Comments on: Analysis: More trouble for Guidelines

By: Geremy Kamens

Geremy Kamens — Tue, 09 Oct 2007 18:35:07 +0000

On whether mandatory minimums violate the SOP, the scotus rejected a similar argument in Ex parte United States, 242 U.S. 27, 41-42 (1916), a case in which the district judge suspended a mandatory five year sentence. “Indisputably under our constitutional system the right to try offences against the criminal laws and upon conviction to impose the punishment provided by law is judicial,” the Court explained, “[b]ut these concessions afford no ground for the contention as to power here made, since it must rest upon the proposition that the power to enforce begets inherently a discretion to permanently refuse to do so. And the effect of the proposition urged upon the distribution of powers made by the Constitution will become apparent when it is observed that indisputable also is it that the authority to define and fix the punishment for crime is legislative and includes the right in advance to bring within judicial discretion, for the purpose of executing the statute, elements of consideration which would be otherwise beyond the scope of judicial authority . . . .”

By: Bruce Wayne Cobb

Bruce Wayne Cobb — Fri, 05 Oct 2007 21:20:26 +0000

I practice law in Texas.I am also admitted to 5th
Circuit and SCOTUS. I have one CJA client. I have
wondered whether mandatory minimums violate the
Separation of Powers doctrine notwithstanding the
Harris decision. Can Congress set “the ceiling”;
but not “the floor”? Any thoughts?

By: William MIchael Orth

William MIchael Orth — Wed, 03 Oct 2007 22:08:47 +0000

I have been following Gall and Kimbrough quite closely because I have an African American client who will be sentenced for crack cocaine on Nov. 9 in U.S. District Court in Minneapolis. The sentencing has been continued twice before as I convinced the court that possible sentencing relief would come from the Supreme Court in Claiborne (now deceased) and then Gall and Kimbrough who replaced Claiborne. The importance of these two cases– and the importance of the Supreme Court vindicating the power and duty of Article III courts to decide sentences apart from Article I and Article II Branch infringement– cannot be stressed enough for our clients. Conservative though the Supreme Court may be, our clients only realistic redress from constitutional abandonment comes from the Article III Branch.