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Can I keep the Booker Prize?

My friend Steve Freedman is a wonderful lawyer. For more than forty years, he worked as a public defender. Steve retired recently from working as an assistant capital defender in North Carolina.

As a young lawyer, Steve was assigned a felony marijuana case. His client was a well-dressed, nice looking young man. Like most people, he was taller than Steve, and the prospective jurors could easily see him as jury selection began.

Jury selection can be an intimidating experience. The lawyer has a short time to ask questions of complete strangers to decide who may be harmful to his client. Nothing is worse than prospective jurors who refuse to engage with you.

Steve decided to determine first who might have extreme views about marijuana.

He asked his first question. An awkward silence followed. Everyone stared. Nothing.

As Steve started to follow-up, he saw a woman in the back row smile. A man on the front row chuckled. Others looked toward Steve as they began to laugh. As his embarrassment grew, he suddenly realized the prospective jurors were looking past him.

Steve turned to see that his client was the only one who had raised his hand in response to the first question: “Who here has never seen marijuana?"

The other day, I heard a news report about marijuana. I think it was on NPR, but can’t be sure. My memory is that twenty percent of Americans live in a state where they can smoke or consume marijuana without prosecution by the state. It’s still against federal law.

None of that was relevant to my client who dug the marijuana from the landfill in 2000. He had much more than personal use and was treated as a drug trafficker, not a user. The story of exhuming the marijuana has its humorous aspects, but the consequences were very real.

At that time, federal sentences were imposed within mandatory sentencing guidelines. After a series of steps to calculate a particular range, the judge was obligated to choose a sentence within the range. These guidelines are generally skewed toward harsh sentences and, frankly, verge on cruelty.

In my first federal sentencing, the judge imposed a guidelines sentence of seventeen years for my client convicted of selling cocaine. The sentence was only slightly lower than my client's age at the time.

In the case of my client who excavated the marijuana, Judge Tilley had little discretion, which resulted in a sixty-one month sentence. That’s over five years in prison for digging marijuana out of a landfill.

But, something significant happened in 2005. In a case called United States v. Booker, the United States Supreme Court held that the sentencing guidelines are advisory, not mandatory.

Booker is a complex decision, but for our purposes means that judges are no longer forced to impose a sentence within a particular range.

I am confident the Booker decision has saved my clients dozens of years in prison since 2005.

Last year, the advisory guidelines for a client in his seventies recommended a sentence substantially longer than ten years.

Prior to the Booker decision, the sentencing judge would have been forced to impose this effective life sentence. The same judge who presided over the marijuana case, Judge Tilley, sentenced my client to sixty months.

Maybe, it’s comforting to minimize the impact of the inner workings of the Supreme Court on our daily lives: hoisting a Trump flag, attaching a Biden sticker, protesting, speaking out at the school board meeting, or target practicing on Sunday afternoon. But, however you view the world politically, socially, or religiously, the Supreme Court’s decisions have dramatic consequences.

Senator Diane Feinstein created a stir following Judge Barrett’s confirmation hearing by praising Chairman Lindsey Graham's management of the hearing and giving him a hug. (Does anyone appear to need a hug more than Lindsey Graham?)

I guess there are several ways to view her expressions. One, she is a trader to a cause for embracing a man who presided over an unfair, undemocratic process. Two, she credited a hero who ensured that the Senate carried out its constitutional duty. Three, no matter how deep our differences, we are all Americans and should move to the next matter of business.

Me, all I could think was that soon-to-be Justice Barrett’s judicial hero, Justice Scalia, dissented in Booker.

We are criminal trial lawyers. We represent people accused of criminal offenses who risk losing everything. We work to get them their best results and back to leading productive lives.

Call if you need us, or if you just want to say hello.


P.S. The jury acquitted Steve's client.

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