Wait and See

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The federal sentencing structure that was left standing by the U.S. Supreme Court’s Jan. 12 ruling in United States v. Booker bears a close resemblance to what would exist if ABA policy on sentencing guidelines was made the law of the land.

And now the ABA is urging Congress to give that structure a chance to work.

In Booker, the Supreme Court issued two key rulings: First, that mandatory sentencing guidelines violate the Sixth Amendment to the Constitution because they permit sentences to be increased on the basis of facts considered only by the judge in a case; and second, that judges may consider sentencing ranges under the guidelines but are not required to follow them.

The post-Booker federal sentencing structure encompasses many of the approaches endorsed by the association in the ABA Standards for Criminal Justice and in a policy package adopted by the House of Delegates in August 2004. The key element in that package calls for replacing mandatory minimum sentencing laws with a structure that allows judges to depart from the guidelines on a case-by-case basis.

In February, the House followed up on those policies by urging Congress to wait at least a year before considering any major changes in the post-Booker sentencing structure. The Criminal Justice Section was the lead sponsor of the recommendation adopted in a voice vote by the House, which sets ABA policy.

“Precisely because of the novelty of the Booker remedy, the Congress should take the full amount of time necessary to determine the desirability and efficacy of this new regime,” states the report to the House by the Criminal Justice Section and its co-sponsors. “The minimum amount of time necessary for this task is 12 months. If after that time the Congress is unsatisfied with the results under advisory guidelines, it can always enact corrective legislation. If such legislation is enacted before that time, the opportunity to learn whether advisory guidelines can work will have been squandered.”

The U.S. Sentencing Commission held hearings on the issue a few days after the midyear meeting ended. Stephen A. Saltzburg, a law professor at George Washington University in Washington, D.C., who represents the Criminal Justice Section in the House, presented the ABA’s newly adopted position at the hearings.

The Clock is Ticking

But it will be Congress, not the sentencing commission, that decides whether to give advisory sentencing guidelines a chance to work. A bill is expected to be filed this spring in the House of Representatives proposing changes in the sentencing structure in response to Booker. Quick action in the Senate, however, is less likely.

In other action, the House of Delegates endorsed a recommendation by the Section of Intellectual Property Law urging Congress to adopt legislation replacing the “first inventor” approach to awarding patents with a “first to file” rule. Speaking for the section, Donald R. Dunner of Washington, D.C., said a first-to-file system would be more efficient and bring the U.S. patent system into accord with most other nations. But opponents maintained that large corporations would be the primary beneficiaries.

The House also adopted a measure opposing government action that would interfere with the ability of patients to receive information from health care providers. The Section of Individual Rights and Responsibilities and its co-sponsors revised the proposal to state that such information should be given “whether or not the provider chooses to offer such care.” Some opponents voiced concern, however, that the measure would force some medical care providers to advise patients on treatments that run counter to their personal or religious beliefs.

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