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Booker/Fanfan---an initial reaction
For those with a federal practice, Blakely was the proverbial cliff-hanger. The unanswered question: were trhe federal sentencing guidelines unconstitutional? That question was answered yesterday with the issuance of the Booker/Fanfan opinion. In an interesting twist, the court found that while mandatory guidelines (those a sentencing judge must follow) are unconstitutional, guidelines that are truly just guidelines (ones a sentencing judge may follow if he or she wants to) are valid. Thus, instead of striking down the entire guideline scheme, the court just struck those provisions making the guidelines mandatory.
What are the effects of the decision? Attorneys will no longer need to ask for sentencing departures, which were almost entirely outlawed by Congress. Some defendants, probably those without much criminal history or other extenuating circumstances, will get much lower sentences than they would before Booker/Fanfan. The flip-side, however, is that other defendants, such as so-called "recidivists," may get longer sentences since the top of the guideline range is no longer the maximum.
If Booker/Fanfan was the stone thrown in the pond, then we've got to wait to see the riples that result. One possible result is action by Congress purporting to "remedy" the effect of Booker/Fanfan.