THE DEFENSE NEVER RESTS
BEATING BACK THE
March 19, 2009
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
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).
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.
standards of sentencing
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.
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