Bad Booker 'Fix'

by TChris

This is from an email alert sent out this morning by the National Association of Criminal Defense Lawyers:

A disastrous "Booker fix" is scheduled for hearing and markup this afternoon before the House Crime Subcommittee. The provision, sneaked into a drug sentencing bill (H.R. 1528), would effectively make the guidelines a system of mandatory minimum sentences. If this provision is enacted, there will be almost nothing left of judicial discretion in sentencing: it would eliminate virtually every basis ever relied on by a judge to depart downward. If it were to pass, the Supreme Court likely would find the new "Guidelines" would be subject to constitutional challenge on almost the same grounds as Booker, and, after another year or two of uncertainly, we likely would be right back to where we are today. Due to a complete lack of reasonable notice, the judiciary, practitioners, academics and other experts have been denied the opportunity for meaningful input.

More information is available from NACDL here, and analysis from sentencing expert Doug Berman is here and here. In this post, Prof. Berman asks the insightful question: "Is this Booker fix a symptom of the post-Schiavo attack on the judiciary?"

Tell your congressional representative: Just say no to bad sentencing laws.

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    Re: Bad Booker 'Fix' (none / 0) (#2)
    by roger on Tue Apr 12, 2005 at 01:45:31 PM EST
    narlus, I speak to so many people like you, after their kid gets arrested............

    Re: Bad Booker 'Fix' (none / 0) (#3)
    by Talkleft Visitor on Tue Apr 12, 2005 at 01:48:33 PM EST
    This message is for Narius. Those criminals you are referring to, have families. It has nothing to do attorneys makimg a living. It's about human beings, some of which have made mistakes and have learned from their mistakes. By the way, I am not an attorney. Before contacting your congressman, take the time and think about it. The shoe could have been on the other foot. Whether you or a family member.

    Re: Bad Booker 'Fix' (none / 0) (#4)
    by Talkleft Visitor on Tue Apr 12, 2005 at 02:48:16 PM EST
    When I read an ad hominem comment like that it's all too easy to respond in kind, especially since this comment from "Narius", can't be coming from someone that is in any way familiar with what is being discussed. Maybe it's a sendup. But, for what it's worth, Narius, the objectionable thing about the fix is not that us terrible lawyers want criminals loose about the countryside but that the people closest to the dilema - Judges, Juries, Prosecutors, and, yes, even Defense lawyers - have some actual input into the sentencing. Right now all porportionality has been taken out of the mix. Rather than being characterized by the concept of a blind-folded justice weighing all sides and attempting to mete out a fair sentence, federal court has become more like having a butcher with ten thumbs on the scale of justice. Thirty years ago the concept that a legislative central body could micro-manage the courts by fashioning a uniform system of sentencing that centered primarily on retribution and compliance and made no allowance for the individual and his or her needs would have been called Stalinist, or at the very least would have been thought too draconian. No less a liberal body than the United States Supreme Court ruled that the way it was being done was wrong. Rather than address it, there are some who want to make it "right" without addressing the legitimate concerns that yielded Booker/Fanfan.

    Re: Bad Booker 'Fix' (none / 0) (#5)
    by Talkleft Visitor on Tue Apr 12, 2005 at 03:00:21 PM EST
    I wonder what the definition of "criminal" is to people like narius. People that go over the speed limit maybe? Hey maybe they should be locked up and not fined because only defense attorneys think less prison time is a good thing right? Perhaps he thinks everyone that does not think like he does should be a criminal and locked up.

    Re: Bad Booker 'Fix' (none / 0) (#7)
    by David in NY on Wed Apr 13, 2005 at 06:33:45 AM EST
    Narius, Your failure is that you think that you or some legislator, knowing only generically what kind of crime a person has committed, can know what the appropriate sentence is. Indeed, the hubris of your view is shown by its implicit assumption that sentences should always be higher. But this is simply not so; sometimes a sentence should be lower. That is, a speeder should not necessarily go to jail (although jail is the higher penalty), a first time drug offender should not necessarily go to jail (although that would be the higher penalty), a mother whose children will become wards of the state should not necessarily go to jail (although that would be the higher penalty), and many criminals should receive lower punishments than other criminals. Neither you nor our fine legislators are in a position to decide, without knowing all the facts of a case, which crime and which criminals inevitably deserve a higher penalty. Judges are in that position, and there is good reason to give them the discretion to determine what a sentence should be -- both in an upward and downward direction. This is not a dispute about high or low sentences, it is a dispute about justice. Sometimes you are right -- a relatively higher sentence is just. But sometimes a lower sentence is just. And you, sitting at your keyboard, and Congressmen, sitting in their offices, are in no position to know which cases are which, based simply on a broad legal definition of the crime. That broad definition covers a multitude of circumstances by a multitude of offenders, some more culpable than others. Somebody has to sort out the different cases, and that somebody is a judge, not a legislator.

    Re: Bad Booker 'Fix' (none / 0) (#8)
    by Talkleft Visitor on Mon Apr 18, 2005 at 06:00:35 PM EST
    Numb is what you are when you see a crime as something more than a crime. For the lawyer types on this page of wonder and those that think the same, go commit a crime. Not speeding or double-parking and leave the prostitutes alone as well. Rather commit a big CRIME sell some drugs on the street or maybe to your own children or someone in your family. Maybe this is not enough so think about this go murder someone make your choice and do it. Ha you laugh at me and say I am not dumb enough for that and you may say it is wrong to commit a criminal act. Well right you are and I am sure that the criminals who are doing such things know this just as you do. Sometimes people think they are doing the right things by well letís say a lighter sentence for a drug dealer. But why dose he deserve a light sentence? Do you know if the drug he sold little Johnny down the street two days ago was good stuff or did Johnny's mother fall to her knees because her son died on this junk. No you don't know and neither dose the JUDGE nor the ATTERNEY thank you very much. A crime is a crime and it is wrong, to many people get off for things they should be hung for. Murder is one of them but this is a different monster all together. I agree with Narius, I think the government just decided that enough was enough and to fight this WAR on DRUGS we need some stick guidelines to follow because someone is not doing their job to many times over.