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August 15, 2005

DOJ's Orwellian defense of mandatory minimum guidelines

I know it is 2005, but I sometimes conjure up images of 1984 when I hear the doublespeak coming from AG Alberto Gonzales or others in the Justice Department in support of a legislative response to Booker in the form of "the construction of a minimum guideline system" (basics here).  This morning the doublespeak is coming from John Richter, the Acting Assistant Attorney General in DOJ's Criminal Division, through this Letter to Editor in today's Washington Post.  (The Richter letter is in response to the Post editorial last week which suggested Gonzales is "seeking a legislative fix [to Booker] that would do far more harm than good.")

The Richter letter starts by extolling "the many positive aspects of the mandatory-guidelines system" and then states that the "minimum-guidelines system discussed in the attorney general's speech in June attempts to re-create positive aspects of the sentencing guidelines consistent with the Supreme Court's jurisprudence."  But, as I noted here following the AG's June speech and here when a departing John Ashcroft assailed advisory guidelines in his closing days, the simple way to get back to mandatory guidelines, "consistent with the Supreme Court's jurisprudence," would be to adopt the remedy suggested by Justices Scalia, Thomas and Stevens in Booker in which the guidelines would remain mandatory but contested aggravating facts that increase sentences would have to be proved beyond a reasonable doubt to juries. 

As Justice Stevens noted, that remedy would not require any changes to the Sentencing Reform Act or the guidelines, it would simply require Congress to express its intent for the guidelines to be mandatory even though aggravating facts triggering longer guideline sentences now have to be proven to a jury or admitted by the defendant.  The doublespeak chutzpah in the DOJ talk of a "minimum-guideline system" is that DOJ wants all the benefits of tough, mandatory guidelines but also wants to prevent defendants from having the benefits of the constitutional rights to a jury trial and proof beyond a reasonable doubt articulated in Apprendi and Blakely.

The Richter letter also asserts that "the minimum-guidelines system does not impose any greater risk of a higher sentence than today's advisory system."  I suppose this clever phrasing is accurate, since judges now can use their post-Booker authority to sentence above the guidelines in any case.  But, the chief complaints about a minimum-guidelines system is that it will reduce or eliminate judges' authority to impose a sentence below the guidelines based on a case's individual facts.  Thus, a minimum-guidelines system would impose a much greater risk that judges will not have the authority to hand down sentences they consider to be just.

August 15, 2005 at 09:31 AM | Permalink

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