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.