Thursday, November 18, 2004

What's the Latest on Sentencing

As everyone awaits the post-Blakely decisions of Fanfan and Booker, the DOJ has decided to start its campaign to fight back with legislation, just in case the decision is not to their liking.  In today's Wall Street Journal, in an article titled, "Justice Department Backs Bowman's Sentencing Reform," we see reporter Gary Fields reporting that the DOJ  supports a plan that "takes the top off the existing guideline ranges, replacing them with the legally prescribed maximum for the crime."  No one else seems to agree with DOJ, and hopefully Congress will also reject such a proposal. Some important testimony can be found at  fellow blogger Doug Berman's Nov. 15th site that has the  testimony of those who were scheduled to appear (and have now appeared) before the Commission.

What's wrong with this proposal for white collar cases?

1.  We will be missing the opportunity to reconsider sentencing with all players at the same table.  Lets get the prosecutors, judges, defense attorneys and sentencing experts to study the deficiencies of the present system and come up with something that works. (Check out my co-authored op-ed piece with Barry Scheck in the National Law Journal (7-26-04) titled, Proceed With Caution)

2. Do we really want draconian sentences for white collar offenders?  The prisons are full, costly, and will these sentences really serve as a deterrent of future white collar offenses?

3. We would be missing the opportunity of examining in more depth the Kennedy Commission Report that looks at sentencing alternatives for offenders who likely could benefit from rehabilitation.

4.  This sure looks like an attempt to circumvent the basic holding in Blakely, a decision authored by Justice Scalia (not exactly the liberal type).

5. Gosh, does the DOJ want to risk reversals of trial and appellate decisions when the Court sends the message home yet another time (Apprendi, Blakely, etc.) as to what is required by the Sixth Amendment?

Yes, I have an opinion, and could go on....But that is exactly why we should all slow down and carefully study the different proposals.  And after all, what's so bad about having juries decide whether a sentence should be enhanced?      (esp)

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