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“It transfers discretion from a seasoned judge to a prosecutor who has no, or little, experience.” The Supreme Court’s 2005 decision in United States v. Booker was the first major decision to restore some power back to judges, Jackson said. In the original sentencing, “the judge found he [Booker, the defendant,] distributed 566 more grams of cocaine than the jury found,” he said. As a result, Booker received a dramatically increased sentence, which he appealed on Sixth Amendment grounds that he should only be punished based on what the jury found beyond a reasonable doubt. Booker won, and the Supreme Court decision made the federal sentencing guidelines advisory, not mandatory, while still instructing federal appeals courts to review criminal sentences for “reasonableness.” Jackson said federal prosecutors feared district judges would “go nuts” following the decision, a fear that turned out to be unfounded. “Every time you impose a sentence, you’re always looking over your shoulder to see that you’ve imposed a sentence that’s not going to get reversed,” he said. In Jackson’s own lower-court decision for Kimbrough, which went to the Supreme Court two years after Booker, the Supreme Court confirmed specifically that district judges have the right to impose sentences outside of the federal sentencing guidelines for cases related to the possession, distribution, and manufacture of crack cocaine. Jackson had originally imposed the minimum federal sentence of 15 years, which was still more than what Kimbrough would have received if he had only involved himself with powder cocaine, rather than both crack and powder cocaine. The 4th U.S. Circuit Court of Appeals vacated the sentence on the grounds that it was unreasonable because it fell outside of the guidelines range, but the Supreme Court upheld the sentence. “Kimbrough was facing, under the advisory guidelines, 19 to 22 years,” Jackson said. “The same sentence, had you considered it was powder cocaine, would have been 8 to 8.8 years, and so even with the mandatory
8 UVA Lawyer / spring 2012
minimum, we already had what I believed was sufficient.” Jackson said when a clerk brought him the Supreme Court’s opinion in Kimbrough, he “went old school.” “I went into my chambers, I whipped out a cassette tape, and I threw it in the boom box I had—and I played a bar of the ‘Hallelujah’ chorus! n
Founder’s Day Medal | Brian McNeill
George Mitchell, 2012 Jefferson Medal Recipient, Praises Rule of Law as Key to Free Society
G
eorge J. Mitchell, a former U.S. Senate majority leader and peace negotiator in Northern Ireland and the Middle East, received the 2012 Thomas Jefferson Foundation Medal in Law on April 13 as part of the University of Virginia’s Founder’s Day activities. Mitchell, who spoke at the Law School, described his views on the Middle East peace process, the hyper-partisanship and lack of collegiality among politicians in Washington, and the importance of law and lawyers in the United States. “Lawyers play a special role in American society in the preservation of liberty and the protection of individual rights,” he said. “So the education you’re receiving here is important for you individually, but also for the future of our society.” Speaking on Jefferson’s 269th birthday, Mitchell praised the efforts of the nation’s founders in crafting the Declaration of Independence and the Bill of Rights, and for
achieving independence in self-governance. “From the very beginning, our ideals distinguished our nation,” he said. “And they instantly, and to this day, continue to appeal to people around the world. Our economic strength and our military power, which have now become overwhelming, are necessary and important. But our ideals are, and always have been, the primary basis of American influence in the world. No American should ever forget that the United States was a great nation long before it was a great military or economic power.” American ideals, he said, include sovereignty of the people; primacy of individual liberty; opportunity for every member of society; and an independent judiciary enforcing the rule of law, applied to all citizens and the government. “There is, of course, a never-ending tension between the preservation of order and the rights of the individual,” he said. “That is especially true in these dangerous times when it can be difficult to find the right balance between collective security and individual liberty.” Losing sight of ideals and the rule of law, he said, led to the rise of Nazi Germany. “In my lifetime, a great, civilized and cultured nation descended suddenly into the abyss of lawlessness, a lawlessness that resulted in the Holocaust and the deaths of millions of innocent people,” he said. An entire nation was degraded, a whole continent stained. So, in the final analysis in every society, including ours, it’s the rule of law that stands against that fateful descent.” Mitchell challenged the students in the audience to work toward making the 21st century an era in which the nation’s ideals and the rule of law are upheld. “The 21st century may be like so many in history—a time of war, of injustice, of oppression, of famine,” he said. “But it could also be a time when the dominant power uses its strength carefully and commits its people and its prestige to a great and noble vision—a world largely at peace, with the rule of law and freedom, education, opportunity, and hopefully prosperity, extending to more and