U.S. District Court Judge Myron Thompson of Alabama has an op-ed in the New York Times, Sentencing and Sensibility on the recent Booker and FanFan decisions.
... amid the confusion that will undoubtedly follow this decision, we should keep in mind one basic principle: neither consistency nor codification guarantees justice. While few if any are calling for a return to the practically unfettered discretion that judges had before the sentencing guidelines came into effect, the nuances of individual cases necessitate a certain fluidity in imposing punishment. Congress should seek to shape judicial discretion, not to lock it in a vise.
A sentencing scheme that provides different punishments for offenders with similar backgrounds who are convicted of similar crimes under similar circumstances is clearly unjust. Yet so is one that provides comparable punishments for offenders with different backgrounds who are convicted of similar crimes under different circumstances.
Ultimately, it is the trial judge who is in the best position to distinguish between these two sets of circumstances, although Congress's guidance is critical in ensuring that one standard of justice exists throughout the federal court system. It is the judge who can appreciate the full complexity of the offender and his crime, and no prescriptive set of laws can appreciate the subtleties in determining the punishment that justice demands. If the 600-plus pages of the most recent set of sentencing guidelines have taught us anything, it is that punishment cannot be reduced to an algorithm.
Congress should avoid quick fixes that will cement the federal sentencing system as one that is synonymous with a " harsh and unforgiving legal system."
CrimProf Blog informs that the ABA is holding a teleconference on Booker and FanFan next week. Ed Lazarus in Findlaw has an op-ed taking the postition that the decisions will have a "limited practical effect."
Law Prof Doug Berman of Sentencing Law and Policy examines whether the decisions affect the Feeney Amendment's mandatory sentences for child and sex offenses.
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