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June 22, 2005

Questions about AG Gonzales' speech advocating a Booker fix

I have now been able to read carefully the text of Attorney General Alberto Gonzales' major policy speech in which he advocates a Booker legislative fix in the form of "the construction of a minimum guideline system" (basics here and background here).  These are just a few of the questions which leapt to mind as I reviewed the speech:

1.  If advisory guidelines are so bad, why did DOJ urge this remedy in post-Blakely litigation?  Gonzales says in his speech that the key to achieving "the lowest crime rates in a generation" has been "a set of mandatory sentencing guidelines."  He also asserts that "it is inevitable over time that ... shorter sentences and disparities among sentences will occur under a system of advisory guidelines."  Though one might debate the particulars, what cannot be debated is that, after Blakely, it was DOJ that was vigorously urging the remedy of advisory guidelines if Blakely was deemed applicable to the federal system. 

As I stressed in this post when John Ashcroft assailed advisory guidelines in his closing days, the remedy urged by federal defendants after Blakely (and by Justices Stevens, Scalia and Thomas in their Booker dissents) was to keep mandatory guidelines in full force and simply require all aggravating facts to be proven to a jury or admitted by the defendant.  But DOJ fought in every lower federal court and in the Supreme Court for the guidelines to be declared advisory if Blakely was applicable to the federal system (and I am very confident that Justice Breyer's advisory guideline remedy in Booker would not have garnered five votes were it not for DOJ's vigorous and effective advocacy of an advisory guideline remedy).

These realities bring to mind the humorous definition of chutzpah as a boy on trial for murdering his parents who asks for leniency because he is an orphan.  Here the chutzpah is that DOJ played a central role in the demise of a mandatory guideline system yet now Gonzales asks for legislation because he claims a mandatory guideline system is needed "to secure a system of tougher, fairer, and greater justice for all."

2.  If the old mandatory guidelines were so effective, why the need to construct a new "minimum guideline system"If DOJ has now concluded it was a mistake to seek an advisory system because the key to fighting crime is "a set of mandatory sentencing guidelines," isn't the simple answer for Congress to adopt the remedy suggested by Justices Scalia, Thomas and Stevens in Booker?  As Justice Stevens noted, that remedy would not require any changes to the Sentencing Reform Act or the guidelines, it would simply require Congress to express its intent for the guidelines to be mandatory even though now aggravating facts triggering longer guideline sentences have to be proven to a jury or admitted by the defendant.  The real double chutzpah is that DOJ wants all the benefits of tough, mandatory guidelines but also wants to prevent defendants from having the benefits of the constitutional rights articulated in Apprendi and Blakely.

3.  What "other interested parties" helped Gonzales come to the conclusion a Booker fix was needed?   Gonzales says he came to the conclusion that the advisory guideline system had to be improved after consulting prosecutors in the field and  "reaching out to other interested parties."  Who are these "other interested parties" and do they include any judges or others with a neutral perspective on the efficacies of an advisory guideline system?  To my knowledge, nearly all "interested parties" other than prosecutors — including the Judicial Conference, the US Sentencing Commission, the ABA, and the Constitution Project — have urged that Booker's advisory guideline system be given time to develop before any legislative fix is seriously considered. 

4.  Now what?  Quite unclear from the Gonzales speech is whether DOJ is formally backing the Booker fix in section 12 of HR 1528 (some background here) or instead has a distinct legislative proposal in the works.  (Notably, the supporters of section 12 of HR 1528 in the House claim that it is not meant as a Booker fix.)  Of course, it is Congress, not DOJ, which ultimately determines the fate of Booker and any legislative fix.  And though some House members have been fiery in their rhetoric about the need for a legislative response to Booker, the Senate has seemed calm (almost to the point of indifference) about Booker

5.  Is the timing of this speech peculiar and worthy of some speculation?  The post-Booker federal sentencing landscape had become relatively calm of late, and it is difficult to identify a particular event that clearly would prompt a major shift in DOJ's thinking about Booker.  Meanwhile, I cannot help but notice, in recent stories from the Chicago Tribune and the Washington Post, that Gonzales' name is coming up a lot in the Rehnquist replacement discussion even though "many conservative leaders see him as too moderate."  Could this speech in some way be part of an effort to show the Right that AG Gonzales is the right man for another job?

Readers with thoughts on any of these questions, or with additional questions about the Gonzales speech, are encouraged to speak up in the comments.

June 22, 2005 at 03:39 AM | Permalink


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Great questions. I wonder how many of these sentences the government is appealling. You might recall that during the debate on the Feeney Amendment, the government decried the rate of what it characterized as lawless judicial departures. It turns out that of the 10,000 plus departures in 2001, the government appealed only 25.

A related question: why doesn't the government give the judicial system a chance to examine and correct unreasonable sentences?

It would also be interesting to look into the circumstances of the cases Attorney General Gonzales cited. Legislation by anecdote is appealing to some I expect but the real story is in the details.

And, in light of the strong message from nearly everyone involved in criminal justice, from the Sentencing Commission to former prosecutors and DOJ officials to the Meese/Heymann Sentencing Initiative, that Congress should act with caution, not haste in this area, it is telling that Mr. Gonzales can only speak about troubling "drifts."

Posted by: Mary Price | Jun 22, 2005 6:29:08 AM

A few responses to Mary Price's comments:

The government doesn't appeal every lower-court decision with which it disagrees. The DOJ's resources are finite, and they have to pick their shots.

We must also be careful to distinguish law and policy. A downward departure may be *legally* valid (i.e., there is no basis for appeal), but as a matter of *policy* the DOJ is nevertheless unhappy with it.

The Bush adminstration has been pretty consistent in its criticism of "activist" judging. It is wholly consistent with this view, that AG Gonzales would come out with a proposal designed to limit judges' ability to be "soft" on criminals.

Posted by: Marc Shepherd | Jun 22, 2005 8:15:36 AM

It seems to me that AG Gonzalez is talking about the Bowman fix-- topless mandatory guidelines. Reading between the lines, it could be that what DOJ will be pressing for is BOTH the Bowman fix and the changes contained in H.R. 1528 (which would basically eliminate downward departures). The result would be that you would have a very hard floor and a porous ceiling to the guidelines.

This would be a terrible result. For one thing, it would provide an incentive to prosecutors to over-rely on relevant conduct to get long sentences. For another, the severe asymetry of this result would lead to Judges undermining the Guidelines in new ways, continuing the destructive Judge v. Congress war to which we have all been collateral damage.

For almost all of us (myself included), the first choice would be to keep advisory guidelines and build up data. But if DOJ is intent on a legislative fix, I hope they will consider alternatives to this severe approach.

Posted by: Mark Osler | Jun 22, 2005 11:00:24 AM

Doug, you'll never make it in polictics. You are far too logical. Great job!

Posted by: Richard Crane | Jun 22, 2005 12:10:12 PM

Doug, you'll never make it in politics. You're far too logical. Great job!

Posted by: Richard Crane | Jun 22, 2005 12:11:17 PM

This is a response to Marc Shepherd's comments. Why do you characterize as judicial "activism" sentencing below the Guidelines but not sentencing above the Guidelines?

Posted by: Robin Schulberg | Jun 22, 2005 12:48:25 PM

Robin Schulberg asked why I 'characterize as judicial "activism" sentencing below the Guidelines but not sentencing above the Guidelines?'

The answer is, I don't. I was describing what I understand to be the present Administration policy. Judicial activism is often a synonym for "rulings somebody doesn't like."

Posted by: Marc Shepherd | Jun 22, 2005 1:21:55 PM

Re: Gonzalez's statement that the key to achieving "the lowest crime rates in a generation" has been "a set of mandatory sentencing guidelines." Gonzalez acknowledges that "no single law or policy is by itself responsible for today’s low levels of violent crime," but fails to mention the interesting assertion of the new book Freakonomics that the largest cause of the decrease in crime was abortion being legalized in the 70s. See http://www.freakonomics.com/ch4.php

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