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November 11, 2004

AG nominee Gonzales and sentencing issues

With thanks to How Appealing for all the links, here is an interesting article concerning Attorney General nominee Alberto Gonzales from The Washington Post, and two worth reading from KnightRidder here and here, and also two more from the New York Times here and here.  And this Legal Times piece focuses specifically on issues likely to arise in the Senate confirmation process.

Not surprisingly, none of these article focus on sentencing issues, although I could imagine sentencing matters becoming prominent in the Gonzales conversation in the weeks ahead.  First, if Booker and Fanfan apply Blakely to the federal system, everyone (including the Senate) will be buzzing about the future of the federal guidelines and also about the Justice Department's views on and approach to future federal sentencing reforms.  Depending on various matters of timing, I could imagine Blakely et al. becoming a subject of discussion in Gonzales' Senate confirmation hearings.

Second, Gonzales has a history with the death penalty through his role in the 1990s advising then-Texas Governor Geroge Bush on clemency decision-making.  In an article in the July/August 2003 issue of the Atlantic Monthly (available here), Alan Berlow sharply criticized memos Gonzales wrote to advise Bush on clemency petitions and asserted that "Gonzales repeatedly failed to apprise the governor of crucial issues in the cases at hand: ineffective counsel, conflict of interest, mitigating evidence, even actual evidence of innocence."   

Discussion and analysis of the Atlantic Monthly article and these issues can also be found here and here and in this 2003 FindLaw piece by former White House Counsel John W. Dean.  Dean says that the "Gonzales execution memos raise serious — and, unfortunately ugly — questions," but Dean also astutely recognizes that popular support for the death penalty in the US means that it is unlikely that "Gonzales's paper trail might haunt him."

In the interest of full disclosure, I must note that I was one of the lawyers who represented Terry Washington, the defendant suffering from mental retardation and executed by Texas in 1997, whose case is extensive discussed in these articles about the Gonzales execution memos. In fact, as an associate doing pro bono work at Paul, Weiss Rifkind, Wharton and Garrison, I helped draft Terry Washington's clemency petition. (Clemency was our last resort after we failed to convince state and federal habeas courts in 1997 that it was unconstitutional to execute a mentally retarded defendant — a claim which, of course, carried the day in the Supreme Court only five years later in Atkins v. Virginia.)

UPDATE: Howard has collected a stunning array of additional newspaper articles about Alberto Gonzales' nomination here.  Bonus points if anyone finds a mention of Blakely or the death penalty in these pieces.

November 11, 2004 at 03:12 AM | Permalink


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Gonzales' treatment of the facts in his writing of the death penalty memos gives new meaning to the otherwise foreign-based phrase "Ugly American". It makes me feel like a foreigner in my own country in this respect. Support for the death penalty, how ever strong, should not exted to willful ignorance, or mistatement of the facts. I want my country back.

Posted by: Wishful | Nov 11, 2004 5:53:24 PM


How long might confirmation hearings take? Is there anything that might prolong or delay these hearings? Once it goes to the Senate floor will there be more opportunity to question Gonzales?

As it is close to the date of the hearings on January 6, will you please update this entry?

Thank you

Posted by: Apian | Dec 28, 2004 4:10:08 PM

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