Tony
Penultimate Amazing
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http://www.chron.com/cs/CDA/ssistory.mpl/nation/3234777 ... full article
"With liberty and justice for none"
"With liberty and justice for none"
AG calls for mandatory minimum prison terms
Re: Re: AG calls for mandatory minimum prison terms
Even if the law is unconstititutional?
Re-read the original post:
The laws are in place. The SCOTUS pointed out that the law, as written, cannot be enforced because it violates the basic rights of the defendant. Gonzales is saying that the law should be enforced anyway.
I know with whom I would agree.
merphie said:
Even if the law is unconstititutional?
Re-read the original post:
The laws are in place. The SCOTUS pointed out that the law, as written, cannot be enforced because it violates the basic rights of the defendant. Gonzales is saying that the law should be enforced anyway.
I know with whom I would agree.
Re: Re: Re: AG calls for mandatory minimum prison terms
If it is on the books, then yes it should be enforced. If the supreme court thought it violated the bill of rights they should have struck the law down which would remove it from the books.
That's how the system is supposed to work, right?
new drkitten said:
If it is on the books, then yes it should be enforced. If the supreme court thought it violated the bill of rights they should have struck the law down which would remove it from the books.
That's how the system is supposed to work, right?
Re: Re: Re: Re: AG calls for mandatory minimum prison terms
Um, no?
Not in the slightest?
Not in theory, not in practice?
The Supreme Court has no authority to remove a law from the books. That takes an act of the legislature -- or in some cases, such as a constitutional provision, a public vote or something. When the Supreme Court strikes a law down, that does not remove it from the books. The Supreme Court can only demand that the law not be enforced.
The Supreme Court did strike this law down, and made such a demand, and Gonzales is insisting that it be enforced anyway, in defiance of the Supreme Court's decision.
merphie said:
Um, no?
Not in the slightest?
Not in theory, not in practice?
The Supreme Court has no authority to remove a law from the books. That takes an act of the legislature -- or in some cases, such as a constitutional provision, a public vote or something. When the Supreme Court strikes a law down, that does not remove it from the books. The Supreme Court can only demand that the law not be enforced.
The Supreme Court did strike this law down, and made such a demand, and Gonzales is insisting that it be enforced anyway, in defiance of the Supreme Court's decision.
Re: Re: Re: Re: Re: AG calls for mandatory minimum prison terms
I was mistaken. I thought their desicion removed the law from the books. I guess I slept through that part in High school.
Ok, then it's wrong. But I wouldn't expect much from one of the authors of the patriot act.
new drkitten said:
I was mistaken. I thought their desicion removed the law from the books. I guess I slept through that part in High school.
Ok, then it's wrong. But I wouldn't expect much from one of the authors of the patriot act.
Re: Re: Re: AG calls for mandatory minimum prison terms
You'll be pleased to learn that that is not what AG Gonzales called for in his speech. He called for support for the Sentencing Reform Act, a bill currently in front of Congress which is designed to fix the defects in the prior sentencing guidelines system which led the Supreme Court (properly, IMO) to throw out the old system. You can catch his full speech here.
It sure looks like it from that poorly-written story, doesn't it?new drkitten said:
You'll be pleased to learn that that is not what AG Gonzales called for in his speech. He called for support for the Sentencing Reform Act, a bill currently in front of Congress which is designed to fix the defects in the prior sentencing guidelines system which led the Supreme Court (properly, IMO) to throw out the old system. You can catch his full speech here.
aerocontrols
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merphie said:
I'm pretty sure he's not.
Re: Re: Re: Re: AG calls for mandatory minimum prison terms
I'm not sure I share your rosy opinion of Gonzales or his statement.
How do you reconcile your paragraph above with this statement, taken directly from your cited speech?
Unfortunately, this directly violates both the letter and spirit of the Booker decision; the "guidelines minimum" to which he refers requires the judge to make a decision about both mitigating and aggravating factors, which may include aspects that were not presented in court, aspects upon which a jury was not asked to decide, and aspects that, in the opinion of the Supreme Court, violate the defendant's right to a jury trial.
I don't have my copy of the sentencing guidelines to hand, but I found the 1994 version of the guidelines on-line, so I will use that as an example. Pulling an offence more or less at random, I'll deal with
"Fraud." Under 2F1.1, the "base offense level" of this offense is 6, but a number of other factors may increase the level. Just as an example
For a defendant with no prior criminal history, the "minimum" sentence could vary from 0to 51 months in prison, depending upon the judge's finding on the points above. Even ignoring the last point, if the judge finds that the offense involved "more than minimal planning," the minimum sentence moves into Zone C of the sentencing table, and a sentence of imprisonment is now required -- probation is no longer an option.
The Supreme Court, rightly, held that the judge did not have the authority to make these kind of determinations; that the jury had to make this determination. If I read Gonzales' speech properly, he wants to have his cake and eat it, too. He wants judges to be allowed and in fact required to make determinations that would increase the sentence length (a judge would not be permitted to depart downwards from the guidelines), but not required to make the determinations that would decrease them -- judges would be free to apply more than the maximum.
I don't see his proposal as being in any way compatible with Booker. The whole point of Booker was that the judges shouldn't be making these kind of determinations at all....
manny said:
I'm not sure I share your rosy opinion of Gonzales or his statement.
How do you reconcile your paragraph above with this statement, taken directly from your cited speech?
Unfortunately, this directly violates both the letter and spirit of the Booker decision; the "guidelines minimum" to which he refers requires the judge to make a decision about both mitigating and aggravating factors, which may include aspects that were not presented in court, aspects upon which a jury was not asked to decide, and aspects that, in the opinion of the Supreme Court, violate the defendant's right to a jury trial.
I don't have my copy of the sentencing guidelines to hand, but I found the 1994 version of the guidelines on-line, so I will use that as an example. Pulling an offence more or less at random, I'll deal with
"Fraud." Under 2F1.1, the "base offense level" of this offense is 6, but a number of other factors may increase the level. Just as an example
- If the fraud involved more than $20,000, add 4
- If the offense involved more than minimal planning, add 2
- If the offense "substantially jeopardized the safety and soundness of a financial institution", the offense automatically at least a 24, or otherwise add 4
For a defendant with no prior criminal history, the "minimum" sentence could vary from 0to 51 months in prison, depending upon the judge's finding on the points above. Even ignoring the last point, if the judge finds that the offense involved "more than minimal planning," the minimum sentence moves into Zone C of the sentencing table, and a sentence of imprisonment is now required -- probation is no longer an option.
The Supreme Court, rightly, held that the judge did not have the authority to make these kind of determinations; that the jury had to make this determination. If I read Gonzales' speech properly, he wants to have his cake and eat it, too. He wants judges to be allowed and in fact required to make determinations that would increase the sentence length (a judge would not be permitted to depart downwards from the guidelines), but not required to make the determinations that would decrease them -- judges would be free to apply more than the maximum.
I don't see his proposal as being in any way compatible with Booker. The whole point of Booker was that the judges shouldn't be making these kind of determinations at all....
Re: Re: Re: Re: Re: AG calls for mandatory minimum prison terms
It seems I was in error -- I could have sworn that corrective legislation was already in front of Congress, but I can't find it so I was probably wrong.
I will say the following: Justice Stevens' lead opinion in Booker said that "Were the Guidelines merely advisory—recommending, but not requiring, the selection of particular sentences in response to differing sets of facts—their use would not implicate the Sixth Amendment."
(opinion here)
I'll further say that there is no Constitutional barrier to legislatively-mandated minimum sentences save the Eighth Amendment (under Eighth Amendment caselaw SCOTUS would probably invalidate a death penalty for trespassing in federal parks, for instance).
And finally, the Court has consistently found that judges may exercise discretion within guideline ranges, so long as they do so (as you correctly note) based solely on facts available to the jury and to s limited class of other undisputed facts which may not have been available to the jury such as prior convictions. Again from Booker, :"We have never doubted the authority of a judge to exercise broad discretion inimposing (sic) a sentence within a statutory range."
So one can see how the Congress could pass corrective legislation which achieves AG Gonzales' aims -- to preserve a minimum sentence and to allow for longer ones if circumstances warrant. The hard part would be in crafting allowances for deviating from the maximum guideline in such a way that complies with Booker. But hard doesn't mean impossible.
Not being a Constitutional scholar (and more specifically, not being 5 members of the Supreme Court
) I can't tell you exactly what corrective legislation might say and I can't tell you if SCOTUS would then uphold that corrective legislation.
What I can say is that AG Gonzales is not "insisting that it be enforced anyway, in defiance of the Supreme Court's decision," which is what you reasonably concluded from the poorly-written story and would be an improper (and impossible to accomplish) abuse of power. Instead he is seeking remedial legislation intended to correct the fatal flaws in the guidelines system which SCOTUS found in Booker, which is a proper function for a law enforcement officer.
(edited to correct the lead author of Booker. How embarrassing.)
That's an excellent question, "excellent question" being defined as "one to which I don't know the answer.new drkitten said:
It seems I was in error -- I could have sworn that corrective legislation was already in front of Congress, but I can't find it so I was probably wrong.I will say the following: Justice Stevens' lead opinion in Booker said that "Were the Guidelines merely advisory—recommending, but not requiring, the selection of particular sentences in response to differing sets of facts—their use would not implicate the Sixth Amendment."
(opinion here)
I'll further say that there is no Constitutional barrier to legislatively-mandated minimum sentences save the Eighth Amendment (under Eighth Amendment caselaw SCOTUS would probably invalidate a death penalty for trespassing in federal parks, for instance).
And finally, the Court has consistently found that judges may exercise discretion within guideline ranges, so long as they do so (as you correctly note) based solely on facts available to the jury and to s limited class of other undisputed facts which may not have been available to the jury such as prior convictions. Again from Booker, :"We have never doubted the authority of a judge to exercise broad discretion inimposing (sic) a sentence within a statutory range."
So one can see how the Congress could pass corrective legislation which achieves AG Gonzales' aims -- to preserve a minimum sentence and to allow for longer ones if circumstances warrant. The hard part would be in crafting allowances for deviating from the maximum guideline in such a way that complies with Booker. But hard doesn't mean impossible.
Not being a Constitutional scholar (and more specifically, not being 5 members of the Supreme Court
) I can't tell you exactly what corrective legislation might say and I can't tell you if SCOTUS would then uphold that corrective legislation.What I can say is that AG Gonzales is not "insisting that it be enforced anyway, in defiance of the Supreme Court's decision," which is what you reasonably concluded from the poorly-written story and would be an improper (and impossible to accomplish) abuse of power. Instead he is seeking remedial legislation intended to correct the fatal flaws in the guidelines system which SCOTUS found in Booker, which is a proper function for a law enforcement officer.
(edited to correct the lead author of Booker. How embarrassing.)
aerocontrols
Illuminator
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merphie said:
I believe he is not a co-author of the Patriot Act. Why do you believe he is?
Re: Re: Re: Re: Re: Re: AG calls for mandatory minimum prison terms
Thank you for that excellent analysis; I agree with you on almost all points until you get to your conclusion.
My problem is that I'm not entirely convinced that AG Gonzales' aims and approach are compatible with the spirit of the Booker decision, partly because I'm not entirely sure that he's entirely clear on exactly what his aims are. But as I read him, they are both mutually contradictory and directly unconstitutional themselves. If this last is true, it will be very difficult for Congress to construct constitutional legislation to achieve unconstitutional goals.
The primary goal of the sentencing guidelines, as originally envisioned, was fairly simple -- to reduce disparity in sentencing. As such, it's fairly content neutral and indeed praiseworthy. The guidelines made no judgement as to whether a particular legislatively-mandated sentence was appropriate, but sought to ensure that the sentence given would accurately reflect the nature of the crime committed across all Federal courts.
Booker found that the particular implementation of this goal violated the 6th amendment and the right of the defendant to be tried by a jury instead of a judge. Again, it's fairly content-neutral; the "facts" at issue might exonerate or further punish the defendant, but they must be determined by a jury or a judge. Again, this seems fair and praiseworthy to me.
AG Gonzales, on the other hand, seems to be pushing for a content-biased change in the status quo; he appears to be asking simultaneously for judges to have increased discretion in being able to make judgements against the defendant (that have the effect of increasing the sentence, in some cases beyond the maximum), and for the judges to have decreased discretion to make judgements in favor of the defendant. I'm not sure that this sort of biased discretion could be crafted in such a way of passing constitutional muster (although I'm not five members of the SCOTUS either). And I would submit that pushing for clearly unconstitutional "corrective legislation" is not a proper function of a law enforcement officer.
I agree that the full text of his speech does not support my original reading that he was simply urging Booker be ignored. Instead, he seems to be urging the reasoning behind Booker be ignored. I'm not entirely reassured.....
manny said:
Thank you for that excellent analysis; I agree with you on almost all points until you get to your conclusion.
My problem is that I'm not entirely convinced that AG Gonzales' aims and approach are compatible with the spirit of the Booker decision, partly because I'm not entirely sure that he's entirely clear on exactly what his aims are. But as I read him, they are both mutually contradictory and directly unconstitutional themselves. If this last is true, it will be very difficult for Congress to construct constitutional legislation to achieve unconstitutional goals.
The primary goal of the sentencing guidelines, as originally envisioned, was fairly simple -- to reduce disparity in sentencing. As such, it's fairly content neutral and indeed praiseworthy. The guidelines made no judgement as to whether a particular legislatively-mandated sentence was appropriate, but sought to ensure that the sentence given would accurately reflect the nature of the crime committed across all Federal courts.
Booker found that the particular implementation of this goal violated the 6th amendment and the right of the defendant to be tried by a jury instead of a judge. Again, it's fairly content-neutral; the "facts" at issue might exonerate or further punish the defendant, but they must be determined by a jury or a judge. Again, this seems fair and praiseworthy to me.
AG Gonzales, on the other hand, seems to be pushing for a content-biased change in the status quo; he appears to be asking simultaneously for judges to have increased discretion in being able to make judgements against the defendant (that have the effect of increasing the sentence, in some cases beyond the maximum), and for the judges to have decreased discretion to make judgements in favor of the defendant. I'm not sure that this sort of biased discretion could be crafted in such a way of passing constitutional muster (although I'm not five members of the SCOTUS either). And I would submit that pushing for clearly unconstitutional "corrective legislation" is not a proper function of a law enforcement officer.
I agree that the full text of his speech does not support my original reading that he was simply urging Booker be ignored. Instead, he seems to be urging the reasoning behind Booker be ignored. I'm not entirely reassured.....