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January 30, 2005

Thinking about what DOJ is thinking about

This interesting item from the Virginia Law School's website, which reports on a speech by Paul McNulty, US Attorney for the Eastern District of Virginia, has me thinking about what folks inside the Justice Department are thinking about as they consider post-Booker legislative and litigation strategies.  Here are some of the choice passages from the story:

McNulty said the [Booker] ruling will make it difficult to convince defendants to plea bargain, because they may think they'll get a better deal from a judge....  Drug cases in particular depend on individuals on the inside of an operation confessing and ratting out other suspects.

"If the bad guys believe that they're better off going to a judge to get sentenced rather than agreeing with the government to cooperate — getting certain benefits for that under the sentencing guidelines as they have in the past — then our ability to get cooperation is going to go down substantially," he said.  He suggested that some federal judges who think gun cases belong in state courts might deliver shorter sentences to make their point....

"Congress may react to Booker by passing legislation that addresses the Sixth Amendment problem and still requires mandatory adherence to the guidelines," McNulty said.  Whether or not Congress will react "will probably be the result of how judges begin to act with this new flexibility."  He said that in the 20 to 25 sentences handed down in his district since the decision, judges have stayed within the federal guidelines, except in one drug case in which a judge gave a shorter sentence.  He doubted that sentences would remain so consistent in other districts, however.

McNulty suggested that the most feasible way to fix sentencing guidelines and make them mandatory may be for Congress to use what has been called the "Bowman fix," after its creator, Indiana University law professor Frank Bowman. The fix changes the maximum guideline range to the statutory maximum, and the court could decide only what the low end would be. While critics denounce the idea of potentially even tougher sentences, McNulty said judges in the past rarely increased sentences from the guideline maximum, and would likely stay within the maximum of the old guidelines rather than approach the higher statutory maximum.

These comments, though obviously not official DOJ policy, are both revealing and not especially surprising concerning the prosecutorial take on Booker.  As discussed in this post (which prompted particularly insightful comments), the potential loss of substantial assistance bargaining leverage may be what troubles DOJ most about the universe created by Booker.  And McNulty's ready recitation of post-Booker sentencing outcomes in Virginia suggests DOJ is monitoring closely all the post-Booker work of district courts. 

Finally, the stated affinity for the Bowman fix suggests that DOJ does not merely want mandatory guidelines; as suggested by Justice Stevens in his Booker dissent, the easiest way for the guidelines to be mandatory again would be for Congress to simply provide for jury factfinding of aggravating factors within the existing system.  The Bowman fix is only needed if DOJ wishes to make the guidelines mandatory and wishes to avoid having to prove aggravating facts to a jury beyond a reasonable doubt.

January 30, 2005 at 12:29 AM | Permalink


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"Prove the aggravating factors." What a novel concept! It seems that this is a "no-brainer" for most folks outside of the legal community, why is this so difficult for others to understand? Indeed, outside of the legal community, most folks think you get sentenced based on what you did, not on what was not proven. Instead, we continue to follow the fiction that the presentence reports have "sufficient indicia of reliability" and then shift the burden to the defendant to disprove the contents of the PSR. This is expedient, but absolutely absurd.

Posted by: doug | Jan 30, 2005 10:31:12 AM

Sentenced "based on what you did"? Really? Most defenders want judges to look at the "whole person" including all the charity work they have done and family responsibilities they shoulder. Fair enough, but that is more than what the defendant "did." As a matter of policy (perhaps not 6A law in some circumstances any more) shouldn't the judge also look at something close to the "whole person" in terms of his criminal actions? There needs to be a balance and not everything can or should be included. But let's not pretend that the crime of conviction is the only that thing does or should count. Isn't that what the whole fight against mandatory minimums and restrictive departures is all about?

Posted by: wait@wait.com | Jan 31, 2005 1:55:19 PM

Shifting the burden of persuasion to the Defendant through a de facto Judicial Information constructed on generally unsupported Government accounts of the offense -- exactly, Doug.

Posted by: Jay | Feb 1, 2005 7:14:20 AM

There are many completely innocent "convicted" felons having been forced to plea or go to trial who were accused by a drug ring leader of being 1) a part of the drug ring or 2) the main leader. Time after time, a friend, relative, acquaintance or neighbor is "fingered" in order to reduce the real criminal's sentence by "cooperating". All it took was the accusation, a name delivered, with no evidence to back it up. Do you really think that the true drug criminals will give up one of their own if they can point the finger at someone else who is unable to defend themselves because it is just assumed they are guilty with no proof? Of course prosecutors loved the idea of just grabbing whomever the criminal named. It's amazing that prosecutors and cops/DEA/FBI agents do not have a care in the world about who is guilty or not. Their only concern is to use the unreliable "testimony" of a criminal without needing to coroborate the information in order to reduce their sentence to force innocent people into prison to bolster the conviction numbers and their careers.

It's called the lazy man's justice.

It's no wonder the U.S. Attorneys are perturbed. They might actually have to go to work for a living now. They might have to investigatate and get some real evidence that a crime was actually committed instead of just allegations that convicted thousands via plea bargains in the past. Remember that when you think of the "no retroactivity" for those poor souls, many condemned to prison for 30 or more years or even life for doing absolutely nothing except be known to the "rat" who threw their name into the pot to save themselves.

Posted by: jewel | Feb 4, 2005 12:50:59 AM

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