litigated in the months ahead.  Relatedly, all the state sentencing witnesses noted that no jurisdiction with true advisory guidelines has any track-record with appellate review.  Thus, the federal guidelines are in uncharted territory with advisory guidelines with appeals, and everyone at the hearings could only begin to suggest what reasonableness review will come to look like.

3.  The substantial substantial assistance problem: A number of folks addressed how 5K1.1 departures will operate in an advisory system, and McCampbell suggested that the loss of the leverage which facilitated truly effective cooperation in a mandatory system was DOJ's biggest worry.  More than a few witnesses suggested different small ways to address try to address this matter, and I think it will be an area to be watching very closely in the weeks ahead.

USSC hearings continue...

Another big day at the US Sentencing Commission, with 11 witnesses with a variety of guideline experiences and perspectives scheduled to testify.  A lot of today's witnesses' testimony is already linked to this agenda, and I hope to report on highlights later today.  Coverage of yesterday's hearings can be found here and here.

UPDATE: And after a loooooong morning, the USSC hearings finished up this afternoon with a lot of important ground covered and key issues spotlighted.  I will have a series of coming posts about the substantive issues, but I can start the post-mortem by highlighting two evolutions in the developing post-Booker nomenclature: (1) Judge Cassell's term "variance" to describe non-guideline and non-departure sentences seems to be gaining adherents, and (2) the Bowman fix may become known as the Collins fix now that Professor Bowman has officially abandon the idea, but former Associate Deputy AG Daniel Collins continues to promote it.

A few highlights from Day 1 of the USSC hearings

The US Sentencing Commission did itself proud through its first day of Booker hearings: it invited a diverse set of witnesses who addressed a diverse array of important post-Booker topics and shared advice that should help the USSC in its challenging post-Booker work.  The richness of the testimony and the Q & A cannot be fully captured in this space, but below I spotlight a few substantive and rhetorical highlights drawn from the written testimony of today's witnesses (most of which is linked here at the USSC's website).  Later tonight, I hope to have the time and energy to do a few posts with commentary concerning today's festivities.

Chief US District Judge Thomas Hogan (DC): "[T]he US Judicial Conference has not yet taken an official position on sentencing in the wake of the Booker decision....  [T]he Judicial Conference's Criminal Law Committee has taken the lead and is now hard at work developing policy recommendations for the Conference's consideration [which likely] will be considered at the March 15, 2005 meeting of the Judicial Conference."

Chief US District Judge Lawrence Piersol (SD): "I believe that Booker provides a nearly perfect sentencing system.... I urge the Commission to take the position that the 'Bowman fix' is no fix at all — it is somewhere between a flat tire and a blowout.... The Bowman 'fix' would at the least be declared unconstitutional in some Circuits so we would have a year or two where federal sentencing law would be in an upheaval while that issue was being initially resolved."

US District Judge Paul Cassell (Utah): "[T]he Commission invited me to suggest changes to the Guidelines and other bodies of law that might be appropriate in the wake of Booker.  I would like to respectfully offer seven tentative suggestions.... The common theme to these suggestions is that they would all encourage judge to say more closely attuned to the Guidelines."

US District Judge Lynn Adelman (ED Wisc): "Booker does two things that will lead to a more just system: (1) it restores federal judges to a meaningful role in the sentencing process; and (2) it makes clear that fairness in sentencing requires consideration of factors other than reducing sentencing disparities."

US District Judge Richard Kopf (Neb): "[J]udges obviously know more about the individuals we sentence than many other people [but] the significance of this truism to the statutory goals of sentencing is often zilch.... [T]he importance of 'knowing the person' is overstated by those who want excuses to do something different than what the Guidelines dictate.... Congress and the Commission should go slow and see what happens. If most district judges exercise the restraint that I predict they will, and circuit judges use Guidelines-sensitive standards for the defiant, Booker will turn out to be, in the words of one famous federal prisoner, 'a good thing.'"

Mary Price (FAMM): "The Blakely and Booker opinions launched what you recently described as a national conversation about sentencing. Your voice must figure prominently in that discussion. This is not a time to tinker around the edges of reform or rush to adopt measures designed to just meet, or worse, avoid, constitutional requirements.... We ask you to think big and reach back to foundation principles of justice."

Collene (Thompson) Campbell (MOVE): "We must make certain that fair and reasonable, but realistic and tough, sentencing guidelines are in place and followed. We must be positive that our standards are not weak, or give into those with a propensity for violence.... This Commission must build into its sentencing policies and procedures a requirement that Judges are obligated to give the victim a right to be heard and must take into consideration and understand the impact of the crime, along with the views of the victim, prior to making any sentencing decisions."

Paul Rosenzweig (Heritage): "Booker will not endure [because] the pushme-pullyou solution in Booker can long withstand either political or constitutional scrutiny.... There are so many questions that underlie the 'reasonableness' standard that I feel utterly confident in predicting years of litigation, multiple circuit splits, and the frequent necessity for clarifying Supreme Court intervention."

An inside-the-Beltway Booker analysis

An on-time flight and a hotel room available early gives me a little blogging time before heading over to this afternoon's US Sentencing Commission hearing.  I am pleased to see that the USSC now has a lot of the hearing witnesses' written testimony linked through this agenda page so even folks outside the Beltway can follow the action.

I hope to comment at length tonight about what transpires at today's USSC hearings, but first I have other items of interest to share.  Perhaps fittingly as I was in transit to DC, another government document about Booker arrived in my in-box: a research report entitled "Federal Sentencing Guidelines: Background, Legal Analysis, and Policy Options" authored by the Congressional Research Service of the The Library of Congress.  The short report, which can be downloaded below, provides a useful overview of Booker and the policy issues facing Congress.  The report is dated February 9, so I assume it was prepared in conjunction with last week's House hearing in Booker (highlights here).

Download crs_analysis_of_fsg_and_booker.pdf

The next big hearing and some written USSC Hearing testimony

After the circuits went wild at the end of last week (some details here, commentary here), today has been, at least according to my in-box, a mercifully quiet day for court decisions.  And that quiet has, thankfully, given me needed time to complete my written testimony for the US Sentencing Commission hearing that starts tomorrow afternoon and is formally entitled "entitled "U.S. v. Booker/Fanfan and the Impact on Federal Sentencing." 

The Commission had provided is Public Hearing Agenda here and some Topics of Discussion here for this exciting next round of Booker hearings.  I must say that I am a bit fearful that even I may soon start suffering from Booker overload.  Last week's House hearing (highlights here) had only four witnesses and was still a bit overwhelming.  (Notably, a full webcast of that hearing is now available here.)  The USSC is bringing in twenty (20!) big-time witnesses for its two days of hearings, and I suspect every one of them will have important and interests insights and ideas to share.

I have the pleasure of sharing Tuesday's final panel, which is to provide "A View from Academia," with Paul Rosenzweig, Senior Legal Research Fellow, The Heritage Foundation, and Adjunct Professor, George Mason University School of Law.  You can have an opportunity to see how things look from academia by reading my written testimony and Paul's testimony, which I provide for downloading below.

Download final_berman_ussc_testimony_215.pdf

Download ussc_feb_152004_rosenzweig.PDF

UPDATE: I am very pleased to have now received a copy of Judge Paul Cassell's written testimony for the USSC hearing tomorrow.  It runs fifty pages (50!), though parts I and II cover the ground of Judge Cassell's Wilson opinions.  But Part III makes specific recommendations to the Commission about how to improve the Guidelines after Booker (e.g., encouraging the Commission to reemphasize that "forbidden" factors remain forbidden and to discourage 5K1.1 downward departures for substantial assistance absent a government motion).  And Part IV touches on the rights of victims to participate in the federal criminal justice process in the wake of Congress's October 2004 enactment of a comprehensive Crime Victims Rights Act.  Interesting stuff.

Download judge_cassell_ussc_hearing_testimony.rtf

More reports on the House hearing

Providing additional coverage of the House Booker hearing on Thursday are this Wall Street Journal article (subscription required) and a Bloomberg news report.  Spotlighting the data/anecdote concerns detailed in this post, I found notable that the AP's headline (linked here) was "Data: Judges Adhere to Sentence Guidelines," while the Bloomberg piece carries the headline "Bush Administration Says Sentence Disparities Rise."  Life is all a matter of perspective, ain't it?

Providing additional perspective on the hearing, an insightful reader in attendence shared with me (and has allowed me to share with everyone) these thoughts and observations:

1.  Republicans on the subcommittee had some great questions and were not lined up behind Jay Apperson.  He seemed to supply Chairman Coble questions, but the rest were clearly on their own.  I was impressed by the thoughtfulness and depth of their inquiries; it was one of the best hearings I've ever attended (which, of course, is not saying much in light of the usual level of posturing, but I really was pleasantly surprised.)  For example, Rep. Flake from Arizona asked Wray why not wait a year and see how things go.  Others revealed similar depth.  In contrast, the dems (with the outstanding exception of Bobby Scott who was his usual well prepared and unflappable self) did not seem as well prepared and used their time to talk about the crack/powder disparity (a subject of course worth ranting about, but this is not the time and place to use one's entire allotment of time on the subject it strikes me); they didn't use their time to highlight contradictions, ask probing questions.

2. There was some playfulness today. For example, Frank Bowman said he felt like Ricky Ricardo saying to Lucy "I got a lot of 'splainin' to do" before commencing to recant [his support of the Bowman fix], and Judge Hinojosa later was moved to quote RR's line "Aye, Carumba!"

3.  Frank Bowman came through with flying colors and got off easy in the questions; I think his falling on his sword was wasted on the members of the Committee but means a great deal to the others.

4.  Collins was the stalking horse.  I wonder what is keeping the DOJ so quiet, though they have begun to signal their next moves. Is it really only that Gonzales is just on board?

5.  The record is open for a week.  If anyone sees something that ought to be put in after reading the testimony, do so.  I think one can send such things to Rep. Scott.

6. Mr. Wray was asked by Bobby Scott to back up his repeated, and unsupported assertions that the federal sentencing guidelines have caused the 30 low in the crime rate.  He couldn't, but Wray promised to get back to the Committee.  That should be interesting.  Mr. Scott cited a study from Virginia to the effect that when Project Exile was instituted in Richmond Virginia, the crime rate fell.  However, in the cities outside Richmond that did not participate in P.E., the crime rate fell even more.

7. There is some concern that the Commission might try to draft some legislation to address concerns raised by DOJ.  It strikes me that they will do best doing what they do best.  Sending draft language at a time when the rest of the world is saying, let it work for awhile, sends the wrong message.

House hearing highlights

The AP has this report on the Oversight Hearing on "The Implications of the Booker/Fanfan Decisions for the Federal Sentencing Guidelines" conducted this morning by the House Judiciary Committee's Subcommittee on Crime, Terrorism, and Homeland Security.  Relatedly, here are my recent posts covering the event:

• More advice encouraging Congress to go slow
• The House hearing and data versus anecdote in sentencing policy-making
• A viewer's guide to Thursday's House hearing
• Gearing up for Booker hearing week

More advice encouraging Congress to go slow

With the exception of Daniel Collins, who in his testimony to the House Subcommittee today urged "that Congress act — and act promptly", the developing consensus seems to be the "go slow" approach in response to Booker.  (Consider that Professor Frank Bowman's testimony here in big, bold letters provides "A Counsel of Caution".)

Adding their voices to this consensus are the folks at The Constitution Project's Sentencing Initiative, a bipartisan blue-ribbon committee formed in the wake of Blakely (first discussed here, membership here).  In a letter to Congress, which can be downloaded below, the co-chairs of the Initiative — none other than Edwin Meese III, Attorney General under President Reagan, and Philip Heymann, Deputy Attorney General under President Clinton — state that "Congress should respond to the Booker decision with caution for at least four reasons."  The letter also points out long-term flaws in the federal guidelines that need fixing and recommends against "topless guidelines."

Download constitution_project_letter_to_congress.doc

In a similar vein, I received a copy (and provided for download below) an article about Booker by SDNY US District Judge Lewis Kaplan which reviews the new federal sentencing landscape and then closes with this heartening passage:

My central message instead is that this is a moment for reflection, not for hasty action.  We do not know how Booker will evolve if the courts are left to work out these problems.  That is something well worth knowing before the legislature acts.  Further, I respectfully suggest that the courts and the Congress are not, and should not become, adversaries here. Whatever the initial reaction to the sentencing guidelines may have been almost twenty years ago, and despite the well known controversy about the guidelines and the limitations they placed on judicial discretion, I suspect that the area of agreement between Congress and the courts may well be larger than either believes....  So let us try to remember that the things that bind us together are far greater than whatever may divide us.  Let us reason together.

Download judge_kaplan_on_booker_nysbalawjournal.pdf

The House hearing and data versus anecdote in sentencing policy-making

The Oversight Hearing on "The Implications of the Booker/Fanfan Decisions for the Federal Sentencing Guidelines" conducted this morning by the House Judiciary Committee's Subcommittee on Crime, Terrorism, and Homeland Security has concluded, and I am pleased to see that all of the witnesses' written testimony is now linked at this official site.  (Also there now is the Chairman's opening statement, and I am hopeful a full transcript of the proceedings will be provided in due course.)

Much of what was predicted here came to pass, and Daniel Collins' advocacy of topless guidelines reinforced the prosecutorial tilt in the assembled witnesses.  The interesting Q and A, in which Representatives often spotlighted pet issues with the federal sentencing system, merits its own future post and analysis.  But first I must make some observations based on the written testimony concerning the use of data and anecdote in formulating federal sentencing policy and federal sentencing reforms.

First, Chair Hinojosa and the USSC staff are to be greatly lauded for including in his written testimony data on post-Booker sentencings to date.  Significantly, that data suggest, as noted previously here, that we may actually be seeing an upward movement in the length of post-Booker sentences, although the data are still very preliminary.  What's most important and impressive is the USSC's obvious commitment to data analysis and a data-driven response to Booker.

Second, Assistant AG Christopher Wray is likewise to be lauded for closing his testimony by stressing the importance of sentencing data and the need for "accurate, real-time information on sentencing ... to play an appropriate and effective role in the public debate."  But Wray should also be criticized for his anecdotal attack on two post-Booker sentencings and for a failure to provide any of the data which, as detailed in the Comey memo and as suggested in this speech by a US Attorney, clearly are being collected and analyzed by DOJ in real-time.  The cynic in me is inclined to assume that the data DOJ has assembled to date does not support its claims as much as selected anecdotes.  (Relatedly, it is notable that DOJ is not spotlighting or complaining about individual cases in which an imposed sentence was unduly harsh; DOJ seems really concerned not about undue disparity but rather undue leniency.)

Third, speaking of data and anecdotes, I was intrigued to see Daniel Collins, one of the chief proponents of the Feeney Amendment to the PROTECT ACT, stress USSC data in his testimony to argue that "We should not make fundamental structural changes solely to accommodate a problem that does not occur in 99.2% of the cases."  That statement struck me as jarring given that the Feeney Amendment, especially as originally proposed, sought to eliminate virtually all downward departures even though DOJ had identified downward departures as a major concern in some economic and sex offense cases and even though USSC statistics revealed that DOJ was successful in reversing 75% of the departures it appealed.  (The materials in this issue of the Federal Sentencing Reporter provide more background on the Feeney Amendment and prior efforts by Collins to engineer fundamental structural changes to the guidelines to address a problem seemingly evident in only a relatively small number of cases.)

More House hearing testimony and links

I have received, and now provide for download below, the written testimony of Professor Frank Bowman and Assistant AG Christopher Wray.  In addition, I have been alerted that a live webcast of the on-going hearings can be accessed at this link here.  And TalkLeft here has some broad commentary here about matters that policy-makers should be considering in a broad review of the federal sentencing system.

Download bowmans_house_judiciary_written_testimony.doc

Download wray_house_testimony.doc

Gearing up for Booker hearing week

As discussed here earlier this week, tomorrow the House Judiciary Committee's Subcommittee on Crime, Terrorism, and Homeland Security has an Oversight Hearing on "The Implications of the Booker/Fanfan Decisions for the Federal Sentencing Guidelines."   I am hopong that some written testimony might be posted by the Committee at this official hearing page, although I will plan to post in this space any hearing testimony I receive.

Indeed, I have already received, and provided for downloading here, a brief letter to the Sub-Committee from the Ethics Officer Association and a similar letter from legal counsel to various corporate groups, and also the prepared testimony of US Sentencing Commission Chair Judge Ricardo H. Hinojosa.

Download EOALetterUSCongressFeb_10_2005.pdf

Download business_letter_to_house_2.9.05.doc

UPDATE: The Subcommittee on Crime, Terrorism, and Homeland Security has posted this press release concerning tomorrow's hearing, and the USSC website now has as a pdf document Chair Hinojosa's prepared testimony here.

And speaking of the US Sentencing Commission, I was extremely pleased to see on the USSC website the full Public Hearing Agenda, the circulated list of Topics of Discussion, and even a very personal Sample Hearing Invitation in conjunction with the USSC's Public Hearing in DC next week. 

There is so much worthy of comment in all these materials, I hope readers might share some general or particular comments concerning all of these Booker events on the near horizon.

UPDATE: An insightful reader has spotlighted to me that Chair Hinojosa's prepared testimony includes "interesting statistics on post-Booker sentencing: upward sentences 3x more likely than before Booker (thought numbers are so few that it many not mean anything) and downward/outside the range about the same as pre-Booker."

Booker news and notes

A few Booker items have caught my eye at the end of a relatively quiet day for Booker in the courthouse:

• This fascinating article from the Texas Lawyer provides a Lone Star view of the Booker with an emphasis on legal uncertainties and the workload for the Fifth Circuit.  I touched on workload issues in a recent post on Booker burdens, and I was intrigued by this quote from the Fifth Circuit's Chief Judge Carolyn Dineen King:

"We're going to have a meeting of all of the judges in about a week and try to get a coordinated approach to it all," King says of Booker appeals. "It is a monumental task."

• As detailed here and here, the Sixth Circuit would have benefitted from a coordinated approach to plain error, and Peter Henning of the White Collar Crime Prof Blog notes here that some of the disparate inter-circuit approaches to plain error have been in white-collar cases.

• With House and Sentencing Commission hearings on the way, groups and commentators are sharing advice concerning legislative reactions to Booker.  This AP article reports on the ABA's "go slow" resolution (previously discussed here), and this newspaper commentary provides an insightful set of recommendations in urging Congress to pass "bipartisan legislation to make our federal justice system fairer, cheaper and more effective at reducing crime."

Hearings and more hearings

As noted previously here, this Thursday the House Judiciary Committee's Subcommittee on Crime, Terrorism, and Homeland Security has scheduled an Oversight Hearing on "The Implications of the Booker/Fanfan Decisions for the Federal Sentencing Guidelines."   As you can now see from this page, the four persons scheduled to testify are Professor Frank Bowman, former Associate Deputy AG Daniel Collins, USSC Chair Ricardo Hinojosa, and Assistant AG Christopher Wray. 

If time permits, I hope to provide a "viewer guide" to these House hearings in the coming days (as well as links to any written testimony if and when it is available).  For now, I can just wonder out loud about how many of these witnesses may advocate the Bowman fix and whether they will advocate it as a permanent or only a temporary fix.

Meanwhile, as detailed here, the US Sentencing Commission now has up its official notice concerning the public meeting and hearings it will be conducting next week.  As the notice explains, the "purpose of the public hearings, entitled 'U.S. v. Booker/Fanfan and the Impact on Federal Sentencing', is for the Commission to gather testimony from invited witnesses on the present and potential future effect of the Supreme Court’s decision on the federal criminal justice community."

I am fairly sure we will be hearing more from the USSC in the days ahead about who it will be inviting to testify.  I am hoping to be able to attend all of the USSC festivities in person next week (which means, of course, that I will be blathering on about all that transpires in this space).

Summarizing the USSC 15-year report (and recent posts)

In this post, I urged everyone considering a legislative response to Booker to review the US Sentencing Commission's recently released 15-year report, since charting a future for federal sentencing requires understanding its past.  The full USSC report can be accessed here, its executive summary can be accessed here, and my summary of the executive summary is here. 

Because the report runs 150 pages, I asked a research assistant to help me spotlight some of the most essential findings of the central chapters of the report.  My RA did a great job producing a 19-page document which summarizes key findings and reprints key charts and graphs from Chapters 2-4 of the USSC's 15-year report.  Thinking others might benefit from his work, I provide this summary for downloading here:

Download ussc_15year_report_summary.doc

And while we are in summary mode, given all the major doings over just the last few days, I thought it would be useful to summarize (in a topical way) some of the recent developments and posts.  So:

Circuit court Booker developments and commentary

• Booker burdens in the 2d Circuit and elsewhere
• The 10th Circuit speaks on harmless error!
• The 11th Circuit speaks (loudly) on plain error!
• Circuit pacing, process and plans
• An intra-circuit split in the 6th Circuit on plain error!

District court Booker developments and other commentary

• Justifying "variance" to remedy unwarranted disparity caused by the guidelines
• More amazing post-Booker work by Judge Adelman
• Booker debate continues with another potent district opinion
• Report from a great Yale Booker panel
• Another perspective on Justice Ginsburg's switch

State Blakely developments

• Tennessee "Blakely fix" news
• Big Blakely/Booker case from Ohio

Inside the Beltway Booker news and plans

Though I expect court action will continue apace nationwide, it is now official that the fine folks in DC will be joining in the Booker festivities.  As noted here, the House Judiciary Committee's Subcommittee on Crime, Terrorism, and Homeland Security has scheduled for February 10 an Oversight Hearing on "The Implications of the Booker/Fanfan Decisions for the Federal Sentencing Guidelines."   

I have heard rumors about who will be testifying, though I am not sure when the list of witnesses will be finalized and made public.  Especially now that Alberto Gonzales has been confirmed as AG, I will be especially interested to see if the Justice Department uses this House hearing to declare its views on the post-Booker world and whether DOJ believes legislative action is needed.  In this regard, I was encouraged to see that, in this Washington Post article about the Gonzales confirmation, former DOJ official Douglas Kmiec says Gonzales believes "decisions are best resolved in study and deliberation, not press release."

Meanwhile, in an important related development, a recent BNA article entitled "Sen. Specter Willing to Wait Before Addressing Federal Sentencing Guidelines" (which I do not think is available on-line) quotes the chair of the Senate Judiciary Committee as saying that a response to Booker  "will have to take its turn" on the committee's agenda.  Here's a selection from the article:

While reiterating his intention to address the guidelines at some point in this congressional session, Specter told BNA, "It will have to come after [Attorney General nominee Alberto] Gonzales, class actions, bankruptcy, asbestos and judges."

Specter indicated that, for now, he was content to let lower courts apply and interpret the Supreme Court's Jan. 12 ruling in United States v. Booker, which held that the guidelines violated the constitution by requiring judges to increase sentences on the basis of facts not heard or decided by a jury.  "Let's see what the courts are going to do," said Specter. "The courts have a lot of leeway -- we'll take a little time and let it percolate for a while and get some experience."

This quote is very encouraging.  It echoes the "go slow" advice to Congress set out in this post and recently coming from the ABA, leads me to think we may not see Senate Hearings on Booker this month, and makes me even more confident that a congressional response will be deliberative and allow for broad examination of post-Booker law and practice by the US Sentencing Commission and others.  (Recall that the USSC has its own hearings planned for February 15 and 16, although an official notice does not yet appear on the USSC website.)

Preparing for post-Booker action

As detailed in this notice, the US Sentencing Commission has a public meeting scheduled for tomorrow at 10:30 am.  Though the agenda does not mention Booker, I suspect that the decision will be one of the topics of conversation.  Indeed, I am hoping that soon after the meeting the USSC will announce its plans for trying to assess and managing the post-Booker world.  (I have, of course, previously shared some of my ideas and suggestions for the USSC here and here.)

Meanwhile, in other news today from DC, AG nominee Alberto Gonzales has been approved in a 10-8 party line vote by the Senate Judiciary Committee, and he likely will be confirmed next week by the full Senate.  One of the first orders of business for Gonzales will be to help develop and carry out the Justice Department's post-Booker federal sentencing strategies.  I am very eager to see how Gonzales performs in this arena right out of the gates.

More evidence of a new sentencing reform politics

Yesterday I queried in this post whether we might be seeing a "new right" on criminal sentencing issues.  Today I have received another datum suggesting why policy debates about sentencing reform should start to be more nuanced than the old "tough" versus "soft" rhetorical labels.  This datum comes courtesy of the folks at Families Against Mandatory Minimums, who commissioned the Eagleton Center for Public Interest Polling at Rutgers University to poll New Jerseyans about drug sentencing reform.  The results suggest little support for mandatory minimum sentencing in cases involving  low-level non-violent drug offenders.

FAMM has all the highlights of the poll here, including this fact sheet and this press release.  The full report from the Eagleton Institute is available here and makes for interesting reading.  Catching my eye were these passages:

When asked what they think would be the more effective approach for dealing with low-level non-violent drug offenders, New Jerseyans choose mandatory drug treatment and community service (69%) over mandatory prison time (21%) by a greater than 3 to 1 margin.  Preference for this type of sentencing for low-level drug offenders is similar across all demographic groups in the state....

[F]ully 4-in-5 New Jerseyans (80%) support using sentences such as mandatory treatment and community service for low-level, nonviolent drug offenders if it will reduce the amount of money New Jersey spends on prisons and the corrections system.

Among other insights I draw from these materials is a renewed belief that the US Sentencing Commission's data collection post-Booker ought to differentiate between violent and non-violent cases (as well as between first offenders and repeated offenders).  I would expect, as I suggested before here, that we will see a lot more judges following the (advisory) guidelines in violent repeat-offender cases, and that general federal sentencing statistics that blur categories of cases will not give us an accurate picture of what post-Booker reforms may be needed (or not needed).

Is there a "new right" on criminal sentencing issues?

I have noted in previous posts the interesting new reality that now Republicans, far more than Democrats, are promoting what might be called progressive sentencing reform.  Recall that, as detailed here, it was Republican Senators on the Senate Judiciary Committee who were questioning AG nominee Alberto Gonzales about prison reform and rehabilitation.  (Kansas Sen. Brownback spoke of prison reform as "a compassionate conservative topic"; Oklahoma Sen. Coburn said, "As a physician, I believe that we ought to be doing drug treatment rather than incarceration."; Pennsylvania Sen. Specter spoke of the importance of providing some prisoners with "literacy training and job training and drug rehabilitation.")

Moreover, as noted previously here and here, Republicans Governors have often led efforts in many states to cut back on harsh mandatory sentences and to expand treatment-centered alternatives to incarceration.  (Recall, as just one recent example detailed in this LA Times article, that Republican Governor Arnold Schwarzenegger has announced a plan for California's prisons to "emphasize rehabilitation, marking a shift away from an era when punishment was the overriding mission.")

Part of what makes these issues so interesting and dynamic is that sentencing reform (especially in the federal system) can appeal in various ways to different wings of the Republican party.  Republicans who favor small government (or at least small federal government) might well be distressed by the size and power of the federal criminal justice machine.  Consider in this vein the advocacy of Timothy Lynch, director of the Cato Institute's Project on Criminal Justice, in this piece about Booker which appeared in Legal Times yesterday.  Lynch urges President Bush and Congress in response to Booker "to consult the long-term, strategic vision that can be found in the legal opinions of Justices Antonin Scalia and Clarence Thomas."  For Lynch this means, inter alia, that "Congress should jettison the real-offense sentencing paradigm and move to a convicted-offense model" and that "President Bush and Congress should appoint a blue-ribbon commission with a mandate to propose a rollback of the federal criminal code." 

Meanwhile, for the religious wing of the Republican party, concepts of redemption and forgiveness have often made religion a progressive criminal justice force in areas ranging from advocating abolition of the death penalty to faith-based prison programming.  (I touched on some of these issues in this prior post.)  Consider in this vein the advocacy of Mark Early, the President of the Prison Fellowship.  In this commentary praising Booker, Early asserts, based on his experiences counseling prisoners, that the federal guidelines "have not produced justice, only bitterness."  He likewise calls upon Congress to do better and says "Christians, who understand that doing justice is a matter of wisdom, not fear, should give their representatives the permission they need to resist political posturing and undo past mistakes. Then, perhaps the fairness and wisdom of our system will also be beyond any reasonable doubt."

Of course, the coming debate over the post-Booker future of the federal sentencing system will be a dramatic and important test of whether there really is a new political order in the arena of sentencing reform.  Perhaps Blakely and Booker, in the votes of Justices Scalia and Thomas, can be seen as an example of this "new right" in the judicial branch.  It will be interesting to see if other examples may emerge in the legislative and executive branches in the days ahead.

Anecdotes, data and the USSC's big challenge

I am hearing a range of post-Booker anecdotal reports from the federal sentencing front-lines.  I have heard stories of some district judges following the guidelines closely, apparently taking an approach similar to Judge Cassell in Wilson (basics here, commentary here and here).  I have also heard of a few judges focusing more on punishment purposes in particular cases, apparently taking an approach similar to Judge Adelman in Ranum (basics here, commentary here and here).  And, as detailed here, I have even heard of some talk of Blakely-izing after Booker.

Notably, the anecdotal reports of on-the-ground developments are now appearing in the papers.  This article details a federal sentencing from Hawai'i in which Chief US District Judge David Ezra focused on punishment purposes to justify a shorter prison term for a first offender who has undergone extensive sex-offender treatment after a conviction for downloading child pornography.  Similarly, this story from New York details a sentencing decision by US District Judge Richard J. Arcara which seemed to put the focus, in another a non-violent first-offense case, on rehabilitation concerns.

Because newspapers will always focus on cases where defendants were "cut a break," an enormous challenge for the US Sentencing Commission and others will be to keep Congress from making policy by anecdote.  In a huge federal system with thousands of sentencings every month, there will inevitably be stories of seemingly extreme decisions (both too harsh and too soft).  But no definitive judgments should be made (or responsive legislation drafted) based on a few anecdotes.  This is why I keep urging  everyone, especially Congress, to take a deep breath to allow us all to see what the US Sentencing Commission data shows for the range of post-Booker cases.

I hope, as suggested in this discussion, that the USSC's data collection will particularly focus on the distinction between violent crimes committed by persons with a long criminal history and non-violent crimes committed by first offenders.  My instinct is we will see a lot of guideline following in the former cases, and more variations in the latter cases.  But only the data, and not a few anecdotes, will tell.

Why Congress should go slow, and what the USSC should say

In the Potent Quotables assembled here, US District Judge Charles Kornmann astutely suggests that "Congress should give [advisory guidelines] a chance. If it doesn't work, if they find that judges are going off the map, then [Congress] can always revisit it."  This sentiment perfectly channels why I have been urging that everyone take a deep breath in response to Booker, especially Congress. 

Congress will always have the power to modify the federal sentencing system at any time in the future.  Until we have some opportunity to assess and analyze what Booker really means for the judges and lawyers working "on the ground," it will be very hard for Congress to be confident that any immediate legislative "fix" will make the federal system better than what Booker has now created.

Moreover, as I stressed in my testimony in November to the US Sentencing Commission, I fear that any major structural modification of the guidelines by Congress in the coming weeks "risks sowing greater confusion and uncertainty — and lots and lots of litigation — about applicable federal sentencing laws and practices." I am particularly concerned about ex post facto litigation headaches if "the Bowman fix" (aka topless guidelines) or mandatory minimum sentencing provisions are enacted and seek to be immediately applied.

For these reasons and others, I highly encourage the US Sentencing Commission to stress to Congress that any quick fixes risk making a confused and uncertain federal sentencing world even more confused and uncertain. (And, as we saw in the post-Blakely, pre-Booker period, confusion and uncertainty may undermine the goals of sentencing reform more than any particular set of sentencing rules.)

In addition, I encourage the USSC to pick a date certain — perhaps June 24, 2005, the one-year anniversary of the Blakely decision — and tell Congress that it will produce a report with data analysis and legislative recommendations for moving the federal sentencing system forward.  Through such a report, the USSC can assess what has happened post-Blakely, what will happen post-Booker, and combine critical data with all the USSC has learned from its recently produced 15-year report, a report which should play a central role in any discussion of possible legislative responses to Booker. (The full USSC report can be accessed here, its executive summary can be accessed here, and my summary of the executive summary is here.)