16/06: 100:1
Category: Courts
Posted by: A Waco Farmer
A good friend of the Bosque Boys, Baylor Law Professor Mark Osler, is on tour this week arguing before the 9th and 8th Circuit Courts (he argued before the 2nd two weeks ago). Although he is working in cahoots with the ACLU (he may even be a card-carrying member), we are nevertheless interested in Professor Osler's work and wish him well.
For some background on the case, which has to do with the old federal sentencing guidelines, which were deemed advisory rather than mandatory in the Booker case (January 2005), please see Douglas Berman's blog, Sentencing Law and Policy and, specifically, this round-up on Booker from the time of the decision.
The reassessment of Booker left open for reconsideration the statutory practice of sentencing crack cocaine possession at a ratio of 100:1 (100 times harsher) than powder cocaine possession. Among the multiple reasons why that ratio came into being, Professor Osler argues that race figured (and continues to figure) prominently.
For breaking news and background, again I recommend Berman's website: this post from Wednesday and the previous post from Tuesday and a whole host of links connected to those posts.
Good luck, Professor Osler. We are hoping that you will sit down at some point this summer and reflect on your experiences with these three circuit courts and share them with the Bosque Boys Community.
For some background on the case, which has to do with the old federal sentencing guidelines, which were deemed advisory rather than mandatory in the Booker case (January 2005), please see Douglas Berman's blog, Sentencing Law and Policy and, specifically, this round-up on Booker from the time of the decision.
The reassessment of Booker left open for reconsideration the statutory practice of sentencing crack cocaine possession at a ratio of 100:1 (100 times harsher) than powder cocaine possession. Among the multiple reasons why that ratio came into being, Professor Osler argues that race figured (and continues to figure) prominently.
For breaking news and background, again I recommend Berman's website: this post from Wednesday and the previous post from Tuesday and a whole host of links connected to those posts.
Good luck, Professor Osler. We are hoping that you will sit down at some point this summer and reflect on your experiences with these three circuit courts and share them with the Bosque Boys Community.
Tocqueville wrote:
Although the pre-1984 sentencing regime drew much criticism throughout its long life, none contributed more definitively to the demise of that regime than Judge Marvin E. Frankel's little classic, entitled (rather pointedly) Criminal Sentences: Law
Without Order (Hill and Wang, New York, 1972). Speaking from the favorable vantage of an experienced, respected district judge (with a decidedly robust rhetorical touch), Judge Frankel lambasted the regnant scheme of sentencing in the United States, the most notorious feature of which he identified as the invidious and ungoverned disparity among sentences visited upon similarly situated offenders, that is, those committing similar crimes and presenting comparable histories. The virtually complete absence of appellate review of sentences aided and abetted this oppressive regime, as Judge Frankel saw things. Judge Frankel aimed his withering broadside at the entirety of contemporary criminal law, especially sentencing, toward which he deployed his most pointed barbs: "gross evils and defaults," "arbitrary, cruel, and lawless," "unthinkable in a 'government of laws,'" "unchecked and sweeping powers," "wild array of sentencing judgments," "wide-open, uncharted, standardless discretion of the judge," "untrained, untested, unsupervised men armed with great power," "tyrannical." Judge Frankel observed that "irrational disparities are real and pervasive," creating "baleful results."
Judge Frankel's polemic caught the attention of many, including Senator Edward M. Kennedy, who became the principal sponsor of the Sentencing Reform Act of 1984, a bill supported by "liberals" and "conservatives" alike, proposed by Senator Kennedy, a "liberal" senator from Massachusetts, and signed by President Reagan, a "conservative" president from California. (The pertinent history is admirably and succinctly presented in Fear of Judging [Univ. of Chicago, 1998] by Judge Jose A. Cabranes and Professor Kate Stith.) Answering resoundingly Judge Frankel's criticism that "[t]he problem has been too little law, not too much," the Sentencing Reform Act of 1984 begat the Sentencing Commission; which begat the Sentencing Guidelines; which became effective on November 1, 1987; which survived an early constitutional assault in Mistretta v. United States, 488 U.S. 361, 109 S. Ct. 647, 102 L.Ed.2d 714 (1989); and (with ample law, indeed) which closely constrained the imposition of federal sentences until Booker.
In the aftermath of Blakely, Senators Hatch, Kennedy, and Feinstein submitted to the Supreme Court in Booker a brief amici curiae in support of the "continued application of the federal sentencing guidelines as a whole." The senators emphatically advised preservation of the congressionally engineered sentencing structure:
The 1984 Act is the result of the most careful examination that Congress and, indeed all three Branches collectively have ever devoted to the federal sentencing system. The Act sought to eliminate the gross disparities that had proliferated under the prior indeterminate sentencing system--disparities that in at least some cases were believed to stem from the improper consideration of race and other illegitimate factors. Nearly two decades later, debate is ongoing in the Halls of Congress and the other Branches on ways of improving the sentencing system, but--especially when viewed against the backdrop of the intolerable state of affairs that existed before 1984--bipartisan support continues to exist for the basic structure of the sentencing guidelines system created by the 1984 Act and the core principles on which it rests. In our representative Republic, only the clearest constitutional command should be cause for dismantling such a considered legislative effort.
The predominant feature of the pre-1984 sentencing regime, the feature that Judge Frankel indicted so tellingly and the feature that catalyzed bipartisan reform in Congress, was the disparity in sentencing caused by the district court's unreviewable discretion to sentence anywhere within the statutory range.