Booker Backlash

One of the fears of some in the defense community as we waited on Booker was that Congress would swiftly overreact to whatever the Court did by imposing a "solution" to the problem by severely jacking up sentences. Sadly, it appears that fear may come true, even without the big Booker victory many of us wanted. As The New York Times reports today, many GOP Congressmen are pissed off about Booker and are eager to correct this "disaster," as one of them put it. So I guess we should get now while the gettin' may be good, before Dubya and his pals screw the whole thing up.

After a second read of the opinion itself, I'm still fairly pessimistic about the outcome. Stevens's opinion really hits some high notes, particularly about how jury factfinding might not be the most expedient means of proceeding, but it protects valuable and long-held rights. Breyer's opinion, on the other hand, does all it can to squirm out from under the weight of that principle.

How Breyer gets from "Congress's goal was uniformity" to "therefore the Guidelines are advisory" makes sense to me in only one way. He was faced with basically two options that would serve separate goals. The option that really would provide some uniformity, Stevens's plan of grafting jury factfinding onto the Guidelines, would make it more difficult for the Government to jack up sentences (or at least it would make them work harder). The other option, the advisory scheme, does away with uniformity in order to maintain the "real conduct" system of the Guidelines. "Real conduct" is code for "relevant conduct," the system that allows a judge to consider all kinds of unproven information when imposing sentence. That makes it much easier to produce higher sentences. Sadly, it appears that a desire to maintain draconian sentences won out over some kind of uniformity and Sixth Amendment principle.