Congress' Reaction to Booker and FanFan

If you want to read more about the Booker and FanFan decisions, Howard Bashman of How Appealing has this group of links to a large number of news articles from around the country. For analysis, I recommend Law Prof Doug Berman at Sentencing Law and Policy.

TalkLeft's advice to members of Congress in the wake of yesterday's Booker and FanFan decisons....go slow. As NACDL President Barry Scheck said:

For 20 years, federal courts have been forced to impose unjust, irrational sentences based on unproven allegations, speculative calculations and the worst kinds of hearsay. Congress should welcome this opportunity to create a fair and just federal sentencing system, not a quick fix.

Will they heed it? As we wrote here, Congress may have legislation creating mandatory minimums for every federal offense waiting in the wings. This Philadelphia Inquirer columnist reported in December:

The worry of many is not what judges would do if the guidelines were invalidated, but the reaction of an increasingly conservative Congress.

Here's the scenario: Seeing its two-decade-old attempt to impose national consistency on criminal sentences dispatched by - yes - activist judges, Congress rewrites the criminal code with specific, mandatory prison terms for every offense.

If it sounds far-fetched, a lot of lawyers are not laughing. "Word is that some members [of Congress] already have the bills drafted," said a Philadelphia defense lawyer about a rewriting of the criminal code.

The fear is not unwarranted.

Having practiced for more than a decade in federal court pre-guidelines, and post-guidelines since their enactment, I personally would have liked to see them scrapped. I think yesterday's decision was a cop-out. Plus, I like the old way better where a judge pretty much had unfettered discretion as to the factors that could be considered in sentencing defendants.

The argument that the Guidelines reduced disparity in sentences is a myth, particularly in drug cases. The Guidelines give too much discretion to prosecutors. Through their charging decisions, prosecutors can determine the outcome of a sentence and there's little the judge or defendant can do. Plus, there has been tremendous disparity around the country in how much of a cooperation reduction the government gives --some jurisdictions will give 50% and some 20%. Where's the fairness there? In fact, where is the fairness at all in a sentencing system that allows for a cooperation reduction only at the request of a prosecutor and only if in his or her sole discretion the information obtained from the cooperating defendant was valuable in the investigation or prosecution of someone else?

The relevant conduct determination under the guidelines is another glaring example of how the sentencing guidelines give too much power to the prosecutor and result in disparity. Not to mention that the quest for downward departures evolved into a game of creative lawyering. I could go on and on, but I have a federal sentencing tomorrow and I'm off to prepare for that.

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    Re: Congress' Reaction to Booker and FanFan (none / 0) (#1)
    by Talkleft Visitor on Thu Jan 13, 2005 at 02:13:08 PM EST
    I haven't yet had a chance to digest the 124 pages. But maybe we can start arguing that some of the mandatory state guidelines are no longer mandatory in light of these cases??? I'm prepping for a nasty trial right now, but I'll post again when I actually get some time to read Booker and FanFan. Any thoughts from my colleagues who may be figuring where this figure into dealing with ridiculous state sentencing guidelines?