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What's cooking with Booker?

By Chuck Armsbury, Razor Wire senior editor

Ohio law-school Professor Douglas A. Berman advocates publicly for reforming US drug war laws and enforcement practices. His website provides a rich resource for updates and comment on Blakely, Booker and various drug war and other criminal law decisions.

To help foster new thinking about arguments for downward sentencing departures, Berman wrote in mid-November 2005 that the US House of Representatives found time to pass a resolution expressing disagreement with a recent Ninth Circuit Court decision about parental rights. Catching Berman's eye in the House resolution was the bold statement that "the rights of parents ought to be strengthened whenever possible as they are the cornerstone of American society."

Should federal district courts apply their new Booker discretion to give greater weight to defendants' claims for a departure or variance on the basis of parenting responsibilities?

Berman then asks, "Given the overwhelming approval of this resolution by the House of Representatives, should federal district courts apply their new Booker discretion to give greater weight to defendants' claims for a departure or variance on the basis of parenting responsibilities? The Eighth Circuit in Tobacco rejected a parental responsibilities claim. In that case, the defendant stressed that he was raising three children, that he stayed at home with his children, and that one child 'has asthma; another has a blood disease requiring yearly hospitalization and making him sick when exposed to the cold.'"

Undoubtedly, November Coalition families will understand and support the House declaration that "the rights of parents ought to be strengthened whenever possible." "At the very least," wrote Berman, "the resolution suggests that most members of the House should be pleased to hear about departures or variances that district judges grant because of parental concerns."

Berman has a strong "feeling that congressional action in response to Booker is all but inevitable." He insists there's a "beltway buzz that both the House and the Senate may jump into Booker action come the one-year anniversary of the Booker decision." Humorously, Berman imagines "a giant cake being rolled onto the House floor on January 12, out of which will jump AG Alberto Gonzales holding the Booker fix minimum guidelines bill that the Justice Department wants enacted."

Anticipating the looming Booker fix debate, Professor Berman is starting a series of online posts under the title "Dead Booker walking"? "The goal of this series is to explore, one by one, the arguments which might be made in support of new sentencing legislation in response to Booker," Berman wrote on November 20th.

It seems the main elements and concerns of the "Booker fix" were expressed last summer in a speech by US Attorney General Alberto Gonzales who presented these chief arguments and reasons for a "Booker fix":

1. Concerns about "increasing disparity in sentences"

2. Concerns about "a drift toward lesser sentences"

3. Concerns about "key witnesses being increasingly less inclined to cooperate with prosecutors"

4. Concerns about defendants "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"

5. The need to "secure a system of tougher, fairer, and greater justice for all" (Source: Berman Internet post, November 20, 2005)

Berman recommends a published resource that examines the October 2004 Supreme Court from a criminal defense perspective. Available at Berman's website, it's entitled "Reviewing The Supreme Court 2004-05 Term From A Defense Perspective". Following is the insightful introduction to the document's review of the SCOTUS term just completed:

"This Term has had an unusual array of cases that will affect the practice of federal criminal defense. In going through the opinions to look for hidden gems, three major themes emerge. First, the protection of core constitutional rights has solidified in a surprising number of cases. Second, the Doctrine of Constitutional Avoidance continues to provide a key analytical framework for federal litigation.

Lastly, the Court's devotion of so much time to the rules of statutory construction emphasizes the need for federal defense attorneys to incorporate them into our litigation vocabulary. The overall message is to hit constitutional issues hard, but layer them with statutory arguments that avoid the necessity of resolving the constitutional questions."

Professor Berman praises the diligence with which the "US Sentencing Commission's Booker webpage continues to update post-Booker sentencing data." USSC's latest update by close-of-business on November 1, 2005 includes the cumulative total, now covering almost 46,500 cases."

While complimenting the USSC's cataloguing work, Berman argues that "the Commission needs ASAP to start adding more flesh to the bare data bones of its periodic reports."

Berman argues that "cumulative and even circuit-by-circuit within-guideline data provide only a superficial view of post-Booker realities. District-by-district data and data on the extent of, and justifications for, departures and variances are essential for a true understanding of federal sentencing after Booker.

November Coalition members understand that informal, hidden procedures define US criminal law injustice. The grand question begging thought is whether the USSC will ever be empowered and capable of evaluating law enforcement practices when such behaviors are justified as necessary to be hidden from public monitoring and review.

(Source: Professor Berman's extensive online criminal defense information:

Jail builder faces open records suit

A South Florida company hired to build a prison in Graceville and recently scolded for overbilling the state now faces allegations that it violated the Sunshine Law by withholding public records.

The Geo Group Inc. -- a sprawling corporation that claims 28 percent of America's private prison market -- was accused December 2, 2005 of ignoring a request for scores of documents related to its contracts with three Florida facilities, including audit records, lawsuit payments and court injunctions.

The company now has until later this month to respond to a public records lawsuit filed by Prison Legal News (PLN), a non-profit watchdog organization that publishes a monthly newsletter on prison issues and prisoners' rights.

According to the suit, PLN claims it requested in April information related to lawsuits that resulted in settlements or verdicts against Geo Group, as well as contract audits, violations and court-ordered injunctions. The company responded, according to Editor Paul Wright, with a simple spreadsheet that provided a limited amount of information related to one category of the request.

Wright said he then submitted a second request in September and since has been stonewalled.

"I do a lot of public records stuff and try to be fairly conservative with the requests," Wright said in a telephone interview Monday. "I guess when Geo or Corrections Corporation of America or the Department of Corrections in Florida and Washington get a letter or a phone call from PLN, they know it's not going to be good news.

"So they're pretty hostile with us. They hem and haw. That's the way they operate."

Florida's Sunshine Law is among the nation's most broadly sketched open-government statutes, giving citizens considerable access to most meetings and documents generated by public officials.

Exceptions to public records are numerous, with legislators adding between 10 and 20 new exemptions each year. There are currently about 800 exemptions in the law; the most commonly cited are investigative materials, security measures and personal details such as Social Security numbers and medical information.

Private companies such as Geo Group and CCA essentially stand as public entities in their dealings with the state, and are often contractually required to meet Sunshine Law standards. A state mediator can settle disputes, and violations are subject to criminal penalties ranging from fines to a year in prison.

Wright said PLN requested the documents to better understand how Geo Group was spending taxpayer dollars in South Bay, Moore Haven and Deerfield Beach. The company holds contracts to run state facilities in those cities, but also manages prisons in 13 other states and three other countries.

According to a 2005 annual filing with the U.S. Securities and Exchange Commission, the company reported $614 million in revenues. Geo Group initially was founded in 1984 as a division of Wackenhut Corporations; that company went public in 1994, merged in March 2002 with a Danish company and in 2003 became the majority shareholder. The group changed its name to Geo Group in November 2003.

Earlier this year, the state awarded the company with a contract to design, construct and operate a 1,500-bed prison in the Graceville Industrial Park. The $68 million facility will house medium-security and close-custody inmates, and is scheduled to open in 2007.

The contract was awarded by the same state agency that publicly rebuked the Geo Group earlier this year, concluding in an audit that Geo and CCA received "questionable contract concessions" and overbilled taxpayers by $12.7 million.

According to an audit by the Department of Management Services, the now-defunct Correctional Privatization Commission -- which was to oversee private prison contracts in Florida -- allowed the companies to bill for vacant positions and avoid minimal requirements for nurses, vocational trainers and teachers.

The commission also allowed inmate welfare funds to be used to cover chaplain and library services that the companies were required to provide. Both the commission and the two companies should share the blame, according to a state spokesman.

"There's responsibility on both sides," spokesman John Kuczwanksi told The News Herald earlier this year.

Said Wright: "I really hate to say this, but there is no 'best' private corrections company. None of them really stands head-and-shoulders above the rest. They all kind of do the same thing: understaff their facilities so they can make a financial profit."

Source: Miami News Herald

(Editor: Paul Wright receives mail at 972 Putney Road, # 251, Brattleboro, VT 05301. Telephone: 802-257-1342, email Paul -

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