Booker, FanFan 1-2-3

Law Prof Doug Berman of Sentencing Law and Policy makes it sound so easy....Just back from a week in Washington attending hearings where he testified before the Sentencing Commission, he writes:

...Many Commissioners and witnesses at the USSC hearings (basics here) expressed the view that judges at sentencing must now

  • (1) calculate an applicable guideline range, and then
  • (2) make traditional departure determinations under the guidelines, and then
  • (3) decide whether to follow or vary from the (now advisory) guidelines based on the 3553(a) factors.

But, Prof. Berman says, beware:

And yet, I suspect it is going to be dangerously easy for courts and counsel to collapse the departure and variance considerations (steps 2 and 3 above), especially in cases where a traditional departure is plausible but unlikely. I fear particularly in cases of "discouraged" considerations such as prior good works or family circumstances, judges and counsel will not be inclined to go through the hard doctrinal work of deciding whether a case is sufficiently exceptional to justify a departure and will principally focus on variance arguments based on the 3553(a) factors.

Some advice for defense counsel:

Though it might seem sensible to always first pitch for a departure, and then seek a variance as a fall-back position, counsel might risk losing credibility or placing emphasis on less helpful factors by putting greater focus on a departure claim than a variance claim.

And, great news. Michael Levine's 88 Easy Departures (one of my all- time favorites) has now been updated to 108 Easy Mitigating Factors and is available for download here.

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    Re: Booker, FanFan 1-2-3 (none / 0) (#1)
    by Talkleft Visitor on Fri Feb 18, 2005 at 02:06:21 PM EST
    How about looking at Innocent\guilty or something like justice and what about this old idea of "evidence" or would that put our system into crisis? hey you maybe next.