Puerto Rico Association of Criminal Defense Lawyers

USSC: "Report on the Impact of United States v. Booker on Federal Sentencing"

The United States Sentencing Commission has released a Report on the Impact of United States v. Booker on Federal Sentencing (caveat, the PDF is 277 pages). Professor Berman at Sentencing Law and Policy has an initial post on this here in which he states:

Also based on a quick scan, here is a notable sound-bite: "The severity of sentences imposed has not changed substantially across time. The average sentence length after Booker has increased."  USSC Report at p. vii.

I have not had a chance to read this report, as I'm preparing for a trial, but took a short break from work.

Update:  Read Sensenbrenner Expresses Concern Over Federal Sentencing Practices Detailed in New Report.

Links to H.R. 1528 (the Booker-Fix) Materials

H.R. 1528, a drug sentencing bill entitled "Defending America's Most Vulnerable: Safe Access to Drug Treatment and Child Protection Act of 2005" whose Section 12 has been called a Booker-fix, was considered in the House Judiciary Committee without anyone being called to testify as to the same. You can read more about H.R. 1528 at Sentencing Law and Policy's excellent coverage and commentary, at the following posts:

• Details concerning the brewing Booker fix
• Questions about the brewing Booker fix
• A day for sentencing hearings
• Bowman on the proposed Booker fix
• More opposition to quick Booker fix
• DOJ advocacy for mandatory minimum sentencing
• The rhetoric and reality surrounding the brewing Booker fix
• More potent criticisms of H.R. 1528
• Academic input on a not-so-academic Booker fix proposal
• Update on academic letter concerning H.R. 1528
• Final version of academic letter assailing brewing Booker fix
• When will we hear from the USSC (or DOJ) concerning the brewing Booker fix?
• What's going on at DOJ?
• USSC speaks out against H.R. 1528

The USSC letter on H.R. 1528 is a must read, and one can only applaud the USSC for speaking out clearly about this crazy piece of legislation.  I have no idea how far this bill will go, but NACDL, FAMM, and just about everyone with any interest in federal sentencing is keeping a close watch on it.

US Sentencing Commission 15 Year Assessment of Guidelines Sentencing

The US Sentencing Commission has issued its 15 year review of the sentencing guidelines:

Fifteen Years of Guidelines Sentencing: An Assessment of How Well the Federal Criminal Justice System Is Achieving the Goals of Sentencing Reform. This study is a comprehensive review of the research literature and sentencing data to assess how well the guidelines have achieved the goals for sentencing reform established by Congress in the Sentencing Reform Act of 1984. These goals include increased certainty and transparency of sentences, increased severity of sentences for certain types of serious crimes, and reduced sentencing disparity, including racial and ethnic disparity.

USSC Booker & Fanfan Page

The U.S. Sentencing Commission has created a Booker & Fanfan Materials page and, although the material is rather scant, you can access the Public Hearing transcript of the sessions held on November 16 and 17, 2004, as well as the submitted testimonies from vatious sources. Some interesting reading on the future of the guidelines post-Booker & Fanfan.

Practitioners' Advisory Group Proposal to USSC Makes the Most Sense

As we wait for the Supreme Court to decide Booker & Fanfan, we have competing proposals before the US Sentencing Commission. At the one end, is the idea of starting from a clean slate, an unlikely event.  At the other extreme is the idea of nullifying any decision applying Blakely to the federal guidelines, initially proposed by Professor Bowman in his submission to the Senate Judiciary Committee back in July, and now having apparently become DOJ's darling - to move the top of each offense level to the statutory maximum and thereby make ashes of Blakely's holding, ... maybe.

The best proposal we have seen thus far comes from the Practitioners' Advisory Group, and it is a worthy read in that it is rather comprehensive and specific. One may argue about various aspects of this proposal, but it is the best we have seen to date.

Professor Bowman now says that his so-called "topless" proposal was only meant as an interim fix. It was a lousy idea then and it is a lousy idea now. It shows too much worry about possible windfalls to some defendants, forgetting the obvious: that the government has been receiving windfalls since November 1987 as a result of draconian guidelines, each day more and more in the control of the prosecutors.

There certainly are more options being offered, but we focus on these as the two primary market forces: one to skirt Blakely altogether; the other to have guidelines that give life to the Sixth Amendment right to jury trial and proof beyond a reasonable doubt.

Download practitioners_advisory_group_11.04.04 proposal.pdf

USSC Staff Members Think Court Will Uphold Guidelines ... (and they're pooling their money to buy the Brooklyn Bridge)

Oops! Apparently I don't know what I'm talking about when I say I cannot imagine the Supreme Court not applying Blakely to the federal sentencing guidelines. Check out this post at Sentencing Law and Policy, where it is reported that

Various staff members of the U.S. Sentencing Commission now believe that it is most likely the Supreme Court will uphold the guidelines. Nevertheless, they are planning for legislative options in the event that the guidelines are struck down. Part of that planning will be based on a comprehensive and empirically rigorous 15-Year Review of the current guideline system. The review, prepared by the staff and now being considered for possible adoption by the commissioners, tries to identify the strong and weak points of the guidelines in carrying out the purposes of the 1984 Sentencing Reform Act.

Does this mean that these various staff members believe that the Court will not apply Blakely at all to the federal sentencing guidelines? Or does it mean they believe the Court will apply it but that they think the Court will come down the side of severability? What is the basis for believing the Court would not extend Blakely to the guidelines? I suspect that this is all wishful thinking, for it is hard for me to conceive that the Blakely majority would now backtrack. There are no principled grounds to do so, only pragmatic ones, and Blakely was anything but pragmatic. You just can't explain it away.