Why Congress should go slow, and what the USSC should say

In the Potent Quotables assembled here, US District Judge Charles Kornmann astutely suggests that “Congress should give [advisory guidelines] a chance. If it doesn’t work, if they find that judges are going off the map, then [Congress] can always revisit it.”  This sentiment perfectly channels why I have been urging that everyone take a deep breath in response to Booker, especially Congress. 

Congress will always have the power to modify the federal sentencing system at any time in the future.  Until we have some opportunity to assess and analyze what Booker really means for the judges and lawyers working “on the ground,” it will be very hard for Congress to be confident that any immediate legislative “fix” will make the federal system better than what Booker has now created.

Moreover, as I stressed in my testimony in November to the US Sentencing Commission, I fear that any major structural modification of the guidelines by Congress in the coming weeks “risks sowing greater confusion and uncertainty — and lots and lots of litigation — about applicable federal sentencing laws and practices.” I am particularly concerned about ex post facto litigation headaches if “the Bowman fix” (aka topless guidelines) or mandatory minimum sentencing provisions are enacted and seek to be immediately applied.

For these reasons and others, I highly encourage the US Sentencing Commission to stress to Congress that any quick fixes risk making a confused and uncertain federal sentencing world even more confused and uncertain. (And, as we saw in the post-Blakely, pre-Booker period, confusion and uncertainty may undermine the goals of sentencing reform more than any particular set of sentencing rules.)

In addition, I encourage the USSC to pick a date certain — perhaps June 24, 2005, the one-year anniversary of the Blakely decision — and tell Congress that it will produce a report with data analysis and legislative recommendations for moving the federal sentencing system forward.  Through such a report, the USSC can assess what has happened post-Blakely, what will happen post-Booker, and combine critical data with all the USSC has learned from its recently produced 15-year report, a report which should play a central role in any discussion of possible legislative responses to Booker. (The full USSC report can be accessed here, its executive summary can be accessed here, and my summary of the executive summary is here.)