How An Arizona Criminal Defense Lawyer Can Use The Booker Decision To Minimize Sentencing

The US Supreme Court's decision in US v. Booker was supposed to be a dream come true for your average criminal defense lawyer in Arizona. The case was expected to transform federal sentencing guidelines from what had been a mandatory system into what was effectively an advisory one. Many judges hailed it as a sort of Emancipation Proclamation to free the courts from the tyranny of mandatory guidelines. Contrary to the side taken by your average criminal defense lawyer, most prosecutors feared that a system of inconsistent sentences would result, plunging the court into its own chaos.

In reality, US v. Booker proved to be far less revolutionary in practice. So far it at best resembles a midfield scrum as prosecution and criminal defense lawyer alike try to figure out where the ball is bouncing. The legal system has come more to resemble a drunken game of foosball than a legitimate system based on the Constitution.

Disparities have indeed resulted from the case. It's human nature that different judges will issue widely different sentences per similar circumstances.

The catch is that the discrepancies didn't work to the advantage of the clients of a criminal defense lawyer in Arizona. In fact, contrary to most expectations, in the first 3 years after the decision was rendered, the average prison sentence for all federal crimes actually rose slightly each year. While the rate of downward departures has dropped slightly recently, the amount was hardly earth shattering. The average criminal defense lawyer saw his client's prison rates rise as a result of the judicial decision despite the concerns of the prosecution.

While the guidelines have become advisory, they continue to have significant influence upon sentencing. Judges often have become so habituated following the guidelines that they find it difficult to break the habit. Plus, your average criminal defense lawyer fails to take full advantage of the opportunities that Booker presents to plead for a lower sentence.

The Supreme Court did its best to keep the jumble going, issuing 2 later opinions that added to the Booker interpretation. First, it rejected the 100 to 1 ratio in the guidelines between crack and powder cocaine offenses. The court also decided that a substantial downward departure from the guidelines did not need to be justified by extraordinary circumstances.

These decisions breathed a new breath of life into Booker. In fiscal year 2008, the average sentence issued for federal crimes dropped to its lowest in more than a decade.

Many federal prosecutors acknowledge that Booker has reintroduced disparities that led to the set up of the sentencing guidelines in the first place. Many make sure to maintain that it's not that the guideline sentences that are unreasonable, but the disparity that exists creates seriously questionable legal issues. Why should one person receive a greater penalty purely on the human whim of a different judge?

Since Booker, federal sentencing has been forever altered. While at first, the court decision resulted in heftier sentences, reinterpretations by the court have caused some of those numbers to go down. Nevertheless, Booker offers a criminal defense lawyer in Arizona considerable opportunity to get a lesser sentence for his or her client, an element that should not go overlooked by any legal defense team.

by: David Michael Cantor

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