This "Press Release" from Congressman James Sensenbrenner (or should we call him Senselessbrenner) announces his latest attack on the Supreme Court's Booker/Fanfan decision. It announces his new legislation, which calls for "topless" guidelines.
The Booker/Fanfan decision found that what we used to call "upward departures" were unconstitutional because a judge could sentence someone above the Federal Sentencing Guidelines recommendation for the crime based on factors that the judge
would find outside of what the person was charged with or
based on things a jury actually acquitted them on. Booker/Fanfan decided that in order to bring these guidelines back into conformity with the right to a jury trial, such guidelines had to be non mandatory.
Senselessbrenner's press release is nothing more than a return to the unconstitutional sentencing scheme we had. Under Senseless' bill, there are only "mandatory minimum guidelines and the court can go as high as it wants. So now the cap is technically life and
the bottom is whatever the guidelines say they are. Since there is no top, the court can't be denying a jury right when it sentences on the high
end based on offense characteristics.
Senselessbrenner must think we are idiots. Let's deconstruct his press release lie by lie:
Lie No.1: The guidelines have produced prodigious reductions in sex crime sentencing.
Senseless and his friends write ""The Sentencing Commission's report issued in March shows that in the last year there has been a large increase in below Guidelines range sentences for defendants convicted of sexual abuse of a minor, of sexual exploitation of a child, of sexual contact of a minor, of trafficking in child pornography, and of possession of child pornography,"
What unmitigated bull hockey.
Now here is the truth:
According to the US Sentencing Guidelines Report of March 2006, (the same one good ole Senselessbrenner quotes in his press release,) "The average length of sentences for cases sentenced under each of the criminal sex abuse guidelines has remained fairly constant (USSC March 2006 report, page ix)
In the next paragraph the commission notes "The rate of imposition of below-range sentences in criminal sex abuse cases is below the rate for all cases post Booker
And finally "the average sentence length post Booker" has increased in child porn cases.
Either Senselessbrenner can't read or he thinks we can't.
Lie No. 2. According to Senseless: "The legislation introduced today will reverse this slide to ensure that the sentence administered depends more upon the crime committed than which courtroom is issuing the sentence."
Now think about this. Under the present guideline system, the sentencing court has to look at each sentence through a prism that determines what is fundamentally fair to each defendant. Circuit courts then review these sentences to make sure they are not disparate with one another.
If there is a "topless" guideline, then only the bottom sentences will be the same. It will still be a
matter of what judge you are before to determine how severe your sentence will be. The only difference will be that nearly everyone will have to go to jail for a while. Under Sensenbrenner's bill, there will be even more disparagment in sentencing as appellate courts will no longer be looking at upward departures. Judges will not have to put their reasons for going to the high end of the sentencing chart on the record as they are no longer departing from the guidelines.
Finally we have our third and last lie. Lie No. 3: Senselessbrenner states in the release that "Two of the hallmarks of our judicial system, fairness and equity, have been undermined since the Supreme Court's Booker decision last year."
Well let's not take my word for it, why don't we look at what the bipartisan committee of the Constitution Project (Chaired by Reagan Attorney General Edwin Messe and Clinton's Deputy AG Phillip Heymann.) They said that "topless guidelines are unconstitutional."
Other commentators have noted that the guidelines now allow the sentencing courts to get the sentence right and allow the Circuits to keep everyone in line. See this post and the testimony of the conservative leaning Heritage Foundation's Paul Rosenzweig, calling the Topless guidelines
(or Bowman fix) "probably not a long term solution" to the sentencing issues presented by
the Booker decision.
If Sensenbrenner really wants to protect children from exploitation, let him start on Capital Hill.
AN UPDATE: Ellen Podgar is blogging this over at White Collar Crim Prof. She makes a great point as to white collar crime and the courts reactions to a growing problem. Using Booker for the concept of the upward departure jail sentences are going up!! We have to tell Congress, we want real truth in sentencing not this unconsitutional garbage. Sentencing surety is too important to the efficient running of the criminal justice system to leave it's constitutionality in question.