The brewing battle over the Bowman fix
As detailed by the media here and lamented already by some here and here, the testimony presented to the US Sentencing Commission by Christopher Wray, Assistant Attorney General, Criminal Division, US Department of Justice suggested that DOJ is growing to view the so-called Bowman fix (aka “topless guidelines”) as the best response if/when SCOTUS applies Blakely to the federal sentencing guidelines. (You can access the Wray testimony here, and get background on the Bowman fix here and here.) I should note that Wray repeatedly stressed to the USSC that he was just “describing and not endorsing” the Bowman proposal, but it seemed clear to everyone at the hearings that he was suggesting this was DOJ’s preferred response to Blakely.
However, as detailed in this prior post, there was far more support from other witnesses for simplified, Blakely-ized guidelines as a better response in the federal system. Interestingly, even Professor Frank Bowman stressed that he saw his “fix” as only a short-term solution and that he favored simplified, Blakely-ized guidelines as a better long-term fix. Likewise, Professors Bibas and Rosenzweig, the only other witnesses expressly endorsing the Bowman fix, both favored it only as a short-term solution and advocated simplified, Blakely-ized guidelines for the long-term. However, it appears that DOJ is favoring the Bowman fix (aka “topless guidelines”) as a long-term solution.
I will have a lot of comments in the coming days about the litigation headaches that I see inherent in the Bowman fix, but for now I can only spotlight the interesting tussle which might ensure if and when DOJ starts actively endorsing the Bowman fix, while other groups start actively pushing for simplified, Blakely-ized guidelines. One group favoring the simplified, Blakely-ized guidelines is the American Bar Association, and Jim Felman sent to me today a general statement of principles supporting the ABA’s approach. Similarly, Professor (and former Commissioner) Michael Goldsmith also endorsed simplified, Blakely-ized guidelines, and I can also provide below the outline of his proposal as well.