Friday, January 14, 2005

Through the Booker Looking Glass

Judge Cassell, from out in Utah, who was one of the first district court judges to write a major opinion on Blakely and the Sentencing Guidelines, is first again with a major opinion applying the new dictates of Booker. Cassell, of course, had been applying "advisory" Guidelines for several months and was probably in a perfect position to be first to the punch on this issue. Unfortunately, his very thorough opinion makes me fear that all the promise of Blakely that dangled in the air for six-plus months has vanished into the either. Cassell's approach is that the sentences produced by the Guidelines are inherently appropriate, taking into account all the factors judges can now consider under Booker. Deviations from the Guidelines will be possible only in very rare cases. More rare than the old-fashioned departures? Who knows. And does this all sound a whole lot like the mandatory Guideline system that the Supreme Court says is a no-no? It depends on what the Circuit Court does with it.

The underlying logic of Cassell's opinion is that individual judges are not really capable of adequately evaluating all the appropriate factors because of their limited factfinding. The Sentencing Commission, and, to a lesser extent, Congress, on the other hand is in the position to gather facts from many sources and make policy judgments accordingly. I'll be interesting to see if other district judges take serious umbrage with that analysis. Cassell was not on the bench in the pre-Guidelines era and thus has no experience (that I am aware of) of weighing individual cases and imposing sentence. Maybe (hopefully) some older judges, eager to regain some of the power they had pre-1987, will be more flexible.

So, after three days of reading, rereading, and pounding my head on my desk, I still think that Booker is, on the whole, a bad decision for defendants (even though it was used today in the SDWV to give a small benefit to an elderly defendant who is on death's door). And, with due respect to Prof Berman, the whole situation brings to mind not The Who's "Won't Get Fooled Again" (although that's appropriate), but Fish's "Vigil," from the Scotsman's first solo album:

If there's somebody up there
Could they throw me down a line?
Just a little helping hand just a little understanding
Just some answers to the questions that surround me now.
If there's somebody up there
Could they throw me down a line?
Just a little guiding light to tell wrong from right
Just some answers to the questions that I'm asking you
I keep a vigil in a wilderness of mirrors
Where nothing here is ever what it seems
You stand so close but you never understand it
For all that we see is not what it seems, am I blind?


You're reaching out, you're so close you can touch it
But it all disappears when it's always so near.

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