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May 5, 2005

Judge Presnell assails DOJ (and pulls no punches)

I noted earlier today in this post that the real Booker action is to be found in the district courts, and this afternoon US District Judge Gregory Presnell brought the action straight to the Justice Department with his decision in US v. Williams, No. 04-cr-0111 (M.D. Fla. May 5, 2005).  Williams, which can be downloaded below, is a seven-page frontal assault on modern federal prosecutorial policies.  Williams must be read in its entirety, as every page is loaded with potent quotables.  Here is just a small taste:

[T]he government argued that any sentence, other than a guideline sentence, would be unreasonable (and thus illegal).  This contention is consistent with the policy of the Department of Justice to oppose as unreasonable any sentence that falls below the applicable guideline sentencing range, save those the Department authorizes in its sole discretion....

The government's policy, however, is at odds with Booker.  In essence, the Department of Justice continues to treat the guidelines as mandatory, by asserting that the Court has no discretion to deviate therefrom.  Thus, while paying lip service to Booker and the statute, the government flouts the efficacy of the Supreme Court's opinion.

One of the factors that the Court is instructed to consider in fashioning a reasonable sentence is to "promote respect for the law." 18 U.S.C. § 3553 (a)(2)(A).  Yet, the government itself shows no respect for the rule of law when it consistently advocates a policy which ignores a specific pronouncement of our nation's highest court....

Criminal behavior can fuel public outcry and drive broad legislative and executive agendas to get "tough on crime."  But how does that translate to specific instances? If you take a matrix to factor offense severity, overlay it with mandates born of popular outrage, and tailor it purportedly to address almost every eventuality, you get "justice" dictated in advance, marked by visceral condemnation, and based on the pretense of omniscience.

Under Booker, the sentencing guidelines no longer stand as such a mandatory ideal.  In a very real sense, however, the executive branch is continuing to campaign for such a supposedly scientific equation of justice, without mentioning the wholly unscientific and overwhelming discretion it exercises over the sums that equation produces.  In that regard, the executive wants to be prosecutor and judge.  And, in a display of its wisdom and qualifications for that lofty job, the executive arbitrarily claims that any sum lesser than what it contrives is unreasonable and contrary to law.

Wowsa!  And I have left out some of the really good stuff in Williams.  Adding intrigue to insult, Judge Presnell in the course of considering this case requested that the local US Attorney make available the information DOJ iss collecting on post-Booker sentencings.  That request, and its rejection by DOJ, are attached as appendices to the Williams opinion (and are also available for downloading below).

Download judge_presnell_williams_opinion.pdf

Download williams_exhibit_b_presnell_letter_to_usa.pdf

Download williams_exhibit_c_usa_letter_to_presnell.pdf

Regulars readers know that this Williams decision is not the first time Judge Presnell has sought to speak his truth to power in a sentencing decision.  Judge Presnell has long had a place in my Sentencing Hall of Fame, and linked below are some of his greatest hits:

May 5, 2005 at 09:33 PM | Permalink

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Comments

Why did I get a message "403 Forbidden" when I tried to print exhibit b presnell letter to usa.pdf
(on this server)?

Posted by: Rox | May 6, 2005 7:34:43 AM

I emerge from semi-retirement from blogging--I've been nominated to run locally for judge--to applaud Judge Presnell's refreshing intellectual honesty. Many of opposite philosophies will disagree, of course, but the opinion provides a powerful endorsement of the reason why the Framers chose lifetime tenure.

One day, when historians write about this unique period of the struggle for power between Congress and the Judiciary, I hope courageous visionaries like Judge Presnell get the recognition they rightly deserve.

Posted by: Alex E. | May 6, 2005 9:50:58 AM

Judge Presnell has the courage to look at this system and its players objectively and publish the truth- and that does take great courage regardless of the lifetime appointment. This system needs more good and honorable men and women to stand up for what is morally correct.

It is ironic, that the DOJ does in their system essentially the same thing they are prosecuting businessmen and women for in public corporations; using a beneficial interpretation of a complex fusion of rules and standards that allow them to publish a dressed up fiction as a fact. The DOJ is aggressively pursuing a position that is technically allowable but skewed rather than what they know is right. Just because there are politicians and others in authority allowing them to do it- in fact promoting their ridiculous position- doesn’t mean it is okay or that it is suddenly true. Prosecutors are hunting businessmen down with essentially this same theory- you knew or should have known it looked like something that it really wasn’t and so it is a fraud and so it is a crime- the concept of criminal intent in a white collar conspiracy prosecution is dead.

The DOJ and now with the trained forces of the FBI, are working to take away the reputation and lives of men and women that they know did not have a criminal intent and they are aggressively promoting this system that strips the suspected and accused of their fundamental rights in this country. If the same rules applied to all of us, (I know they don’t but just play along) I’d say these government lawyers and enforcement groups know, should have known, or were criminally reckless in not knowing that what they are doing is fundamentally wrong and that their representations to the court and to the public are lies. They are criminally motivated by their personal profits in keeping their jobs, by their greed in form of a future increase of their salaries (under a more-criminals-means-more-money-allocated-to-the-budget-means-more-money-for-Me theory), or by a basic lust for even greater power. Sounds ridiculous? I guess I’d make a pretty good prosecutor then.

Just because they, their peers and their superiors have been promoting similar lies forever, doesn’t mean it isn’t a fraud and a crime and the intended foreseeable loss is many people’s lost freedom and the flagrant misuse of limited taxpayer money on unjustified prosecutions. I’m curious, how much time would the guidelines require for that? This is their own new and broad standard of defining a crime and at minimum, they should be held to it too. Their individual acts however seem even more egregious because they are looking at those people and their families as they are coldly committing their crime.

By the way, I guess they have finally conquered violent crime, war against drugs, domestic terrorism, child molestation and exploitation, and the rest of the criminal element that used to worry us and caused us to all fear for our children’s safety- so that they can now all focus on imprisoning people like Martha Stewart, a handful of CEOs, some highly paid businessmen and a whole bunch of corporate bookkeepers and accountants. Whew!

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