Judge Presnell assails DOJ (and pulls no punches)
I noted earlier today in this post that the real Booker action is to be found in the district courts, and this afternoon US District Judge Gregory Presnell brought the action straight to the Justice Department with his decision in US v. Williams, No. 04-cr-0111 (M.D. Fla. May 5, 2005). Williams, which can be downloaded below, is a seven-page frontal assault on modern federal prosecutorial policies. Williams must be read in its entirety, as every page is loaded with potent quotables. Here is just a small taste:
[T]he government argued that any sentence, other than a guideline sentence, would be unreasonable (and thus illegal). This contention is consistent with the policy of the Department of Justice to oppose as unreasonable any sentence that falls below the applicable guideline sentencing range, save those the Department authorizes in its sole discretion.…
The government’s policy, however, is at odds with Booker. In essence, the Department of Justice continues to treat the guidelines as mandatory, by asserting that the Court has no discretion to deviate therefrom. Thus, while paying lip service to Booker and the statute, the government flouts the efficacy of the Supreme Court’s opinion.
One of the factors that the Court is instructed to consider in fashioning a reasonable sentence is to “promote respect for the law.” 18 U.S.C. § 3553 (a)(2)(A). Yet, the government itself shows no respect for the rule of law when it consistently advocates a policy which ignores a specific pronouncement of our nation’s highest court….
Criminal behavior can fuel public outcry and drive broad legislative and executive agendas to get “tough on crime.” But how does that translate to specific instances? If you take a matrix to factor offense severity, overlay it with mandates born of popular outrage, and tailor it purportedly to address almost every eventuality, you get “justice” dictated in advance, marked by visceral condemnation, and based on the pretense of omniscience.
Under Booker, the sentencing guidelines no longer stand as such a mandatory ideal. In a very real sense, however, the executive branch is continuing to campaign for such a supposedly scientific equation of justice, without mentioning the wholly unscientific and overwhelming discretion it exercises over the sums that equation produces. In that regard, the executive wants to be prosecutor and judge. And, in a display of its wisdom and qualifications for that lofty job, the executive arbitrarily claims that any sum lesser than what it contrives is unreasonable and contrary to law.
Wowsa! And I have left out some of the really good stuff in Williams. Adding intrigue to insult, Judge Presnell in the course of considering this case requested that the local US Attorney make available the information DOJ iss collecting on post-Booker sentencings. That request, and its rejection by DOJ, are attached as appendices to the Williams opinion (and are also available for downloading below).
Download judge_presnell_williams_opinion.pdf
Download williams_exhibit_b_presnell_letter_to_usa.pdf
Download williams_exhibit_c_usa_letter_to_presnell.pdf
Regulars readers know that this Williams decision is not the first time Judge Presnell has sought to speak his truth to power in a sentencing decision. Judge Presnell has long had a place in my Sentencing Hall of Fame, and linked below are some of his greatest hits: