Analysis of Congressional “Booker Fix”

On April 12, 2005, the House Crime Subcommittee considered a provision sneaked into a drug-sentencing bill (H.R. 1528), which would effectively make the guidelines a system of mandatory minimum sentences. If this provision is enacted, there will be almost nothing left of judicial discretion in sentencing: It would eliminate virtually every basis ever relied on by a judge to lessen sentences.

Section 12 of H.R. 1528:

• Eliminates the requirement that courts consider, among other factors, “the need for the sentence imposed … to provide the defendant with needed educational or vocational training, medical care, or other correctional treatment in the most effective manner.”
• Prohibits courts from relying upon virtually every conceivable ground for a below-range sentence (“downward departure”)—except to calculate a guidelines range or impose a sentence at or above the bottom of that range.
• Prohibits courts from sentencing below the applicable guidelines range based on defendant cooperation except upon motion of the government.
• Sets forth new procedural requirements for courts intending to impose a below-range sentence (except in cases involving government cooperation motions or fast-track dispositions). Courts must provide 20 days’ advance notice, setting forth in detail the legal rationale for the sentence. Court must permit briefs and conduct evidentiary hearings, at which information regarding defendants who have benefited from government-initiated leniency is not admissible. Below-range sentences must be supported by clear and convincing evidence, and the court must prepare a detailed statement of reasons justifying the sentence.
• Prohibits courts from delegating to prosecutors certain reporting requirements under the Prosecutorial Remedies and Tools Against the Exploitation of Children Today Act of 2003.

  (courtesy of National Association of Criminal Defense Lawyers)