Wednesday, September 29, 2004

The NYCDL Brief

This very brief post will discuss the amicus brief submitted by The New York Council of Defense Lawyers (“NYCDL”). The New York Council of Defense Lawyers is a not-for-profit professional association of approximately 200 lawyers (many of whom are former federal prosecutors) whose principal area of practice is the defense of criminal cases in the federal courts of New York.

The NYCDL brief is relatively short (23 pages) compared to the other briefs submitted in Booker and Fanfan. The brief only addresses the first question and agrees with the government’s severance position on the second question.

The crux of the brief attacks what the NYCDL identifies as three faulty premises, which are:

(1) because the Guidelines are regulations promulgated by the Sentencing Commission, rather than statutes enacted by Congress, the Sixth Amendment analysis in Blakely does not apply; (2) there are constitutionally significant differences between the Washington scheme and the Guidelines; and (3) the Guidelines do nothing more than what judges historically did under indeterminate sentencing schemes and therefore, because indeterminate schemes are constitutional, the Guidelines are constitutional.

I’m not going to discuss the substance of the brief because I think it overlaps largely with others briefs in this case. I will say that I’m surprised that this brief didn’t focus more on cases from New York. After all, the NYCDL claims that they “offer[] the Court the perspective of very experienced practitioners who regularly handle some of the most complex and significant criminal cases in the federal courts.” I’m particularly surprised that the brief fails to engage Judge Lynch’s opinion in Emmenegger (SDNY).

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