Prepared Remarks of Attorney General Alberto Gonzales

Prepared Remarks of Attorney General Alberto Gonzales

Sentencing Guidelines Speech

Washington, D.C.

June 21, 2005 – 12:00 PM

Thank you …

It’s an honor to stand with you here today.

Being among you, and hearing your stories, always reminds me that your movement is mis-named.

My wife, Rebecca, and I have a long-standing concern for the issues facing victims of crime. Becky spent three-and-a-half years in the Texas Attorney General’s Office supporting sexual assault programs across the state. In my time with Governor Bush in Texas, I spoke to many victims and their families in connection with clemency decisions made by the Governor. Together, Rebecca and I have met with hundreds of crime victims, heard their stories, and worked to protect their rights and ensure that their voices are heard.

We know from experience that there is nothing in the word “victim” that captures this movement, your commitment, your courage, and your passion.

True victimization requires the apathy of leaders, the silence of good people, and the hopelessness of the victims themselves.

But there is a wonderful metamorphosis at the heart of the victims’ rights movement. From the ranks of the powerless has emerged a march of the empowered.

For decades, victims of crime lived in fear and suffered in silence. So-called experts told us that high levels of crime were inevitable, especially among the poor. The message to victims of crime – who were disproportionately poor as well – was inescapable: learn to live with it.

But thanks to the work of victims’ groups and other concerned Americans, the status of victims of crime in America began to change. Victims, and their friends and loved ones, began to demand more from our system of justice.

Important policies designed to ensure the vindication of victims' rights in federal criminal cases have been developed during the Bush Administration. Last year, the President signed the Justice For All Act. I recently revised and reissued the Attorney General Guidelines For Victim and Witness Assistance.

For victims, another key aspect of any fair and equitable criminal justice system is to ensure that those convicted of crimes serve tough and fair sentences. And since 1987, we have had a sentencing system for federal offenses that responded to this demand – and has helped to achieve the lowest crime rates in a generation.

The key to this system was a set of mandatory sentencing guidelines that specified a range within which federal judges were bound to impose sentences, absent unusual circumstances. The guidelines reflected a careful balancing by Congress and the Sentencing Commission between discretion and consistency in sentencing. But the mandatory guidelines system is no longer in place today, and I believe its loss threatens the progress we have made in ensuring tough and fair sentences for federal offenders.

That threat is illustrated by the story of two defendants, both convicted of similar charges involving possession of child pornography, one in New York, the other across the Hudson River in New Jersey.

The New York defendant faced a sentencing range of 27 to 33 months in prison, but received only probation.

The New Jersey defendant faced a sentencing range of 30 to 37 months and was given a sentence of 41 months in prison.

What made the difference?

This past January, the Supreme Court ruled that federal sentencing guidelines mandated by bipartisan congressional majorities in 1984 are advisory only and are no longer binding on federal judges.

In that case, U.S. v. Booker, the Court held that federal sentencing guidelines violated a defendant’s rights under the Sixth Amendment of our Constitution. The result is that, today, judges must take the guidelines into account when sentencing, but are no longer bound by the law to impose a sentence within the range prescribed by the guidelines.

So in the New Jersey child pornography case, the judge deemed it necessary to protect the public from the defendant and imposed a sentence slightly above the guideline range. In the New York case, however, the judge reasoned that the defendant would benefit from continued psychological treatment and ordered probation only.

The story of these two defendants is just one example that illustrates a developing trend in the aftermath of the Booker decision. More and more frequently, judges are exercising their discretion to impose sentences that depart from the carefully considered ranges developed by the U.S. Sentencing Commission. In the process, we risk losing a sentencing system that requires serious sentences for serious offenders and helps prevent disparate sentences for equally serious crimes.

And why, you may be asking, should victims and victims’ groups be concerned about sentencing?

The federal sentencing guidelines were the result of Republicans and Democrats coming together in response to the high crime rates of the 1960s and 1970s to create an invaluable tool of justice.

As the rates of serious violent felonies more than tripled, a consensus emerged that society needed to be protected from the early release of offenders.

Also undermining Americans’ faith in the system was the fact that significant disparities existed in the sentences received by individuals guilty of equally serious offenses.

A widespread and bipartisan consensus took hold that our system of sentencing was unfair and broken.

So in 1984, lawmakers from across the political spectrum passed the Sentencing Reform Act with two broad goals in mind.

The first was to increase the safety of law-abiding Americans by restoring in sentencing an emphasis on punishment, incapacitation, and deterrence.

The second was to ensure fairness in sentencing. The statute’s guiding principle was consistency – defendants who had committed equally serious crimes and had similar criminal backgrounds should receive similar sentences, irrespective of their race or the race of their victim and irrespective of geographic location or economic background.

In the 17-plus years that they have been in existence, federal sentencing guidelines have achieved the ambitious goals of public safety and fairness set out by Congress.

The United States is today experiencing crime rates that are the lowest in a generation. If crime rates during the last 10 years had been as high as the rates 30 – 40 years ago, then 34 million additional violent crimes would have been committed in the last decade.

Of course, no single law or policy is by itself responsible for today’s low levels of violent crime. But multiple, independent studies of our criminal justice system confirm what our common sense tells us: increased incarceration means reduced crime, and federal and state sentencing reform has helped put the most violent, repeat offenders behind bars, and kept them there for sentences appropriate to their crimes.

Federal sentencing guidelines have helped keep Americans safe while also delivering on their promise to reduce unwarranted disparities in sentences. When the U.S. Sentencing Commission recently took stock of 15 years experience with the federal sentencing guidelines, it noted that studies by both the Commission itself and others have determined that the guidelines, quote, “have succeeded at the job they were principally designed to do: reduce unwarranted disparity arising from differences among judges.”

For 17 years, mandatory federal sentencing guidelines have helped drive down crime. The guidelines have evolved over time to adapt to changing circumstances and a better understanding of societal problems and the criminal justice system. Judges, legislators, the Sentencing Commission, prosecutors, defense lawyers, and others have worked hard to develop a system of sentencing guidelines that has protected Americans and improved American justice.

I am concerned, however, that, under an advisory guidelines system, we will not be able to sustain this progress and victims may be victimized once again by a system that is intended to protect them.

And not because judges aren’t doing their best in each and every case. Deciding the fate of a defendant is a serious and difficult task, and our judges discharge this obligation conscientiously and with integrity. As a former judge, I know well the difficulties of the task and I admire the men and women on our federal bench. But it is inevitable over time that, with so many different individual judges involved, exercising their own individual discretion, in so many different jurisdictions, shorter sentences and disparities among sentences will occur under a system of advisory guidelines.

And, indeed, the evidence the Department has seen since the Booker decision suggests an increasing disparity in sentences, and a drift toward lesser sentences.

Moreover, our U.S. Attorneys consistently report that a critical law enforcement tool has been taken from them. Under the sentencing guidelines, defendants were only eligible to receive reductions in sentences in exchange for cooperation when the government petitioned the court. Under the advisory guidelines system, judges are free to reduce sentences when they believe the defendant has sufficiently cooperated. And since defendants no longer face penalties that are serious and certain, key witnesses are increasingly less inclined to cooperate with prosecutors. We risk a return to the pre-guidelines era, when defendants were encouraged to “play the odds” in our criminal justice system, betting that the luck of the draw – the judge randomly assigned to their case – might result in a lighter sentence.

In one recent case, a South Carolina man pled guilty to federal weapons and drug trafficking charges. The firearms in his possession included a fully automatic machine gun, two assault rifles, and two pistols. After his arrest on these charges, this defendant was released on bond. While out on bond, he failed a drug test and absconded from electronic monitoring. Federal marshals caught up with him and, after a six-hour standoff, tear- gassed him out of the house where he was hiding. Under the federal sentencing guidelines, this individual, who had a long history of state charges related to assault and drug possession, faced up to 27 years in prison. However, post-Booker, the judge sentenced him to only 10, offering no explanation. The Department is appealing this unreasonably low sentence.

In other cases, defendants are receiving sentences dramatically lower than the guidelines range without any explanation, or on the basis of factors that could not be considered under the guidelines.

In a case involving white collar crime, a Kansas rancher got 1.8 million dollars in cattle loans, falsely claiming that he was using the money to buy live cattle. He even took bank officials to livestock pens and claimed that the cows he was showing them were purchased with loan proceeds, when, in fact he lost all the money speculating on the cattle futures market. He pled guilty to defrauding the bank and faced a sentencing range of 37 to 46 months under the guidelines. But the judge gave him probation only, reasoning, in part, that the defendant had suffered enough when the bank foreclosed on his house.

We have also seen how a system without mandatory guidelines led to a radically reduced sentence for a previously convicted felon convicted of evading federal taxes.

This New York defendant was sentenced in 2003 for evading the payment of more than six million dollars in taxes by such means as moving out of the country valuable assets – including a fleet of Rolls Royces. Under the then-mandatory sentencing guidelines, the defendant was sentenced to 41 months in prison. The judge said he would have liked to impose a considerably lesser sentence, but felt constrained by the guidelines.

A year and half later, after the Booker decision, the defendant petitioned the court for re-sentencing and the judge reduced his sentence to seven months in prison and seven months of home confinement. The judge noted that the defendant’s age and the need to take care of his wife – not normally relevant sentencing factors pre-Booker – now justified a lesser sentence.

The trend suggested by these examples is consistent with the statistics being compiled by the U.S. Sentencing Commission. According to the Commission, sentencing within the guidelines by federal judges has fallen from almost 70 percent in 2003 to under 63 percent today. This trend is troubling to me and should be troubling to all victims of crime.

After reviewing the data, consulting with our prosecutors in the field, and reaching out to other interested parties, I have come to the conclusion that the advisory guidelines system we currently have can and must be improved.

I know our judges are trying to do the right thing. They are acting in good faith as they perform one of the toughest – and most important – jobs in our society with great skill and integrity. But the goals of public safety and fairness sought by Congress in the Sentencing Reform Act are the expressed will of the American people. Our sentencing system works best when judges have some discretion, but discretion that is bounded by mandatory sentencing guidelines created through the legislative process.

Since the Booker decision, numerous legislative proposals have been suggested in response and they should all be studied and discussed. One that I believe would preserve the protections and principles of the Sentencing Reform Act, and is thus deserving of serious consideration, is the construction of a minimum guideline system.

Under such a system, the sentencing court would be bound by the guidelines minimum, just as it was before the Booker decision. The guidelines maximum, however, would remain advisory, and the court would be bound to consider it, but not bound to adhere to it, just as it is today under Booker.

Under this proposal, advisory maximum sentences would continue to give the courts the benefit of guidelines that reflect decades of wisdom and experience.

The advantages of a minimum guideline system are many. It would preserve the traditional division of responsibility between judges and juries in criminal cases and retain the important function of the U.S. Sentencing Commission in providing guidelines to the courts regarding sentencing. It would also allow judges some flexibility for extraordinary cases. And a minimum guideline system would be fully consistent with the Sixth Amendment, as interpreted by the Supreme Court.

I have an open mind about how to best restore fairness and consistency in sentencing and I look forward to hearing the views of other interested parties about the best way ahead. As we go forward, I believe we should be guided by a fundamental fact: sentencing reform has been a success in both reducing crime and reducing unwarranted disparities. It has made Americans safer and our system of justice fairer. For the past two decades there has been an ongoing, healthy debate over the specifics of the sentencing guidelines. But there has also been a bipartisan consensus in support of the principles of sentencing reform. Today, I pledge the resources of the Department of Justice to work with the Congress, the Judiciary, the Sentencing Commission, and other organizations – like the National Center for Victims of Crime – to design a sentencing system that responds to the needs and concerns of all those who share our commitment to providing protection to the American people and equal justice to defendants.

Our system of justice is predicated on the belief that every human being has dignity – and it is sustained by individuals such as you working in defense of this belief.

Your work, your commitment, and your sacrifice have given the victims of crime a voice in our system of justice and have helped drive violent crime to its lowest rate in three decades.

With your support and inspiration, victims of crime have come forward with the hope of building a better future. They have come forward in the belief that one person’s injustice can inspire greater justice for all.

As we stand together shoulder-to-shoulder working to reform our sentencing system, let us use this opportunity to secure a system of tougher, fairer, and greater justice for all.

Thank you very much for all that you do to help victims of crime. May God give you wisdom and peace, and may He continue to bless the United States of America.

###

1