SPEAKERS CONTENTS INSERTS
Page 1 TOP OF DOC
26–647 PDF
2006
UNITED STATES V. BOOKER: ONE YEAR LATER—CHAOS OR STATUS QUO?
HEARING
BEFORE THE
SUBCOMMITTEE ON CRIME, TERRORISM,
AND HOMELAND SECURITY
OF THE
COMMITTEE ON THE JUDICIARY
HOUSE OF REPRESENTATIVES
ONE HUNDRED NINTH CONGRESS
SECOND SESSION
MARCH 16, 2006
Serial No. 109–121
Printed for the use of the Committee on the Judiciary
Page 2 PREV PAGE TOP OF DOC
Available via the World Wide Web: http://judiciary.house.gov
UNITED STATES V. BOOKER: ONE YEAR LATER—CHAOS OR STATUS QUO?
26–647 PDF
2006
UNITED STATES V. BOOKER: ONE YEAR LATER—CHAOS OR STATUS QUO?
HEARING
BEFORE THE
SUBCOMMITTEE ON CRIME, TERRORISM,
AND HOMELAND SECURITY
OF THE
COMMITTEE ON THE JUDICIARY
HOUSE OF REPRESENTATIVES
ONE HUNDRED NINTH CONGRESS
SECOND SESSION
Page 3 PREV PAGE TOP OF DOC
MARCH 16, 2006
Serial No. 109–121
Printed for the use of the Committee on the Judiciary
Available via the World Wide Web: http://judiciary.house.gov
COMMITTEE ON THE JUDICIARY
F. JAMES SENSENBRENNER, Jr., Wisconsin, Chairman
HENRY J. HYDE, Illinois
HOWARD COBLE, North Carolina
LAMAR SMITH, Texas
ELTON GALLEGLY, California
BOB GOODLATTE, Virginia
STEVE CHABOT, Ohio
DANIEL E. LUNGREN, California
WILLIAM L. JENKINS, Tennessee
CHRIS CANNON, Utah
SPENCER BACHUS, Alabama
BOB INGLIS, South Carolina
JOHN N. HOSTETTLER, Indiana
MARK GREEN, Wisconsin
RIC KELLER, Florida
Page 4 PREV PAGE TOP OF DOC
DARRELL ISSA, California
JEFF FLAKE, Arizona
MIKE PENCE, Indiana
J. RANDY FORBES, Virginia
STEVE KING, Iowa
TOM FEENEY, Florida
TRENT FRANKS, Arizona
LOUIE GOHMERT, Texas
JOHN CONYERS, Jr., Michigan
HOWARD L. BERMAN, California
RICK BOUCHER, Virginia
JERROLD NADLER, New York
ROBERT C. SCOTT, Virginia
MELVIN L. WATT, North Carolina
ZOE LOFGREN, California
SHEILA JACKSON LEE, Texas
MAXINE WATERS, California
MARTIN T. MEEHAN, Massachusetts
WILLIAM D. DELAHUNT, Massachusetts
ROBERT WEXLER, Florida
ANTHONY D. WEINER, New York
ADAM B. SCHIFF, California
LINDA T. SÁNCHEZ, California
CHRIS VAN HOLLEN, Maryland
Page 5 PREV PAGE TOP OF DOC
DEBBIE WASSERMAN SCHULTZ, Florida
PHILIP G. KIKO, General Counsel-Chief of Staff
PERRY H. APELBAUM, Minority Chief Counsel
Subcommittee on Crime, Terrorism, and Homeland Security
HOWARD COBLE, North Carolina, Chairman
DANIEL E. LUNGREN, California
MARK GREEN, Wisconsin
TOM FEENEY, Florida
STEVE CHABOT, Ohio
RIC KELLER, Florida
JEFF FLAKE, Arizona
MIKE PENCE, Indiana
J. RANDY FORBES, Virginia
LOUIE GOHMERT, Texas
ROBERT C. SCOTT, Virginia
SHEILA JACKSON LEE, Texas
MAXINE WATERS, California
MARTIN T. MEEHAN, Massachusetts
WILLIAM D. DELAHUNT, Massachusetts
ANTHONY D. WEINER, New York
Page 6 PREV PAGE TOP OF DOC
MICHAEL VOLKOV, Chief Counsel
DAVID BRINK, Counsel
CAROLINE LYNCH, Counsel
JASON CERVENAK, Full Committee Counsel
BOBBY VASSAR, Minority Counsel
C O N T E N T S
MARCH 16, 2006
OPENING STATEMENT
The Honorable Jeff Flake, a Representative in Congress from the State of Arizona, and acting Chair, Subcommittee on Crime, Terrorism, and Homeland Security
The Honorable Robert C. Scott, a Representative in Congress from the State of Virginia, and Ranking Member, Subcommittee on Crime, Terrorism, and Homeland Security
The Honorable Howard Coble, a Representative in Congress from the State of North Carolina, and Chairman, Subcommittee on Crime, Terrorism, and Homeland Security
WITNESSES
The Honorable Ricardo H. Hinojosa, U.S. District Judge and Chairman, U.S. Sentencing Commission
Oral Testimony
Page 7 PREV PAGE TOP OF DOC
Prepared Statement
The Honorable William Mercer, Principal Associate Deputy Attorney General and U.S. Attorney for the District of Montana, U.S. Department of Justice
Oral Testimony
Prepared Statement
The Honorable Paul G. Cassell, Judge, U.S. District Court for the District of Utah
Oral Testimony
Prepared Statement
Mr. James E. Felman, Partner, Kynes, Markman & Felman, P.A.
Oral Testimony
Prepared Statement
APPENDIX
Material Submitted for the Hearing Record
The Honorable Howard Coble, a Representative in Congress from the State of North Carolina, and Chairman, Subcommittee on Crime, Terrorism, and Homeland Security
The Honorable Robert C. Scott, a Representative in Congress from the State of Virginia, and Ranking Member, Subcommittee on Crime, Terrorism, and Homeland Security
Page 8 PREV PAGE TOP OF DOC
Prepared Statement of the Honorable Tom Feeney, a Representative in Congress from the State of Florida
Prepared Statement of the Honorable Sheila Jackson Lee, a Representative in Congress from the State of Texas
Supplemental Testimony of James E. Felman, Esq., Kynes, Markman & Feldman, P.A., Tampa, Florida
Prepared Statement of Carol S. Steiker, Professor of Law, Harvard Law School, Cambridge, Massachusetts
Responses to Questions for the Record from William E. Moschella, Assistant Attorney General, Office of Legislative Affairs, U.S. Department of Justice, Washington, DC
Responses to Questions for the Record from Judith W. Sheon, Staff Director, U.S. Sentencing Commission, Washington, DC
Letter to the Honorable Howard Coble, Re: Revised Testimony for the Record from Judith W. Sheon, Staff Director, U.S. Sentencing Commission, Washington, DC
Supplemental Information for the Record from the Honorable Paul G. Cassell, Judge, U.S. District Court for the District of Utah
Letter to the Honorable Paul G. Cassell and ''Report on Post-Booker Sentencing in the United States District Court, District of Massachusetts,'' from the Honorable Mark L. Wolf, Chief Judge, U.S. District Court for the District of Massachusetts
Page 9 PREV PAGE TOP OF DOC
Revised Testimony of the Honorable Ricardo H. Hinojosa, U.S. District Judge and Chairman, U.S. Sentencing Commission
UNITED STATES V. BOOKER: ONE YEAR LATER—CHAOS OR STATUS QUO?
THURSDAY, MARCH 16, 2006
House of Representatives,
Subcommittee on Crime, Terrorism,
and Homeland Security
Committee on the Judiciary,
Washington, DC.
The Subcommittee met, pursuant to notice, at 12:16 p.m., in Room 2141, Rayburn House Office Building, the Honorable Jeff Flake (acting Chair of the Subcommittee) presiding.
Mr. FLAKE [presiding]. This hearing will come to order. I am filling in for the Chairman, who will be here momentarily, but we will go ahead and get started.
Thank you for your indulgence. When we have floor votes, obviously, we've got to be on the floor, but thank you.
I am pleased to be here for this important hearing, the Subcommittee on Crime, Terrorism, and Homeland Security, to look at the impact of the Supreme Court decision, United States v. Booker. A lot of us have been anxious to hear, after all the hype of what this decision might mean, it will be nice to hear what it actually has met over the past year. So I look forward to the testimony of the witnesses. Thank you all for traveling here and for what you are doing.
Page 10 PREV PAGE TOP OF DOC
Before introducing you, I should mention Chairman Coble has a statement which will be in the record, so I will not read that. Then I will turn the time over to Mr. Scott from Virginia for an opening statement.
Mr. SCOTT. Thank you, Mr. Chairman. I am pleased to join you in the hearing on Federal sentencing since the Booker-Fanfan Supreme Court decisions. The title of this hearing is ''United States v. Booker: One Year Later—Chaos or Status Quo?'' When we are looking at the question posed by the title, it is clear from the recent Sentencing Commission Report on sentencing during this period, that the answer is clearly status quo. There is nothing to suggest chaos.
Given the fact that the Booker decision eliminated mandatory application of guidelines and required the courts to consider a broader array of factors, including the guidelines, it's amazing that there is not a more pronounced difference in sentencing when compared to pre-Booker sentencing. Indeed, expecting sentencing to be the same, despite the changes, would be—just doesn't make sense.
Yet, with over 69,000 cases in 94 districts during a time implementing the new sentencing regimen, judges sentenced within the guidelines 85 percent of the time that did not involve a governmental motion. With any database this large, you can find whatever you're looking for. So those looking for an anecdotal evidence that there are more unjustified downward departures can point to the fact that the percentage of prosecutor- and judge-initiated downward departures were slightly up during this post-Booker period. They can look until they find a category that happens to show a greater rate of downward departures, and they, in fact, found one, where in one small category the downward departures were, percentage-wise, somewhat large.
Page 11 PREV PAGE TOP OF DOC
Whether it is post-Booker or pre-Booker, you can't look at sentences based on the name of a crime and expect to come up with an intelligent analysis of the sentences. A sentence usually involves, or at least should involve, input and impact of the Federal prosecutor, the probation officer, defense attorney, possibly a victim, and a judge, looking at all of the facts and circumstances in that individual case. The impact is marginalized and nullified when the data is analyzed simply on the name of the crime or the code section they're prosecuted under, and not the details of the crime itself.
While it's good that we have given ourselves at least a year before we began to evaluate the impact of Booker and Fanfan on sentencing, given the continuing impact that practice, experience, feedback and appeals have had on focusing attention—focusing sentencing decisions, it would be premature, I believe, to take any action at this time until we've got more data that's clearly on the way.
The impact of appeals that are pending should be awaited. There have been several circuit court appeals decided, but they have not had another Supreme Court decision since the post-Booker context. There is at least one case that the Supreme Court has already taken, Cunningham v. United States., which is due to be decided during the next term, and that would address some of the post-Booker issues including constitutionality of certain approaches. So any legislative action taken prior to that decision would clearly be premature.
Moreover, when we look at the data regarding the circuit appeals, what we see is that circuits are more prone to affirm within guidelines and above guideline sentences, than they are to affirm sentences that are below the guidelines. Of the appeal decisions issued since Booker, all but one sentence within the guidelines has been confirmed. Of the 21 appeals of departures, 15 have been reversed, only 6 have been affirmed. At the same time, 14 appeals above the guideline sentences have been affirmed, while only 2 have been reversed. The circuits all agree that even after Booker, they still lack jurisdiction to review the court's denial of a motion of downward departure.
Page 12 PREV PAGE TOP OF DOC
So, Mr. Chairman, I think I have spoken long enough for you to get your statement in before—but, Mr. Chairman, I believe the sentencing data clearly reflects that there is no chaos in Federal sentencing that we need to fix at this time. However, there are some things that existed before Booker that adversely affect sentencing, and in my view, need to be addressed. Among them are mandatory minimum sentencing in general, the 101 sentencing disparity between crack and powder cocaines, and the astounding disparity in substantial assistance treatment given to offenders in different circuits. We will hear more about the details of these problems from our witnesses.
So, Mr. Chairman, I look forward to the witnesses, and look forward to your statement.
Mr. COBLE [presiding]. Thank you, Mr. Scott, and to Mr. Scott, and to Mr. Flake and Mr. Delahunt, and to the panel and to those in the hearing room, I apologize for my belated arrival, but this is one of those days if it could go wrong, believe me, it has gone wrong. So I am hoping here in the calm of the hearing room, Mr. Scott, things will slow down.
I am going to ask unanimous consent to have my written statement made a part of the record.
[The prepared statement of Mr. Coble follows in the Appendix]
Mr. COBLE. I will only say this, and I think I maybe told Mr. Scott this earlier, shortly after Booker, I called the late Chief Justice Rehnquist, and asked him for counsel and advice. I said, ''Do you have any advice for me?'' He said, ''I think the best advice is just to be deliberate and thorough for several months,'' and that is what we have done. That brings us to this hearing today.
Page 13 PREV PAGE TOP OF DOC
And I am delighted to welcome you all here, and it's the practice of the Subcommittee to swear in all witnesses appearing before it, gentlemen, so if you all would, please, stand and raise your right hands.
[Witnesses sworn.]
Mr. COBLE. Let the record show that each of the witnesses answered in the affirmative. Let me suspend just a moment.
[Pause.]
Mr. COBLE. We have four distinguished witnesses with us today. Our first witness is the Hon. Judge Ricardo Hinojosa. Judge Hinojosa was nominated by Ronald Reagan and served as a United States District Judge for the Southern District of Texas. In addition, Judge Hinojosa is the Chairman of the United States Sentencing Commission. He joined the Commission in 2003 and has been chairman since January 31, 2004. Previously, the Judge served as a law clerk for the Texas Supreme Court, as well as working in private practice in McAllen, Texas. The Judge is a graduate of the University of Texas, and earned his J.D. at the Harvard University School of Law.
Our second witness is the Hon. William Mercer, Associate Deputy Attorney General, and United States Attorney for the District of Montana. Mr. Mercer has served in this dual capacity since 2005. Previously he served as Assistant United States Attorney for Montana. He currently serves on the Advisory Committee on Appellate Rules for the United States Court of Appeals for the Ninth Circuit, and has previously chaired the Attorney General's Advisory Committee Subcommittee on Sentencing Guidelines. Mr. Mercer was awarded his undergraduate degree from the University of Montana, his master's degree from Harvard, and a J.D. from the George Mason University School of Law.
Page 14 PREV PAGE TOP OF DOC
Our third witness is the Hon. Judge Paul Cassell. Judge Cassell was nominated by President Bush and currently serves as a Federal District Court Judge for the District of Utah. He is also a professor of law at the University of Utah. Previously he served as an Associate Deputy Attorney General, and as an Assistant U.S. Attorney in the Eastern District of Virginia. Judge Cassell clerked for the then-Judge Antonin Scalia of the United States Court of Appeals for the District of Columbia. He received an undergraduate and law degree from the Stanford University.
Our fourth witness is Mr. James Felman, Partner at Kynes, Markman & Felman. Mr. Felman currently co-chairs the Practitioners Advisory Group to the United States Sentencing Commission, and served as President of the Tampa Bay Chapter of the Federal Bar Association. He is also a member of the Sentencing Initiative of the Constitution Project. Mr. Felman is also the author of numerous publications on the issue of sentencing, including ''How Should the Congress Respond if the Supreme Court Strikes Down the Sentencing Guidelines?'' He received his undergraduate degree from Wake Forest University, and I regret to advise you, Mr. Felman, I think they lost their initial game last night. I regret that as well. [Laughter.]
And a master's degree of law from Duke University.
Gentleman, we are delighted to have you all with us. We will, as we have previously reminded you, we would like to comply with the 5-minute rule. You will not be keel hauled if you violate it, but when you see the amber light appear on your panel, that is your warning that you will have a minute remaining before the 5-minute deadline. When the red light appears, that is your cue to wrap up. We are on a short leash today, all of us are. We will have votes on the floor, but I think we'll have enough time here to resolve the matters before us.
Page 15 PREV PAGE TOP OF DOC
Judge, let me start with you, if I may.
TESTIMONY OF THE HONORABLE RICARDO H. HINOJOSA, U.S. DISTRICT JUDGE AND CHAIRMAN, U.S. SENTENCING COMMISSION
Judge HINOJOSA. Thank you, Chairman Coble, Ranking Member Scott and distinguished Members of the Subcommittee. Thank you for this invitation to testify today on behalf of the United States sentencing Commission regarding the impact of the Supreme Court's decision in United States v. Booker on Federal sentencing.
The Commission has spent the year since Booker collecting data and monitoring appellate court decisions so that it could determine what national sentencing trends have emerged since Booker was decided. Those determinations can be found in our recently released Booker Report. Because I wish to keep my remarks brief, I will not discuss in great length during my opening remarks the over 200 pages of detailed analysis about sentencing practices over time that are contained in our Booker Report. Instead, I will give you a brief overview of the Commission's approach to the Booker Report and a brief description of our findings.
The Commission looked at four topic areas as it prepared its Report. First: Has Booker affected the rates of imposition of sentence within and outside the applicable guideline range, if so, how has it affected sentence type and length, including the extent of departure or variance from the guideline range? Second: Has Booker affected Federal sentencing compared to sentencing practices occurring prior to the decision? Third: In what circumstances do judges find sentences outside the guideline system more appropriate than a guideline sentence? In other words, for what reasons do judges impose non-guideline sentences, and have those reasons changed after Booker? Fourth: The Commission also sought to examine the appellate courts' responses to Booker, particularly whether they were developing case law on what constitutes an unreasonable sentence?
Page 16 PREV PAGE TOP OF DOC
The Commission concludes that the Booker decision has had an impact on Federal sentencing. The magnitude of the impact depends on which historical period one compares post-Booker sentencing practices. The Commission data indicate that after Booker, conformance with the guidelines still occurs in the majority of cases. The rate of within-guideline range sentencing is 62.2 percent after Booker, compared with 64 percent in fiscal year 2001, and 65 percent in fiscal year 2002.
For the 7 months between October 1, 2002 and April 30, 2003, the date of enactment of the PROTECT Act, what we refer to in our report as the pre-PROTECT Act period, the within-guideline range rate was 68.3 percent. From May 1, 2003 to June 24, 2004, what we call the post-PROTECT Act period in our report, the within-guideline range rate was 71.7 percent. After Booker the Commission did detect an increase in below-range sentences. This increase was present both in the area of Government-sponsored below-range sentences, and non-Government-sponsored below-range sentences. Government-sponsored below-range sentences were imposed after Booker at a rate of 23.7 percent, compared to 22.3 percent in the pre-PROTECT Act period, and 22.0 percent during the post-PROTECT Act period.
The post-Booker Government-sponsored below-range rate is similar to rates from fiscal year 2001, which were 24.4 percent, and fiscal year 2002, which were 23.9 percent. Non-Government-sponsored below-range sentences were imposed after Booker at a rate of 12.5 percent compared to 8.6 percent in the pre-PROTECT Act period, and 5.5 percent during the post-PROTECT Act period. In fiscal year 2001, this rate was 11.1 percent, and in fiscal year 2002, it was 10.3 percent.
Page 17 PREV PAGE TOP OF DOC
The Commission concluded in its Booker Report, that although sentencing practices have changed since Booker, the severity of sentences has not changed. The average sentence length has slightly increased nationally after Booker to 58 months, from 56 months in the pre-PROTECT Act period, and 57 months in the post-PROTECT Act period. The Commission's Booker Report also identifies certain areas that may be of concern to some, including some regional disparities.
After collecting data, monitoring appellate court decisions and issuing its Booker Report, the Commission believes that it is time for serious consideration of a legislative response to Booker. As anticipated by the decision itself, at 543 U.S. page 265, quote, ''Ours, of course, is not the last word. The ball now lies in Congress's court. The National Legislature is equipped to devise and install, long-term, the sentencing system, compatible with the Constitution, that Congress judges for the Federal system of justice.'' End of quote. That is a quote from the Booker decision itself.
The Commission strongly believes that any legislation considered should preserve the core principles of the bipartisan Sentencing Reform Act of 1984 in a constitutionally sound fashion. The Commission believes that at the very least, the legislative response to Booker should include the following four adjustments, all of which can be made within the Sentencing Reform Act. First, the legislative response should include codification of the three-step process for imposing a sentence as outlined in my written testimony. Second, the Commission believes that any legislative response to Booker should address the appellate review process and standard. Third, as the Commission has noted throughout this testimony, timely and uniform use of sentencing documentation is imperative to the Commission's ability to accurately ascertain and report about national sentencing practices. Any legislative response should include the continued importance of proper and uniform sentencing documentation being sent to the Commission. Fourth, the Commission believes that a legislative response should clarify that a sentence reduction for cooperation or substantial assistance is impermissible absent a motion from the Government.
Page 18 PREV PAGE TOP OF DOC
The Commission stands ready—and I'm just about done, Chairman Coble—the Commission stands ready to work with Congress, the judiciary, the executive branch, and all other interested parties in refining the Federal sentencing system so that it preserves the core principles of the bipartisan Sentencing Reform Act in a constitutionally sound manner that will lessen the possibility of further litigation of the system itself. Such an approach would be the best for the Federal criminal justice system.
Thank you very much, and I would be glad to answer any questions, and thank you so much for not acting like a Federal Judge and making me stop at the end of the 5 minutes.
[The prepared statement of Judge Hinojosa follows:]
PREPARED STATEMENT OF THE HONORABLE RICARDO H. HINOJOSA
[Note: Image(s) not available in this format. See PDF version of this file for complete hearing record.]
Mr. COBLE. Well, Your Honor, thank you for at least acknowledging the illumination of the red light. [Laughter.]
Judge HINOJOSA. Thank you, sir.
Mr. COBLE. Mr. Mercer.
Page 19 PREV PAGE TOP OF DOC
TESTIMONY OF THE HONORABLE WILLIAM MERCER, PRINCIPAL ASSOCIATE DEPUTY ATTORNEY GENERAL AND U.S. ATTORNEY FOR THE DISTRICT OF MONTANA, U.S. DEPARTMENT OF JUSTICE
Mr. MERCER. Chairman Coble, Congressman Scott, Members of the Subcommittee, thank you for the opportunity to appear before you today and for inviting the Department of Justice to testify about this important issue.
The Attorney General regards today's hearing as an important step, but certainly not the last step in the serious, frank, and ongoing dialogue of the Supreme Court's decision United States v. Booker has generated.
Since the Booker decision, Department of Justice representatives have been in discussion with interested parties. We hope and expect that this fruitful exchange will continue after today's hearing.
In the early 1980's, with crime rates at near record highs, Members of Congress from both political parties, working together, reformed Federal sentencing policy to replace a broken and weak system of indeterminate sentencing with a strong and honest determinate sentencing system that would more effectively fight crime and address inequities in sentences. The Sentencing Reform Act of 1984 brought about comprehensive reform. It created the United States Sentencing Commission, and in turn, the Federal Sentencing Guidelines. The fundamental principles underlying the act and the guidelines were: consistency, fairness and accountability in sentencing. Defendants who commit similar crimes and have similar criminal records are to receive similar sentences.
Page 20 PREV PAGE TOP OF DOC
Today, serious crime is the lowest it's been in more than a generation. We believe that increased sentencing levels and more consistent sentencing practices have been responsible for much of this achievement. Yet, beginning with the Supreme Court's decision in Blakely v. Washington, the principles and practice of determinate sentences have been in jeopardy, putting at risk the progress we have made.
These developments culminated last year when the Supreme Court, in Booker, held that the Federal Sentencing Guidelines violated the sixth amendment right to a jury trial. As a remedy, the Court severed two provisions of the act, thereby rendering the guidelines advisory only, and weakening the standard review for Government appeals of sentences below the applicable guidelines range.
Given the great complexity of this issue, the Attorney General wanted to make sure that the department did not act precipitously. In the 14 months since the Booker decision, we have viewed Federal sentencing decisions with measured concern. At the same time, we have been careful not to draw premature conclusions. However, it is becoming increasingly clear that both anecdotal and statistical evidence demonstrate very troubling trends, a marked decrease in within-guideline sentences, and increased inter- and intra-district disparity in sentences.
Some have suggested that there has been little change in Federal sentencing practices because the average length of Federal sentences has remained nearly constant at 56 to 58 months. While this is correct, we do not believe that this is the beginning and the end of the analysis. The department remains very concerned about the decline in compliance with the Federal Sentencing Guidelines because it is evidence of increasing disparity in Federal sentences. After passage of the PROTECT Act in 2003, there was an increase in the percentage of sentences imposed within the ranges set forth by the Federal Sentencing Guidelines from 65 percent in fiscal year 2002 to 72.2 percent in fiscal year 2004. However, in the year since Booker was decided, we have seen a 10 percent decline in the number of sentences within the guideline range.
Page 21 PREV PAGE TOP OF DOC
This is a significant increase in downward departures. Indeed, nearly 8,200 defendants benefited from downward departures not endorsed by the Government in the period since Booker was decided. Moreover, we believe that the rise in sentences below the range is contrary to what Congress intended when it passed the PROTECT Act in 2003. The size in the individual departures is also troubling. The Sentencing Commission's report on post-Booker sentences indicates that a third of the defendants, approximately 2,700, who have received a downward departure not endorsed by the Government had their sentences reduced by 40 percent or more below the low end of the applicable guideline range.
Statistics also point to significant disparities between the circuits and within the circuits as the courts exercise their new authority. In the Fifth Circuit only 8.6 percent of defendants received departures not endorsed by the Government, whereas, in the Second Circuit, 23.1 percent of the defendants received departures not endorsed by the Government. The risks to fair and consistent treatment are not simply geographic. The Sentencing Commission's data just released similarly shows that Black defendants are now receiving longer sentences than their White counterparts, a result not observed after passage of the PROTECT Act. That same data also shows that despite Congress's repeatedly expressed concerns about sexually related offenses, Booker has resulted in judges increasingly sentencing defendants to below guideline sentences for these crimes.
While the data in the aggregate can be very instructive, it is also useful to look at particular outcomes and particular cases. My written statement identifies a number of cases, and there are many others worthy of analysis. The cases demonstrate two things. First, the new discretion given to district judges under Booker is undermining our ability to achieve the firmness and consistency necessary to accomplish Congress's purpose in establishing sentencing policies. Second, allowing appellate courts to review below guideline sentences under a reasonable standard cannot ensure achievement of the statutory purposes of punishment.
Page 22 PREV PAGE TOP OF DOC
There are hundreds and hundreds of examples of sentences below the guidelines. As noted in our case examples, these decisions not only undermine the goal of minimizing unwarranted disparities in sentencing, but also impair key goals of the Sentencing Reform Act: deterrence, promoting respect for the law, and incapacitation.
We know how hard Federal judges work to faithfully execute their duties every day. It is inevitable, however, that given broad discretion, well-intentioned judges will come to inconsistent and competing conclusions about what factors matter most heavily in sentencing. Ultimately, a system that produces such results is neither desirable, nor capable of sustaining long-term public confidence.
We believe there is a clear danger to the gains we have made in reducing crime, and achieving fair and consistent sentencing will be significantly compromised if mandatory sentencing laws are not reinstituted in the Federal criminal justice system. We believe reinstituting mandatory sentencing guidelines can be done best by creating a minimum guidelines sentencing system. Under such a system, the Sentencing Guidelines minimum would have the force of law, while the guidelines' maximum sentence would remain advisory. This would comport with the constitutional requirements of Booker because defendants, upon conviction, would always be subject to the maximum statutory penalty set by Congress, rather than being subject only to the maximum set in the guidelines. The Sentencing Guidelines would work in the same manner they have since their inception, with judges identifying aggravating and mitigating factors in individual cases with carefully measured judicial discretion, and with results that are certain, consistent and just.
Page 23 PREV PAGE TOP OF DOC
Interestingly, experts of all political and ideological stripes predicted before Booker was decided that a purely advisory system would undoubtedly lead to greater disparity, and further, that over time this disparity is likely to increase. We believe that we are beginning to see the results of that problem.
Thank you again for the opportunity to testify. I look forward to your questions.
[The prepared statement of Mr. Mercer follows:]
PREPARED STATEMENT OF THE HONORABLE WILLIAM W. MERCER
[Note: Image(s) not available in this format. See PDF version of this file for complete hearing record.]
Mr. COBLE. Thank you, Mr. Mercer.
Your Honor, Judge Cassell.
TESTIMONY OF THE HONORABLE PAUL G. CASSELL, JUDGE, U.S. DISTRICT COURT FOR THE DISTRICT OF UTAH
Judge CASSELL. Thank you, Mr. Chairman. I am pleased to be here on behalf——
Page 24 PREV PAGE TOP OF DOC
Mr. COBLE. Judge, your mike's not hot.
Judge CASSELL. All right. Hopefully, it will be hot.
Mr. Chairman, I am pleased to be here on behalf of the Judicial Conference, and on behalf of hundreds of men and women around the country who serve on the Federal Bench and struggle every day to make the tough calls that are involved in sentencing decisions. We also appreciate the fact that Congress has waited before diving into the Booker issue, and by waiting, you now have the data, as Judge Hinojosa has mentioned, and the data shows quite clearly that what has happened in the last year is judges have imposed tough sentences that protect society, while tailoring some sentences to the unique individual circumstances of particular cases.
The most salient fact about Booker is shown on the chart here to the side. This is the bottom line average total of sentences that have been imposed over the last several years, and the bottom line is that last year judges imposed average sentences of 58 months as compared to 57 months in the year before Booker. This same pattern occurs across the most significant categories of Federal offense, drug trafficking, firearms, theft and fraud, all saw increases in average sentence length last year.
Rather than focusing on the overarching fact that judges have, in general, been tougher after Booker, what the Justice Department has done is cherry-pick a few individual statistic on variances from the guidelines. But the bottom line here is, again, as Judge Hinojosa mentioned, 93 percent of all the cases today are being resolved exactly the way they would have come out before Booker. And what of the roughly 7 percent of the cases that are coming out a bit different? On average, judges are going down about 12 months, hardly a significant change in the grand sweep of things.
Page 25 PREV PAGE TOP OF DOC
Now, judges have exercised their newfound discretion responsibly in all categories of offenses, including that tiny sliver of the Federal docket that I know is of interest to Congressman Feeney and some others, the sex offense area. It has been said that there has been a fivefold increase in the cases in which judges have gone down for sexual exploitation of a minor. What that means in the Nation's Federal courtrooms is that in 2004, there were 2 such cases, in 2005, there were 11 such cases, hardly a dramatic increase given that the system prosecutes 65,000 offenders every year.
The reason for these adjustments is not, as some have tried to suggest, that we have some sort of soft spot in our heart for sex offenders. The reason is that Federal sex offense cases are not reflective of the Nation's criminal justice docket. About a half to two-thirds of these cases involve Native American defendants, who have committed State law crimes that end up being prosecuted in the Federal system solely because the defendants live within Federal jurisdiction. And indeed, if one looks at the big picture of all sex offenses, one finds that the overall situation has not changed much since Booker for criminal sexual abuse, sexual abuse of a minor, exploitation of a minor, trafficking in child pornography and possession of child pornography, sentences all went up after Booker.
Turning to the subject of geographic disparities mentioned by Mr. Mercer, we believe that the most pernicious contributor to geographic disparity in Federal sentences today is the Justice Department's inconsistent approach to filing motions for substantial assistance reductions for defendants who cooperate with the Government. We pulled together some data that has been provided to us by the Sentencing Commission. You can see, we have adjacent jurisdictions in Pennsylvania, North Carolina—I will focus on the last two from my neck of the woods. Idaho, 30 percent of all of their criminal cases are resolved by a substantial assistance motion. In my State, next door, Utah, it is only 8 percent. There is no rational explanation for these kinds of disparities, as the Sentencing Commission has explained in a comprehensive report on the subject. Even more troubling is that the Sentencing Commission found that there were racial disparities in the way that the Government handles these motions.
Page 26 PREV PAGE TOP OF DOC
While the department has not been able to put its own house in order, it has been quick to cast stones at particular judges who had to make some tough calls in post-Booker sentencing. In its prepared testimony, the department recites six individual cases that it believes demonstrate the need for reform. Four of those cases were decided before Booker. One of those cases is on appeal by the Government, and we don't know whether it's final. The sixth case, United States v. Montgomery, involved—although this isn't mentioned in the Government's testimony—a mentally ill defendant who was given a shorter prison term in a fraud case so that she could make greater restitution payments to her crime victim.
I would request the opportunity to provide more details about these particular cases, but the bottom line is that these six horror stories hardly are compelling examples of judges running amuck.
In conclusion, while there is no need for dramatic legislation in this area, I should mention several specific areas that would be appropriate for reform, such as restoring the Sentencing Commission to its traditional membership of at least three judges, creating standardized procedures for determining sentences, giving judges greater power to award appropriate restitution to crime victims, and to prevent profiteering by notorious criminals. In addition, we should eliminate inappropriate crack/power sentencing disparities. We should repeal unjustified mandatory minimums, and that the Congress should commission a report from the Sentencing Commission that would take a broad and global look at sentencing issues.
The Judicial Conference would be happy to work with the Department of Justice, this Subcommittee, and Members of Congress, to make sure that Federal judges continue to impose sentences that are fair and just to all concerned, just as Federal judges have been doing for the last year under Booker.
Page 27 PREV PAGE TOP OF DOC
Thank you.
[The prepared statement of Judge Cassell follows:]
PREPARED STATEMENT OF THE HONORABLE PAUL G. CASSELL
[Note: Image(s) not available in this format. See PDF version of this file for complete hearing record.]
Mr. COBLE. Thank you, Your Honor.
Mr. Felman, you are recognized.
TESTIMONY OF JAMES E. FELMAN, PARTNER, KYNES, MARKMAN & FELMAN, P.A.
Mr. FELMAN. Mr. Chairman, Ranking Member Scott and other distinguished Members of this Subcommittee, I am truly honored to have the opportunity to address you today on the important question of whether or not there is a need for immediate legislation to address the Booker decision. I believe there is not. I believe the data makes a compelling demonstration that status quo is an overwhelmingly more reasonable explanation than chaos. The bottom line statistic in sentencing is what is the average sentence length? Before Booker it was 56 months. After Booker it is 58 months. This is not about district judges going wild and giving everybody breaks. The average sentence went up.
Page 28 PREV PAGE TOP OF DOC
While there are a modest number of additional downward variances, we could expect that. This is not the same system we had before. I am surprised by how modest the change is. And to talk only about what is the difference in the percentage of variances before and after Booker can be very misleading, because a 2-month variance looks the same as a 20-month variance under that statistic. It is very important to focus on what is the average extent of a departure. The average extent of departures relying on Booker authority is identical to the average extent of departures pre-Booker, and it is only 12 months. It is a rather modest amount, particularly in comparison to the average substantial assistance departure which is nearly 2 1/2 times that, at 28 months. The reason sentences are outside the range more often is a Government motion, and the extent of the variance, which is such a critical factor, is much greater in a Government motion.
While the data does not show a need for legislation, there is a compelling reason not to make legislation right now, and that is that we are in a period of considerable constitutional uncertainty that will impact whatever legislation options you may wish to consider. The United States Supreme Court, just a few weeks ago, agreed to hear a case that will determine the constitutionality of California's presumptive sentencing laws. It is inevitable that the Court's opinion in that case will help clarify some of the critical uncertainty regarding the developing constitutional doctrines under Blakely and Booker.
There are two, as I understand it, legislative options that have been discussed. Both of them are quite potentially unconstitutional, and we will know much more about that if we wait and see what the Court says in the Cunningham v. California case.
Page 29 PREV PAGE TOP OF DOC
The first of those options that has been discussed by Mr. Mercer today, they describe that as a minimum guideline system. I think that would be a little hard. It is suggested there be a few guidelines or they would not mean much. I would describe it as a mandatory minimum guideline system. It especially turns—and I believe the department has acknowledged in their testimony that the constitutionality of that proposal turns exclusively on the continuing viability of the Court's precedent in Harris v. United States. Harris is a 414 plurality opinion, and we have two new Justices. If both of the Justices that are being replaced, that have been replaced, voted to uphold Harris, or if either of the new Justices change the vote of the Justices they replaced, Harris would fall.
But of particular interest is Justice Breyer's opinion in Harris. He issued the concurring opinion that resulted in—that caused that result. Justice Breyer said, ''I cannot agree that there is any logical difference between using judicial fact-finding to raise a sentencing maximum,'' which is the rule of Apprendi, ''and using judicial fact-finding to raise a guidelines minimum,'' which is what the department proposal relies upon. For Justice Breyer, he thinks there is no logical basis for that distinction. However, in Harris he said, ''Because I do not yet accept the rule of Apprendi,'' I am not prepared—''I am prepared to go along with those who would permit judicial fact-finding to raise the sentencing floor.''
Since Justice Breyer lost the vote in Apprendi, he has lost that same vote in Ring v. Arizona. He has lost that vote in Blakely v. Washington. He has lost that vote in Booker v. United States. He may very well lose that vote in Cunningham. What are the odds now that Justice Breyer will still say he cannot yet accept that? If Justice Breyer decides he must now accept the rule of Apprendi, Harris falls. It is an incredible gamble to wager on that vote, because if Harris falls, it is not just your new mandatory minimum guideline system that falls, it is every single mandatory minimum sentence in the Federal Criminal Code. They would all be unconstitutional because they rely on Harris. It's a heck of a gamble to take.
Page 30 PREV PAGE TOP OF DOC
Before I think you could take a gamble like that, there would have to be a compelling demonstration of chaos, a compelling demonstration that we need to act. What is the reason we should not wait a year and find out whether that is a gamble worth taking? I think that the only word I can use to describe the suggestion that we should legislate now on that is ''irresponsible.''
The second proposal that has been suggested is so-called presumptive guidelines, that is, we could pass a law that would add additional weight to the guidelines. That pushes the constitutional envelope. We know that binding guidelines are unconstitutional. We know that advisory guidelines are not. We do not know whether presumptive guidelines are constitutional. I do not think that that approach can be supported by a cost benefit analysis.
And I see that my time has expired, and so I will stop, but I will be happy to answer any questions that you have. Thank you.
[The prepared statement of Mr. Felman follows:]
PREPARED STATEMENT OF JAMES E. FELMAN
[Note: Image(s) not available in this format. See PDF version of this file for complete hearing record.]
Mr. COBLE. Thank you, Mr. Felman, and thank each of you for complying with the time limit. We also impose the 5-minute time limit against ourselves, so if you all could keep your answers as tersely as possible.
Page 31 PREV PAGE TOP OF DOC
Mr. Mercer, having reviewed the Sentencing Commission's statistics, and having discussed or listened to prosecutors in the field, walk us through very briefly what happened post—Booker.
Mr. MERCER. As I indicated in my opening statement, we're seeing significant increases in disparity within judicial districts, and also on an inter-circuit and intra-circuit basis. I think numbers here are somewhat helpful. Let me talk for a minute about the Southern District of New York. In 2003, the non-substantial assistance downward departure rate was 8.3, and that was fairly constant after Blakely and pre-Booker in 2004, 8.1 and 8.9 percent. It is now up to 23.6 percent.
In the Western District of Louisiana, pre, in 2003, the rate was 2.3 percent for non-substantial assistance downward departures. It was 1.8 and 1.0 percent in 2004, pre-and post-Blakely. And then it's up to 14.2 percent now. So we have seen a very significant increase in the number of cases in which courts are imposing below guideline range sentences.
We also know from the Sentencing Commission data set—and this comports with what we've seen in the field—that of those defendants who are getting non-substantial downward departures and non-governmental-sponsored departures, 40 percent of those, one-third of that cohort of cases, about 2,700 of them, involve departures of 40 percent or more. So you've heard a couple witnesses talk about how that only means 12 months, but if we play that out in a real case, maybe a fraud case with a loss of, say, $250,000, where the guideline range is 12 to 18 months. In a case where you've got a downward departure, typically on a factor that was disfavored or unmentioned in the guidelines manual, and something that we would not have seen after the PROTECT Act, relied upon to lower a sentence, so now we may see a sentence down to zero months with one of those defendants, the other one getting 18, and a significant disparity if you've got the same fraud and the same criminal history for this defendant, and a sentence of zero months for this defendant. That is the sort of unwanted disparity that the Sentencing Reform Act was designed to get rid of.
Page 32 PREV PAGE TOP OF DOC
Mr. COBLE. Thank you, Mr. Mercer.
Judge Hinojosa, why, if you know, why are judges handing down more below-range sentences for the crimes of sexual abuse of a minor, sexual contact of a minor, or trafficking in child pornography, sexual exploitation of a minor, and furthermore, the below-range sentences increased for all major drugs, meth, heroin, marijuana, powder cocaine? Can you explain why?
Judge HINOJOSA. Well, it's difficult to explain, Chairman Coble, but I will say that one thing we have found in the sex offenses is that it appears to be at the level where there is no prior criminal history, and that is where you see the highest percent of post-Booker below-range sentences, and that seems to be a common factor with regards to those.
Mr. COBLE. Your Honor, that probably, and cooperating with the State or Federal Government in developing a case?
Judge HINOJOSA. No. When we say the below-range, that includes basically judicially-initiated below-range sentences. The Government-sponsored ranges are kept separate.
Mr. COBLE. I got you.
Judge HINOJOSA. And so it would not include that. We do not see that with regards to rape cases. Those have actually, as far as the below-range sentences, gone down from the post-PROTECT Act. That is the one area where they have gone down. That is one of the explanations. Judge Cassell mentioned others.
Page 33 PREV PAGE TOP OF DOC
With regards to the drug cases, again, basically the same thing, first-time offenders.
Mr. COBLE. Thank you, Your Honor.
Judge HINOJOSA. And/or low criminal history categories. There are some of these drugs that are higher than others with regard to the below-range sentences.
Mr. COBLE. Let me go—thank you, Judge.
Let me to Judge Cassell before my red light illuminates. Judge, do you expect the rate of below-range sentences to continue to increase over time?
Judge CASSELL. No——
Mr. COBLE. Your mike's not hot, Judge.
Judge CASSELL. All right. I expect—in my testimony, I've actually got data on that, and if you look at what's happened January, February, March of this year, each month there has been an increase in the number of sentences within the guideline range, and so I would expect that to increase over time. We need to remember, Booker came down about a year ago, and the Courts of Appeals hadn't told us in the District Courts exactly what to do. They've now told us in a number of circuits that we should be giving very serious attention to the Sentencing Guidelines, and so over time, we're seeing that trend with more and more guideline compliance.
Page 34 PREV PAGE TOP OF DOC
Mr. COBLE. Thank you, Your Honor.
The distinguished gentleman from Virginia, Mr. Scott.
Mr. SCOTT. Thank you, Mr. Chairman.
Mr. Mercer, if you had two people in court pleading guilty the same day, one's a 19-year-old high school senior having consensual sex with a 15-year-old, more than 4 years difference in age, consensual sex, pleads guilty to it. At the same a 50-year-old pleads guilty to having sex with a 12-year old. They're prosecuted under the same code section. Should they get the same sentence?
Mr. MERCER. Well, of course, we'd look at the criminal history in that case, Your Honor—excuse me—Congressman, but we—I think you're right in saying that the guideline calculation would be different in all likelihood, probably be a coercion enticement case for the 50-year-old. It depends on the facts. But I think you're right, the sentence would probably be different in that case, and that would be reflected——
Mr. SCOTT. If there were a downward departure for the 19-year-old compared to the 50-year-old, would that be bad?
Mr. MERCER. Well, typically, we would look for that variance to be within the guideline range.
Page 35 PREV PAGE TOP OF DOC
Mr. SCOTT. So you would expect both of them to be sentenced within the guideline?
Mr. MERCER. Absolutely. In fact, the example——
Mr. SCOTT. The 19-year-old high school student having consensual sex with a 15-year-old high school student within the same guideline as a 50-year-old having sex with a 12-year-old, ought to be sentenced within the same guideline?
Mr. MERCER. Let me—if I may back up just to talk about—we do a fair number of those cases in my district because of our jurisdiction in Indian country offenses. And we would look to whether the State law would even allow us to bring that case, depending upon the age of the victim and the age of the offender, but we've got a real——
Mr. SCOTT. This is Federal law. We passed it. It's illegal for a 19-year-old to have consensual sex with a 15-year-old. Should they get the same sentence as the—do you see much difference? I mean, maybe you don't see a difference. I see a difference.
Mr. MERCER. I think the thing that we see in the legislative history is that the Congress is concerned about protecting the 15 and 14-year-old girl, and so we would expect that sentence to be within the range, and that's typically what we see victims wanting.
Mr. SCOTT. Thank you. You would expect the same guideline sentences for the two?
Page 36 PREV PAGE TOP OF DOC
Mr. MERCER. Well, there might be an upward departure, Your Honor, if the court didn't find the range to be adequate for the older defendant.
Mr. SCOTT. And if the range is right for the 50-year-old having sex with the 12-year-old, that it's appropriate for the 19 and 15-year-old to be in the same range?
Mr. MERCER. Well, I think there would be specific offense characteristics that would change the sentencing calculation.
Mr. SCOTT. If you have four people in court, one with 490 grams of powder, one with 4.8 grams of crack, one with 5.01 grams of crack, and one sharing one gram of crack with a friend, but the guy he got it from was dealing 10 pounds, so he's part of a 10-pound conspiracy, who ought to get the most time?
Mr. MERCER. I have to admit you lost me in the hypothetical. What are the——
Mr. SCOTT. You get 490 grams of powder; he can get probation. 4.8 grams of crack; he can get probation. 5.01 grams of crack; he's stuck with a 5-year mandatory minimum. And a friend sharing a gram of crack with his buddy, but it's part of a 10-pound conspiracy, is probably locked up for life. Does any of that make sense?
Mr. MERCER. Well, I think what the Congress has tried to do in this area is make sure that the punishment reflects the fact that we're really concerned about what's happening in the community, and we think that the mandatory minimums in this area have really helped establish and protect the public, so——
Page 37 PREV PAGE TOP OF DOC
Mr. SCOTT. That would make sense to you?
Mr. MERCER. Well, I think the——
Mr. SCOTT. If the 4.8 grams of crack walks out on probation, and the 5.01 grams of crack gets stuck with a 5-year mandatory minimum, makes sense to you?
Mr. MERCER. We think the system will allow enough—with those sort of sentencing ranges, we think that we've been able to induce cooperation in many cases, and by doing so, work up the chain and make cases that help protect the public, and so we believe that those sentencing ranges have helped advance the purposes of punishment.
Mr. SCOTT. All this disparity that you've been complaining about, how much of it is due to the prosecutor having the discretion, as opposed to the judge exercising common sense?
Mr. MERCER. The Government really does take issue with what Judge Cassell has set forth in terms of substantial assistance. Let's talk about that for a minute. The Commission, and I think the Congress, has recognized that the Government needs to be able to find cooperators, and typically, those are people who were engaged in criminal activity. And by finding cooperators that can help us make cases, we're able to better protect the public and bring people to justice.
So unlike many of the factors that we talk about in our testimony, substantial assistance is a favored practice. It's something where we're trying to induce cooperation and make cases. Things in 5(h) and 5(k) are typically—those departure factors are typically disfavored or prohibited factors. So substantial assistance is designed to serve a larger goal, and therefore, any disparity that's created there is designed to help protect the public, and we believe that that, in large part, explains why the Commission allows us to make those motions to reduce——
Page 38 PREV PAGE TOP OF DOC
Mr. SCOTT. And you haven't asked us for these draconian sentences for white-collar crimes, where you can really go in and get some cooperation. You just say, you know, a little bit of lightweight fraud, you can get 30 years to serve unless you cooperate. You haven't——
Mr. MERCER. I think, Congressman Scott, that Mr. Felman would say that he thinks that the Economic Crime Package in 2001 has created very substantial sentences in the economic crime area, and that, in fact, we depend very much on the cooperation in corporate fraud cases in order to identify those who were able to put those cases together for us——
Mr. SCOTT. If I could ask one question, kind of follow in on the same area? On this cooperation, this is based on a Government motion. Apparently some judges have noticed cooperation that the prosecutor hasn't made a motion for. What's wrong with the judge noticing two people equally cooperation, one got a motion and the other one didn't, being sentenced the same, if you had the same amount of cooperation?
Mr. MERCER. Well, I think both the historical notes in the Commission's work in the guidelines, and the—I don't know about the legislative history, but certainly, the whole concept here was to say the Government's in the best position to note who was cooperating. And to the extent that courts are then making determinations to reduce sentences, even though the Government says that cooperation either didn't exist or didn't constitute substantial assistance to what we were doing in that case or another case, it's going to undercut the Government's ability to get substantial assistance if defendants think the court's likely to cut our sentence even in the event the Government doesn't believe we've rendered cooperative—valuable cooperation.
Page 39 PREV PAGE TOP OF DOC
Mr. SCOTT. So it's okay if the judge notices, as a finding of fact, that the cooperation of two individuals was identical, but the Government only made a motion in one of them, that they should get vastly different sentences because in one case you had a motion, the other case you didn't, although as a finding of fact, the judge found that they had cooperated equally, they should get vastly, wildly divergent sentences?
Mr. MERCER. It might have an effect on the within-range calculation, but the whole point, I think, of the Commission saying in 5(k)1.1 that the determination of the Government was central to the motion is because the Government's in the best position to determine whether its case or another case was advanced through that cooperation. So, yes, we believe it would be very problematic if that were to change. I think the Commission's already addressed that in its proposal.
And, frankly, the fact that we have somewhere between 280 or 290 instances where sentences were reduced below the lower end of the guideline range when the Government didn't believe cooperation was rendered, is a real serious issue for us, and one we've been worried about from the time that the Booker decision came down. So we're very concerned about that.
Mr. FEENEY [presiding]. Thank you, and, Congressman Scott, unless there's a mad rush by our colleagues to get here and participate, I think you'll have time for another round. So I want to thank all the witnesses for being here.
Judge Hinojosa, I wanted to, you know, use—Congressman Scott's entitled to create his own hypothesis, and I won't change it for him. I'll leave it to him. But, number one, isn't—aren't there separate offenses for coercive and—coercive sex versus consensual sex? Aren't they separate offenses under the Federal code?
Page 40 PREV PAGE TOP OF DOC
Judge HINOJOSA. I know that we break them by guidelines, and I'm sure they are connected to the Federal code, and we call them criminal sexual abuse, and under 2(a)3.1 that would be rape, and we have criminal sexual abuse of a minor, which is statutory rape, which would be 2(a)3.2. And then we have abusive sexual conduct, which is inappropriate sexual contact, which is 2(a)3.4. And then we go to the sexual exploitation.
But I believe because of the age, although I am not totally sure, that he has used of 19 and 50, I don't think that there is a separate criminal code section for those because——
Mr. FEENEY. Well, the——
Judge HINOJOSA [continuing]. This is somebody who is of majority age with someone who is a minor. Some of the State statutes—and I'm not—will make a variance based on the difference in the age as to how they classify it. I'm not sure that the criminal code——
Mr. FEENEY. But within the guidelines——
Judge HINOJOSA. I'd be guessing if I said that.
Mr. FEENEY. Within the guidelines that the Commission has established, though, there is a great deal of discretion that judges have within the guidelines themselves for most offenses. Is that right?
Page 41 PREV PAGE TOP OF DOC
Judge HINOJOSA. Well, that's true. It is also true, Congressman Feeney, that 60 percent of the cases are sentenced within the minimum range.
Mr. FEENEY. Right.
Judge HINOJOSA. Within the minimum——
Mr. FEENEY. One of the red herrings in this argument is it would take——
Judge HINOJOSA. Within the minimum amount of the guidelines.
Mr. FEENEY. One of the red——
Judge HINOJOSA. There is a wide range within the guideline that——
Mr. FEENEY. Yeah, one of the red herrings in the argument is that we're taking all discretion away from judges in sentencing, and, in fact, that's not what the guidelines do. They allow a great deal of discretion within the guidelines, and in exceptional circumstances, we allow departures. But they were designed to be explicitly in the '84 legislation exceptional circumstances.
Judge HINOJOSA. And I——
Page 42 PREV PAGE TOP OF DOC
Mr. FEENEY. You know, if——
Judge HINOJOSA. This would be my suspicion as a judge. I think a judge would treat both of those cases differently, whether it's within the guideline range or through a departure upward or downward.
Mr. FEENEY. Mr. Mercer, one of the things that Mr. Felman said confused me a little bit. Maybe you could clarify. As I understood Mr. Felman's testimony, he said that the Supreme Court has ruled that advisory guidelines are constitutional, but that the guidelines on mandatory—binding guidelines are unconstitutional, I think was the language he used. In fact, seven of the nine Justices in Booker said that the guidelines, by and large, were very much constitutional, even if binding. Isn't that right? We had a bifurcated decision in Booker. We had a couple Justices that said when you add on—after the jury decision on guilt, when you add on time served with the jury participating, that denies right to a trial by jury. But the majority of the Court, a distinct majority, did not declare the binding guidelines unconstitutional. Is that right?
Mr. MERCER. Well, in the remedial opinion that we are now working under every day, there are two very significant things that happened. One, the Court said that the guidelines as written could no longer function as a mandatory system, and that's Mr. Felman's point in terms of rendering it as an advisory system. The second thing that it did in order to achieve that remedy was to strike the de novo standard of review, which was, arguably, the most significant component of the PROTECT Act of 2003. And so——
Page 43 PREV PAGE TOP OF DOC
Mr. FEENEY. But there's not a majority on the Court today that would rule the guidelines themselves unconstitutional.
Mr. MERCER. Well, I think—in fact, I think the opinions—and this goes back even to what the Court said about Blakely—talked about the salutary effort and effect of having Sentencing Guidelines and the fact that they're a very positive thing in terms of trying to calibrate sentences and advance the purposes of punishment. But that remedial opinion made the system advisory as opposed to mandatory, which we view as a really significant problem and one that needs to be remedied by the Congress.
Mr. FEENEY. One of the points that Judge Cassell makes is that the average sentencing has gone up, but a couple points about that I'd like you to address. Number one, we have increased minimum mandatories in the past few years for a number of offenses, and that's reflected in the average statistics. Number two, the average doesn't tell us anything about uniformity. In trying to treat Black defendants the same as White defendants, this disparity has been greatly enhanced by Booker, the geographic disparity and some of the other differences, for example. So while the average may have gone up, the uniformity is the problem that Congress was, by and large, trying to get to.
And then, finally, Judge Cassell says that we've got really too few cases, if you look at just the sexual offenses, to be worried about some mass pattern. But, in fact, it's not just the sexual offense cases, which I have a particular interest in, but the departure on theft and fraud has increased from 7.3 percent to a post-PROTECT standard of 14.2 percent post-Booker. Drug trafficking has gone from departures of 6 percent to almost 13 percent, firearms from about 9 percent to over 15 percent.
Page 44 PREV PAGE TOP OF DOC
So, in fact, almost every major set of Federal offenses has seen a significant increase in downward departures since the Booker decision. Do you want to comment on how the average statistic may be accurate but misleading in terms of what Congress was trying to accomplish with these guidelines?
Mr. MERCER. Yes, I appreciate that, Congressman Feeney, because this is a crucial thing and something that the department's very interested in trying to work with the Committee on talking about case examples. Judge Cassell has taken issue with some of our cases. We're happy to show a number of others because we've taken appeals now in about 122 cases where we think the departures are dramatic and there shouldn't be any way that they could be viewed as reasonable sentences.
But I share your concern about the trends and the fact that there is very significant disparity, no matter how you measure it. Let's just work some of the numbers.
The First Circuit, Massachusetts right now, their downward departure rate, non-governmental-sponsored, is 33.6 percent. So one in three cases, you're going to have a below-the-range guideline system, even though the Government has not made a motion. In Maine, it's 5.5 percent. So the chance that someone is going to get a below-the-guideline range sentence in Maine is dramatically lower than it is within that same circuit just up the road in Massachusetts. The same thing with Rhode Island, a State that before Blakely came down had been at 3.3 and 2.1 percent, is now at 22.9 percent. And if we break that into categories—and I think Judge Cassell was trying to focus on a very narrow category. I can't remember if he was talking about the number of sentences in the sexual abuse of minor category, but certainly the child pornography category is a growing category. We had about a thousand convictions in that category in 2005. And if we look at those numbers, the numbers tell a very significant story. Before the PROTECT Act, 25 percent of the cases results in below-guideline-range sentences. After the PROTECT Act, that was down to 16.9. Now it's up to a number that exceeds where it was before the PROTECT Act was passed. It's at 26.3 percent. So more than one in four child pornography possession cases result in sentences that are below the guideline range. And, in fact, 6.6 percent of those defendants aren't going to prison at this point, which I think is very interesting given what the Congress did in 2003.
Page 45 PREV PAGE TOP OF DOC
Trafficking in child pornography, obviously a guideline that is much more significant in terms of those purposes of punishment, the rate is way up. It's up—was it 13.7 before the PROTECT Act? Now it's at 19.1 percent of the people are getting sentences below the guideline range based upon this new Commission data.
So we can go through every category. We can talk about first offenders. We can talk about career offenders. We can talk about the economic crimes. Every trend line is in the wrong direction, and it's going to have a big effect, as I said, when you take a defendant in Maine and a defendant in Massachusetts convicted of the same crime, whether it's fraud or child pornography, the probabilities, given these statistics, would suggest that they're going to be treated differently in terms of whether the sentence is within the range or below the range.
Mr. FEENEY. Thank you. My time has expired.
Mr. Delahunt, you are recognized.
Mr. DELAHUNT. I thank the Chairman, and I happen to come from Massachusetts.
Mr. MERCER. I know.
Mr. DELAHUNT. So I have a particular interest in the statistics that you're using here, Mr. Mercer.
Page 46 PREV PAGE TOP OF DOC
First let me say that I'm very familiar with the Massachusetts Federal District Court, and I hold each and every one of those justices in high regard. I've had different experiences with each of them during 22 years as a prosecutor. Some of them were former prosecutors. In fact, one of them worked for me. And I guess let me just conclude by saying I really have the utmost confidence in their decisions.
I've heard a lot of statistics here today, but I don't necessarily accept the fact that the statistics that you cite fairly represent the decisions of these individual justices. And I'd submit to the Chair that what we should do is have a judge or two and maybe the United States Attorney from the Massachusetts district come and let's have a good, hard look at the reality of what's happening in Massachusetts. I think it would be important, and I think it would be very revealing. I'm always proud to point out that Massachusetts is probably one of the safest States in the country in terms of incidence of violence, homicides, et cetera.
The 25-percent figure that is utilized by Mr. Mercer I would suggest relies on a product of—a methodology that isn't—doesn't really reflect the reality, because when the district court judges reported their data to the Commission, the Commission reviewed the data and interpreted the entries. In most cases, I presume they were doing it without the benefit of sentencing transcripts or decisions, because those forms had not been, my understanding is, electronically attached.
I thought what's particular interest to me was that the statistics from the Commonwealth of Massachusetts Probation Department are different from the Commission's statistics based on the exact same form, Judge Hinojosa. And, additionally, from a very cursory review of the data, I noted a number of sentences included in the category of judge-initiated that were, in fact, agreed to by the Government.
Page 47 PREV PAGE TOP OF DOC
So I have some serious concerns about the validity of the data as it applies to the District of Massachusetts, but I think this raises a very important question because we sit here and accept this data, and I'm sure that the data is not miscalculated intentionally, but I'd like to hear from those that supplied the data, and I'm going to request the Chair if you would consider having representatives of the Massachusetts Federal Court and possibly a representative of the U.S. Attorney's Office come down so that we can really interact together and see whether the data would lead to the same conclusions that Mr. Mercer has. I don't know whether they would come, but I think we should at least extend that invitation, because it could very well be, Mr. Chairman, that as we see in the Commission's number could be reflective of the U.S. Attorney's practices.
Judge HINOJOSA. Do you have a question of the Commission on that, Congressman?
Mr. DELAHUNT. No, I don't. No. I'm just up here kind of letting the pain out there a little bit. But we have some time left, Judge Hinojosa. I'd be interested in your response.
Judge HINOJOSA. I would be glad to say something about it.
Mr. DELAHUNT. Well, you know, maybe we can do—maybe we can have you back if the Chair honors my request about having—let's make it a case study, because conclusions have been reached relative to Massachusetts that I believe are not valid in terms of the reality of what's going on on the ground. Now, we can have stats going up and down, and bars and graphs, and we can all do it. But I'd really like to hear from those that participate, you know, the judges that are—as Judge Cassell knows, I'm sure, the judges that are here and from the U.S. Attorney to see whether there is this great disparity. Let's get to what the reality is.
Page 48 PREV PAGE TOP OF DOC
You know, the Commission claims that the Government sponsors below-range departures nationally at a rate of 24 percent. And yet in Massachusetts it's 12 percent. You know, are the courts, are the judges trying to, you know, make it up a little bit because of the practices of the U.S. Attorney? I don't know, but I'd like to hear before—as Mr. Felman indicated, before we leap off into the abyss, it's incumbent upon us to really take all of these stats, take a good look at them, rip them apart, open them up so that we can educate ourselves.
And I note my time is out, so I will just turn off my mike, Mr. Chairman.
Mr. COBLE [presiding]. I thank you.
Mr. DELAHUNT. But I would really genuinely hope that you would consider my request.
Mr. COBLE. We'll certainly discuss that, Mr. Delahunt.
Mr. DELAHUNT. Thank you.
Mr. COBLE. And, gentlemen, I think this issue is significant enough to warrant a second panel or second line of questioning, and I believe time will permit that to occur.
I thank the delegate from Massachusetts Mr. Delahunt. Many of my friends in the rural South believe that Massachusetts is a hotbed for danger, so I am going to pass it on to them that it is better than they think it is.
Page 49 PREV PAGE TOP OF DOC
Mr. DELAHUNT. Mr. Chairman, I will tell you, if we have a hearing, we ought to come to Boston.
Mr. COBLE. Let's go to Cape Cod.
Mr. DELAHUNT. And we will go to Cape Cod, maybe even Nantucket. But I can assure you, I think that Massachusetts—I think Boston, in fact, has the lowest homicide rate of any major urban center in the country right now.
Mr. COBLE. Cape Cod and Nantucket are sounding increasingly appealing.
Mr. DELAHUNT. In fact, we could schedule it sometime in June. You could bring your tennis racket.
Mr. COBLE. I am going to cut his mike off in a minute. [Laughter.]
Only kidding, of course.
Mr. Felman, I did not intend to ignore you last time. Let me ask you this: I believe you recommend leaving the reasonableness standard in place, do you not?
Mr. FELMAN. I do.
Page 50 PREV PAGE TOP OF DOC
Mr. COBLE. Are you concerned in any way—and maybe you're not—that the circuit courts have adopted varying definitions or standards for reasonableness?
Mr. FELMAN. I think they're still working that out. There is not a wide disparity between them, but there is—I mean, this is a new standard of review for this type of review. There have always been reviews for reasonableness in terms of extent of departure, so it's not an unheard of standard of review. But in terms of reviewing sentences for overall reasonableness, they are still working that out. And that takes time.
The part that bothered me the most about changing it is that what was suggested is that we ought to change it to a de novo standard of appellate review. I got to tell you, you know, that sends the signal to me that what that means is that in sentencing, as a matter of policy, the ability to actually see the human being who is going to be punished, the ability to actually observe that person is of absolutely no value to our system of justice. That is what a de novo standard of review says. It is worthless to be able to look the person in the eye who is going to be sentenced. I find that view abhorrent, and I would urge this Congress not to take that view.
Mr. COBLE. I thank you for that, sir.
Judge Hinojosa, you appeared that you were anxious to insert your oars into Mr. Delahunt's waters, and I am going to give you a chance to do that if you wanted to add to what he——
Page 51 PREV PAGE TOP OF DOC
Judge HINOJOSA. Well, I will start off by saying that Massachusetts is the only other State I have ever lived in besides the State of Texas, and that was when I was in law school. So I have great respect for the State, loved my time there, and would love to get back there. And I have great respect for the judges of the District Court of Massachusetts, some of whom are my very good friends.
What I wanted to clarify is that the Booker Report itself indicates that we do caution the reading of some of these statistics because of the fact of the way the information is sent to the Commission. The Congress wisely decided in the Sentencing Reform Act of 1984 that there should be an independent agency that would collect this information in one place and put it together as opposed to have 94 district courts with quite a few divisions having this slotted individually and then there would be no control about this information.
So our statistics are based on the information that we receive, and the PROTECT Act required that five documents be sent to us. There is a high compliance rate with regards to the sending of the documents. However, with regards to the statement of reasons, especially post-Booker, there was a period of time where different forms were being used and sent to the Commission, and we indicate that in the report. And we caution with regards to some of these statistics about that. We have said that in the report, and we say it publicly when we use these statistics.
In fact, there have been times where we get more than five different statement of reasons forms, some of which in no way indicate whether the Government agreed to certain things or not. And so, therefore, we base this information on the way it is sent to us, and it is checked and looked at, and we put it out based on that, but we always indicate what the caveats are.
Page 52 PREV PAGE TOP OF DOC
We commend and thank the Congress for putting into the PATRIOT Act the requirement that all of the district courts in the United States use the same statement of reason form so that we have uniform reporting, a form that will be adopted and passed by the Judicial Conference and approved by the Commission. And so, therefore, it's important that we receive this information uniformly.
Sometimes we do get contacted by courts, and they are sending information in different ways, which it's hard to capture. And so, therefore, if anything, what this particular situation points out is the importance of having these documents sent in the same fashion from all of the district courts that we can compare apples and apples and not apples and oranges, and that it is important to have it come to one independent agency within the judiciary that then puts out the information so there can be informed decisions made.
Mr. COBLE. Thank you, Your Honor. My time is about to expire.
The Chair recognizes the distinguished gentleman from Virginia, Mr. Scott.
Mr. SCOTT. Thank you, Mr. Chairman.
Judge Hinojosa, did I understand your testimony to be that if you saw a 19-year-old having sex with a 15-year-old, that that would—and another case where a 50-year-old was having sex with a 12-year-old, that common sense would require you to treat them differently?
Page 53 PREV PAGE TOP OF DOC
Judge HINOJOSA. Well, certainly within the guideline range, I would suspect that I would treat them differently. I've never had such a case. And you say if I saw it. I don't know that I would see it personally, but you mean in the courtroom, I am sure, Congressman Scott. But, yes, I——
Mr. SCOTT. I mean, are those different—those essentially are different crimes?
Judge HINOJOSA. As we see in the commission of any type of crime, there are differences with regards to the way individuals—and I will say there is discretion within a guideline system, even the mandatory system, within the ranges and, therefore, also with departures.
Mr. SCOTT. Judge Cassell, do you see an essential difference between two criminals, one a 19-year-old having consensual sex with a 15-year-old and a 50-year-old having sex with a 12-year-old? I mean, Mr. Mercer didn't notice much difference.
Judge CASSELL. It would seem, having sentenced sexual abuse cases, those two cases seem to me to be dramatically different.
Mr. SCOTT. Thank you.
If you were to notice, Judge Cassell, that an aggressive prosecutor were to overcharge consistently, would you expect downward departures more in that jurisdiction than in a case where a prosecutor did not aggressively overcharge?
Page 54 PREV PAGE TOP OF DOC
Judge CASSELL. I would. The system tries to bring warranted uniformity. We've heard a lot about unwarranted disparity, but there are situations where judges need to make adjustments to what other actors are doing in the system. And we have heard from Mr. Mercer that my statistics are unfair. I'm still wondering why folks in Idaho are so much more willing to cooperate than folks are in Utah. I think that there are a lot of people in Utah that would be happy to cooperate with the Government. Maybe they should just bring down some of the prosecutors from Idaho, and we can get a little more uniformity between those two jurisdictions.
Mr. SCOTT. Thank you.
Mr. Mercer, of the 69,000 sentences issued last year, could you remind me how many you appealed?
Mr. MERCER. In the post-Booker period, we have taken appeals in, I think, about 125 Booker——
Mr. SCOTT. Out of 69,000.
Mr. MERCER. Yes.
Mr. SCOTT. And the standard is reasonableness?
Mr. MERCER. It is.
Page 55 PREV PAGE TOP OF DOC
Mr. SCOTT. How many of those 122 out of 69,000 that you selected as unreasonable were found by the appellate court to, in fact, be unreasonable?
Mr. MERCER. At this point we don't have a large body of case law from the circuits on the reasonableness question. I have not gone back to say—make a determination about how many of those cases have resulted in published opinions, but I guess I'd be surprised if it's more than 15 at this point. I talk about a couple in my full statement. I talk about the Menyweather case, which is a Ninth Circuit case. It involves a fraud of around $400,000 where the defendant only served 40 days—the term of the judgment is 40 days on consecutive weekends in a jail like——
Mr. SCOTT. Wait a minute. We're talking about trying to fix a system that some people believe in chaos. You looked at—your department looked at 69,000 cases, picked out the most egregious 122 as being unreasonable, and won some and you lost some on those 122. Is that right?
Mr. MERCER. Well, the point I'm trying to make is we only have a very small percentage of——
Mr. SCOTT. Well, how many have you won and how many have you lost so far?
Mr. MERCER. I can't—I can certainly supply that as supplemental information to the Committee, but——
Page 56 PREV PAGE TOP OF DOC
Mr. SCOTT. But it's fair to say that you won some and lost some.
Mr. MERCER. That's correct.
Mr. SCOTT. And this is out of—122 out of the worst of the 69,000. I would assume that your 122 would be the worst, egregious cases of judicial mistake.
Mr. MERCER. Well, the cohort starts with the 8,200 cases in the post-Booker period where there were sentences below the guideline range. Obviously, we aren't going to contest sentences within the guideline range, and we don't have any basis to challenge those. We believe that a sentence within the guideline range is presumptively reasonable.
Mr. SCOTT. Well but——
Mr. MERCER. The problem here—may I just quickly? The problem here is 8,200 cases, although we certainly are going to, as we are contesting in the district court whether a sentence below the guideline range is reasonable, for us to appeal, say, a thousand of those cases would have a dramatic effect on our ability to process all the other criminal cases that we need to do. Unlike defendants who have a constitutional right to get a lawyer and, if they can't afford it, have the Government pay for that lawyer, the United States Attorney's Offices have to figure out a way to prosecute appeals at the same time as meeting its obligation to prosecute all the other defendants that need to be prosecuted for subsequent crimes. So we are trying, in working with the Solicitor General, to take appeals, but there isn't any way that we can take 8,200 appeals.
Page 57 PREV PAGE TOP OF DOC
Mr. SCOTT. That's right, and you picked out the worst 122 and couldn't even win a lot of those. The downward departures are, in fact, part of the process, and some downward departures are, in fact, looking at all the facts and circumstances reasonable. And when you get up with a—when you get on the appellate court with a downward departure and they say, well, that downward departure, taking everything into consideration, was reasonable. I mean, it's part of the process. So just because you have a downward departure does not mean it's unreasonable, and particularly when you look at a 50-year-old and a 12-year-old having sex, having a downward departure for the 19- and 15-year-old, the people on your left and right might think a difference was reasonable. And if you went up to the appellate court, I suspect that the court would find a difference in sentencing those two defendants reasonable.
And so just because you have a downward departure doesn't mean it's unreasonable, and the fact that out of 69,000 cases, and you only picked out 122, and you couldn't even win those, suggests to me that the system is working pretty well.
I yield back.
Mr. COBLE. I thank the gentleman.
The Chair recognizes the distinguished gentleman from Florida, Mr. Feeney.
Mr. FEENEY. Well, Mr. Scott can be very persuasive unless you pick apart his major and minor premises.
Page 58 PREV PAGE TOP OF DOC
Mr. Mercer, one of the reasons that you've only appealed 122 cases is the reasonableness standard is very deferential, is it not?
Mr. MERCER. Yes. In fact, the Ninth Circuit has equated the reasonableness review to an abuse-of-discretion review, which is exactly what the Congress tried to eliminate through the PROTECT Act, because it's very difficult for the Government to challenge on an abuse-of-discretion standard departures that result in sentences that we don't believe advance the purposes of punishment. And if I may, I'll just quickly talk about——
Mr. FEENEY. Well, let me—I think you've made the point. One of the reasons you're not appealing is because appellate judges, when asked to review whether a lower-court judge was reasonable, give a lot of deference. And that's one of the reasons why a lot of appeals may not be fruitful; whereas, had the law Congress passed been followed, which is basically to say what we've all known since 1984, that departures are in some cases reasonable, as Mr. Scott pointed out, but that they should be granted only under, in quotes, ''rare circumstances,'' end of quotes. That's the law. Unfortunately, we've got some circuits that in some instances are giving downward departures 33 percent of the time. They look at Congress's law as a suggestion, and a judge may follow our suggestion or not as he or she pleases. And that's the problem we have with uniformity, which leads to disparities in geography, in—according to race, and according to a number of other—.
Now, one of the things I was interested in is that Judge Cassell suggested one of the problems we have with lack of uniformity is on the prosecutorial end, and he implies or stated that it would be overcharging by the prosecutor that would account for a lot of the disparity.
Page 59 PREV PAGE TOP OF DOC
How does a prosecutor obtain a high conviction rate if he is overcharging for offenses? I mean, if you charge people for things they're not guilty of, I'd be interested in knowing how you get a conviction. It's a neat trick if you can do it, I guess.
Mr. MERCER. I guess I want to talk about the department's charging policy because we believe we've made very important steps in this Administration in this area.
Attorney General Ashcroft issued a memo in 2003, known as ''the Ashcroft memo,'' that says, among other things, the Government must charge the most serious, readily provable offense. That's the standard.
So if we've got a bank larceny charge that somehow would minimize the conduct—let me use an example where we could charge something as a misdemeanor and charge something as a felony. That policy requires that we charge the case that's most serious, readily provable, and if that's the felony charge, then that's the case that we charge. We don't overcharge. We charge the criminal conduct that we believe is most serious and readily provable.
So that's the standard. We apply that standard across the country. When we're evaluated, we're measured on whether we're, in fact, meeting that standard. So that's been the policy since 2003.
Mr. FEENEY. Mr. Felman, maybe I'll ask you, because I think we have perhaps some, you know, fundamental differences of philosophy. You know, as old as the rule of law—I mean, Cicero, when he wrote his great his law books, indicated when it came to criminal sentencing, he said, ''Let the punishment suit the offense.'' And I think the implication there is that similar defendants in similar positions ought to be treated similarly. And I think a lot of us believe that's part of what the rule of law means.
Page 60 PREV PAGE TOP OF DOC
I believe that article I establishes Congress's exclusive right to determine what a Federal crime is. We define what Federal offenses are. We can add them or subtract them from the law books. And I think inherent in Congress's sole and exclusive plenary power, is, if we want, to micromanage what the sentencing ought to be. If we wanted to establish a fine down to the penny or a prison sentence down to the last second, while it may not be wise—and Congress does a lot of unwise things—I think we've got that implied right under our article I power to define what a Federal offense is. Do you agree with that or not?
Mr. FELMAN. I do, but I think that it's easy to get overly concerned with making sure that like offenses are treated in a similar manner. And I think that—I think everyone understands that it's also very important to make sure that unlike offenses are treated differently. And I think that's one of the real problems here.
It's pretty easy to compare statutes and say anybody who violates this statute should be punished, you know, if you commit crime X you should receive sentence Y. That's pretty easy for you guys to do from Washington.
Mr. FEENEY. Right.
Mr. FELMAN. What makes it hard for us is that life is just so rich in its detail, and the truth is just stranger than fiction.
Mr. FEENEY. Well, you and I agree, not all wisdom resides in Congress, so trust me. But whether or not we have the power to do something and whether we're exercising that power wisely are two different questions. I'm glad that you agree with me that we've got the inherent and implied power to micromanage sentencing if we desire, as unwise as that may be.
Page 61 PREV PAGE TOP OF DOC
Finally, Justice Breyer in the Booker decision said that the ball's in Congress's court. I mean, he believed that there was some sorting out that had to be done legislatively. If you don't think we need to take any additional action, why is it that you disagree with Justice Breyer in the Booker decision?
Mr. FELMAN. Well, I don't know that I said I disagreed with his decision. I think when I was referring to Justice Breyer earlier, I was talking about his concurring opinion in the Harris case and the fact that I think there's a very real possibility that he will now be forced to accept the votes of his colleagues that, when it comes to raising a sentencing ceiling—or floor—that that may not be done by judicial fact-finding, that that has to be put to the jury. And that's where I think it's really quite clear in Booker that there were five Justices who agree that if you are going to try to raise a sentencing maximum based on judicial fact-finding, that is unconstitutional. And I just respectfully would disagree with your earlier description of the case. I think that's what the merits majority opinion is about, and there's five Justices who signed it.
Mr. FEENEY. Well, but remember, Booker was a bifurcated decision, and on the issue of the guidelines themselves—not the enhanced sentencing, the guidelines themselves—seven of the nine Justices indicated they thought the guidelines were constitutional. When they tried to figure out a remedy they could all agree on, they basically said, well, we've got to make them advisory and start from scratch. But seven of nine believed the guidelines are constitutional as of Booker. I've read the decision. I'll have to go back and read it, but it was pretty clear to me.
Page 62 PREV PAGE TOP OF DOC
Mr. FELMAN. We'll just have to agree to disagree on that.
Mr. COBLE. The gentleman's time has expired. If the gentleman—we are going to keep the record open for 7 days so we can continue the dialogue.
The Chair recognizes the distinguished gentleman from Maryland—from Massachusetts. I stand corrected.
Mr. DELAHUNT. It begins with an M, Mr. Chairman.
You know, I heard my friend from Florida quote—I think it was Cicero, updated by Feeney. [Laughter.]
About let punishment, you know, fit the crime. And, clearly, I believe that, you know, there has to be a sense of fairness in terms of the application of a sanction under our criminal justice system. But I would put forth that that's only one component in the equation of what our criminal justice system is about, because fundamentally the criminal justice system is our effort to secure public safety and public order.
You know, I would just refer to the hypothetical that was mentioned by Bobby Scott about the victim in a rape case being 14 and her boyfriend being 16 and the stranger, the sexual predator being 42 with a vicious rape. I mean, you know, to say that the punishment should be the same in both of those cases just simply, I would suggest, doesn't make any sense, because a downward departure, you know, for that 16 or 17-year-old might be predicated on the fact that we don't want to introduce that particular defendant to a situation where he will become a real dangerous threat to society at 20 or 21 or 25. I mean, so it is, it's very much a system that needs to have the ability to look in a comprehensive way as to a particular case.
Page 63 PREV PAGE TOP OF DOC
But having said all that, you know, we're talking about variances in terms of sentences. What I think is interesting as well is the variance in substantial assistance motions offered by the Government among circuits. There's a 4 percent in one circuit and a 36 percent in another circuit. That tells me—and I think it was Judge Cassell that alluded to this—to try to lay this all on the courts, the judges, the judiciary, I don't think really is fair, because the prosecutor here plays a significant role. You know, in New York, you know, maybe there's an extraordinary reliance on the use of informants, and we're talking statistics. But for those that have been prosecutors, in the—you know, again, in the real world, so to speak, you're sitting down with, you know, an unsavory character with an extensive criminal background, and you're trying to secure cooperation, you know, maybe that's a practice that exists in one district that doesn't exist in another district, the reliance on informants.
That's why, when I made the request to take a look at Massachusetts, I think it's important to implicate the Department of Justice in this process, not just simply rely on the data supplied by the Sentencing Commission. And I understand and I do appreciate the explanation by Judge Hinojosa, and it does make sense. I think we're working our way through this.
But while there might be a charging philosophy, is there a philosophy or a policy in the Department of Justice that is consistent in terms of substantial assistance motions being filed? Because, clearly, there is a significant departure, 4 percent and 36 percent.
Now, maybe there is, but it comes out in a way statistically that when you examine it, you're taken aback. I'm sure there's a good explanation, but I'm just putting for an opinion. I'd be interested to hear from Judge Cassell and Mr. Mercer about how complex this is, and it just isn't simply a black-and-white and dry formula. There's much more to it.
Page 64 PREV PAGE TOP OF DOC
Mr. COBLE. The gentleman's time has expired, but you gentlemen may respond.
Judge CASSELL. Well, the Sentencing Commission investigated this, Congressman Delahunt, and they found no rhyme or reason to the geographical disparities in what the Justice Department was doing. They said, well, let's try to control for this. Is this the more serious cases or drug cases? They put in controls for all of that, and they ran a multiple regression equation, and they couldn't come up with any explanation.
They also found that there were racial differences in the way that cases were being handled, and this is what disturbs me. This information was given to the Justice Department 8 years ago, that their practices were having racial disparities, and they have done nothing to fix it. And yet Monday afternoon, the Sentencing Commission for the first time says, well, we've run into some data here that may be suggesting a problem, and the Justice Department runs over and says something needs to be done right away.
Why haven't they in 8 years gotten their house in order and eliminated these kinds of dramatic disparities from district to district that are done in secret, without any opportunity for appellate review, without any kind of a transcript or other record? That's the question that we have in the judiciary.
Mr. MERCER. Well, I guess—I think I want to discuss the process that is set forth in the department policy because I think it might be useful, and——
Page 65 PREV PAGE TOP OF DOC
Mr. COBLE. Mr. Mercer, as quickly as you can, because there's going to be a vote imminent.
Mr. MERCER. Okay. Disparity, given what we have said as part of this testimony, is a significant issue for us, whether we're talking about a non-substantial assistance departure, as is the focus of this testimony, or whether we're talking about any disparity that is introduced through substantial assistance.
It's important, I think, that the Committee know that when the Government makes a substantial assistance motion, it can't grant that motion on its own. It's got to be granted by the court. The court then makes a determination——
Mr. DELAHUNT. Let's really be honest here. When the Government comes before a Federal district court judge and puts forth a request for substantial assistance and a downward, I would think in most cases that it's almost an automatic departure. So I don't think, with all due respect, Mr. Mercer, you can lay that one on the courts. That's the responsibility of the Department of Justice.
Mr. MERCER. I am just laying out the way this process works, because——
Mr. DELAHUNT. I'm familiar with how the process works.
Mr. MERCER. And it is certainly a concern to us that, to the extent that that motion results in a departure of, say, 60 percent or 70 percent or 80 percent, there are going to be very significant disparities introduced into the system, but in terms of the way those motions are processed, typically offices have committees where they're making determinations not just on the line but in terms of whether, in fact, the defendant has rendered substantial assistance. And I think some of the differences in the averages in, say, Utah versus Idaho, I'm going to go back and take a look at that. I think it may have a lot to do with things like in Utah there's a substantial number of firearms prosecutions. In firearms prosecutions around the country, you're going to see a lot fewer substantial assistance motions than you are in drug cases, typically based upon the type of conduct we see. So there——
Page 66 PREV PAGE TOP OF DOC
Mr. DELAHUNT. Okay. And I do respect your response. But the point is, if we're looking at this simply in a statistical fashion, as you would have this Committee do in terms of the judiciary, there is in all likelihood a rational explanation. And that's why, Mr. Chairman, I think it's important, let's take the Massachusetts case—okay?—and those statistics and have a full hearing so that we can explore the reasoning and the realities behind the stats. Fair enough, Mr. Mercer?
Mr. MERCER. I think—we're interested in analyzing these statistics in general because disparity is something that this system is designed to——
Mr. DELAHUNT. Whether it's the responsibility of the Government or whether it's the responsibility of the court.
Mr. MERCER. Unwarranted disparity is a problem, and I said earlier——
Mr. DELAHUNT. I don't think anybody—anybody—on this panel or on the panel that you're sitting on—would countenance unwarranted disparities, but the real question is: Is the disparity rational and reasonable and does it enhance public safety in the long term in a holistic, comprehensive way?
Mr. MERCER. And as I noted when this question came up within Congressman Scott asked it, the distinction between a substantial assistance motion under 5(k)1.1 and the vast majority of the provisions in 5(h) or 5(k) of the Sentencing Guidelines are that most of those provisions in 5(h) and 5(k) were deemed to be factors that were only going to be used in exceptional cases or extraordinary circumstances. They're disfavored factors—things like age, things like whether the person has made great community service over a number of years. Those are all factors that are disfavored and only to be applied in exceptional cases.
Page 67 PREV PAGE TOP OF DOC
Substantial assistance, the Commission has designed a system in which we have the authority to try to induce that cooperation in order to make other cases, and so they're on a different playing field, and that's got to weigh into the question of whether the disparity is warranted or unwarranted.
Mr. COBLE. I thank the gentleman.
We've been joined by the distinguished lady from Texas, Ms. Jackson Lee, but Mr. Scott wanted to make a comment initially.
Mr. SCOTT. Thank you, Mr. Chairman.
Mr. Chairman, the gentleman from Florida isn't with us, but he suggested that departures ought to be rare. My view is I don't know how often they ought to be, but you ought to have a departure when it makes common sense. That might be rare; that might be often. But whenever it makes common sense, you ought to have a departure. And there's nothing in these statistics we've seen so far that shows that anything unreasonable is going on. The department has picked out 122 of the most—apparently most egregious cases, and many of those have found—notwithstanding the fact that there are only 122 out of 69,000 have been found still to be reasonable.
Furthermore, if you look—if you're going to have any consistency in charging—in sentencing, you've got to have consistency in charging, and when the department has articulated today that they have a new way of charging, they're going to charge the highest provable case, not the one that will produce the most rational outcome, but the highest sentence for the same action, you would expect more downward departures, down to things that make common sense.
Page 68 PREV PAGE TOP OF DOC
So, Mr. Chairman, as I indicated, I don't—the suggestion that we're in chaos I think has just been not—hasn't been found.
Mr. COBLE. I thank the gentleman.
Gentlemen, I realize you all have been with us since 10:30 this morning, but I feel obliged to recognize Ms. Jackson Lee. And, Ms. Jackson Lee, if you could keep it fairly terse, I know these folks would appreciate it. But we're delighted to have you with us.
Ms. JACKSON LEE. I will be a little bit colorful, Mr. Chairman. Let me thank you very much for giving me the opportunity. I want the gentlemen to know that the importance of this hearing is such that even with a hobbled foot and in another hearing two buildings away, I hobbled as fast as I could in order to be able to query you. So let me thank you for your patience, but my hobbled foot is hurting trying to get over here to be able to question you because this is for me an extremely important issue. And it's particularly important because I live in a State that, although this is a Federal jurisdictional question—and I will lead toward my question. I live in Texas, and so I bear the brunt of extreme decisions, sentencing decisions statewide, under the State system. And, of course, as you well know, we have a parole system, probation system under the State system.
I also live in a State where, many of you may know, the infamous Tulia case—Tulia case in the State of Texas, and I pronounce it differently each time. But in any event, that dealt with the incarceration, innocent incarceration of individuals who were the victims of a conspiracy by, unfortunately a law enforcement officer, who then blanketed and painted the entire town with charges of drug violations and ultimately these individuals were incarcerated. This case is well proven. This is not hearsay because ultimately the rogue officer was found out under oath and indicated that he made up these stories.
Page 69 PREV PAGE TOP OF DOC
These are the extremes, but they're very real. They break people's lives. And so let me just probe where we are.
I was going to say—beyond my hobbled foot, I was going to use the terminology ''Halleluia for Booker,'' because I think it gives us a moment of pause. And, Mr. Hinojosa, I want to—as you have taken the lead of this Sentencing Commission that I've worked with since coming to Congress almost about a decade ago—and I respect what you do. And, in fact, you were some of our strongest allies so many years ago to raise the question of giving more flexibility or giving the Sentencing Commission back its job.
So let me just try to ask a pointed question, and if you can not take my role and be expansive, you be concise, is the idea of the Sentencing Commission, do you feel, broken with Booker? Are you able to go along with business? And do you feel that it's given you some parameters in which to operate on to be as fair as you possibly can be under the very heavy responsibility that you have?
Judge HINOJOSA. Well, actually, being your fellow Texan, I'm glad that you did manage to hobble here.
Ms. JACKSON LEE. For you.
Judge HINOJOSA. Thank you very much.
The Commission has been extremely busy post-Booker and has continued to act in the fashion that it has always acted, whether it's in promulgating amendments or responding to congressional directives or responding to emergency amendment requests. And certainly with regards to data collection, we have turned it into real time so that we can put out the information as quickly as possible so that informed decisions can be made. So from that standpoint, I think the Booker decision itself predicted that the Commission would continue to exist and continue to operate in the same legislative statutory fashion that it had before. And so, therefore, we have.
Page 70 PREV PAGE TOP OF DOC
We have been in a situation where we have to develop more resources with regards to the post-Booker period and trying to determine how to proceed, both f