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In January of this year, the U.S. Supreme Court issued its landmark U.S. v. Booker decision, holding that the federal sentencing guidelines violated the Sixth Amendment right to trial by jury because they required judges to find facts that exposed defendants to increased prison time. The court solved the Sixth Amendment problem by making the guidelines advisory rather than mandatory. Under the new advisory guideline regime, judges must consult the guidelines when sentencing defendants but may impose more severe or more lenient sentences than those called for by the guidelines if they have good reasons for doing so. Further, appellate courts may reverse sentences that are unreasonable. The new system is far superior to its predecessor. First, it restores to judges a meaningful role in sentencing. Under the mandatory guideline regime, sentencing judges spent most of their time adding numbers on a grid rather than determining what sentence best served justice. Second, the new system enables judges to more precisely craft sentences that are appropriate to the circumstances of the case and to the individual defendant. The mandatory guideline system placed excessive emphasis on sentencing uniformity of a very superficial sort. Third, by requiring judges to state their reasons for imposing particular sentences and by authorizing appellate courts to reverse unreasonable sentences, the new system ensures that judges are accountable for their sentences. Data compiled by the U.S. Sentencing Commission indicate that judges are scrupulously fulfilling their obligation to consult the guidelines and, in fact, since Booker have imposed sentences within the guidelines in 61.3% of all cases, only a slight reduction from the 65% average in the four years before Booker. Possibly the most striking change is that the average sentence is four months longer than was the average sentence in the four years before Booker. Because the new system is so manifestly more fair than the mandatory regime and is working well, it is surprising that in recent months, Attorney General Alberto Gonzales has twice suggested scrapping it and replacing it with what he referred to as a “minimum guideline system.” The attorney general has not spelled out the details of his plan but appears to support one of two proposals that have been floated in the wake of Booker and its precursor Blakely v. Washington. The first would remove the top of the guideline range but retain the bottom. Judges could sentence below the minimum only in extraordinary cases but would be free to impose any sentence up to the maximum prescribed by statute. The second would also create “topless” guidelines but bar judges from sentencing below the guideline minimum absent the approval of prosecutors. Proposals are problematic Aside from being unbalanced (judges could freely go up but not down), these proposals ignore the widely recognized truth that mandatory minimum sentences are unjust: They disallow full consideration of individual situations and effectively transfer sentencing authority from judges to prosecutors, whose charging decisions, rather than the offender’s conduct and background, drive the sentence. Moreover, both proposals are constitutionally suspect, as the Supreme Court may extend the requirements of the Sixth Amendment to mandatory minimums as well as maximums. In support of his proposal, the attorney general asserts that there has been a “drift toward lesser sentences.” However, the Department of Justice has declined to release any data supporting Gonzales’ assertion. As noted, the Sentencing Commission’s data, which are comprehensive and detailed, rebut it. Rather, the attorney general relies on anecdotes such as one about a rancher in Kansas who fraudulently obtained loans and received probation rather than prison; a tax cheat in New York who received a short prison term followed by home confinement rather than the 41 months called for by the guidelines; and a defendant in New York convicted of possessing child pornography who received probation while a New Jersey defendant got prison. Significantly, the attorney general never addresses whether the judges had good reasons for imposing such sentences, nor does he acknowledge that the government can, in any case, appeal sentences that it believes are unreasonable. The advisory guideline regime should not be evaluated based on anecdotes. However, the question of how it should be judged is an important one. We believe that the appropriate standard is not whether the average sentence is more severe or more lenient than it was previously, or how many sentences remain within the guidelines, but rather whether in individual cases judges are doing justice. To answer this question, policymakers and scholars must carefully consider the quality of judicial reasoning underlying the sentences imposed, a factor that often goes unmentioned during the debate about sentencing. This task is not simple, and it will not be accomplished over night. In the meantime, the attorney general’s calls for change do not advance the discussion. His speeches seem to reflect DOJ’s anxiety about the fact that, under the advisory guideline system, judges actually have the authority to determine defendants’ sentences. However, under our system of justice, judges, not prosecutors, are supposed to sentence defendants. Unless the attorney general has solid evidence that judges when sentencing are not sufficiently taking into account public safety (which he does not), he should refrain from calling for radical changes in our sentencing system. Lynn Adelman is a U.S. district judge in the Eastern District of Wisconsin. Jon Deitrich is his law clerk.

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