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Old 10-06-2004, 06:43 PM
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Default The future of sentencing is in the Supreme Court's hands


The future of sentencing is in the Supreme Court's hands

October 6, 2004

Dear FAMM members,

We are at a crossroads in sentencing policy. The U.S. Supreme Court heard arguments on Monday, October 4 in two important cases, United States v. Fanfan and United States v. Booker, that will decide the future of federal sentencing. The cases call into question a bedrock assumption about federal sentencing: that judges can use facts to increase a defendant's sentence, even beyond the sentence permitted by a jury verdict. FAMM members have long complained about the unfairness of this system.

While we cannot predict what the Court will decide, there is no doubt that the rulings in Booker and Fanfan will have a dramatic impact on sentencing. Judging by their comments on Monday, it appears that many of the Supreme Court justices will rule that federal sentencing guidelines must change. For example, Justice Stephen Breyer, one of the drafters of the federal sentencing guidelines, suggested they be made advisory, rather than mandatory, for judges. But Justice Sandra Day O' Connor commented, "That seems so contrary to what Congress intended, I think it's a real stretch." The justices also asked a lot of questions about whether the jury could make the findings that judges use now to increase sentences. Unfortunately, there was no discussion about retroactivity.

If the Court rules against the current federal guidelines, the focus will shift to Congress, where members are already working on legislation to create a new sentencing system. But judges, lawyers, prosecutors and sentencing advocates don't yet know what will happen next and how large the impact will be on federal sentencing - or how these decisions will impact FAMM members.

So, what does FAMM think about this? The optimistic answer is that this is the most exciting sentencing development in a decade, opening a door for sentencing reform that had been previously locked tight. On the other hand, given Congress's distaste for judges and defendants, some lawmakers may try to find a sentencing "fix" that would be profoundly unjust and rigid. Congress could try to make every crime punishable by mandatory minimum sentences. As you know, such sentencing statutes already exist for drugs, guns, and many other offenses. We know that some members of Congress are already drafting bills that promote such a "fix." FAMM is preparing to do all it can to prevent that outcome.

What is FAMM doing? To promote FAMM's vision of a just sentencing system, we submitted a "friend of the court" brief to the U.S. Supreme Court that addresses traditional FAMM concerns:

- The harshness and inflexibility of mandatory sentences
- The rigidity and unfairness of the current federal sentencing guidelines
- The need for guided judicial discretion at sentencing

The entire brief, and FAMM's extensive coverage of the Blakely decision in the Fall 2004 FAMMGram, can be read here.

What's next? Assuming no legislation is passed this year, the real battle will begin in January with the new Congress. By then, the Court will have ruled on the cases. In the meantime, FAMM will be working to draft legislation to create a new, more just, constitutional sentencing system.

We are sticking to the principles that have guided FAMM for 13 years: the abolition of mandatory minimum sentences, support for more flexible sentencing guidelines, and the restoration of enough judicial discretion to allow the punishment to fit the crime and the offender's role in it. These basic sentencing principles are the foundation of a sentencing system that embodies justice, equity, and fairness - what we would expect from American sentencing policies but what is now sorely lacking, as you know all too well from behind prison walls or with loved ones incarcerated for years.

You can help! There has never been a better time to get involved in FAMM. Building our membership is crucial to the movement for sentencing reform. If you haven't done so already, ask your family and friends to join FAMM. Forward this e-mail to people who are interested in sentencing justice. To join FAMM online, please click here.

Thank you for your interest and for your continuing support of FAMM.

Sincerely yours,
Julie Stewart
FAMM President

P.S. - Good news! Your calls and letters to Congress helped stop H.R. 4547, a terrible federal sentencing bill - for now. Special thanks to FAMM members who live in the House Judiciary committee member's districts for taking action. A staffer from that committee told FAMM our voices were heard and made a big difference in the outcome of the bill. FAMM will inform you if the bill is taken up again.

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Old 10-07-2004, 07:05 AM
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I wonder if there is a way to get a transcript of that hearing? I am particularly interested in any comments/questions Justice Kennedy raised in light of his speech to the ABA about repealing the USSG last year. The article doesn't mention him at all.
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Old 10-07-2004, 11:33 AM
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The Court's current contract Courtroom reporter, Alderson Reporting Company, provides transcripts of oral arguments that are posted on http://www.supremecourtus.gov/oral_arguments/argument_transcripts.html within 10-15 business days after the close of the argument session.

These transcripts will be permanently archived on this Website. Persons wishing to obtain transcripts sooner than they are posted, for a fee, should contact Alderson at (202) 289-2260, or www.aldersonreporting.com.

(October 2004)

The only individuals permitted to record oral arguments of the Supreme Court are those seated at the console behind the Justices’ box seats and authorized by the Marshal of the Court to make and maintain the official recordings. Currently, Alderson Reporting Company is under contract to record and transcribe all oral arguments at the Court.

Alderson Reporting Company offers copies of transcripts in print and a variety of electronic formats including the latest litigation formats that allow for compression and key word indexing.

Transcripts may be ordered at any time before or after oral argument. Prepayment is required. Transcripts may be ordered and received online from
www.aldersonreporting.com. The standard transcript service is available five business days after oral argument was heard. The rate for this transcript service is currently $2.85 per page. Most arguments are about 55 pages in length. Rates for expedited transcripts are pro-rated by each day up to the "same day service" which is $5.00 per page and delivered within five hours of oral argument. To guarantee expedited service, orders should be placed at least one business day before oral argument.

Transcripts may not be copied and distributed in any format without permission from Alderson Reporting Company. Permission must be obtained to post a transcript on a website. Permission is routinely granted for 22 lines or less. The point of contact at Alderson Reporting Company for special requests is Rose Ann Alderson-Sharp. Shipping and delivery costs vary based on location and type of service ordered.

Transcripts are available for oral arguments that took place within the last two years. Transcripts of oral arguments held after the 1995 Term might be available, but are subject to a retrieval fee. No tape recordings of oral arguments are available from Alderson Reporting Company.

After Alderson completes an oral argument transcript and provides copies to the Court and ordering parties it is sent to Westlaw and Lexis-Nexis where the transcripts are available electronically to subscribers approximately fifteen days after the oral argument. Westlaw’s

1 To order a transcript from the contractor, contact Alderson Reporting Company, Inc., Attn: Transcript Order, 1111 14th Street, NW, 4th Floor, Washington, DC 20005-5650. An Alderson Company representative can be reached by phone at (202) 289-2260 or (800) 367-3376, fax at (202) 289-2221 or (800) 367-3310 or e-mail at www.info@aldersonreporting.com. Transcripts can also be ordered through Alderson’s website at www.aldersonreporting.com (to purchase, click "Order Supreme Court Transcripts").

collection includes oral argument transcripts since 1990, which subscribers can access through the SCT-ORALARG database.2

Lexis-Nexis’ collection includes all oral argument transcripts since the beginning of the October 1979 Term. Subscribers to Lexis-Nexis (with a software package) can access these documents by entering the GENFED library and then clicking on the USTRAN file, which allows for a case name, docket, or date range search for transcripts.3

Alderson Reporting Company provides transcripts to the Supreme Court for posting on its website ten to fifteen days after the transcripts are complete.4

Alderson Reporting Company also delivers copies of oral argument transcripts to the Supreme Court Library where they are added to the Library’s records and briefs collection and are available to the public about seven to ten days after the oral argument. The Library’s collection contains the transcripts of every oral argument since the beginning of the 1968 Term and a random selection of transcripts from oral arguments before the 1968 Term dating back to 1935. While the Library allows public access to current Term transcripts, these transcripts are not available for photocopying until the beginning of the following Term (photocopies cost ten cents per page). In addition to its oral argument transcripts, the Library’s collection includes records and briefs from 1832 to the present.5

The Court also makes its own set of oral argument tapes. This set of recordings is kept in the Marshal’s Office for the remainder of the Term, during which time it is not available to the general public. At the beginning of the next Term, the tapes are transmitted from the Marshal to the Motion Picture, Sound, and Video Branch of the National Archives. The Archives’ collection contains audio recordings of Supreme Court oral arguments from 1955 through the immediately preceding October Term. Members of the public can listen to or make their own copies of oral argument tapes using their own tape recorders, blank tapes, and patch cords at the Motion Picture, Sound, and Video Branch. Copies of tapes can also be purchased from the Archives.6 To listen to or purchase a copy of a tape, the Archives asks that individuals requesting recordings provide the case title, Supreme Court case number, and date of the oral argument. Although no formal appointment is required to listen to tapes, the Archives recommends that individuals interested in retrieving copies of tapes make sure the Archives has a

2Westlaw can be reached by phone at (800) 328-4880, or through its website at http://www.westlaw.com/.

3 Lexis-Nexis can be reached by phone at (800) 356-6548 (Lexis Sales) or (800) 843-6476, or through its website http://www.lexis-nexis.com/.

4 The Supreme Court website is at http://www.supremecourtus.gov (click on "Oral Arguments" and click on "Argument Transcripts").

5 The United States Supreme Court Library can be reached by phone at (202) 479-3186.

6 To obtain recordings of Supreme Court oral arguments through the National Archives contact the National Archives Motion Picture, Sound, and Video Branch, National Archives at College Park, Room 3340, 8601 Adelphi Road, College Park, MD 20740-6001. The Branch can be reached by phone at (301) 837-3540 or by fax at (301) 837-3620. The website is located at: http://www.archives.gov/research_roo...und_video.html

"reference copy" of the particular argument they are looking for prior to visiting the Motion Picture, Sound, and Video Branch.

Many recordings of oral arguments are also available on the Oyez Project website created and maintained by Professor Jerry Goldman of Northwestern University.7 This website allows access to approximately 588 cases through the use of the RealNetwork’s RealPlayer. The cases cover a wide range of time periods and areas of constitutional law and are digitized from actual copies of the official argument tapes held by the National Archives. To access arguments through the website, click on "Cases" on the homepage to search by title, citation, subject, or date. The website offers new audio materials from a Term approximately 10 months after the end of that Term.

Many Supreme Court oral argument tapes and/or transcripts are also available in published collections that can be purchased. The multi-volume set, Landmark Briefs and Arguments of the Supreme Court of the United States: Constitutional Law, edited by Professors Gerald Gunther and Gerhard Casper, contains oral argument transcripts and all written briefs submitted to the Court (including amicus curiae briefs) for major cases in constitutional law that are considered "landmark" cases by the editors. Purchases must be made by volume (not by individual case) and each volume is hardbound and approximately 750 pages.8 This set is also available at various law libraries.

Another collection of oral arguments is The Supreme Court’s Greatest Hits. This multimedia CD-ROM program currently costs $29.95 and comprises oral arguments (taped and digitally encoded directly from the Archives’ official tapes), texts, and images. The program, edited by Professor Jerry Goldman, creator of the Oyez Project, includes fifty cases, six related cases that were argued separately but decided with a principal case, and thirteen opinion pronouncements.9

Oral argument collections are also available on microfiche. Lexis-Nexis produces a microfiche collection called Oral Arguments of the U. S. Supreme Court. This collection includes oral argument transcripts from the 1953 Term to the present and can be purchased from CIS, which sells microfiches only by Term (not by individual argument)10 which are priced between $6.25-7.40. The collection can also be found at various law libraries.

7 The address for the Oyez Project website is http://oyez.nwu.edu/.

8 For more information about this publication, contact the Congressional Information Service, 4520 East-West Highway, Bethesda, MD 20814-3389. It can be reached by phone at (301) 654-1550 or (800) 638-8380, or by fax at (301) 657-3203. The website is located at http://www.cis.pubs.com/.

9 To order The Supreme Court’s Greatest Hits, contact the Association of American University Presses, 71 West 23rd Street, Suite #901, New York, NY 10010. The Association can by reached by phone at (212) 989-1010 or by fax at (212) 989-0275. The website is located at http://aaup.uchicago.edu/. For more information about the collection, see the following website: http://nupress.nwu.edu/scgh/.

10 For more information about the microfiche collection, contact the Congressional Information Service. See footnote 8, supra.


Alderson Reporting Company, Inc. Attn: Transcript Order 1111 14th Street, NW, 4th Floor Washington, DC 20005-5650 Phone: (202) 289-2260 or (800) 367-3376 Fax: (202) 289-2221or (800) 367-3310 Website: www.aldersonreporting.com (to purchase, click "Order Supreme Court Transcripts") E-mail: www.info@aldersonreporting.com

The National Archives (Old Military and Civil Branch) National Archives Records and Administration 7th Street and Pennsylvania Avenues, NW Washington, DC 20408 Phone: (202) 501-5395 Fax: (202) 219-6273 E-mail: NWCTB@nara.gov

United States Supreme Court Library One First Street, NE Washington, DC 20543 Phone (202) 479-3186 Website: www.supremecourtus.gov


Westlaw Phone: (800) 328-4880 Website: http://www.westlaw.com/

Lexis-Nexis Phone: (800) 356-6548 (Lexis sales) (800) 843-6476 Website: http://www.lexis-nexis.com/

U.S. Supreme Court Website: http://www.supremecourtus.gov Click on "Oral Arguments" Click on "Argument Transcripts"


National Archives Motion Picture, Sound, and Video Branch National Archives at College Park Room 3340 8601 Adelphi Road College Park, MD 20740-6001 Phone: (301) 837-3540 Fax: (301) 837-3620 Website: http://www.archives.gov/research_roo...und_video.html

The Oyez Project (Northwestern University) -- Unofficial Website: http://oyez.nwu.edu/


Landmark Briefs and Arguments of the Supreme Court of the United States: Constitutional Law
Lexis-Nexis 4520 East-West Highway Bethesda, MD 20814-3389 Phone: (301) 654-1550 or (800) 638-8380 Fax: (301) 657-3203 Website: http://www.cis.pubs.com/

The Supreme Court's Greatest Hits The Association of American University Presses 71 West 23rd Street, Suite # 901 New York, NY 10010 Phone: (212) 989-1010 Fax: (212) 989-0275 Website: http://aaup.uchicago.edu/ E-mail: http://nupress@nwu.edu


Oral Arguments of the U.S. Supreme Court
Lexis-Nexis 4520 East-West Highway Bethesda, MD 20814-3389 Phone: (301) 654-1550 or (800) 638-8380 Fax: (301) 657-3203

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