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August 8, 2005

Editorial against Gonzales' Booker fix

The terrific 2005 NASC Conference begins in Washington DC this morning (and will take me off line for most of the day).  Though a lot of the NASC talk will be about state sentencing issues, the schedule includes some federal sessions as well.  Thus, perhaps it is fitting timing that this morning's Washington Post has this editorial criticizing the June speech given by AG Alberto Gonzales in which he advocated a legislative response to Booker in the form of "the construction of a minimum guideline system."  (The speech's basics are here, and commentary can be accessed here and here and here.) 

Echoing other editorials assailing the Gonzales speech (discussed here and here and here), the Post editorial notes the haste and imbalance in Gonzales' proposal to argue that he is "seeking a legislative fix that would do far more harm than good."  Here's a snippet:

If Mr. Gonzales is concerned about disparate sentencing, letting some people be sentenced harshly and arbitrarily — which could happen under the system he proposes — is as bad as allowing excessive leniency.  Allowing judges to be harsher, but not more lenient, than the guidelines suggest is a bad answer.

More fundamentally, while we disagreed with the court that the mandatory guidelines ought to be struck down, they were not without problems.  The guidelines tended to be rigid, inflexible and insensitive to the individual circumstances of those sentenced under them — particularly in drug cases. In principle, giving judges more discretion is desirable.  And the fact that some may be using the discretion the court has given them isn't necessarily a bad thing.  Nor is the evidence Mr. Gonzales cites of judges increasingly departing from the guidelines especially impressive.  The decline is modest, and it has been only a few months since the court ruled. It will take a lot longer than that to discern whether in practice the ruling is injecting objectionable disparities or a measure of common sense into criminal sentencing.  Congress and the attorney general ought to withhold judgment until a clearer picture emerges.

August 8, 2005 at 07:44 AM | Permalink


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» Blog Round-up - Monday, August 8th from SCOTUSblog
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Tracked on Aug 8, 2005 8:33:35 PM


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