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."

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.

Martha Stewart indeed is becoming a prisoner's rights advocate. Welcome, Martha.

Following the Supreme Court's decision in Booker last week, Martha sent an e-mail to Wall St. Journal reporter Laurie Cohen. (subscription only.) The gist: Martha thinks the decision will result in many inmates becoming severely depressed. So many had high hopes for Booker...thinking if the guidelines were thrown out, they would get shorter sentences. Particularly in federal camps like Alderson, where Martha is, most of the prisoners are first time, non-violent offenders. Some are serving long sentences, due to the guidelines.

by TChris

In the brave new world of federal sentencing post-Booker, a judge's discretion to impose the sentence the judge deems "just" has expanded. While years may pass as courts struggle to define the limits of that expansion, individual defendants may benefit or suffer as a result of the broadened authority that judges will wield.

Judges who want to sentence more harshly than the guidelines would permit may now have that power. Judges sometimes comment at sentencing that they would exceed the guidelines if they could: now they may have that chance. Judges are constrained by an appellate court's review of the "reasonableness" of the sentence, but the degree of deference owed to judges who exceed the guidelines is likely to be hotly contested, and may provoke disagreement among the circuits.

On the other hand, judges who oppose the unjustly harsh sentences that the guidelines often mandate seem to have a new opportunity to tailor sentences to the unique circumstances of each case. The limits of discretion are again unclear, and the Justice Department complains that this discretion will lead to varying sentences for similar crimes. We can hope that judges will agree with this editorial:

A foolish uniformity isn't fair. Yet that is what the guidelines had been producing. And that is why a federal judge in New York resigned in protest in 2003, calling the guidelines "unnecessarily cruel and rigid."

And we can join this editorial in urging Congress not react to Booker with its usual "tough-on-crime chest-thumping" by enacting more mandatory minimums. (Other editorials striking the same note: here and here and here.)

U.S. District Court Judge Paul Cassell has rushed to press with the first post-Booker decision and it's awful. You can read it here. As one lawyer e-mailed us, "Read it and Weep. The radical right has been planning for this." Two paragraphs in Cassell's opinion tell the story:

To be sure, reasonable minds may differ about whether the Guidelines are the best standard against which to measure the fairness of sentences. It is no secret that some judges believe sentences are too harsh, although the degree of judicial dissatisfaction with the Guidelines is easy to overstate.81 The fundamental fact remains, however, that the Guidelines are the only standard available to all judges around the country today. For that reason alone, the Guidelines should be followed in all but the most exceptional cases.

For all these reasons, the court concludes that in exercising its discretion in imposing sentences, the court will give heavy weight to the recommended Guidelines sentence in determining what sentence is appropriate. The court, in the exercise of its discretion, will only deviate from those Guidelines in unusual cases for clearly identified and persuasive reasons. This is the only course that implements the congressionally-mandated purposes behind imposing criminal sentences.”

The U.S. Sentencing Commission has issued this statement on yesterday's Supreme Court decision in Booker and FanFan.

Also, Maine Criminal Justice Act Counsel David Benneman has some practical thoughts on the decisions that he has allowed us to disseminate. [link fixed now.]