Baylor Law Prof Quoted In Landmark U.S. Supreme Court Decision

by Alan Hunt

An article authored by a Baylor Law School professor was quoted in what the Wall Street Journal called a "landmark" decision by the U.S. Supreme Court. In that case, United States v. Booker, the Court overturned the system of mandatory Federal Sentencing Guidelines which have been in effect for 17 years.
Some observers have predicted the decision could bring about a major change in federal sentences for crimes. Describing the court's decision as "a real blockbuster," Law Professor Mark Osler said the justices found that the binding nature of the current sentencing guidelines is unconstitutional, "meaning that federal judges will no longer be bound by those guidelines. At least until Congress takes further action, this means that judges will have much greater discretion to take individual circumstances into account when sentencing criminal defendants."
Osler, a former federal prosecutor who joined the Baylor law faculty in 2000, published his article, "Uniformity and the Death of Traditional Sentencing Goals in the Age of Feeney," last year in the Federal Sentencing Reporter, a leading journal in the field of sentencing.
"Feeney" refers to Florida congressman Rep. Tom Feeney (R-Oviedo), who introduced sentencing legislation (the "Feeney Amendment") in Congress in 2003. Osler said he believed the Feeney Amendment "further limited" the sentencing discretion of judges. "The Booker opinion is seen by some as a rebuke to the Feeney Amendment," he pointed out.
Osler's article quoted in the Supreme Court decision is one of four which he has published in the Federal Sentencing Reporter since joining the Baylor law faculty, along with eight in other journals. His work has also been cited and relied upon in law reviews at the University of Chicago, the University of California, and New York University, and in the Journal of Law and Policy.
In the Booker case, the Supreme Court issued six separate opinions. Justice John Paul Stevens authored two of those, one on behalf of five justices and one on behalf of four. In the latter opinion, Stevens borrowed verbatim (with attribution) the language of Osler's article to make the point that the sentencing guidelines did not support traditional sentencing goals. The six lines he quoted from Osler's article state, "While the thick-as-your-wrist Guideline Manual specifically directs sentencing judges to make thousands of determinations on discrete points, not once does it expressly direct that a specific decision leading to the applicable guideline range on the 256-box grid should or must turn on an individualized consideration of the traditional goals of sentencing."
The Baylor professor said the 256-box grid he referred to in his article is the heart of the sentencing guidelines. "Each box contains a range of possible sentences -- for example, 33-41 months. The guidelines require that the judge determine which box, and resulting range, applies to each defendant. Prior to the Booker case, it was mandatory that the sentence, with few exceptions, be within that range." He said Supreme Court opinions usually favor citation of case law and statutes over academic articles. "In fact, in Booker, Justice Antonin Scalia declined to join the part of Justice Stevens' opinion in which my article was quoted, saying that it improperly resorts 'to committee reports and statements by various individuals.'"
Osler, who said he was delighted to be such a "various individual," teaches advanced courses in criminal law and procedure. He also assists in teaching advocacy skills in Baylor's acclaimed Practice Court program. A graduate of Yale Law School, he came to Baylor after serving as an Assistant United States Attorney in Detroit.
On Jan. 12, according to an announcement on Rep. Tom Feeney's website at the U.S. House of Representatives in Washington, D.C., he issued a statement headed "Feeney Comments on Supreme Court Sentencing Ruling." The statement reads: "Today's Supreme Court decision to invalidate a large portion of the Federal Sentencing Guidelines is an egregious overreach into Congress' constitutional power to ordain and establish the lower federal courts under the power given to it in Article III, Section 1. Congress clearly and explicitly required the sentencing guidelines to be mandatory when it passed the Sentencing Reform Act of 1984. The legislation was enacted to address the unfettered discretion judges exercised in Federal sentencing for most of our Nation's history.
"We are a government of laws not of men. In order to have a just legal system we must be bound by laws that apply equally to all citizens. The Supreme Court's decision to place this extraordinary power to sentence a person solely in the hands of a single federal judge -- who is accountable to no one -- flies in the face of the clear will of Congress."