A judicious judicial “amicus”

I know I am biased, but it seems that judges who used to be law professors do the most amazing sentencing work these days. (Realize that many authors of some of the most interesting and important Blakely decisions — including Judges Cassell, Easterbrook, Gertner, Posner, Sutton, Wilkinson (and, of course, Justices Scalia and Breyer) — once did or still do teach at a law school. And this list likely overlooks some other great judges/professors who have written on Blakely.)

Continuing this trend, former Columbia Law Professor Gerard Lynch, who was a an intellectual leader in the field of sentencing even before becoming a judge, has followed up his work in US v. Emmenegger (available here with commentary here), with what is another humdinger in US v. Jackson, 2004 U.S. Dist. LEXIS 19219 (Sept. 22, 2004).

Judge Lynch’s analysis and commentary in Jackson is too sophisticated and nuanced to briefly summarize here. But through the quotes below, readers should get a sense of why Jackson is a must read. Indeed, as suggested by the title of this post and revealed in the following snippets, Jackson really serves as yet another “amicus brief” for the Supreme Court as it tries to sort through all the issues it faces in Booker and Fanfan:

This case presents sentencing issues that demonstrate the occasional complexity of the federal Sentencing Guidelines. Although the intricacies of the guideline application here are interesting and significant in themselves, the case also illustrates aspects of the Guidelines that are of crucial relevance to both the constitutional questions currently under consideration by the Supreme Court, and to questions of sentencing policy that should be of concern to the Commission and the Congress….

The guideline calculation in this case illustrates both the complexity of the system that follows from its excessive detail and the constitutional awkwardness of at least certain provisions of the Guidelines that require sentencing judges in effect to declare defendants guilty of crimes of which they have not been convicted by a jury. At the same time, the case illustrates why simplistic analysis of “the constitutionality of the Guidelines in light of Blakely,” which purports to find the entire system unconstitutional, radically oversimplifies a complicated and diverse sentencing system which in many of its aspects presents no constitutional difficulties at all.
Jackson is noteworthy in part because, as Judge Lynch explains, the applicable guideline “apparently requires the Court to consider whether he is guilty of the far more serious offense of attempted first-degree murder, an offense with which he has never been charged, let alone convicted by a jury.” It is also noteworthy because it highlights the operation and availability of upward departures in a way which shows that such departures may be a key mechanism for avoiding “sentencing windfalls” (as suggested here).