One reason I’ve been a pretty quiet guest blogger for the past 10 days or so has been the press of getting out an issue of the Federal Sentencing Reporter, which I co-edit with a cast of distinguished colleagues.
I describe the theme of the issue this way in my Editor’s Notes:
“For a year or two after the U.S. Supreme Court decided Booker v. United States in January 2005, there was great ferment among those with a stake in federal criminal sentencing over whether the jury-rigged advisory system invented by the Court should be replaced, and if so, with what. The widespread unpopularity of the former guidelines regime, the doctrinal uncertainty the created with its convoluted Sixth Amendment stylings, political division in Congress, and other factors led to general acceptance of the notion that the advisory system should be allowed at least a trial run. Concern about how the trial is working, at least among Republican members of the House of Representatives, has led to a revival of discussion about whether the post-Booker advisory guidelines should be modified or replaced.
“This issue of the Federal Sentencing Reporter is devoted to chronicling the recent revisitation of the “Booker-fix” debate. Although, as will be evident from the materials in this issue, there seems little prospect of any very significant action in the immediate future, the debate provides a revealing window on the operation of the advisory system seven years on.”
In the issue, I argue strongly for replacement of the current advisory system with a more rational structure. That article, titled ”Nothing Is Not Enough: Fix the Absurd Post-Booker Federal Sentencing System,” can be previewed at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2055440. I find myself somewhat uncomfortably allied with Congressman Sensenbrenner (R-Wis.) on the need for reform (though his version of what reform should look like would very likely be radically different than mine). But virtually everyone else appearing in the issue, including Congressman Bobby Scott (D-Va) (ranking member of the House Judiciary Committee Subcommittee on Crime, Terrorism, and Homeland Security), Jim Felman on behalf of the ABA, Ray Moore on behalf of the Federal Defenders, and Professors Sara Beale and Michael Tonry, argues for maintenance of the status quo. Watch your local newsstand for the issue in its full glory in June.