Hearing on Booker and FanFan Thursday
It's a busy day Thursday at the House Judiciary Committee. In addition to the Immigration subcommittee taking up the Real ID Act, the Subcommittee on Crime, Terrorism, and Homeland Security will hold an oversight hearing on "The Implications of the Booker/Fanfan Decisions for the Federal Sentencing Guidelines."
- What is the likely impact of the Booker decision to the federal criminal justice system?
- How will federal judges exercise their discretion to ensure consistency and fairness?
- Is legislation needed?
- How would such changes impact public safety?
- What role, if any, should the United States Sentencing Commission continue to play in promulgating “advisory” sentencing guidelines?
This could be dangerous. We do not need new legislation at this time. We need to see how judges exercise their new discretion before we take it away. Of course, the Justice Department would like to make every crime have a mandatory minimum. We have to stop that from happening. Here's tomorrow's witness list:
Hon. Christopher A. Wray, Assistant Attorney General, Criminal Division, U.S. Dept. of Justice; Hon. Ricardo H. Hinojosa, United States District Judge, Chairman, United States Sentencing Commission; Mr. Daniel P. Collins, Partner, Munger, Tolles & Olsen; and Professor Frank O. Bowman III, Indiana University School of Law.
Beware of Bowman and his proposed fix, one he testified to Congress about at the July hearing:
Assuming that one is unwilling to confer increased sentencing discretion on judges, even for a short and experimental period, I believe that the Guidelines structure can be preserved essentially unchanged with a simple modification – amend the sentencing ranges on the Chapter 5 Sentencing Table to increase the top of each guideline range to the statutory maximum of the offense(s) of conviction.
Under Bowman's proposal, offenses with a ten year statutory maximum that currently have a guideline range of 12-18 months would have a range of 12 - 120 months.
Ron Weich, with whom I almost always agree, testified at the July hearing as well. He said of Bowman's proposal:
I consider the Bowman proposal to be ingenious but imbalanced. In effect it is a half-advisory system. .... Such a system transforms the guidelines into a web of “soft” minimum sentences, preferable to mandatory minimums of course but lacking the corresponding protection against unjustifiably lengthy sentences.
Sentencing Commission Chair (Hon.) Ricardo H. Hinojosa's prepared testimony for tomorrow is here. It seems like he opposes the Bowman proposal, or any legislative fix now, as well. He has some early post-Booker sentencing stats to back him up:
This very early preliminary data since Booker seems to indicate that courts are sentencing pursuant to the Federal Sentencing Guidelines in the overwhelming majority of cases. Only 7.8 percent of the cases appear to be sentenced below, and only 1.3 percent appeal to be sentenced above, the applicable guideline sentencing range based upon sentencing authority established in Booker. Therefore, courts sentenced pursuant to the Federal Sentencing Guidelines system as a whole, including upward and downward departure policy statements contained in the Guidelines Manual, in 90.9 percent of the cases analyzed for this period.
Prosecutors, of course, like the Bowman fix.
As always, Law Prof Doug Berman of Sentencing Law and Policy has more. He has been invited to speak on the cases at the Sentencing Commission hearing next week.
|< White House Backs 'Real ID Act' | Sentencing Guideline and Mandatory Minimum Fixes >|