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March 1, 2005

Intriguing Booker-free Gonzales comments and other DOJ news

As detailed in this New York Times story and this Washington Times story, Attorney General Alberto Gonzales delivered his first major policy speech on Monday at the Hoover Institution.  The full text of the speech can be found here, and I was intrigued to discover that the speech did not mention Booker or the federal sentencing guidelines either directly or indirectly.  (Recall that, as detailed here, a month ago out-going AG John Ashcroft gave a speech at the Heritage Foundation in which he criticized the Booker ruling and said Congress, in response to Booker, "should reinstitute tough sentences and certain justice for criminals.")

Meanwhile, in other notable DOJ news spotlighted by this official press release, Assistant Attorney General Christopher Wray of the Criminal Division officially tendered his resignation on Monday.  As head of the Criminal Division, Wray was a key player in the Blakely/Booker saga, and it is hard not to speculate about the possible impact this transition could have as DOJ formulates its post-Booker plans.

It has been a poorly-kept secret that there is an internal debate within DOJ about how to respond to Booker, though the buzz of late seemed to be that we could expect something official and consequential from DOJ within a matter of weeks.  I encourage readers to use the comments to suggest whether we should now read the DOJ tea leaves differently in light of Gonzales' Booker silence and Wray's departure.

March 1, 2005 at 03:23 AM | Permalink


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Dr. Berman, what can the DOJ do thats official and consequential, when they are just one side of the the equation. As someone who has been waiting this soap opera out as an unindicted, uncharged white collar target, all I can say is that the AUSA on my case has done nothing for over 10 months. Blakely put the brakes on my prosecution, and justice sure doesn't seem to be in any rush to finish me off. What I have heard from the grapevine, well from reliable sources, is that in my district, 1st time offenders are getting well below guideline sentences. As I continue to wait, I figure only by intervention of Congress itself, will anything consequential result. You see, in cases like mine, judicial factfinding pertaining to the loss amount is paramount. With this system now gone, the AUSA has got a really poor case. I'm sure there are thousands out there in the same situation. The DOJ began the case under the old rules, only to have the rules change mid-game, leading to extremely poor prosecution cases. I'll keep you informed, but from my perspective, Blakely/Booker hit DOJ like a ton of bricks, and was totally unexpected. Wray resigning is just another symptom of DOJ's total dis-a-WRAY.

Posted by: Bruce | Mar 1, 2005 11:02:27 AM

Was Wray scheduled to resign or did this come out of the blue?

Posted by: Kim | Mar 1, 2005 1:24:10 PM

DOJ isn't just one variable in the equation, it is the Executive criminal justice agency with easy (and sometimes, seemingly, surreptitious) access to Congress. See Feeney Amendment to the politcally mandatory Ambert Alert bill, which was substantially drafted at Central Justice. Even when stating straight-faced that physical, mental, and sexual abuse of prisoners is not torture, DOJ gets Congressional consideration where other professionals are ignored. Like, for example, Chief Justice Rehnquist regarding the Feeney Amendment.

Bruce is right that Booker crushed the easy post-conviction prosecutions DOJ loved, the "sentencing hearing." We're all warned to be afraid of DOJ's next move on Capitol Hill, then.

Posted by: Jay Hurst | Mar 1, 2005 2:36:05 PM

Whether Booker "crushed the post-conviction prosecutions DOJ loved" is really a factor of which Circuit each matter is brought in. In the Second Circut, for example, Judge Colleen McMahon now uses her judicial discretion to give sentences that far exceed what would have been the Guideline maximum if the substantive Booker ratio was applied in a mandatory and not advisory context.

Posted by: NC | Mar 2, 2005 7:34:43 AM

NC is correct that the "crushed" mandatory USSG opened both ends of the toothpaste. I restrain my comment to the "Convict for X dollars/grams, sentence without recourse for 300X" gambit. For better and worse, counsel must now argue to courts' common sense as well as Guidelines competence. Some courts' common sense is tougher sense than others, which brings us back to the disparity problem.

Posted by: Jay | Mar 2, 2005 3:39:26 PM

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