Good start USSC, while DOJ promotes guidelines

In an impressive contrast to its long silence following Blakely, the US Sentencing Commission is continuing its recent tendency to take a more proactive and visible role in charting the future of federal sentencing (as it should). The day after Booker, USSC Chair Judge Hinojosa released this official statement, which highlights the work the USSC has already done in the wake of Blakely and stresses that the “U.S. Sentencing Commission is in a unique position to continue to assist all three branches of government during this period of transition.”

Though Judge Hinojosa’s statement many not seem all that substantive, the message in the statement is extremely important and could help Congress understand that it should take a breather and allow the USSC, a uniquely positioned and uniquely important agency, to be primarily responsible for starting to sort out the post-Booker world. I hope the USSC will continue to act boldly and seek to lead during this period of such uncertainty.

Of course, as Ron Wright and I and commentators note here, how Congress and Justice Department are sizing up Booker and its aftermath is a subject worthy of great debate. And, as I noted, DOJ’s perspective may be, practically speaking, the most important to track. On this point, here is a link to Assistant AG Chris Wray’s official DOJ response to Booker delivered on Wednesday immediately after the decision. One key section states:

[I]t is important to note that in spite of this ruling, federal sentencing guidelines remain a critical part of the process to achieve justice. District courts are still required to consult the federal sentencing guidelines, and any sentence may be appealed by either defense counsel or prosecutors on the grounds that it is unreasonable. To the extent that the guidelines are now advisory, however, the risk increases that sentences across the country will become wildly inconsistent.

Because of what Booker says (and also fails to say), I suspect there are divisions of opinion and uncertainties in all three branches in the wake of the decision. The fact in turn makes the USSC’s work and leadership that much more important going forward. I am pleased with the USSC’s start, but the really hard work lies ahead.