An early brief to SCOTUS, sort of
I have tomorrow circled on my calender because September 1 is the date that the Acting Solicitor General (and any amici in support of petitioners) must file briefs in Booker and Fanfan. I expect the brief from the SG’s office to be brilliant and pathbreaking, though whether it will be convincing to the Justices is the big question. Whatever the case, I hope to be able to share the SG’s brief (and also the USSC’s expected amicus brief) tomorrow afternoon.
In the meantime, Professor Frank Bowman has been kind enough to share with me his own brilliant and pathbreaking work in the form of an article which he has described as “his amicus brief” to the Supreme Court. The article, which can be downloaded below, is forthcoming in the American Criminal Law Review and is entitled “Train Wreck? Or Can the Federal Sentencing System Be Saved? A Plea for Rapid Reversal of Blakely v. Washington.”
Of course, readers of the blog should be familiar with Frank’s work through his insightful and noteworthy memoranda to the US Sentencing Commission soon after Blakely was handed down (available here and here). A summary of this latest effort can be accessed through the SSRN service here, though the entire article demands to be read to appreciate all of the nuances and metaphors in Frank’s work. Let me here share the provocative article’s evocative opening paragraph:
On June 24, 2004, five black-clad figures seized control of the Criminal Justice Express, crashed through warning barriers, flattened the Washington State Sentencing Guidelines, opened the throttle, and sent the train hurtling from the main line down the old rail spur where the Federal Sentencing Guidelines and the sentencing systems of numerous states lay tied helplessly to the tracks. Whereupon, the 2003 Term of Court being concluded, the justices twirled their collective mustachios, sent their robes off to the cleaners, and went on vacation. Two months on, as this Essay goes to press, the rest of us stand staring slack-jawed, some delighted and some aghast, at the disarray and paralysis in the locomotive’s wake and the impending carnage at the end of the line.