Sentencing Law and Policy

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.

Proposing a distinctive response to Booker and Blakely

Oregon trial judge Michael Marcus, who is according to his website "determined to aim the sentencing process at crime reduction," has submitted this interesting testimony to the US Sentencing Commission in response to its request for public comment on guideline priorities.  Judge Marcus has written a series of provocative articles (linked here) advocating that sentencing decision-making be based on empirical data about what sorts of sanctions and programs work on different sorts of offenders. 

Judge Marcus continues to emphasize the themes of public safety and a focus on data in his interesting submission to the USSC.  Here are some passages:

I write to urge that those of us responding to Booker and Blakely seize this opportunity to revise sentencing guidelines so that they promote sentences that best serve public safety within the available range of just and available sanctions.  Virginia is unique in having made substantial strides in this direction; Oregon has begun officially to consider the mere possibility of doing so; but state and federal guidelines otherwise have nothing intentionally to do with crime reduction.  We invest the resources of public agencies and private "think tanks" across the spectrum of penal philosophy, yet exclude their accumulated data from any role in sentencing.  We need to fix that, because the result is irresponsible cruelty to victims whose crimes smarter sentencing would have prevented.  Avoiding accountability for crime reduction is also irresponsible to the taxpayers who pay for a criminal justice system that yields unacceptable recidivism while squandering correctional resources....

I am not suggesting that we must be more severe or more lenient. I submit that we must be far smarter in our approach to sentencing — we must accept the challenge that science posed by finding so much treatment ineffective.... Criminologists have learned a great deal, and can now identify program characteristics that correlate with substantial reductions in recidivism, but we generally ignore such matters in sentencing....

I submit that the highest calling of sentencing commissions is to promote sentencing laws and practices that pursue best efforts at crime reduction with at least the same vigor that they pursue adherence to a matrix of expected severity. Few have taken that route — after all, merely publishing a matrix and monitoring how well judges adhere to it is far, far less challenging than the task I propose. It is also far, far less valuable for public safety or even fiscal responsibility — recidivism is not just cruel; it is also inefficient, as recidivists repeatedly tax our resources as they victimize our citizens.

More interesting criticism of HR 1528

Thanks to this post by David Kopel over at The Volokh Conspiracy, I see that Mike Krause and David have produced this potent Issue Paper for the Independence Institute which assails H.R. 1528, the drug sentencing bill with the tacked-on Booker fix provisions.  (Prior discussion and lots of commentary on this bill can be found at links here and here and here, and other opposition to H.R. 1528 is discussed here and here and here.)

The Issue Paper is titled "H.R. 1528: A Threat to Gun Owners, Families, and Privacy" and it dissects the many remarkable and disconcerting provisions of the bill.  Here are the concluding passages of the Issue Paper:

H.R. 1528 is in no way a "conservative" bill.  The bill:

• Assaults the Second Amendment.

• Assaults family privacy.

• Tries to turn family members, college students, and neighbors into informers.

• Recklessly intrudes into homes and other local spaces that are the proper concern of state and local governments, not the Congress.

• Imposes draconian mandatory sentences, which are contrary to fundamental principles of justice, and of letting the punishment fit the crime.

Nor does H.R. 1528 reflect the best "liberal" values of open-mindedness, tolerance, and empiricism. Rather, H.R. 1528 continues the failed drug war policies of the past. At a time when our nation is under attack by radical Islamic terrorists, H.R. 1528 would divert federal law enforcement resources that should be used to hunt down al Qaeda spies, not to prosecute parents who deal with their children's misbehavior without the need to call the police.

What should be done about Sensenbrenner's letter?

Thanks to Howard at How Appealing, I see this interesting item from The Hill reporting that "Democrats yesterday were considering a response to a news report that House Judiciary Chairman James Sensenbrenner (R-Wis.) chastised the 7th U.S. Circuit Court of Appeals in Chicago for giving a drug courier what he considered to be a light sentence."  The background on Sensenbrenner's actions and his startling five-page missive to the Chief Judge of the Seventh Circuit are detailed in this fascinating front page article from Sunday's Chicago Tribune, which I discussed in this post.

The Hill story indicates that an "approach Democrats were considering was to ask the ethics committee ... to review the letter."  Interestingly, a commentor here asks whether Sensenbrenner's letter might qualify as an "ex parte communication that would subject a lawyer to discipline by the state bar as well."

Talking points for the post-Booker world

At the conclusion of a panel on federal sentencing after Booker at the Sixth Circuit Judicial Conference that I participated in last month, James G. Carr, the Chief Judge of the US District Court for the Northern District of Ohio, rose from the audience to share a number of great insights about how judges and policy-makers should look at the post-Booker world.  Chief Judge Carr was kind enough to write up a version of his "Post-Booker Talking Points" and gave me blog posting permission.  (Also, an expanded version of Chief Judge Carr's insights will be published in a forthcoming issues of the Federal Sentencing Reporter.)

Given the news of Representative Sensenbrenner's eagerness to micro-manage sentencing outcomes from the halls of Congress, Chief Judge Carr's talking points about post-Booker sentencing are especially timely and should be must-reads for everyone in all three branches of the federal government.

Download carr_postbooker_talking_points.rtf

NACDL releases report on "Gonzales Cases"

This afternoon, the National Association of Criminal Defense Lawyers has issued this press release in conjunction with its completion of a report, available here, entitled "Truth in Sentencing? The Gonzales Cases."  The report was stimulated by AG Alberto Gonzales speech last month in which, in the course of advocating a legislative Booker fix in the form of "the construction of a minimum guideline system," Gonzales described a few post-Booker cases and suggested these cases revealed why a Booker fix was needed. (The speech's basics are here, and my prior commentary on the speech can be accessed here and here and here.)

Here are passages from the introduction and the conclusion of the NACDL's "Truth in Sentencing?" report:

Criminal defense attorneys from the National Association of Criminal Defense Lawyers and the Federal Public and Community Defenders represent thousands of defendants every year in federal sentencing proceedings. Lawyers from these interested groups cooperated in closely examining the cases relied on by the Attorney General. Their analysis revealed that in each case the Attorney General's description was incomplete in important respects and failed fairly to describe the judges' reasons for imposing the sentence....

None of these cases reflects a failure of the judiciary or of the sentencing system: Each sentence was sufficient but not greater than necessary to achieve just punishment, deterrence, protection of the public, and needed education or treatment, taking into account the nature of the offense, the history and characteristics of the defendant, and the need to avoid unwarranted disparity as well as unwarranted uniformity.

Another editorial against AG's proposed Booker fix

I have linked previously here and here to recent editorials assailing AG Alberto Gonzales speech last month advocating a Booker fix.  (The speech's basics are here, and my commentary can be accessed here and here and here.)  This morning, the The News Journal of Delaware adds this editorial entitled, "It's too soon to say judges are going soft on criminal sentences."  The piece concludes:

Attorney General Gonzales points to a number of similar cases in various states so far in 2005 that ended with disparate results.  His examples are too few to merit the degree of alarm he's trying to provoke.  Judges are still subject to the appeals process and potential reversal.

On the whole, unchaining the judgment of those on the bench returns the court system to the intended balance between prosecution and defense.

News of note from a grand Booker discussion

I had a grand opportunity on Tuesday to speak to the Sixth Circuit Judicial Conference as part of a panel discussing federal sentencing after Booker.  Because of the grand location for the event, I could not resist analogizing Booker to the time travel movie Somewhere in Time, but I think you really had to be there for the analogy to work.

Besides my hackneyed movie reference, the panel included, inter alia, interesting reports from US Sentencing Commission Chair Ricardo Hinojosa and DOJ's ex-officio USSC member Deborah Rhodes.  Judge Hinojosa whet my ever-ravenous appetite for post-Booker data by indicating that a new data run, now including over 20,000 post-Booker sentencings, should be released by the USSC within the next few weeks.  And Assistant AG Rhodes slightly eased my anxiety over AG Gonzales' recent speech urging a Booker fix (basics here, commentary here and here and here) by indicating that the speech was just advocating consideration of so-called "topless guidelines" and was not meant as an endorsement of any specific pending legislative proposal (lots of background here).

Another editorial criticizing the Gonzales speech

This morning, the Reading Eagle of Pennsylvania added itself to the group of papers editorializing against AG Alberto Gonzales speech last week advocating a Booker fix (basics here, commentary here and here and here).  I found this editorial especially interesting, not only because it is in blog format so readers can comments, but also because it connects the Gonzales speech the grousing by some members of Congress about "activist judges."  Here are some snippets from the editorial:

Talk about convoluted logic: The solution to judges legislating from the bench is for lawmakers to sentence convicts from the halls of Congress.  As we said in January after the Supreme Court ruled, judges must be allowed to use discretion in handing down sentences.  Without that discretion the judiciary, one of three equal branches of the federal government, becomes simply an administrative arm of the legislative branch.

Just as important, the legacy of mandatory minimums has been overcrowded prisons and the soaring costs of housing inmates, many of whom would benefit more from probation and placement in rehabilitation programs. It is more than a little ironic that many of the states that passed mandatory-minimum sentences in the law-and-order days of the 1980s have begun to back away from them because of the financial burdens they have created....

Congress must resist the urge to sentence from the Capitol. It's time to change tactics and start concentrating on alternatives to prison. In the long run, the country will be better off financially and socially.

Will DOJ make public its Booker data?

As discussed in this post from February, at the US Sentencing Commission's first big public hearing on Booker, US Attorney Robert McCampbell noted that the Justice Department "will be collecting data" on post-Booker sentencing.  And in AG Alberto Gonzales' speech advocating a Booker fix in the form of "the construction of a minimum guideline system" (basics here, commentary here and here and here and here), Gonzales seemed to reference this collected data in his statement that "the evidence the Department has seen since the Booker decision suggests an increasing disparity in sentences, and a drift toward lesser sentences."

Now that the AG is weighing in on the post-Booker policy debate, it would be especially valuable for policymakers and others if DOJ would make public the sentencing data it is collecting.  The US Sentencing Commission has done a great job updating its data on its Booker page, but the federal system would surely benefit from another data-driven perspective on how the post-Booker world is unfolding.  DOJ should also make public the way it is collecting data, since I have heard reports that the data-collection forms now being used internally by DOJ may not be ideal. 

As detailed in this post, US District Judge Gregory Presnell of the Middle District of Florida recently requested that the local US Attorney make available the information DOJ is collecting on post-Booker sentencings.  That request, available here, astutely explained why DOJ's data collection "should be transparent and available for public inspection."  Judge Presnell's request was rejected in a brief letter, available here, that did close by stating that DOJ is "considering periodically disclosing certain information we are generating from [Booker Sentencing] Reports."

In the wake of the Gonzales speech, now might be a very good time for DOJ to start a program of  post-Booker periodic disclosure.

USSC proposes priorities and requests public comments

The US Sentencing Commission on its website today posted here its "Federal Register Notice of proposed priorities and request for public comment." The USSC's homepage explains that as "part of its statutory authority and responsibility to analyze sentencing issues, including operation of the federal sentencing guidelines, ... the Commission is seeking comment on possible priority policy issues for the amendment cycle ending May 1, 2006." The USSC's notice says that "public comment should be received on or before August 15, 2005."

The notice details that, for "the amendment cycle ending May 1, 2006, and possibly continuing into the amendment cycle ending May 1, 2007," the Commission has identified seven tentative priorities. Here, in short form, is the listed tentative priorities: (1) implementation of crime legislation enacted by Congress; (2) continuation of its work on appropriate responses to United States v. Booker, including any appropriate guideline changes; (3) continuation of its policy work regarding immigration offenses; (4) continuation of its work on cocaine sentencing policy; (5) review, and possible amendment, of commentary in Chapter Eight (Organizations) regarding waiver of the attorney-client privilege and work product protections; (6) resolution of a number of circuit conflicts; and (7) review and amendment of pertinent guideline provisions to address structural issues regarding the Sentencing Table.

In addition to this list of tentative priorities, the USSC's notice provides instructions for how the public should provide comments and also has this interesting Booker warning:

While the Commission provides this notice to identify tentative priorities, it recognizes that other factors, most notably changes that may be required as a result of United States v. Booker, 543 U.S. ___ (2005); 125 S.Ct. 738 (2005), as well as the enactment of any legislation requiring Commission action, may affect the Commission’s ability to complete work on any or all policy issues by the statutory deadline of May 1, 2006.

Further discussion and criticism of Gonzales speech

I have raised a lot of questions here and here about AG Alberto Gonzales' Tuesday speech advocating a Booker fix in the form of "the construction of a minimum guideline system" (basics here and background here).  I am now pleased to see that the media and the blogsphere are discussing and criticizing the speech.

I have already found two potent editorials assailing the Gonzales call for mandatory minimum guidelines:

• This piece from Athens Banner-Herald laments Gonzales' "shrill tone" and "the inherent flaw in imposing one-size-fits-all rules on our courts," while asserting we "must continue to give our judges the freedom to exercise their judgment in assessing every case and handing down proportionate sentences."

• This piece from the Council Bluffs Daily Nonpareil concludes that "the Supreme Court got it right: Federal judges should be free to sentence convicted criminals as they see fit, and they should be subject to reversal if appeals courts find them unreasonable. Sentences should fit the crime, not a politician's preconceived, one-size-fits-all notion."

Relatedly, this article from North Dakota quotes US District Judge Rodney Webb calling Gonzales' use of a few examples of lower sentences "a cheap shot."  And this AP story connects the speech to the recent amicus filing in the Angelos mandatory minimum case, noting that only a "day after U.S. Attorney General Alberto Gonzales said too many criminals are getting light sentences, four of his predecessors told a federal court Wednesday that mandatory sentencing laws can result in unconstitutionally long prison terms."

From the blogsphere, Ellen Podgor at White Collar Crime Prof Blog has some very potent comments about the speech which closes with a great quote from James Madison.  And the Gonzales speech has also generated a nice debate over at PrawfsBlawg.

What about compassionate conservatism in the federal CJ system?

I have already set out this lengthy list of questions concerning AG Alberto Gonzales'  speech advocating a Booker fix in the form of "the construction of a minimum guideline system" (basics here and background here).  But I have to add one more: isn't there a place for compassionate conservatism in the federal criminal justice system?

Recall that, as detailed here, at Gonzales' confirmation hearing, Republican Senators Sam Brownback and Tom Coburn and Arlen Specter all talked about being smart on crime as well as tough on crime.   Gonzales responded that "people who commit violent crimes and are career criminals ... should remain in our prisons," but he also said that "there is a segment of the prison population ... first-time, maybe sometimes second-time offenders who can be rehabilitated."  Gonzales further explained, "I think it is not only smart, but I think it's the right thing to do.  I think it is part of a compassionate society to give someone another chance."

With those prior comments in mind, I found particularly jarring in Gonzales' speech yesterday that he assailed the sentencing in a tax evasion case from New York in which the sentencing judge apparently concluded "that the defendant's age and the need to take care of his wife ... now justified a lesser sentence."  But I suppose I should not be surprised by Gonzales' lack of compassion in that case after federal prosecutors in his Justice Department sought a 215-year sentence (!) for John Rigas, the founder of Adelphia Communications, who is 80-year-old and apparently quite sick.

Of course, there are lots and lots of federal defendants who deserve no compassion whatsoever at sentencing.  But what is troubling about Gonzales' proposed Booker fix is that he does not trust federal judges (most of whom, by the way, are Republican appointments) to make reasonable judgments about which defendants may deserve a bit of compassion.  Gonzales' proposed "minimum guideline system" apparently would preclude federal judges from ever showing a hint of compassion (even to non-violent, first-offenders) to go below the guidelines, though judges would presumably retain full authority to show the opposite of compassion and impose sentences above the guidelines.

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.

Background on AG Gonzales' proposed Booker fix

In coming posts, I will have lots to say (and lots of questions) about Attorney General Alberto Gonzales' major policy speech on Tuesday in which, as detailed here, he advocated Booker legislation fix in the form of "the construction of a minimum guideline system."  But before dissecting the speech, I can provide links to early news coverage from the Washington Post, the AP, the New York Times, and Knight Ridder.

It seems the so-called "minimum guideline system" advocated by AG Gonzales is a version of (or variation on) what had been called the Bowman proposal or topless guidelines in the wake of Blakely, and also what has been proposed in section 12 of a drug sentencing bill, known as HR 1528, that surfaced and received subcommittee approval in the House of Representatives in April.  Below I have provides links to some of my prior coverage of these federal sentencing proposals:

Post-Blakely discussion of the Bowman proposal (aka topless guidelines)

• The "Bowman Proposal": White Knight or Force of Darkness?
• The brewing battle over the Bowman fix
• Thinking about new federal reform dynamics
• Requiring proof beyond a reasonable doubt in any legislative fix

Post-Booker discussion of the the Booker fix provisions of HR 1528

• Details concerning the brewing Booker fix
• Questions about the brewing Booker fix
• Bowman on the proposed Booker fix
• USSC speaks out against HR 1528
• Still more voices speaking out against brewing Booker fix
• The judges speak out against HR 1528
• The litigation mess argument against HR 1528

AG Gonzales calls for a Booker fix

Last Tuesday when I was driving down to the Carolinas, Booker mania seized the circuit courts.  Today, as I drove back, apparently Booker mania spread to Attorney General Alberto Gonzales.

On Tuesday, in a major policy speech delivered to a conference of the National Center for Victims of Crime, AG Gonzales stated that the "advisory guidelines system we currently have can and must be improved."  He closed his speech by saying that he favored "the construction of a minimum guideline system." Gonzales further explained:

Under such a system, the sentencing court would be bound by the guidelines minimum, just as it was before the Booker decision. The guidelines maximum, however, would remain advisory, and the court would be bound to consider it, but not bound to adhere to it, just as it is today under Booker.

A copy of the full text of AG Gonzales' speech today advocating this Booker fix, along with a fact sheet put out by DOJ, can be downloaded below.  The speech is also available at this link.  I will have lots and lots of commentary on this major development after I have time to unpack.

Download gonzales_remarks_sentencing_guidelines_as_prepared.doc

Download ag_fact_sheet.doc

A Blakely blank spot in sentencing reform principles

As evidenced by this AP story already appearing nationwide, the announcement on Tuesday by The Constitution Project's Sentencing Initiative of this set of "Principles for the Design and Reform of Sentencing Systems" is already generating some press coverage.  Though I have already commented briefly on these principles in this post, I realized this evening that these principles have a Blakely blank spot in that they make no mention whatsoever of incorporating jury decision-making or jury values into the sentencing process. 

The principles do speak to sentencing procedures in point 5, which states:

Meaningful due process protections at sentencing are essential.  Fair notice should be provided and reliable fact finding mechanisms ensured.  Judicial sentencing decisions should be subject to appropriate appellate review.

Relatedly, the principles also criticize the federal sentencing guidelines for placing "excessive emphasis on conduct not centrally related to the offense of conviction."  Nevertheless, as revealed by the reference to "judicial sentencing decisions," the principles suggest a judge-centered vision of sentencing that seems more in harmony with the ideas and themes expressed by Justice Breyer in his Booker remedy opinion than by Justices Scalia and Stevens in their Blakely and Booker opinions.

Though I am generally sympathetic to a judge-centered vision of sentencing, in the wake of Blakely I have come to see a number of potential virtues in incorporating jury decision-making and/or jury values into the sentencing process in some ways.  As detailed more fully in my recent "Conceptualizing Blakely" article, I believe Blakely expresses a fundamental and sound principle that defendants have a right to require the prosecution to prove to a jury all offense conduct for which the state seeks to impose criminal punishment.  I am a bit disappointed that this "Blakely principle" gets no attention in the Sentencing Initiative's initial statement of design principles, though perhaps it will get some play in the forthcoming background report and specific recommendations for a post-Booker federal sentencing scheme.

The Constitution Project releases principles for sentencing reform

After nearly a year of post-Blakely work, The Constitution Project and its Sentencing Initiative's bipartisan, blue-ribbon committee has today, as detailed here, "released a set of guiding principles for reform of criminal sentencing systems in the United States."  The principles, which run a merciful two pages and can be accessed at this link, were unveiled at a press conference hosted by the Heritage Foundation and featuring the committee's co-chairs, former Attorney General Edwin Meese III and former Deputy Attorney General Phillip Heymann.  Notably, the statement of principles also includes a statement of "several serious deficiencies" in "the federal sentencing guidelines as applied prior to United States v. Booker."

A separate brief introduction to the principles, which can be accessed here, provides some background on the Sentencing Initiative and also this teaser of productions still in the works:

The Committee's primary objective was to seek consensus on some of the fundamental elements of a sentencing system that achieves both appropriate punishment and crime control. These "Principles for the Design and Reform of Sentencing Systems" are the first step in the Committee's work.  The Committee plans also to release a background report on these principles, to be followed by specific recommendations for a post-Booker federal sentencing scheme.

The principles all look astute and sound to me, though I would contend that the Sentencing Reform Act that Congress passed in 1984 reflects all these principles.  Indeed, I argued at length in A Common Law for This Age of Federal Sentencing: The Opportunity and Need for Judicial Lawmaking, 11 STANFORD LAW & POLICY REVIEW 93 (1999), that the SRA is an astute and sound piece of legislation, but that federal sentencing went astray because Congress, the US Sentencing Commission and even federal judges did a poor job effectuating the SRA's core principles in their subsequent sentencing work.

In other words, the federal experience over the last two decades shows that the devil is really in the details.  Though a statement of principles, especially from this impressive group, is powerful, I hope that future work from the Sentencing Initiative will provide a lot more specifics and especially address how the modern politics of sentencing (especially in the federal system) can be recast to enhance the chance that this broad principles will be effectuated over time as a sentencing system evolves.

DOJ's post-Booker litigation policies and plans

I learned so much from my all-too-brief San Antonio trip to talk to federal defenders at the National Seminar for Federal Defenders, but perhaps of greatest moment was what I heard about the Justice Department's litigation policies and plans.  The DOJ details recounted below all come from hearsay reports; but since hearsay is often good enough for federal prosecutors at sentencing, I think it is good enough for me to report on what federal prosecutors are now doing about sentencing.

First, concerning initial sentencings, I heard a report that line prosecutors have generally been instructed (formally? informally?) to seek only within-guideline sentences.  (I also heard, however, that some prosecutors in some districts in some cases have requested above-guideline sentences.)  Given that due process/ex post facto principles may place limits on increasing a post-Booker sentence based on pre-Booker conduct (background/links here), it seems wise for DOJ to generally urge within-guideline sentences for crimes committed before Booker.  But I wonder if this approach will change when sentencings involved only post-Booker criminal conduct.

Second, concerning sentencing appeals, I heard that DOJ official Bill Mercer stated at the recent big Booker event in San Francisco (details here) that there were five types of sentencing decisions that would be appealed in every instance: (1) any sentence with a variance of straight probation; (2) any sentence with a variance based on crack/powder cocaine disparity; (3) any sentence with a variance based on fast-track disparity; (4) any sentence with a variance based on comparison to state sentencing laws; and (5) any sentence with a variance based on substantial assistance in the absence of a 5K letter.  This appellate approach should produce some interesting (and, I would anticipate, somewhat disparate) circuit court rulings about the meaning of reasonableness. 

It is quite possible these hearsay reports are a bit off, and I encourage anyone in the know to make any needed clarifications in the comments.

Another potent editorial against mandatories

In a number of prior posts (which are linked below), I assembled excerpts from many editorials criticizing the House's consideration of HR 1279 and HR 1528, the gang and drug sentencing bills which include a number of harsh mandatory minimums.  Today, in this editorial entitled "Mandatory minimums a smoke screen," the Freeport Journal Standard (Illinois) adds these similar sentiments:

Both [the gang and drug] bills have drawn fierce opposition from human rights, religious and civil rights groups, and are vehemently opposed by the American Bar Association.  But in their zeal to bang the old "tough on crime" drum, the GOP rages forward, undaunted and oblivious to the obvious hypocrisy.

For example, even as states across the nation, not to mention Great Britain, Canada and Russia, move toward decriminalization of small amounts of cannabis, the proposed new law requires anyone convicted in federal court of passing a joint to someone who ever set foot in drug treatment to prison for a minimum of five years — 10 years for a second offense.  Meanwhile, the average time served by convicted rapists in America is about seven years....

[W]rites USA Today, in a May 17 editorial, "It's time for a serious debate on whether massive arrests of low-level users are worth the cost or having any benefit."  Ronald Reagan sold the nation on a "drug war" targeting cocaine cartels and hard drugs in crime-infested inner cities.  Now it's a self-perpetuating and profitable de facto war against the nation's young people — rural, urban and in between.

No, the real threat to America isn't "judicial activism." It is the insanity of putting more and more Americans in prison for low-level drug crimes — leaving millions of broken families, newly dependent on government handouts, behind.

Here are some recent posts with other similar criticisms of HR 1279 and HR 1528:

• The Fool(ish bills) on the Hill
• More editorial criticism of House's pursuit of mandatory minimums
• Still more criticisms of gang bill
• Criticisms of the House's passage of gang bill

More on constitutional challenges to lethal injection

With thanks to How Appealing for the tip, I see the AP has this informative story about the recent Supreme Court split over whether to grant a stay to a Missouri death row defendant who challenged the state's lethal injection protocol.  I detailed the SCOTUS split in this post which queried whether four Justices ready to grant cert. on the constitutionality of lethal injection protocols, and background on legal challenges to lethal injection can be found in this earlier post which discusses a constitutional challenge to lethal injection unfolding in a Kentucky case.

More editorial criticism of House's pursuit of mandatory minimums

In this prior post, I assembled potent quotes from a number of editorials  criticizing the House's passage of an anti-gang bill, HR 1279, which includes a number of mandatory minimums.  Another recent editorial, this one from the St. Petersburg Times, focuses criticism particularly on the House's embrace of mandatory minimum sentencing provisions:

Criminals who commit violent acts and those who repeatedly offend deserve long prison sentences. But experience with mandatory minimums at both the state and federal level has demonstrated they can be unfair. Politicians pass one-size-fits-all measures to appear tough on crime, but those who suffer the most are often the least culpable.

The organization Families Against Mandatory Minimums has documented a long list of cases where people have been severly punished for playing minor roles in crime.  Sentences of 10, 15, 20 years or more in prison are not uncommon for someone — often a wife or girlfriend of a drug runner — who is a nonviolent, first-time offender and an incidental participant in the crime.  Under minimum sentencing rules, judges have no capacity to fashion sentences to fit individual cases.  All the power is shifted to the prosecutor, who determines what offenses to charge.

These proposed laws have less to do with dispensing justice than with conservative Republicans' hostility toward the federal judiciary.  They represent the lingering anger of some GOP leaders over the Terri Schiavo matter and other court rulings.  The Senate should refuse to go along.

I have assembled below a few other recent posts with critical analysis of the House's recent sentencing work:

• The Fool(ish bills) on the Hill
• Criticisms of the House's passage of gang bill
• Still more criticisms of gang bill
• The judges speak out against HR 1528
• The litigation mess argument against HR 1528
• Still more voices speaking out against brewing Booker fix

The Fool(ish bills) on the Hill

Sentencing song parodies (such as the hysterical Desparado or Take a Walk on the Blakely Side) should not be confined only to describing judicial developments.  Thus, today I have a particular Beatles song in my head as I think about some recent legislative developments.  Let me just hum a few bars:

Day after day, (not quite) alone on the Hill

The men with the foolish bills are proposing more still

But nobody should want to pass them

They should see that they are just foolish

This is hardly up to the standards of the folks at Begging the Question, but I have to find some way to express frustrations about the bills making their way through the House these days.  Lately I have been spotlighting the extreme gangs bill (HR 1279) that passed the House last week (and has already garnered considerable criticisms from many quarters as noted here and here).  Helpfully, the NACDL has created this webpage which assembles materials and criticisms of HR 1279, and I now can provide (for downloading below) the thorough and persuasive 14-page dissent authored by the Democratic staff of the House Judicial Committee regarding the bill.

But what has moved me to song was this post at TalkLeft, which spotlights the terrible drug sentencing provisions of H.R. 1528, the drug sentencing bill which also includes the Booker fix provisions. (Prior discussion and lots of commentary on this bill can be found at links here and here, and details about letters in opposition to H.R. 1528 are discussed here and here and here.)  The TalkLeft post does a great job of spotlighting some of the extreme aspects of the drug bill; it also has me pondering whether it is worse if supporters of the bill just do not know, or just do not care, about the extreme reach of the bill.

Download gang_bill_dissent_from_house.pdf

Still more criticisms of gang bill

Last week in this post, I detailed some of the emerging criticisms of the House's passage of an anti-gang bill, HR 1279, which includes a number of mandatory minimums.  In recent days I have seen, in addition to the Miami Herald's strong editorial against the bill, a few more editorials expressing displeasure with the House's political posturing. 

• From the Long Beach Press-Telegram: "[I]t's incredibly naive and simplistic to think that longer prison sentences are the solution and intervention programs are folly.  Until Congress starts coming up with real solutions, gangs will continue to flourish.  Communities won't be served by tough talk from self-serving politicians: they need more money for local anti-gang efforts, inner-city jobs programs, education, mentoring for at-risk youth, and other community programs that can and do make a difference."

• From the Kentucky Courier-Journal: "[The bill] also sets mandatory minimum sentences, which shows that the House — despite a Supreme Court ruling earlier this year, and the public reaction to its interference in the Terri Schiavo case — remains determined to prevent judges from actually judging.  The truth is, there's no evidence that anyone in law enforcement or the courts has been taking gang activity lightly — including all the Republican governors and GOP-dominated state legislatures that have been making state laws recently."

I also noticed that FAMM has created this interesting scorecard indicating who voted for and against HR 1279 and FAMM is encouraging folks to "send an email to thank or scold [your representatives] for their vote."

UPDATE:  I now see two more potent editorials which also see through the rhetoric being espoused in support on HR 1279:

• From the Washington Post: "The so-called 'Gangbusters' bill [includes] terrible ideas that ought to be rejected if and when the Senate considers similar legislation....  Mandatory minimums ... permit no attention to the individual circumstances of the convicts — except to impose harsher penalties still.  Such sentencing regimes at the state and federal levels have been overwhelmingly harmful.  Members of Congress may be keen to deprive federal judges of the new discretion the Supreme Court has given them.  But this is the worst possible answer."

• From the Daytona Beach News-Journal: "The Sentencing Commission ... disagrees with minimum sentences.  It considers them inefficient precisely because their dragnet approach ignores individual, mitigating circumstances and ends up overloading both the court and penal systems. But just as congressional anti-crime sprees are often less about reducing crime than about appearing to be tough on crime for election season's spotlight, fresh mandatory sentences are less about deterring crime than about posturing against the judiciary.  Otherwise, the bills wouldn't be so bare on constructive initiatives such as gang intervention programs on the streets, reform programs for gang members in prison or transition programs for felons leaving prison.  Clearly, the will of Congress isn't there."

Criticisms of the House's passage of gang bill

The House's passage on Wednesday of the anti-gang bill, HR 1279, which includes a number of mandatory minimums, is generating criticism from many quarters.  In this prior post, I noted the Miami Herald's strong editorial against the bill, and now I see that The New Standard has this extended report on the bill spotlighting a number of potent criticisms.  Here's a selection from that report: 

[O]rganizations that monitor the criminal justice system argue that the bill's alarmist rhetoric is more a product of political hype than of an intensifying public safety threat. "We're kind of drumming up a new boogeyman, and that's gangs," said Jason Ziedenberg, executive director of the Justice Policy Institute, a think tank focused on incarceration issues....

Even the most recent Justice Department survey of gang activity, which portrays gang crime as a major national problem, acknowledges, "The estimated number of gang members between 1996 and 2002 decreased 14 percent, and the estimated number of jurisdictions experiencing gang problems decreased 32 percent."

Similarly, FAMM has this report on its website about the bill, which details that a "chorus of ... experts, lawmakers and advocates [contend] that the bill is likely to make problems worse, not better."  Also of interest are the critical remarks of the bill made on the House floor by Republican Representative Bob Inglis of South Carolina:

I think there are three problems with the bill: First, it federalizes State crimes. Second, it spends too much money.  Third, it has mandatory minimums.

I voted for mandatory minimums a number of times in my previous time in Congress, and then I had 6 years out, six years out to talk with people in the community, to talk with judges.  And during that time, I became very uncomfortable with our approach about mandatory minimums. 

We have sentencing guidelines. The idea of those guidelines is to have a coherent system of sentencing, some method of figuring out how heinous one crime is compared to another.  And then Congress comes along and slaps on mandatory minimums on top of that framework, doing violence to the framework of a sentencing guideline system.  I think it is a mistake. 

Like I say, I voted for them in the past. I will not do it again. I am inclined to say, let us have a sentencing guideline system that works.  Let us not, because of some political considerations, rise and go after say crack cocaine as opposed to powdered cocaine and end up with perverse results, which is somebody rotting in jail because they smoked the wrong kind of cocaine. It is an unjust result. It is something we should resolve in this body to avoid.

Anti-gang bill passed by House

As was predicted, the US House today passed its anti-gang bill, HR 1279, which has a number of mandatory minimums (first discussed here).  The AP provides this interesting report on the legislative discussion, and here are some interesting snippets:

"We're talking about gangs that are across the country,'' said Rep. Randy Forbes, R-Va., the bill's author.  ''If they were an army from a foreign country, they would be the sixth-largest army in the world.''

Forbes' bill, approved 279-144, would expand the range of gang crimes punishable by death, establish minimum mandatory sentences, authorize the prosecution of 16- and 17-year-old gang members in federal court as adults, and extend the statute of limitations for all violent crimes from five to 15 years....

Democrats said the bill puts too much emphasis on punishment and neglects prevention. While the bill authorizes $387.5 million over the next five years to fight street crimes, Democrats said the cost of accommodating new prison inmates alone would exceed $9 billion over the next decade. ''We must give our young people a path to success, not just a path to prison,'' said Rep. Eddie Bernice Johnson, D-Texas....

Gang members would be able to avoid the toughest sentences if they cooperate fully with prosecutors. Supporters looked at the mandatory minimum sentences as the first remedy to a recent Supreme Court ruling that made sentencing guidelines advisory instead of mandatory, a decision that disturbed many Republicans.  Backers also said they were the best way to force low-level gang members to cooperate with prosecutors and turn in gang leaders.  But Democrats said such sentencing requirements would disproportionately affect minorities, remove the discretion of judges and swell prison populations without stopping crime.

Rep. Maxine Waters, D-Calif., introduced an amendment that would have struck the mandatory sentencing provisions from the bill, but withdrew it in face of GOP opposition, saying she didn't want it to become a political issue. ''I know there are people who are just salivating for this amendment to remain on the floor so they can catch Democrats voting for something they will use in their campaigns,'' Waters said.

The House approved an amendment by Rep. Bob Goodlatte, R-Va., that stiffens penalties for illegal immigrants, who law enforcement officials say make up a large proportion of the membership of some gangs. The provision, approved 266-159, adds five years to violent crime and drug trafficking sentences when the violator is an illegal immigrant, and 15 years if the violator has previously been deported for a criminal offense....

The bill's prospects in the Senate are uncertain.  Sens. Dianne Feinstein, D-Calif., and Orrin Hatch, R-Utah, have introduced an anti-gang bill that, unlike Forbes' bill, contains funding for crime prevention programs and does not include mandatory minimum sentence provisions.

UPDATE: Additional coverage of the passage of this bill in the House, with additional interesting quotes, appears in The Washington Post and The New York Times and the Los Angeles Times.  Also, the Miami Herald has this strong editorial against the bill, which laments that the House is looking to "respond to the menace of immigrant gangs in the United States with headline-grabbing legislation that does little to cure the problem but looks good in a campaign ad."

Legislative debate over mandatory minimums heating up

As evidenced by this New York Times story entitled "Congress Rekindles Battle on Mandatory Sentences," the struggle over mandatory minimum sentencing provisions is really starting to heat up.  The NY Times piece provides effective background on the broader issue of mandatories, and it also provides some details on developing legislation.

Of particular note, the Times article states that "the House is expected to approve on Wednesday" the gang bill, HR 1279, which has a number of mandatory minimums (and is discussed here).  The article further reports that "prospects for the measure in the Senate are uncertain, but opponents concede that as an anti-gang bill nicknamed 'gangbusters' it is likely to pass in some form." 

An article appearing in CQ Today also covers the debate over HR 1279, and it reports that "Maxine Waters, D-Calif., is expected to introduce an amendment stripping the bill's mandatory minimum provisions during floor debate" and that other planned "Democratic amendments would remove provisions that would prosecute youths as adults, subject gang defendants to the death penalty and direct more funds aimed at combating gangs to local law enforcement." 

These reports spotlight that supporters of the developing bills stress the importance of mandatory sentences in encouraging defendants to cooperate.  Indeed, I think these bills are best understood as efforts to maximize prosecutors' bargaining leverage rather than as efforts to remedy any identified need to increase sentences for particular crimes.  The Times article, aided by a quote from Virginia Representative Robert Scott, highlights an important point about the true impact of mandatory minimums:

Opponents ... argue that because prosecutors and judges need no incentives to punish the most egregious offenders with the most severe penalties, the mandatory sentences would fall mainly on lesser offenders.  "If it makes sense, you don't need it.  But when it doesn't make sense, it kicks in,"  Mr. Scott said.

UPDATE: TalkLeft has this extended post about the likely House vote on HR 1279 and problems with the "get-tough" measures in the bill.

The judges speak out against HR 1528

In the interregnum between Blakely and Booker, I pondered in this post whether federal judges would engage in the policy debate after Booker.  Providing an answer is a letter written by Judge Sim Lake, Chair of the Criminal Law Committee of the US Judicial Conference, addressed to James Sensenbrenner, Chairman of the House Judiciary Committee, expressing opposition to H.R. 1528, the drug sentencing bill with the tacked-on Booker fix provisions.  (Prior discussion and lots of commentary on this bill can be found at links here and here, and details about other letters in opposition to H.R. 1528 are discussed here and here.)

Here are some passages from the start of the letter, which can be downloaded below:

I write to express the views of the Judicial Conference of the United States with regard to H.R. 1528.... The judiciary is firmly committed to a sentencing guideline system that ensures adequate deterrence of criminal conduct and protects the public from further crimes by convicted criminals, but is also fair, workable, transparent, predictable, and flexible. We believe that an advisory guideline system can achieve all of these goals, and the sentencing data since Booker supports this belief.

According to the Sentencing Commission's most recent data, the number of sentences within the guideline range has remained fairly constant since Booker was decided and corresponds to historical sentencing practices.  This is consistent with the experience of state court advisory guideline systems where most sentences fall within guideline ranges.  Moreover, in the reported post-Booker decisions in which courts have imposed sentences outside the advisory guideline range, judges have explained why such sentences were appropriate....

The judiciary is very concerned that the sentencing provisions of Section 12 of H.R. 1528 were included without supporting data or consultation with the judiciary.  Because there is no demonstrable need to consider possible legislative responses to Booker at this time, and because, as explained below, Section 12 does not represent a sound alternative to the present advisory guideline system, the Judicial Conference strongly opposes this proposal.

The letter goes on to criticize various particular provisions of H.R. 1528, and concludes with this interesting information about an event not to be missed:

The Committee, along with the Federal Judicial Center and the Sentencing Commission, is sponsoring a National Sentencing Policy Institute in Washington, D.C., on July 11-13, 2005.  The purpose of the institute is to bring together over 100 judges, congressional staff, and Department of Justice officials with the members of the Committee and the Sentencing Commission (1) to discuss potential policy and practical issues arising from the Booker decision and (2) to provide feedback on these issues to the Committee and the Commission. We intend to invite the leadership of both the House and Senate Judiciary Committees and their staffs to attend the institute and actively participate.  We hope you will be able to join us.

Download judicial_conf_letter_on_hr_1528.pdf

The litigation mess argument against H.R. 1528

I noticed this afternoon that FAMM has collected here some of the letters expressing opposition to H.R. 1528, the drug sentencing bill with the tacked-on Booker fix provisions (prior discussion and lots of commentary on this bill can be found at links here and here and here).  One item available there that I had not previously seen is this long letter on behalf of the federal public defenders, which particularly details various grounds for constitutional challenges to various provision of H.R. 1528.

Among other potent points, the defenders letter spotlights that H.R. 1528 "would generate widespread litigation," and thus it reinforces the view I expressed twice to the US Sentencing Commission (testimony here and here) about the legal confusion and uncertainty that would follow any major structural changes to the federal sentencing guidelines in the wake of Booker.  Especially given the mess (and disparity) in the circuits stemming from the (relatively minor) issue of Booker plain error, thinking about the just the litigation consequences if H.R. 1528 were to become law makes my head hurt.  Indeed, this is another reason why, as I suggested in this post, I think the Justice Department may not be too keen on the Booker fix provisions of H.R. 1528 becoming law.

State of state Blakely fixes and high court rulings

With the recent news of legislative Blakely fixes in Indiana (details here) and Washington (details here), as well as the recent state supreme court work in Tennessee (details here, commentary here and here) and Washington (details here), I thought it might be useful to collect in one spot some of the prior posts in which I have reported on major developments in state legislative Blakely fixes and state high court rulings.  So, in alphabetical order, here are some of those prior posts:

STATE LEGISLATIVE BLAKELY FIXES

• Alaska's Blakely fix is now law
• Indiana's brewing Blakely fix
• Maryland's developing Blakely fix
• Tennessee's "official" Blakely fix
• Washington state's Blakely fix

STATE HIGH COURT BLAKELY RULINGS

• The Blakely earthquake hits Arizona
• Blakely not a problem in Idaho
• The Indiana Supreme Court speaks on Blakely!
• Minnesota Supreme Court orders Blakely briefing
• Oregon Supreme Court decides Dilts (and ducks issues)
• Tennessee dodges Blakely, so says divided state supreme court
• Big Blakely doings from where it all started (Washington)

Of course, this lengthy list of prior posts tells only part of the state Blakely story.  I know that there have been major Blakely developments in California, Colorado, Ohio, New Mexico, New Jersey and North Carolina, but these developments have not yet, to my knowledge, led to a legislative fix or a state high court ruling.  But, on only the 10-month anniversary of Blakely, it is remarkable to see all the impact Blakely has already had in the states.

Still more voices speaking out against brewing Booker fix

This afternoon I received copies of two more letters addressed to the House Judiciary Committee expressing opposition to the Booker fix and drug sentencing provisions of H.R. 1528 (basics here, commentary here and here and here). These letters, both of which are available for download below, come (1) from the Chamber of Commerce and other industry groups, and (2) from 32 former U.S. Attorneys and DOJ officials. 

Both of these letters spotlight problems with specific aspects of H.R. 1528 and more broadly echo the "go slow" sentiments expressed by so many in the wake of Booker.  They also join the opposition to H.R. 1528 already expressed by Families Against Mandatory Minimums and Frank Bowman and Jim Felman and a large group of law professors and the US Sentencing Commission.

Download business_letter_re_hr_1528.pdf

Download former_usadoj_re_hr_1528.pdf

UPDATE:  I have also now received, and make available for download below, a two page document expressing opposition to the Booker fix provisions from the ABA entitled "Position Paper of the American Bar Association Regarding Section 12 of HR 1528."  Among its interesting features, this ABA document includes a section that directly responds to some of the potentially misleading rhetoric in the document reportedly developed by Representative Sensenbrenner's office about the Booker fix discussed in this post last week.

Download aba_hr1528_position_paper.pdf

More sentencing rhetoric and reality inside the Beltway

This morning I received a copy of an interesting research paper that apparently is making the rounds in Washington to support the enactment of mandatory minimum penalties in the wake of Booker.  I do not have all the details concerning the origins and use of this research paper, but the document, which is entitled simply "Mandatory Minimum Penalties" and principally promotes the mandatory minimum penalties appearing in the "The Gang Deterrence and Community Protection Act of 2005," is a fascinating read even without knowing its background.  (FAMM's website here provides  background on the gang bill and a different view of all of these issues.)

This document, which can be downloaded below, is full of rhetoric concerning the value and need for mandatory minimum penalties (quote from page 2: "Given the elimination of an effective determinate sentencing guideline system [in Booker], Congress will need to act quickly in certain areas by imposing mandatory-minimum sentences to protect the public.").  The document also includes a section extolling the benefits of the death penalty (heading from page 16: "Research Shows That the Death Penalty Saves Lives.") . 

Many claims in the document are arguably accurate, although the presentation is full of over-statement and is quite one-sided on all the issues covered.  For example, the document asserts at pp. 8-11 that "Every defendant may obtain a reduced sentence" based on providing substantial assistance in the prosecution of others (emphasis in original) and claims that without "stiff mandatory minimum sentences ... offenders have no incentive to cooperate with authorities."  But, of course, offenders without information about other offenders cannot get a departure based on substantial assistance no matter how much they cooperate, and federal offenders not subject to mandatory minimum sentences have lots of incentives to cooperate (see, e.g., Rowland and Fastow, as just two white-collar examples.)  Similarly, a footnote in the discussion of the death penalty asserts that "specific data show[s] that the death penalty system, far from broken, is indeed working well," though there is no mention of innocent persons released from death row or the high reversal rate of death sentences.

I understand that an effort is underway to develop a "response" to this document in order to provide a more balanced view on these sentencing issues.  (Of course, the US Sentencing Commission over a decade ago in its 1991 USSC report on mandatory sentencing effectively presented a more balanced view and documented some failings and harms of mandatory sentencing provisions ).  Perhaps readers can use the comments to note aspects of this document that merit a more complete account of the reality that should accompany all the rhetoric.

Download mandatory_minimum_paper_on_benefits.rtf

USSC speaks out against H.R. 1528

Late yesterday I wondered in this post about when we would hear from the US Sentencing Commission concerning the Booker fix and drug sentencing provisions of H.R. 1528 (basics here, commentary here and here and here).  I am very pleased to see that just posted on the USSC's website, and available at this link, is an effective and forceful letter addressed to the House Judiciary Committee regarding H.R. 1528, dated April 19 and signed by all the USSC Commissioners.

This letter from the USSC speaks out against a number of the drug sentencing provision of H.R. 1528, and also assails the Booker fix provisions for its "hasty, piecemeal" response to post-Booker issues.  Among other good insights, the USSC letter suggests it would be wise to have "additional hearings on the specific sentencing provisions of H.R. 1528 and the state of federal sentencing generally" before enacting any legislation in response to Booker.  Kudos to the USSC for getting out in front of this issue.

When will we hear from the USSC (or DOJ) concerning the brewing Booker fix?

It is now more than a full week since the Booker fix and drug sentencing provisions of H.R. 1528 (basics here, commentary here and here and here) were the subject of a hearing before the House Subcommittee on Crime, Terrorism, and Homeland Security (coverage is linked here).  I am wondering when and how we will hear from the US Sentencing Commission concerning this bill, as well as when and how we will hear from DOJ concerning the Booker fix provisions.

Given that H.R. 1528 included a number of mandatory minimum sentencing provisions even before the last-minute addition of the Booker fix provisions (Section 12), I was hoping that the USSC would vocally advocate against the bill on the basis of its long-standing opposition to mandatory sentencing provisions (see, e.g., this 1991 USSC report on the failures and harms of mandatories).  Especially once the imbalanced Booker fix surfaced in H.R. 1528, which runs directly contrary to all the "go slow" advice the USSC received in its post-Booker hearings (highlights linked here), I was hoping the USSC would be quick to spotlight problems with the bill.

Of course, I understand it is hard for an official agency to weigh in on proposed legislation as fast as Frank Bowman or Jim Felman or a group of academics have.  Still, the silence from the USSC will become deafening before too long.  The word is that H.R. 1528 was not marked up in the House today, so the bill is not flying through the legislative process.  Nevertheless, the dynamics which surrounded the development and passage of the Feeney Amendment should leave little doubt that time is always of the essence in these matters.

Relatedly, I remain curious about the views of the Justice Department concerning the Booker fix provisions of H.R. 1528.  As detailed in this post, DOJ has generally endorsed the drug sentencing provisions of the bill, although it has expressed concerns about some of its harshest terms.  But the Booker fix proposal is a much different animal.  My instinct is that many line prosecutors would be troubled by the possible impact on plea negotiations that could flow from eliminating nearly all departure grounds (other than for assistance or fast-track), which is what the Booker fix provisions of H.R. 1528 now essentially proposes. 

In addition to concerns that line prosecutors might have, I also think folks in Main Justice should be concerned about the questionable constitutionality of the Booker fix provisions of H.R. 1528.  Because it is so unbalanced, I doubt DOJ would want the terms of H.R. 1528 to become the first test case for the vitality of Harris or the limits of Booker.  Moreover, I assume DOJ is still overwhelmed with post-Booker litigation burdens, and new legislation of this sort would only multiply the number of issues to litigate.  Finally, the extreme imbalance of H.R. 1528 suggests this is a moment for DOJ to really stand up and act like a Department of Justice and not just like a Department of Prosecutors.

Final version of academic letter assailing brewing Booker fix

Professor Michael O'Hear late yesterday finalized the thoughtful letter he developed criticizing the Booker fix and drug sentencing provisions of H.R. 1528 (basics here, commentary here and here and linked here).  A total of 60 law teachers signed on within the span of about 24 hours.  The final version of this letter, reflecting all the signors, is available for downloading below.

Download final_prof_letter_re_problems_with_booker_fix.doc

Update on academic letter concerning H.R. 1528

As detailed in this post, Professor Michael O'Hear has drafted a thoughtful letter criticizing the Booker fix and drug sentencing provisions of H.R. 1528, a bill moving through the House of Representatives (basics here, commentary here and here and linked here).  Already 50 law teachers have agreed to sign their name to the letter, and Michael plans to send the letter off at the close of business today.  If you are interested in adding your name to the letter, which can be read here, please contact Michael via e-mail at this link no later than 4:30pm this afternoon.

Academic input on a not-so-academic Booker fix proposal

Last week in this post about the Booker fix provisions of H.R. 1528 (basics here, commentary here and here and linked here), and I urged persons concerned about the congressional response to Booker to help ensure that rhetoric does not eclipse reality as the legislative process unfolds.  Taking up my suggestion, Professor Michael O'Hear has drafted a thoughtful letter criticizing the Booker fix and drug sentencing provisions of H.R. 1528, which can be downloaded below.  (Some other criticisms of the bill, which merits a lot of criticism, are discussed and linked here.)

Michael's letter is written on behalf of "law teachers, most of whom specialize in criminal law and procedure," and he would like to add the name of professors who "agree that the Booker fix bill represents bad policy — or that it should, at least, be removed from the legislative fast track and subject to closer scrutiny."  Professors (including, in my view, adjuncts) who are willing to have their names added to the letter should contact Michael via e-mail with this link (and be sure to include your name, title, and institution).

Download prof_letter_booker_fix_3.doc

More potent criticisms of H.R. 1528

The rapid movement of H.R. 1528, the drug sentencing bill which includes the Booker fix provisions (basics here, commentary here and linked here), through the House Subcommittee on Crime, Terrorism, and Homeland Security has perhaps made it hard for all those concerned with federal sentencing to speak up about the bill.  But, in addition to Professor Frank Bowman's letter dissecting and assailing the Booker-inspired provisions of H.R. 1528 (Section 12), which is available here, others are starting to weigh in with criticisms of the bill.

FAMM has this new information about the H.R. 1528 and all of its disconcerting sentencing provisions, and TalkLeft now has this extended post focused on the drug sentencing components of H.R. 1528.  In addition, Jim Felman has given me permission to post the text of an e-mail he sent to the House staff which astutuely analyzes and critiques the Booker fix provisions of H.R. 1528.  (I put the text in a separate document which can be downloaded below.)

As it explains here, FAMM expects the full House Judiciary Committee to vote on H.R. 1528 as early as next week, and thus there is no time to waste for folks eager to weigh in on this bill.  I am hoping the US Sentencing Commission, as well as members of the judiciary, will be able to share their views ASAP about this bill.  Indeed, I think the Justice Department also ought to have some official position on the Booker fix provisions, which I suspect has some terms that even federal prosecutors won't like.

Download felmans_analysis_of_booker_fix.rtf

The rhetoric and reality surrounding the brewing Booker fix

I received today a copy of a fascinating one-page document that reportedly was developed by Representative James Sensenbrenner's office to explain section 12, the Booker fix section, of the proposed drug sentencing bill, H.R. 1528.  (Links assembled in this post provide extensive materials and commentary on this bill, its Booker-inspired provisions, and yesterday's House hearing on the bill.)

The document, which I provide for downloading below, is titled "Provisions of HR 1528 are not the legislative fix to Booker."  It correctly highlight aspects of Booker that Section 12 would not alter.  However, the document suggests that the chief goal of the section is to "establish procedures to assure that there is an adequate appellate and public record so that courts of appeals can apply the new Booker 'reasonableness' standard of review and so that Congress can review the sentencing practices as it considers a Booker fix." 

Though the document does note that Section 12 "prohibits judges from using enumerated factors to sentence below the guideline range," the document does not explain the strikingly unbalanced nature of its proposed "procedures."  As written, Section 12 would rigidly restrict the bases on which a judge can sentence below an applicable guideline range (and would impose burdensome procedural requirements before a judge could depart or vary), but the section does not in any way regulate judicial decisions to sentence at or above the guideline range on any ground.  Professor Frank Bowman's letter dissecting and assailing Section 12, which is available here, is far more accurate and forthright in detailing its terms and impact.

Apparently there are now conflicting reports on whether H.R. 1528 will be marked up in full committee next Wednesday.  But it is clear anyone concerned about this sort of congressional response to Booker should work to help ensure that rhetoric does not eclipse reality as the legislative process unfolds.

Download document_on_hr1528_section_12.rtf

House hearing wrap-up

I have assembled below all the posts covering today's hearing before the House Subcommittee on Crime, Terrorism, and Homeland Security concerning H.R. 1528, the drug sentencing bill which includes the Booker fix provisions:

• The (Booker) fix is in?
• Details concerning the brewing Booker fix
• Questions about the brewing Booker fix
• A day for sentencing hearings
• Bowman on the proposed Booker fix
• More opposition to quick Booker fix
• DOJ advocacy for mandatory minimum sentencing

DOJ advocacy for mandatory minimum sentencing

As detailed on this page from Families Against Mandatory Minimums and in this letter from the Federal Sentencing Guidelines Task Force of the Federal Bar Association's DC Chapter (of which I am a member), numerous policy-makers, judges, researchers and other respected commentators have spoken out against mandatory minimum sentencing provisions.  But in today's hearing on H.R. 1528, the federal drug sentencing bill which includes the Booker fix provisions (basics here, commentary here and here and here), written testimony on behalf of the Justice Department from Jodi Avergun, DEA's Chief of Staff, makes a broad argument in favor of mandatory minimum sentencing.

Avergun's testimony is available here, and here are two paragraphs on mandatory minimum sentencing that caught my eye:

The Department of Justice supports mandatory minimum sentences in appropriate circumstances. In a way sentencing guidelines cannot, mandatory minimum statutes provide a level of uniformity and predictability in sentencing.  They deter certain types of criminal behavior determined by Congress to be sufficiently egregious as to merit harsh penalties by clearly forewarning the potential offender and the public at large of the minimum potential consequences of committing such an offense.  And mandatory minimum sentences can also incapacitate dangerous offenders for long periods of time, thereby increasing public safety.  Equally important, mandatory minimum sentences provide an indispensable tool for prosecutors, because they provide the strongest incentive to defendants to cooperate against the others who were involved in their criminal activity.

In drug cases, where the ultimate goal is to rid society of the entire trafficking enterprise, mandatory minimum statutes are especially significant.  Unlike a bank robbery, for which a bank teller or an ordinary citizen could be a critical witness, often in drug cases the critical witnesses are drug users and/or other drug traffickers.  The offer of relief from a mandatory minimum sentence in exchange for truthful testimony allows the Government to move steadily and effectively up the chain of supply, using the lesser distributors to prosecute the more serious dealers and their leaders and suppliers.  Mandatory minimum sentences are needed in appropriate circumstances, such as trafficking involving minors and trafficking in and around drug treatment centers.

The rest of Avergun's testimony is also an interesting read, though it does not address the Booker fix provisions of H.R. 1528 because they were tacked on at the last minute.  Notably, Avergun's testimony indicates that even DOJ considers some of the most draconian drug sentencing provisions of H.R. 1528 to be too severe.

Contrasting sentencing politics

Commenting on my talk yesterday at Minnesota Law School about forging a new sentencing politics (details here), Professor Richard Frase rightly commented that the politics of sentencing at the state level is much more balanced than at the federal level.  Professor Rachel Barkow makes the same astute point in her forthcoming Columbia article on "Federalism and the Politics of Sentencing."

A number of events today document the contrast between sentencing politics at the state and federal levels.  The development and hearing on H.R. 1528, the federal drug sentencing bill which includes the Booker fix provisions (basics here, commentary here and here and here), reveals that the "tough-on-crime" politics of recent years still has purchase in the federal system.  But from the states we get the news from TalkLeft here that the New York State Assembly Codes Committee today defeated a bill to reinstate New York's death penalty, and news from Grits for Breakfast here that a conservative think tank in Texas is actively discussing "how to increase the effectiveness of alternatives to incarceration that will play a greater role in the state's criminal justice system."

More opposition to quick Booker fix

The House Subcommittee on Crime, Terrorism, and Homeland Security hearing on H.R. 1528, the drug sentencing bill which includes the Booker fix provisions (basics here, commentary here and here), is still on-going.  I hope to report more on this House hearing (and this morning's USSC hearing) in future posts (and in the meantime I notice that the written testimony of some of the witnesses is now linked at this official website).

In the meantime, I see that the White Collar Crime Prof Blog has this post lamenting that "this Booker fix is being aired without the opportunity of meaningful input by the judiciary, academics, practitioners, and others."  That post also usefully pointed me to this (new?) webpage from the NACDL covering "Federal Sentencing After Booker" with materials and reports that all advocate against "quick fix" legislative responses to Booker.  And the ACLU has this press release urging the rejection of H.R. 1528.

Bowman on the proposed Booker fix

Professor Frank Bowman, who advocated a go-slow approach in this testimony to the House Subcommittee on Crime, Terrorism, and Homeland Security during their February Booker hearing  (highlights here), has drafted a terrific letter about the Booker fix provisions in the drug sentencing bill that is about to be the subject of House hearings (basics here, commentary here).

I have provided Frank's letter for downloading below, and here is one of many choice paragraphs:

As I and others suggested would be the case, the system of advisory guidelines created by Booker seems to be working acceptably, at least for the moment.  Statistics compiled by the Sentencing Commission suggest that judicial compliance with the Guidelines remains virtually identical to the levels that prevailed before Blakely and Booker.  Congress is not faced with an emergency calling for immediate legislation.  Moreover, any legislation that would fundamentally transform a system as complex as the federal sentencing guidelines requires time and careful thought. It had been my understanding that many, perhaps most, members of this Subcommittee were of the view that a legislative response to Booker should await data on the operation of the advisory system and should be the product of careful development and wide consultation.  Section 12 of the present Bill does not meet these criteria.  It is premature, poorly conceptualized, and imprecisely drafted.  And far from being the product of careful consultation with interested and knowledgeable persons and institutions, it was inserted into the present Bill mere days before the Subcommittee markup with no notice to or consultation with anyone.

Download bowman_judiciary_letter_41105_on_booker_fix.doc

Questions about the brewing Booker fix

The Booker fix which is brewing in the US House of Representatives (basics here and here) has my mind racing with questions.  Here are just a few of the queries which leap to mind:

1.  Did the Justice Department have a hand in drafting this Booker fix?  At recent USSC hearings, DOJ representatives expressed possible interest in a "Bowman fix," but they seemed to disavow interest in mandatory minimum sentences.  The Booker fix appearing now as section 12 of H.R. 1528 (linked here) is something of a combination of the Bowman fix and the original extreme Feeney Amendment; the proposed fix, in FAMM's words, "would effectively make the federal sentencing guidelines a system of mandatory minimum sentences."

2.  Did the US Sentencing Commission have any warning concerning this Booker fix?  The USSC was blind-sided by Congress with the Feeney Amendment, and I have heard the USSC has been working hard throughout the last year to build a more effective working relationship with Congress.  I sensed that this relationship had been pretty positive in the post-Blakely and post-Booker periods, but the abrupt development of this Booker fix suggests that there is not perfect harmony inside the Beltway.

3.  What is likely to become of this Booker fix?  In the wake of Booker, the House has been the most fiery in its rhetoric about the need for a legislative response, while the Senate has seemed calm (almost to the point of indifference) about Booker.  This proposal could just be more rhetoric that will have no traction in the Senate.  Notably, this Wall Street Journal article about the bill reports that a "Senate Republican Judiciary Committee staff member said the staff members weren't consulted about the House bill and had no companion proposal in the works."  But recall that, though clever procedural maneuvers, the backers of the Feeney Amendment got that legislation through Congress in just a matter of weeks despite reservations expressed by some Senators.

4.  Will federal judges jump into the policy debate over a Booker fix?  In this post back in November, I pondered whether judges might become actively involved in policy debates over the future of the federal sentencing system.  And that was before Booker created a remedy that seem to be to the liking of most of the federal bench.  Sadly, given the ugly judge-bashing in DC these days, I fear that the views of federal judges won't be given the respect they deserve even if they do actively engage in the post-Booker policy dialogue.

5.  Is this Booker fix constitutional, or does it make Harris and/or Mistretta shaky?  This Booker fix relies upon the Supreme Court's 5-4 decision in Harris, which allows judges to find facts that raise minimum sentences.  But in light of Blakely and Booker, the votes of Justices Breyer and Scalia (and maybe Kennedy) are not certain if Harris is really put to the test through this Booker fix.  Also, even if no current Justice has a changed view, the expected replacement of Chief Justice Rehnquict (or later Justice O'Connor) could prove to be a swing vote on this matter. 

In addition, recall that Judge Panner in Detwiler concluded that the Feeney Amendment undermined key concepts that supported the Supreme Court's decision in Mistretta and thus rendered the whole federal system structurally unconstitutional (Detwiler is discussed here with commentary here).  I think Judge Panner's Detwiler result and reasoning becomes even more compelling if this Booker fix becomes law.

6.  Is this Booker fix a symptom of the post-Schiavo attack on the judiciary? Congress and the federal judiciary have been sparing over sentencing matters for a number of years, and this sort of Blakely/Booker fix was feared long before the recent Schiavo happenings.  But it had seemed that Congress was prepared to let the post-Booker world develop for some months, perhaps because the most recent statistics from the USSC (which I hope will be updated ASAP) suggest that the post-Booker world looks a lot like the pre-Booker world.  And yet, despite evidence suggesting not much needs fixing, suddenly in the midst of all the ugly judge-bashing rhetoric we get a dramatic sentencing proposal which reads like a massive broad-side attack on judicial sentencing discretion.

Readers with possible answers to any of these questions, or with additional questions about the brewing Booker fix, are encouraged to speak up in the comments.

Details concerning the brewing Booker fix

I am back home from the North Star state at a fully functioning computer and can thus now provide a lot more details about the Booker fix which is brewing in the US House of Representatives.  Here are some basics:

1. The Booker fix appears as section 12 of H.R. 1528, a drug sentencing bill entitled "Defending America's Most Vulnerable: Safe Access to Drug Treatment and Child Protection Act of 2005."  A table of contents for the bill, with links to the bill's text, is available at this link.

2.  The substance of the Booker fix in section 12 of H.R. 1528 is anything but subtle.  The bill essentially forbids consideration of three dozen potentially mitigating factors as a basis for sentencing below the applicable guideline range, and it imposes significant procedural restrictions on any possible remaining grounds for downward departure (except based on a prosecutor's motion for substantial assistance or for fast-track treatment).

3. The House Subcommittee on Crime, Terrorism, and Homeland Security will conduct a legislative hearing on H.R. 1528 tomorrow at 1pm, and the four scheduled witnesses are listed at this official website.  The descriptions of the witnesses suggest they were called to testify on the drug sentencing provisions of the bill; it does not appear that anyone has been called to testify concerning the Booker fix provisions.

4. Even before the addition of the Booker fix, FAMM has been tracking this drug sentencing bill and another bill with mandatory sentencing provisions entitled "The Gang Deterrence and Community Protection Act of 2005" (as detailed here).  I provide for downloading below a section-by-section analysis of H.R. 1528, the drug sentencing bill which includes the Booker fix.

Download section_by_section_hr1528_bill_analysis.rtf

The (Booker) fix is in?

I received from various sources news that the House republicans have developed a Booker fix and attached it to a bill that will be considered in the House tomorrow.  I have not yet seen the bill, but I do see that Families Against Mandatory Minimums has some details about this (unexpected?) development at this link. 

I am at an airport kiosk, and likely won't be able to provide more details or links until much later tonight.  In the meantime, folks in the know are encouraged to leave comments with details, and I hope to be able to discuss this major news more when I am back to a fully functional computer late tonight.

UPDATE: I see that the US Sentencing Commission has on its home page some details about its planned meeting and hearing tomorrow. I wonder if the USSC got any advance word of this seemingly sudden proposed Booker fix. It does not appear to be on the USSC's hearing agenda, and I do not see any mention of this issue in the testimony from the Justice Department officials scheduled to testify before the USSC tomorrow.

Pondering the USSC's role after Booker

As indicated here, the US Sentencing Commission has both a public hearing and a public meeting scheduled for this coming week.  I am not sure of the full agenda for these meetings, though I know they will be in part concerned with proposed guideline amendments concerning identity theft and antitrust offenses that the USSC had previously promulgated for comments (available here).

I am hopeful that this USSC meeting will bring us more post-Booker sentencing statistics; but the consideration of specific guideline amendments has me pondering more broadly the role of the USSC post-Booker.  I think interesting arguments might be made that, since the guidelines are now wholly advisory, the USSC ought to approach guideline amendments in a much different way.  At the very least, given the centrality of the § 3553(a) factors in the wake of Booker, it seems important for the USSC to explain and justify its changes to the guidelines with greater explicit discussion of the factors and principles in § 3553(a).

I am not the only one pondering these issues.  Indeed, Jim Felman, who is scheduled to testify at this week's USSC hearing, has authored testimony which (particularly in part 3) discusses thoughtfully how the USSC ought to proceed post-Booker.  Among other interesting points, this testimony (which can be downloaded below) notes that the "Commission's consideration of the § 3553(a) factors when drafting and amending the guidelines is a critical aspect of the reasoning underlying judicial decisions to afford the guidelines substantial weight after Booker."

Download felman_ussc_2005_antitrust_testimony.wpd

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.

Highlights from the USSC hearing transcripts

The US Sentencing Commission, to its great credit, has not only the written testimony from its hearing this week linked here, but also now has up transcripts with all the live testimony.  The transcript from Tuesday afternoon is here, from Wednesday morning is here.  (And while I am giving out credit, a wise reader noted that USSC Chair Hinojosa and Judge Sim Lake used the term "vary" in their documentation memo (discussed here) the week after Blakely.  Thus, they deserve credit along with Judge Cassell for coining the term "variance" to describe post-Booker non-guideline sentences.)

The USSC hearing transcripts are very long — a total of nearly 300 pages! — but the Q&A after each panel really provides a rich addition to the written testimony  and also reveals what some of the Commissioners are thinking through.  In addition, there are 13 must-read pages from all the transcripts, appearing at the very end (pp. 137-150 of the second transcript) in the testimony of Robert McCampbell, who is the US Attorney for the Western District of Oklahoma and chairs the AG's Advisory Sub-Committee on Sentencing for DOJ. 

Though McCampbell's written testimony largely tracked the written testimony of Chris Wray for DOJ at the House hearing, McCampbell made a number of distinct (and extraordinarily insightful) points in his oral presentation.  In addition, through the Q&A with the Commissioners, McCampbell shed a lot of light on DOJ's biggest concerns as the post-Booker world unfolds.  This weekend I hope to do some additional commentary, based on this testimony, on what we might soon expect to see from DOJ.  In the meantime, go read those 13 pages, which McCampbell starts with this highlight:

When I read those two [Booker] opinions back to back, I have to say I was reminded of the old country-western song, "How Can I Miss You if You Won't Go Away?"