A loud deafening silence from the Sentencing Commission

In our Legal Affairs debate last week, Frank Bowman lamented that the Sentencing Commission has been disconcertingly passive in its response to Booker:

One of the most puzzling features of the post-Booker landscape is the absence of the Commission as anything other than a gatherer of data.  The Commission has the time, the expertise, the data, and (one would think) the motivation to take a leading role in molding thinking about where we should go from here.  But the silence from the second floor of the Thurgood Marshall Building has been deafening.

This deafening post-Booker silence has now been broken by a loud rendition of the same old song.  Just released on the USSC’s webpage is a “reader-friendly” version of the USSC’s Proposed 2006 Guideline Amendments, which provides a compilation of the “unofficial text of proposed amendments to the sentencing guidelines … for the convenience of the user in the preparation of public comment.” 

The USSC’s 88-page document with proposed amendments, which I’ve only had a chance to skim, is a remarkable testament to the USSC’s remarkable disengagement with post-Booker federal sentencing realities.  Stunningly, the 88-page discussion of new proposed amendments does not even once mention the Booker ruling(!), let alone speak to how guideline sentencing could or should develop in Booker‘s wake.  Critical post-Booker “hot spots” like the crack guidelines or acquitted conduct or fast-track disparities are not addressed in any way.  Moreover, continuing the disconcerting severity patterns of the past, it appears that nearly every significant new amendment put forth by the USSC proposes an increase in applicable guideline ranges.   Aaaarrrrggggghhhhh!

Let me start the public comment period with this simple recommendation: The Sentencing Commission should acknowledge the Booker decision somewhere in the Guidelines Manual! 

Perhaps the new amendments are not as Booker oblivious as they seem, and I suppose I should understand why the USSC continues to run scared and apparently believes that avoiding any discussion of Booker is the best course of action.  But for the USSC to proceed with “business as usual” guideline amendment without even mentioning Booker strike me as almost a dereliction in duty.   Moreover, seeing the USSC try to stage our modern guidelines Hamlet without the Booker Prince makes me extremely pessimistic about the future script for the federal sentencing system.