Ashcroft’s curious parting shot about Booker

As is being widely reported in stories from CNN and the Los Angeles Times and the Washington Post, out-going AG John Ashcroft gave a speech at the Heritage Foundation on Tuesday in which he criticized the Booker ruling, calling it a “retreat from justice that may put the public’s safety in jeopardy.”  In the speech, Ashcroft said Congress, in response to Booker, “should reinstitute tough sentences and certain justice for criminals.”

Thanks to the folks at the Heritage Foundation, you can watch the speech via the web from a link here.  The discussion of Booker is only a very small part of Ashcroft’s speech (it starts just after the 18:30 spot in the video, and runs only about two minutes), and I was intrigued by the entire presentation. 

Concerning Booker, I was particularly intrigued by Ashcroft’s critique of the Supreme Court’s decision to render the guidelines advisory since this was the remedy being vigorously urged by Ashcroft’s Justice Department if Blakely was deemed applicable to the federal system! 

Consider the fact that, had the Booker remedy proposed by Justices Scalia, Thomas and Stevens carried the day, the federal system would now still have mandatory guidelines in full force that would require “tough sentences and certain justice for criminals.”  Of course, under the dissenters’ remedy, those facts which trigger tough and mandatory guideline sentences would have to be proven to a jury or admitted by the defendant.  But requiring the facts of criminal conduct to be so proven is not (at least in my view) such a radical concept. 

But, to repeat, after Blakely, DOJ fought tooth and nail in every lower federal court and in the Supreme Court for the guidelines to be declared advisory if Blakely was applicable to the federal system.  If Ashcroft is so concerned about “certain justice,” why was his Justice Department advocating making the guidelines advisory?   We must remember that DOJ essentially won on the remedy issue in Booker.  Moreover, I am very confident that Justice Breyer’s advisory guideline remedy would not have garnered five votes (including the vote of Chief Justice Rehnquist) were it not for DOJ’s vigorous and effective advocacy of an advisory guideline remedy.

Looking forward, if DOJ now decides it was a mistake to seek an advisory system because of the need to ensure “tough sentences and certain justice for criminals,” isn’t the simple answer for Congress to adopt the remedy suggested by Justices Scalia, Thomas and Stevens in Booker?  As Justice Stevens noted, that remedy would not require any changes to the Sentencing Reform Act, it would simply require Congress to express its intent for the guidelines to be mandatory even though we now understand the Constitution demands that aggravating facts triggering longer guideline sentences have to be proven to a jury or admitted by the defendant.