Vol. 37, Number 2 —February 2005

Response to Booker Opinion Varies

Reaction to the Supreme Court’s opinion in United States v. Booker has been as varied as the people and publications expressing views. Newspaper articles and editorials across the country have reported that the decision has created chaos, that rationality has finally entered the sentencing debate, that the sentencing guidelines now will work well, and that they won’t work at all.

In Congress, speculation has been that there will be a quick legislative fix to the sentencing guidelines. At the same time, rumors have circulated that Congress will hold off action until the effect of the decision can be seen on court sentencing.

Immediately after the Supreme Court’s ruling, Senator Arlen Specter (R-PA), chair of the Senate Judiciary Committee, said, “I intend to thoroughly review the Supreme Court’s decision and work to establish a sentencing method that will be appropriately tough on career criminals, fair, and consistent with constitutional requirements.”

Ranking minority member on the Senate Judiciary Committee, Senator Patrick Leahy (D-VT), said, “Congress should resist the urge to rush in with quick fixes that would only generate more uncertainty and litigation and do nothing to protect public safety. For now, the Supreme Court has fashioned a reasonable remedy that will allow courts to conduct business until Congress decides how to act.”

The U.S. Sentencing Commission is in the process of thoroughly reviewing the Booker decision. “Now that a decision has been issued,” they said in a statement, “the Commission will work with Congress, members of the federal Judiciary’s Committee on Criminal Law, the Department of Justice, the defense bar, members of the criminal justice community, and other interested individuals to ensure that we have a fair and just sentencing system within the bounds of our Constitution.”

In a news conference immediately following the decision, Assistant Attorney General Christopher Wray of the Department of Justice, said that although they were pleased the Supreme Court did not find the federal sentencing guidelines to be unconstitutional, “we’re disappointed that the decision made the guidelines advisory in nature.” A few weeks later, in a memo to all federal prosecutors, Deputy Attorney General James B. Comey said, “[w]e must take all steps necessary to ensure adherence to the Sentencing Guidelines.” He urged federal prosecutors to “continue to charge and pursue the most serious readily provable offenses,” to “actively seek sentences within the range established by the Sentencing Guidelines in all but extraordinary cases,” and to “preserve the ability of the United States to appeal ‘unreasonable’ sentences.”

“Although the Department has not proposed or endorsed any particular action by Congress or the Sentencing Commission in the wake of Booker,” Comey wrote, “we must continuously assess the impact of the Supreme Court’s rulings based on accurate, real-time information on sentencing, in order to play an appropriate and effective role in the public debate.”