A judicious retort to AG Gonzales' proposed Booker fix

There has already been a lot of commentary critical of AG Alberto Gonzales' advocacy of a legislative response to Booker in the form of "the construction of a minimum guideline system."  (Some editorials assailing the Gonzales proposal are noted here and here and here and here; the speech in which Gonzales set out his proposal was first discussed here, and followed by commentary here and here and here.)  To the list of critiques can be added this thoughtful commentary in the National Law Journal, entitled "AG's Misguided Proposals," authored by US District Judge Lynn Adelman and his clerk Jon Deitrich.

Echoing some points recently developed by ND Ohio Chief Judge James Carr in his recent article in the latest issue of the Federal Sentencing Reporter, Judge Adelman and Deitrich assert that the Booker remedy is "manifestly more fair than the mandatory regime and is working well," and they call the Gonzales proposal "unbalanced" and "constitutionally suspect."  The entire commentary merits a close read, and here are the closing paragraphs:

The advisory guideline regime should not be evaluated based on anecdotes.  However, the question of how it should be judged is an important one. We believe that the appropriate standard is not whether the average sentence is more severe or more lenient than it was previously, or how many sentences remain within the guidelines, but rather whether in individual cases judges are doing justice.  To answer this question, policymakers and scholars must carefully consider the quality of judicial reasoning underlying the sentences imposed, a factor that often goes unmentioned during the debate about sentencing. This task is not simple, and it will not be accomplished over night.

In the meantime, the attorney general's calls for change do not advance the discussion.  His speeches seem to reflect DOJ's anxiety about the fact that, under the advisory guideline system, judges actually have the authority to determine defendants' sentences.  However, under our system of justice, judges, not prosecutors, are supposed to sentence defendants. Unless the attorney general has solid evidence that judges when sentencing are not sufficiently taking into account public safety (which he does not), he should refrain from calling for radical changes in our sentencing system.