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Sentencing guidelines In “AG’s misguided proposals” [ NLJ, Sept. 19], Judge Lynn Adelman criticized a speech by Attorney General Alberto Gonzales outlining a possible legislative response to U.S. v. Booker. In Booker, the U.S. Supreme Court made the Federal Sentencing Guidelines advisory rather than mandatory. Although Judge Adelman characterized the June 2005 speech as “radical,” it is hardly radical for the attorney general to reiterate the Department of Justice’s long-standing support for the 1984 Sentencing Reform Act, which created the U.S. Sentencing Commission and gave it authority to develop the Federal Sentencing Guidelines. When the Sentencing Reform Act was enacted in 1984, there was widespread agreement that the discretionary sentencing regime had produced disparate, unjust sentences in which factors such as the defendant’s location, race and socioeconomic status often improperly influenced the results. That system did not produce fair or just results. Judge Adelman casually dismisses the work of the U.S. Sentencing Commission and the thousands of federal judges who have applied the guidelines over many years as merely “adding numbers on a grid rather than determining what sentence best served justice.” Yet the proper application of the Federal Sentencing Guidelines, which are carefully and flexibly crafted by the commission and regularly modified to reflect changing circumstances, is the appropriate way to determine what sentence best serves justice. The sentencing ranges in the guidelines were not picked out of thin air; instead, they are predicated on sentences actually imposed by federal judges, representing the accumulated wisdom of judges and practitioners derived from thousands of actual cases. In contrast, Judge Adelman would prefer no system at all, with each judge exercising his or her personal sense of justice, cabined only by a nebulous appellate standard of “reasonableness.” After passage of the PROTECT Act in 2003, compliance with the Federal Sentencing Guidelines was 70%. In less than one year, that figure has dropped to 61%, a substantial decline in such a short period. A continuation of this downward trend over the long term will erode the benefits of a determinate sentencing regime. Judge Adelman is correct that statistics cannot tell it all. As he puts it, an evaluation of our system must also consider “whether in individual cases judges are doing justice.” The attorney general has done just that, providing specific examples of cases where the new rules detracted from those qualities of justice-consistency, transparency and firmness-that the guidelines had so successfully achieved. Rachel L. Brand Washington The writer is assistant attorney general for the Office of Legal Policy at the U.S. Department of Justice. Outsourcing at the USPTO The article “Outsourcing, Offshoring” by Scott C. Harris [ NLJ, Sept. 12] is correct in noting that the U.S. Patent and Trademark Office (USPTO) is considering contracting out certain patent application searches. However, the primary motivator is reducing a growing backlog of patent applications, not cost savings. We now have a backlog of nearly 600,000 U.S. national patent applications. We expect to receive more than 350,000 new U.S. applications this coming year and more than 25,000 additional requests to process patent applications under the provisions of the Patent Cooperation Treaty (PCT), an international agreement that simplifies filing patent applications in 128 member countries. To help reduce the backlog, we recently contracted with two private U.S. firms to process a limited number of international PCT applications, freeing up the agency’s examiners to work on U.S. applications. This pilot will help us determine if commercial entities can maintain the accuracy and quality standards for searches conducted by the USPTO while remaining cost-effective. By contracting out the processing of international filings, we can begin reducing the backlog by getting the remaining applications on examiners’ desks sooner and decisions in applicants’ hands earlier. Margaret Focarino Alexandria, Va. The writer is deputy commissioner for patent operations at the U.S. Patent and Trademark Office.

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