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August 9, 2005

Gonzales reiterates call for Booker fix

As detailed in this article, AG Alberto Gonzales gave a speech at the ABA Annual Meeting on Monday in which "Gonzales said his biggest concerns were the Federal Sentencing Reform Act, the Patriot Act and the Voting Rights Act."   In the ABA speech, which can be accessed here, Gonzales reiterated points first developed in a June speech in which he advocated a legislative response to Booker in the form of "the construction of a minimum guideline system."  (The June speech's basics are here, my earlier commentary on that speech can be accessed here and here and here and here, and editorial criticisms of that speech are here and here and here and here.) 

Here are some quotes from Gonzales' latest iteration of his support for a Booker fix involving "the construction of a minimum guideline system":

I fear it is inevitable over time that, with so many different individual judges involved, exercising their own individual discretion, in so many different jurisdictions, even greater disparities among sentences will occur under a system of advisory guidelines. I am concerned that under such a wholly voluntary system we will not be able to sustain the progress we've made and victims may be victimized once again by a system that is intended to protect them.

Since the Booker decision, numerous legislative proposals have been suggested in response and they should all be studied and discussed.  I continue to listen and keep an open mind, and one proposal that I have already indicated appears to preserve the protections and principles of the Sentencing Reform Act, and thus deserving of serious consideration, is the construction of a minimum guideline system.

The advantages of a minimum guideline system are many. It would preserve the traditional division of responsibility between judges and juries in criminal cases and retain the important function of the U.S. Sentencing Commission in providing guidelines to the courts regarding sentencing. It would also allow judges some flexibility for extraordinary cases.  And a minimum guideline system would be fully consistent with the Sixth Amendment, as interpreted by the Supreme Court.

Following Gonzales' June speech suggesting a minimum guideline system, I had this series of questions.  And two key questions still have not been directly addressed by Gonzales or others in DOJ: (1) If advisory guidelines are so bad, why did DOJ urge this remedy in post-Blakely litigation? (2) If the old mandatory guidelines were so effective, why the need to construct a new "minimum guideline system"?  In addition, as I explained here, now that the AG is weighing in on the post-Booker policy debate, I believe that DOJ should be making public whatever sentencing data it is collecting (especially since the USSC's post-Booker data, up through the latest data run, do not really seem to support Gonzales' complaints about the current post-Booker status quo).

August 9, 2005 at 01:14 AM | Permalink


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Attorney General Alberto Gonzales urges a quick fix to this year's Booker decison of the Supreme Court. (By the way, if you are a new reader of TalkLeft, regular contributor TChris persuasively argued that case to the Supreme Court) I... [Read More]

Tracked on Aug 10, 2005 1:26:57 AM


Does this surprise anyone? Al of his "I am concerned that" and his "I fear" all amount to nothing without hard facts to back it up. But there are no hard facts, only more fearmongering for which this administration is famous. Sounds like everyone is trying to keep their job and get good press for being tough on crime. Justice be damned.

This is not the country I grew up in. This is no longer the country I love and am proud of.

Posted by: digit | Aug 9, 2005 3:02:44 PM

It is also interesting coming from someone from Texas who apparently never thought it was "too much discretion" for judges and juries in our state to be able to set punishment for a defendant charged with a first degree felony anywhere from probation to life in prison.

Posted by: txpublicdefender | Aug 9, 2005 3:26:32 PM

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