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