The Curmudgeonly Clerk has a thoughtful and lengthy post
responding to me. I don't mean to turn my blog into a full-time job defending Ashcroft's position on the Sentencing Guidelines, but I'll respond briefly:
Consider this chart
(PDF) from the Sentencing Commission. One column lists the percentages of cases in which judges granted downward departures for reasons other than providing "substantial assistance" to the court. These percentages are provided by circuit and district throughout the entire country.
Thus, we can see that in 2001, there were vast disparities in how the Guidelines were applied across the country. In South Carolina, only 2%
of cases involved downward departures for "other" reasons, while the Fourth Circuit as a whole did so in 5.2%
of their cases. The Western District of Texas, however, granted such departures in 25.7%
of all cases. The Ninth Circuit as a whole granted such departures in 38.7%
of all cases, while the Southern District of California granted them in 50.5%
Now it might be that these disparities are caused by the differing dockets in various jurisdictions. Or maybe the criminals in the Southern District of California are just nicer human beings, and are therefore 25 times likelier
to have mitigating qualities than the criminals in South Carolina.
On the other hand, maybe Ashcroft is right in suggesting that the Guidelines are not
being applied consistently across the country. (See p. 4 of his memo, which mentions the "goal of reducing unwarranted disparities in sentencing among similarly situated defendants.") That is the whole point of the Guidelines, after all -- to make sure that equally situated defendants are treated equally no matter where they are standing trial. Indeed, the hope that uniformity would eliminate racial disparities
is precisely why liberals like Kennedy put forward the Guidelines in the first instance.
UPDATE: Curmudgeon responds by attributing most, if not all, of these disparities to the differences in dockets, primarily the prevalence of drug and immigration cases. He says:
I suggest that this docket-related surmise has more explanatory power than Ashcroft's accusation to the effect that renegade judges are flouting the Sentencing Guidelines at will and must be brought to heel.
The Clerk keeps insinuating that Ashcroft has made wild accusations about the federal judiciary. But as far as I can tell, Ashcroft has not himself "accused" anyone of anything. The only thing I've seen with Ashcroft's name on it is a bland and innocuous memo telling prosecutors to make sure that they initiate the appeals process if judges issue decisions that are "not supported by the facts or the law," if such decisions occur. (p. 4 of the memo). Does anyone want DOJ to acquiesce in decisions that are "not supported by the facts or the law"?
As for the differing dockets, let's take a quick look at some statistics: The Southern District of California's docket
is 42.2% drugs and 44.1% immigration, and grants downward departures 50.5% of the time. The Eastern District of Virginia's docket
is 38.2% drugs and 3.3% immigration, and grants downward departures 3.5% of the time. So even though SD Cal has a lot more immigration cases, that fact alone can't possibly explain the disproportionately high number of downward departures it grants. If it granted downward departures in drug cases at the same rate as ED Va, it would have to grant departures in every single immigration case (and then some) to reach 50.5% of all its cases. And granting departures in 100% of its immigration cases would be vastly disproportionate to the average nationwide figure
for immigration cases (35.7%). No matter how you look at it, SD Cal is way out of proportion to many other districts.
FURTHER UPDATE: The Curmudgeon responds in the same post yet again, pointing out that there are still significant differences between SD Cal and ED Va. Fair enough. A lot more study would be warranted. But neither Curmudgeon nor anyone else can possibly claim that there are never
cases where judges issue sentences that unlawfully depart from the Guidelines. And if such cases occur, all that Ashcroft is saying is, "Preserve the right to appeal." (That's why I'm utterly mystified when Curmudgeon says things like, "It is not even remotely clear that the incidence of such instances is epidemic. Ashcroft and his defenders have not even bothered to offer evidence in this regard." Who cares
whether it's an "epidemic" or whether it happens a handful of times per year? All Ashcroft said was that prosecutors should preserve the right to appeal IF such a case occurs.)
He also reiterates concerns about Ashcroft's motives:
I am flummoxed by Buck's argument. Are we to read Ashcroft's latest memorandum divorced from everything we know about the man and his law enforcement philosophy? Are we to disregard the statements of his own subordinates regarding the AG's motives and the impetus behnd the DOJ's new policy?
I have no doubt that Ashcroft wants to be tough on crime, and that this is why he wants to make sure that the government appeals when judges issue too-lenient decisions that are "not supported by the facts or the law."
But so what? How does that make the actual policy stated in the memo
objectionable? It's not as if Ashcroft said, "When you get a bad judge, call this secret number and I'll have him impeached." All he said was, "Initiate the appeals process when, in your opinion, a judge has issued a decision that doesn't follow the facts or the law." And the final decision in this appeals process is made by the Solicitor General's office, not by Ashcroft.