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June 13, 2007

Covering the AG's latest push for a Booker fix

This new AP article discusses the recent speech by AG Gonzales (discussed here) that pushes for a Booker fix as part of a violent crime initiative.  Here is the start of the article:

The Bush administration is trying to roll back a Supreme Court decision by pushing legislation that would require prison time for nearly all criminals.  The Justice Department is offering the plan as an opening salvo in a larger debate about whether sentences for crack cocaine are unfairly harsh and racially discriminatory.  Republicans are seizing the administration's crackdown, packaged in legislation to combat violent crime, as a campaign issue for 2008. 

In a speech June 1 to announce the bill, Attorney General Alberto Gonzales urged Congress to re-impose mandatory minimum prison sentences against federal convicts — and not let judges consider such penalties "merely a suggestion."  Such an overhaul, in part, "will strengthen our hand in fighting criminals who threaten the safety and security of all Americans," Gonzales said in the speech, delivered three days before the FBI announced a slight national uptick in violent crime during 2006.

Judges, however, were livid over the proposal to limit their power.  "This would require one-size-fits-all justice," said U.S. District Judge Paul G. Cassell, chairman of the Criminal Law committee of the Judicial Conference, the judicial branch's policy-making body.  "The vast majority of the public would like the judges to make the individualized decisions needed to make these very difficult sentencing decisions," Cassell said.  "Judges are the ones who look the defendants in the eyes. They hear from the victims. They hear from the prosecutors."

June 13, 2007 at 11:29 PM | Permalink


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I hope judges are reading this blog. It is time for you to become activists and follow the example of your fellow Judge Paul G. Cassell.

"Judges are the ones who look the defendants in the eyes. They hear from the victims. They hear from the prosecutors."

Attorney General Gonzalez, you are a disgrace to those who believe in the American dream. Our nation already incarcerates eight times as many people as Europe. The reason why crime is on the up tick is because your prosecutors are targeting more people who should not be in jail to begin with.

How many fathers and mothers have you incarcerated, leaving their children to a life of crime.

Posted by: Anonymous | Jun 14, 2007 3:19:17 AM

The AP got this one totally wrong. The AG wasn't pushing for mandatory minimums, but mandatory guidelines, two entirely different animals! Thanks again Professor Berman for putting out false and misleading information. The study by the Sentencing Commission showed that when judges are given the discretion they formerly did not have, racial disparities occur and white males who commit sex crimes against children get probation. Judges are not the Saints that they are portrayed on this blog as.

Posted by: Kelly | Jun 14, 2007 6:48:27 AM

"white males who commit sex crimes against children get probation."

In Federal courts? Hardly. Not in SDWV, at least.

Posted by: JDB | Jun 14, 2007 7:51:21 AM


It's hard to be too troubled by the accusation of "putting out false and misleading information" from someone falsely asserting that the USSC report states "white males who commit sex crimes against children get probation." Moreover, in a post-PROTECT Act world, there is not too much different difference at least some circuits between true mandatory minimums and mandatory guidelines with very, very limited departure authority.

I agree that judges are not saints, but neither are prosecutors (or bloggers, for that matter). But at least judges' rulings are public and open to scrutiny and appeal, unlike most of the decisions by the Attorney General.

Posted by: Doug B. | Jun 14, 2007 8:52:24 AM

I didn't express myself well. You are right, the Commission's Booker Report does not say that White males get probation. I learned that piece of information from a presentation in Salt Lake City from one of the Commissioner's researchers who said that there are a high percentage of cases in internet sex crimes that get below range sentences, and that these defendants are mostly white males. There should have been a period after my statement about increased disparity since the Booker decision, which the Commission's report CLEARLY states.

I really hope in your classroom that you teach more diverse views than you espouse on your blog, especially in the area of the death penalty. You barely mentioned the study that made front page New York Times news about how the death penalty may serve as a deterence...but if there is a study that shows the faults of the death penalty, you give it headline treatment!

Posted by: Kelly | Jun 14, 2007 9:39:32 AM

I don't trust judges, I don't trust prosecutors, I don't trust probation officers. I do, however, trust juries -- not because they're smarter or less self-interested than government officials, but because 12 people make up a jury. Ultimately, I'm not sure the Framers would be too enamored with a mandatory Guidelines system, even if the judges kept the sentence within the guideline range indicated by the jury-found facts. Then again, the Framers could have never imagined the incredibly long prison sentences we're doling out for what largely amount to malum prohibidums (what's the inherent difference between selling marijuana and selling cigarettes and alcohol?).

I wonder whether any legislature has seriously considered giving sentencing decisions over to the jury entirely. The refrain that "sentencing" has traditionally been the judge's realm doesn't ring true to me -- were judges during the Framers' era really choosing between huge ranges, like judges are now, or was their discretion far more limited?

Posted by: Aaron | Jun 14, 2007 9:57:40 AM


You show your ignorance (or sloppiness) again, because I have many posts supportive of the death penalty (and I think the AP article on deterrence that you reference was a rehash of old studies, and I did link to the story). I also have been very critical of studies --- from the ABA and elsewhere assailing the death penalty.

Please just try to get your facts right before you attack. I surely merit criticism on many issues for what I say/do, but it is frustrating to be criticized for something I haven't said/done.

Posted by: Doug B. | Jun 14, 2007 10:04:28 AM

Wow...ignorance...no ignorance at all, maybe you should go back to Monday's post, which only offers a link to the death penalty study, no
analysis. If I had the time and patience to look through your past posts on the death penalty, i am sure I could quantify your biasness against the death penalty, I was simply pointing out that this article (which talked of a SPECIFIC study, you say above that you "think the AP article was a rehash"...did you take the time to read it?) did not get the HEADLINE treatment which most of your anti-death penalty posts get.

I don't think that's a bet you should take. In my opinion, you are anti-death penalty, anti-mandatory minimums, and various other things...and that is your right, it's your blog. What I hope is that you are more "fair and balanced" in the classroom then you are here.

I am not ignorant, in fact quite the opposite. I am on the "front lines" not in the Ivory Tower like you. So, I take offense to you calling me ignorant. But let's not let facts get in the way of truth, or "Berman's truth." My original statement is true, the AG never spoke of "mandatory minimums" but rather "mandatory guidelines", there is increased racial disparity since the Booker decision and judges are taking it easy on white male internet offenders by sentencing them below the guidelines in a high percentage of cases (giving some of them probationary sentences). So, you may call me "ignorant" but I speak truths that are backed up by imperical evidence...not just "Berman's wishes and thoughts."

Posted by: Kelly | Jun 14, 2007 10:20:02 AM

Okay, Kelly, bring it on. Let's do facts:

1. The AP article (not a NY Times piece) from earlier this week discussed "a series of academic studies over the last half-dozen years." My read of the piece did not suggest this was a new study. Also, I provided a link to Kent Scheidegger's long discussion of the AP article.

2. Here are some of my posts/headlines from my Death Penalty coverage over the last few months:

-- A (justifiable?) rant against lengthy death penalty appeals

-- Judicial obsession with death in New Jersey

-- Could there be symbolic and practical value in making repeat child rape a capital offense?

-- "Give Them What They Want" (urging quick execution of DP volunteers)

-- Why is the Bush Administration (secretly?) accepting a de facto moratorium on federal executions?

-- The "just ridiculous" realities of Ohio's lethal injection litigation

-- A poster child for the (federal) death penalty?

-- Documenting and dissecting death's delay

-- The death of death may be greatly exaggerated

-- Expanding the (dormant) death penalty

If you take the time to carefully read through my archive of DP posts, you will see that I am generally quite critical of DP abolitionists.

3. I am anti-mandatory minimums, just like just about every other thoughtful scholar/observer of sentencing realities (including Judge Paul Cassell and late Chief Justice Rehnquist and Justice Kennedy). You should also know that I favor guidelines being mandatory and not mere advisory if/when they come with constitutionally required procedural protections AND are written in a balanced manner (as most states have).

I hope you will find the time to "quantify [my] biasness against the death penalty." I have now taken the time to spotlight just a few examples of my balance, Kelly. I am sorry you took offense to my charge of ignorance, but you started the name-calling by saying in your first post that I was "again" putting out "false and misleading information."

I do not mind factually accurate assertions that I have biases. I certainly do, and I am happy and even eager for folks to recognize that everyone has biases that color their views and work. But I think you reveal your own biases when your name-calling lacks factual support and when you are the one making a variety broad assertions that, as you have now admitted in one instance, are factully inaccurate.

Also, you do not gain much credibility when you misspell "empirical".

Posted by: Doug B. | Jun 14, 2007 11:07:06 AM

Saying that you put out "false and misleading" information (which you do...again to the main point, Gonzalez wasn't speaking about mandatory minimums...do you deny this?) is not name calling. Calling someone "ignorant" is! See the difference?

Yes, I made a mistake, sorry, I do not have "editor's rights" on this blog, and I cannot correct my mistake. Sorry for misspelling empirical, I will make sure I spell check...I am quite sure King Berman that you have never misspelled a word...I didn't realize that the creator of this blog has never made a spelling mistake...wow...I am on the same blog as God himself.

A misspelling makes me not credible? I think that says enough about you. As I said, IN MY OPINION you are anti-death penalty, and since I don't have the time to empirically (did I spell it right, I don't want to lose credibility or appear to be ignorant!) quantify this statement, I will leave it at that...IN MY OPINION. Sorry "God Berman", you have no control over that.

I don't need credibility from you...again, I am here actually making a difference, not commentating from the booth like you. It's easy to criticize and not actually do something. Your blog is at times very informative, it's when you put out false information, as you did with the AG's statements, that you lose me. So, I will let "King Berman" have the last word...I am off this string and am going to go make a difference...instead of simply commentating on the real work others are doing.

Posted by: Kelly | Jun 14, 2007 11:20:33 AM

I wish Berman was anti-DP. He clearly is not. Have you ever seen the posts from him complaining about the Supreme Court micro-managing DP cases and even suggesting DP for drinking and driving? If that is anti-DP, I would hate to see someone with pro-DP views.
Also, you speak of being on the front lines. If so, you obviously know that some of the criminal defense work is very sloppy . . . perhaps even beyond very sloppy --- reckless and/or knowingly failing to pursue potentially valid defenses. I think any reference to someone playing "God" should be with regard to this type of government-based system that results in life and death decisions.

Posted by: Tim | Jun 14, 2007 12:01:03 PM

Kelly, "ignorance" means lacking knowledge or uninformed, and it is a characterization that I thought fitting. Given my death penalty posts, I think it is accurate and not misleading when I use the label "ignorance" to describe your uniformed view that I am against the death penalty.

As for your initial allegation that I put out "false information," realize that I simply reprinted a section of an AP article saying the AG is seeking to "re-impose mandatory minimum prison sentences against federal convicts — and not let judges consider such penalties "merely a suggestion." The reporter's phrase may be confusing -- but it is not, in my opinion, obviously false or intentionally misleading.

Moreover, the AG has previously described his Booker fix proposal in terms of "the construction of a minimum guideline system," which would be mandatory. So I think it is not suprising that the press struggles to accurately describe exactly what the AG seeks.

I'm sorry I picked on your misspelling --- you are right that I make spelling mistakes and typos all the time. I could not resist an ad hominen attack when your comments have shown, in my opinion, so much hostility to my work here.

Also, if you have not noticed, please realize that I have a number of clients and I file many appellate briefs (while also readily admitting that I spend most of my time in the Ivory Tower). Does that count as "real work" in your view? Just wondering.

I am sorry if you won't continue this dialogue. I genuinely would like to tone down the hostility and hear more about what "real work" you do "to go make a difference." Are you a lawyer working in the criminal justice system? What "front lines" are you on?

I try to be very candid and clear about my background, work and biases, I'd genuinely like to hear more about yours, Kelly. Thanks in advance.

Posted by: Doug B. | Jun 14, 2007 12:06:58 PM

Kelly, I'll let Prof. Berman speak for himself, but from my viewpoint you are clearly on the wrong end of this argument.

First, you argue that "Gonzalez wasn't speaking about mandatory minimums." That is, however, EXACTLY what he was speaking about and that is clear if you read the DOJ Press Release, which states the proposed legislation would:
"Restore the binding nature of the guidelines by making the bottom of the guideline range for each offense a MINIMUM SENTENCE that must be imposed when the elements of the offense are proven." (Caps added).

Second, just because you heard from a researcher at a conference that "there are a high percentage of cases in internet sex crimes that get below range sentences, and that these defendants are mostly white males" does NOT mean there is racial disparity. Going on what you said shows ONLY that judges go below the Guidelines in that type of case; it says nothing about race playing a factor at sentencing. Ultimately, the researcher’s comments do not support your conclusion that “racial disparity occurs” in an advisory Guideline system.

Third, Prof. Berman is OFTEN critical of death penalty litigation on this Blog (and elsewhere). In fact, he is often criticized in the comments sections that his posts are too pro-death penalty in certain cases.

Finally, if you paid close attention to the Blog and if you were more familiar with Prof. Berman's work, you would know that he does to to the "front lines" of sentencing and he is "making a difference" (as opposed to just "commenting.") This allegation of yours could not be further from the truth. While I do not know you, I am very confident that Prof. Berman has made more of difference in how federal sentencing law is viewed and applied in courtrooms across America than you.

Posted by: DEJ | Jun 14, 2007 12:18:05 PM

First, if you know anything about the proposed "Bowman" fix, again that the AG advocates, it is a system of making the sentencing guidelines mandatory, not setting mandatory minimums. Again, these are two entirely different concepts and if you don't know the difference, I am sure King Berman can explain it to you.

Second, I will say again, I made a mistake on my original post, and I will reiterate it, THE COMMISSION'S FINDING OF RACIAL DISPARITY IN THE "BOOKER REPORT" HAS NOTHING TO DO WITH JUDGES GIVING DOWNWARD DEPARTURES FOR WHITE MALES IN INTERNET SEX CRIMES CASES. Now that I have made that clear, the Commission's Report CLEARLY has a finding of a return to racial disparity in the era after Booker. Read the Report DEJ if you doubt me. Separately, the researcher (whose name escapes me) showed clear and convincing evidence of Judges going below range for sex crime cases involving juveniles. It is cited by that researcher and others as one of the main reasons for some of the provisions of the Adam Walsh Act, which set MANDATORY MINIMUMS, NOT MANDATORY GUIDELINES for some sex crimes against children (again there is a HUGE difference between the two concepts).

Posted by: Kelly | Jun 14, 2007 1:42:53 PM

Nice to have you back, Kelly. Let me focus on two points/ideas:

1. Do you think it is fair say that, in those circuits most restrictive of judge-initiated departures (like the 4th and 5th Circuits), there actually is not a "huge" difference between mandatory minimums and mandatory guidelines?

In the 2d Circuit, where departures flow through the streets, I wholly agree that there is a "huge" difference between mandatory minimums and mandatory guidelines. But in some other parts of the federal sentencing world, not so much (which in part explains why these systems often get conflated).

2. Are you equally concerned about racial disparities resulting from prosecutorial discretion? The USSC in 1998 issued a long report documenting significant racial disparities in the operation of substantial assistance departures. Would you favor a mandatory guideline system for prosecutors in order to try to limit this source of racial disparity?

Posted by: Doug B. | Jun 14, 2007 2:19:49 PM

I hate when my caps lock key breaks.

Posted by: Ben D | Jun 14, 2007 4:03:39 PM

Kelly, I am quite familiar with the Bowman proposal, I assure you. But the distinction between mandatory minimums and mandatory minimum guidelines is rather small, especially (as Prof. Berman pointed out) when Circuit courts greatly limit the availability of downward departures.

And the distinction between mandatory minimums and mandatory minimum guidelines under DOJ's proposal becomes almost non-existent when you consider that the last proposal (H.R. 1528) virtually prohibited a district court from going below the Guidelines. The bill listed about 35 factors that would otherwise mitigate a sentence but stated:

"(2) The court may consider the[se] factors only as may be required in calculating the [Guideline] range . . . or with respect to the imposition of a sentence at or above the bottom of that range, and shall not otherwise consider them in imposing a sentence."

I suggest that under DOJ's proposal (which, after, is what we are talking about), your proclaimed "HUGE" distinction fizzles away and is barely noticeable.

Posted by: DEJ | Jun 14, 2007 8:03:23 PM

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