HOT TOPICS

• Booker/Fanfan Resource Page
• Update on BOP Issues
• The Adam Walsh Child Protection and Safety Act of 2006
• Memo Regarding the Crime Victims Rights Act
• Crawford v. Washington - Confrontation of Witnesses: Training Presentation on Crawford v. Washington
• Supreme Court Updates
• CJA Guidelines & Case Budgeting Worksheets
• Go to Training Materials and Publications for more information

LATEST NEWS

TRAINING PROGRAM on the ADAM WALSH ACT

On April 5, 2007, the Federal Defender Services of Wisconsin, Inc. will present: The Adam Walsh Act, Implementation, Implications and Challenges. The program is available to CJA panel attorneys and federal defender staff nationwide. For futher details, see the program brochure and agenda.

USSC RELEASES PROPOSED 2007 AMENDMENTS FOR COMMENT

A reader-friendly version of the proposed amendments is available on the USSC web site. The federal defender community has recently submitted its comments on these proposed amendments to the Sentencing Commission. For comments on previous amendments and other issues relating to the Guidelines, view our Recommendations to the Sentencing Commission page.

Victory Under the Discovery Restriction Provision of the Adam Walsh Child Protection and Safety Act

On January 25, 2007, in U.S. v. Knellinger, Judge Payne, E.D. Virginia, found, based on extensive expert testimony, that a reasonable computer expert would not agree to take a case in which he was required to examine the hard drive on government premises because of the expense and difficulty of moving their equipment to a government facility and the inability to provide adequate assistance under those conditions. Thus, the court held, because "ample opportunity" for inspection was not available at a government facility, a mirror image had to be provided to the expert. Reading the statute in this way allowed the court to avoid the constitutional question presented if it were read otherwise.

Data on post-Booker Sentencing and Appellate Review

Now posted on the Booker/Fanfan Resource page are a graph and the data used to prepare it showing a widening gap between the rate of below-guideline sentences imposed in circuits that have adopted a presumption of reasonableness and those that have not (click here), and a comprehensive review of court of appeals decisions between December 1, 2005 and November 30, 2006 showing the rates of affirmance and reversal of within, above and below-guideline sentences at the national and circuit levels, as well as a comparison of rates in presumption and non-presumption circuits (click here). Also posted now are transcripts of sentencing hearings in which judges expressed the belief that they could not sentence outside the guideline range (click here).

Supreme Court Hears Argument in the Rita/Claiborne Federal Sentencing Cases

In what could lead to the most important development in federal sentencing since Booker, on February 20, 2007 the Supreme Court heard argument in two federal sentencing cases: Rita v. United States, No. 06-5754 (oral argument transcript may be found here) and Claiborne v. United States, No. 06-5618 (oral argument transcript may be found here). Combined, the cases present issues which would allow the Court to decide the limits of district court sentencing discretion, whether the Guidelines should be accorded a presumption of reasonableness, and the contours of reasonableness review on appeal.

The briefs filed by the petitioners, and by most amici curiae in support, are available here. The briefs filed by respondents, and amici curiae in support, are available here. In addition, a description of the amicus brief filed by Senators Kennedy, Hatch and Feinstein on behalf of the government, is available here. This description, by National Sentencing Resource Counsel Amy Baron-Evans, may be useful to practitioners who are litigating crack cocaine cases.

Practitioners should keep a close eye on these cases, and preserve any perceived Booker error that the cases may address. For an article on effective post-Booker sentencing practice, see The Continuing Struggle for Just, Effective and Constitutional Sentencing After United States v. Booker (August 2006), by Amy Baron-Evans, National Federal Defender Sentencing Resource Counsel. Practitioners should also be aware that the Supreme Court has recently issued a decision in Cunningham v. California, which ruled that California's sentencing law is unconstitutional because it allows judges to find facts that lead to higher sentences. It remains to be seen what impact this will have on the Rita and Claiborne cases. For text of the Cunningham opinion, click here.