THE DEFENSE NEVER RESTS

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BEATING BACK THE DEVIL

March 19, 2009

   A short time after Booker was decided a syllogism occurred to me. Booker says the court is to consider the Guidelines. Ethical Judges must consider all law put to them. (good or bad) they dont have to follow what either lawyer or party promotes but in a judicious manner they must consider it.

    Looking at judicial canons we see that judges must consider all laws or logic put to them by a party before the court. So too in sentencing can, and the judge must, consider law presented by both sides. A judge must give deference to the judgements and rulings of courts. Canon 1 Judicial Ethics Model penal code. So what does this mean? It means that the Guidelines fall into the same controlling efficacy of any law presented by either side.

   Booker placed the sentencing guidelines on par with any law submitted to a judge. However, we know that within the law there are trump cards so to speak. What trumps something that must be considered? What overrules persuasive logic or foreign authority? Stare decisis. Stare decisis means of course that it has been decided. Stare decisis is not advisory or in a state of ‘must be considered’ but is in a authoritative position of ‘must be followed’. A judge in the Fifth Circuit is not required to submit to law handed down by the Ninth Circuit if the Fifth Circuit has already decided the issue at hand..

“The doctrine of stare decisis protects the legitimate expectations of those who live under the law, and, as Alexander Hamilton observed, is one of the means by which exercise of "an arbitrary discretion in the courts" is restrained, The Federalist No. 78, p. 471 (C. Rossiter ed. 1961). Who ignores it must give reasons, and reasons that go beyond mere demonstration that the overruled opinion was wrong (otherwise the doctrine would be no doctrine at all).” Hubbard v. United States (94-172), 514 U.S. 695 (1995). http://www.law.cornell.edu/supct/html/94-172.ZC.html

   Practically speaking this means that any case prior to enactment of the guidelines which conflicts with the guidelines trumps the guidelines. The case is controlling over and above the persuasive or the "must be considered" nature of the Sentencing Guidelines.
 

Links

Booker
Basic standards of sentencing
Deference to the judgments and rulings of courts depends upon public confidence in the integrity and independence of judges.


Afterthought - ironically the Guidelines all but put an end to stare decisis in sentencing in the federal courts. The courts begrudgingly did a mathematical equation in sentencing and were done with it. It is just that stare decisis put an end to the guidelines.