Booker Aftermath

by TChris

In the brave new world of federal sentencing post-Booker, a judge's discretion to impose the sentence the judge deems "just" has expanded. While years may pass as courts struggle to define the limits of that expansion, individual defendants may benefit or suffer as a result of the broadened authority that judges will wield.

Judges who want to sentence more harshly than the guidelines would permit may now have that power. Judges sometimes comment at sentencing that they would exceed the guidelines if they could: now they may have that chance. Judges are constrained by an appellate court's review of the "reasonableness" of the sentence, but the degree of deference owed to judges who exceed the guidelines is likely to be hotly contested, and may provoke disagreement among the circuits.

On the other hand, judges who oppose the unjustly harsh sentences that the guidelines often mandate seem to have a new opportunity to tailor sentences to the unique circumstances of each case. The limits of discretion are again unclear, and the Justice Department complains that this discretion will lead to varying sentences for similar crimes. We can hope that judges will agree with this editorial:

A foolish uniformity isn't fair. Yet that is what the guidelines had been producing. And that is why a federal judge in New York resigned in protest in 2003, calling the guidelines "unnecessarily cruel and rigid."

And we can join this editorial in urging Congress not react to Booker with its usual "tough-on-crime chest-thumping" by enacting more mandatory minimums. (Other editorials striking the same note: here and here and here.)

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    Re: Booker Aftermath (none / 0) (#1)
    by wg on Sun Jan 16, 2005 at 06:27:19 PM EST
    noble sentiments but I'm unsure how realistic they are. Look, few were happy with the system 20 years ago, in fact majority judged it so unfair we all insisted on implementing corrections. They came with sentencing guidelines and mandatory minima. 20 years later the situation is worse, the government obtained unheard of powers and exercises them aggressively through its zealously vicious and willing to play dirty prosecutorial apparatus. We do not have right to jury trials effectively anymore under present system. Your fate is now in hands of federal prosecutors. The judges were reined in somewhat but great many of then felt so humiliated by their perceived fall from power they routinely take it out on poor citizenry in front of them. Prisons are as inhumane, brutal as ever and are overflowing. Nobody but those who derive their lifehoods from it are happy with it 20 years later. Admit the system (courts, prisons, etc) as it exists presently is starting to resemble that Dickensian monstrosity that was choking England long time ago. Inhumane, unfair, cruel, and as arrogant as ever. Booker doesn't solve anything. In fact nobody knows what it means and everybody is watching nervously how it will evolve. Expectations are low, just back to old unrestrained judicial arrogance seriously aggravated this time by draconian penal codes courtesy of Congress and made doubly inhumane by the current state of prosecutorial apparatus. Berman says it will be fun to watch. Fun maybe to his side but those fellow citizens of his that have to spend one day in those brutal prisons of ours unfairly, this is far from funny. People tend to forget that this systems deals with human lives, not inanimate objects. The problem appears structural, repeated attempts to come with something sensible in past 200 years produced nothing, it is almost certain next 200 years will solve equally nothing. This is at the time when continental systems enjoy unprecedented degree of stability, take Scandinavian systems for example, everybody (society, professions, defendants) think they are fair, equitable and just. Few complains from anybody last 50 years or so. You honesty cannot say that in this country. Time again to learn from Europe. Franklin went to France to learn something about human rights and democracy. Their concepts of civil rights and democracy engendered ours. Time again to repeat that exercise. The chances that this prosecutorial/judicial/prison ship of ours will right itself, Congress or not, is frankly speaking zero.