by TChris

Those who have followed the Booker case know that the Supreme Court made the federal sentencing guidelines advisory, freeing federal judges to impose sentences that are less (or, unfortunately, more) harsh than the guidelines formerly required. (Those who haven’t followed the case can catch up here.)

The Court’s decision will benefit some defendants, but – you heard it here first – it didn’t benefit Booker, who was resentenced today to a term of 30 years, the same sentence that the district court originally imposed. Booker’s counsel, who happens to be writing this, was disappointed, to say the least.

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.

Law review articles about the Supreme Court's Blakely and Booker decisions are sprouting like wildfire. Law Prof Doug Berman at Sentencing Law and Policy has a roundup.

But, there's also good advice out there for practitioners and clients. Federal post-conviction expert Alan Ellis has just published this guide (pdf), which we agreed to host on TalkLeft.

NACDL has a new article today, Booker Advisory: Into The Breyer Patch, available free to all.

There are also seminars around the country. TChris, our contributing blogger, who was counsel for Booker and who argued the case in the Supreme Court, is on the road a lot these days, speaking at CLE seminars and providing tactical advice. The AFDA is held this seminar in Los Angeles last week. Check out the agenda portion at the bottom for a good description of what's at stake.

One of the big issues with applying the Supreme Court's opinion in Booker and FanFan is whether it is retroactive and applies to cases that are no longer on direct appeal or review. Today the Sixth Circuit joins the Seventh Circuit in ruling that the decision is not retroactive. The case is Humphress v. United States and you can read the opinion here (pdf).

In a supplemental brief, Humphress argues that his sentence was increased on the basis of facts found by the sentencing court, in violation of Blakely v. Washington, 124 S. Ct. 2531 (2004). Because the Supreme Court’s intervening decision in United States v. Booker, 125 S. Ct. 738 (2005), which now governs Humphress’s Blakely claim, does not apply retroactively to cases already final on direct review and because there is no reasonable probability that, but for his counsel’s allegedly deficient performance, Humphress would have pled guilty, we will AFFIRM the district court’s denial of the § 2255 motion.

Law Prof Doug Berman of Sentencing Law and Policy adds some analysis.

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:

The Baltimore Sun reports that the Supreme Court's decision in Booker and Fan Fan invalidating the federal sentencing guidelines but making them advisory is causing confusion among the nation's judges.

Congress is keeping a close tab on judge's post-Booker sentencings--if in its view, too many judges are using the decision to sentence below the guidelines, watch out. Congress will step in with a legislative fix.

In Congress and at the Justice Department, officials are watching for overly lenient judges. At a hearing last week, the House judiciary panel began laying the groundwork for possible legislative action to restore a stricter framework for federal sentences.

In the last post I wrote about today's Congressional hearing on Booker and FanFan and possible fixes to the sentencing guidelines. I also mentioned that next week the U.S. Sentencing Commission will hold a similar hearing and Law Prof Doug Berman of Sentencing Law and Policy will be a witness (pdf).

That got me thinking about the time I was a witness at a Sentencing Commission hearing--in August, 1996--and how much I complained about both the federal sentencing statutes and guidelines. Here is the hearing transcript , my testimony begins at page 60. I told the Commission that our federal sentencing system had become "morally bankrupt." And I submitted a legislative fix--greeted favorably by one Commissioner. The chances of my being asked to speak today, in the Bush era, or speaking that boldly again: probably nil. Here's some of what I said (this is the oral testimony, not the prepared statement, with a few grammatical cleanups.)

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."

Topics of Discussion:

• 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:

In light of Booker and FanFan, the Supreme Court has sent 400 cases back for resentencing. These are cases that had requested relief similar to that requested by Booker and FanFan, but rather than decide them, the High Court sends them back to the lower courts to resentence in light of the new decision.

Another new Booker article by Timothy Lynch of the Independence Institute appears at Legal Times (subscription only), but you can read it for free, with their permission, here.

A short reference in the Booker opinion references Congress' 2003 Feeney Amendment that increased many criminal sentences under the Federal guidelines. Dan Christianson in the Daily Business Review analyzes that portion of the opinion and concludes that the Feeney Amendment's changes are dead.

The Feeney Amendment's demise is spelled out in a little-noticed part of the high court's Jan. 12 decisions in U.S. v Freddie J. Booker and U.S. v. Ducan Fanfan.

In the words of Justice Stephen G. Breyer, who wrote the majority opinion making the guidelines advisory, the 2003 amendment to the Protect Act... had made guidelines sentencing "even more mandatory" than it was before. Therefore, with the Court's decision that the guidelines violated defendants' Sixth Amendment right to trial by jury, the Feeney Amendment had "ceased to be relevant," Breyer said.

Christianson notes that the Feeney Amendment may have contributed to the Supreme Court's decision in Booker:

Nora Callahan, writing for Narco News, presents a layman's view of Booker as it pertains to drug sentences and says that most drug offenders will be left behind:

According to the Supreme Court, the new ruling can only be applied from this day forth, aside from prisoners still on direct appeal, and brings us to the 'left-behind.'.... today, in a federal prison near you, there are old-law prisoners (sentenced before 1984), and old, new-law prisoners (people sentenced between 1984-2004 approximate), and brand new, new-law prisoners (after 2004 - post Booker).

The 'left behind' in this series isn't best selling Christian fiction, but real people, imprisoned unfairly via US Sentencing Guidelines pre-Booker case. Most in federal prison will not experience any rapture with the notion there is a fissure in the cracks of the foundation of the war on drugs. They want to come home. Many feel personally responsible for the new movement to end injustice, but most will gain no reward for their hard work.

It really is unconscionable that Booker is not retroactive. [Via Libby at Last One Speaks.]

by TChris

Many fear that Congress will react to the Supreme Court's Booker decision by enacting new sentencing legislation that will further restrict a judge's ability to tailor a sentence to the unique circumstances of each case. Fortunately, commentators are asking Congress to take a deep breath before enacting draconian measures that might include even harsher mandatory minimum sentences. Joining that chorus of voices is federal district Judge Myron Thompson, who urges Congress to resist the temptation to legislate a "harsh and unforgiving legal system."

[W]e 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.

As Judge Thompson wisely reminds us, "punishment cannot be reduced to an algorithm."