SPEAKERS CONTENTS INSERTS
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IMPLICATIONS OF THE BOOKER/FANFAN DECISIONS FOR THE FEDERAL SENTENCING GUIDELINES
SUBCOMMITTEE ON CRIME, TERRORISM,
AND HOMELAND SECURITY
COMMITTEE ON THE JUDICIARY
HOUSE OF REPRESENTATIVES
ONE HUNDRED NINTH CONGRESS
FEBRUARY 10, 2005
Serial No. 1091
Printed for the use of the Committee on the Judiciary
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Available via the World Wide Web: http://www.house.gov/judiciary
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
DARRELL ISSA, California
JEFF FLAKE, Arizona
MIKE PENCE, Indiana
J. RANDY FORBES, Virginia
STEVE KING, Iowa
Page 3 PREV PAGE TOP OF DOCTOM 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
ADAM SMITH, Washington
CHRIS VAN HOLLEN, Maryland
PHILIP G. KIKO, Chief of Staff-General Counsel
PERRY H. APELBAUM, Minority Chief Counsel
Page 4 PREV PAGE TOP OF DOCSubcommittee 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
JAY APPERSON, Chief Counsel
ELIZABETH SOKUL, Counsel
KATY CROOKS, Counsel
JASON CERVENAK, Full Committee Counsel
Page 5 PREV PAGE TOP OF DOCMICHAEL VOLKOV, Counsel
BOBBY VASSAR, Minority Counsel
C O N T E N T S
FEBRUARY 10, 2005
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
The Honorable John Conyers, Jr., a Representative in Congress from the State of Michigan, and Ranking Member, Committee on the Judiciary
The Honorable Christopher A. Wray, Assistant Attorney General, Criminal Division, United States Department of Justice
The Honorable Ricardo H. Hinojosa, Chairman, United States Sentencing Commission
Page 6 PREV PAGE TOP OF DOCOral Testimony
Mr. Daniel P. Collins, Partner, Munger, Tolles, and Olson LLP
Mr. Frank O. Bowman, III, M. Dale Palmer Professor of Law, Indiana University School of Law
Material Submitted for the Hearing Record
Prepared Statement of the Honorable Howard Coble, a Representative in Congress from the State of North Carolina, and Chairman, Subcommittee on Crime, Terrorism, and Homeland Security
Prepared Statement of the Honorable Robert C. Scott, a Representative in Congress from the State of Virginia, and Ranking Member, Subcommittee on Crime, Terrorism, and Homeland Security
Prepared Statement of the Honorable Sheila Jackson Lee, a Representative in Congress from the State of Texas
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Prepared Statement of the Honorable John Conyers, Jr., a Representative in Congress from the State of Michigan, and Ranking Member, Committee on the Judiciary
Prepared Statement of the Honorable Adam B. Schiff, a Representative in Congress from the State of California
Material submitted for the record by Rep. Scott
Letter from the Association of Corporate Counsel (formerly the American Corporate Counsel Association), the Business Civil Liberties, Inc., the Business Roundtable, the National Association of Manufacturers, and the U.S. Chamber of Commerce
Letter from Keith Darcy, Acting Executive Director, Ethics Officer Association (EOA)
Letter from Robert Evans, Director, Governmental Affairs Office, the American Bar Association (ABA), dated February 9, 2005
Letter from Robert Evans, Director, Governmental Affairs Office, the American Bar Association (ABA), dated February 17, 2005
Letter from Edwin Meese, III, and Philip Heymann, Co-Chairs, Sentencing Initiatives, The Constitution Project
Page 8 PREV PAGE TOP OF DOC Prepared Statement of Lawrence Piersol, President, the Federal Judges Association, and Chief Judge of the District of South Dakota
Letter from Kent Scheidegger, Legal Director and General Counsel, Criminal Justice Legal Foundation
Letter from Robert L. Wilkins, and Karl A. Racine, Partners, Veneable LLP
IMPLICATIONS OF THE BOOKER/FANFAN DECISIONS FOR THE FEDERAL SENTENCING GUIDELINES
THURSDAY, FEBRUARY 10, 2005
House of Representatives,
Subcommittee on Crime, Terrorism,
and Homeland Security
Committee on the Judiciary,
The Subcommittee met, pursuant to notice, at 10 a.m., in Room 2141, Rayburn House Office Building, Hon. Howard Coble (Chair of the Subcommittee) presiding.
Mr. COBLE. Good morning, ladies and gentlemen. Welcome to the Judiciary hearing room.
Let me think aloud for a moment or two. This sentencing guidelines is very significantly important, as all of you know. We will have the border security bill, which came from this Committee, on the floor for debate around 11:30. I am hoping we can finish examining you witnesses by that time. I hate to inconvenience you all. If, however, we come to 11:30 and additional examination may be done, we may have to have you fellows go get a bite to eat and just keep your eye on the TV monitor. I am thinking, however, that if luck is with us, we can probably finish this on or about the time when we have to suspend.
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I want to welcome everyone to this very important oversight hearing before the Subcommittee on Crime, Terrorism, and Homeland Security to examine the implication of two recent Supreme Court decisions in United States v. Booker and United States v. Fanfan to the Federal sentencing guidelines.
The Supreme Court's rulings eliminated two critical provisions of the Federal sentencing guidelines. First, the Court ruled the sentencing guidelines were no longer mandatory but are advisory. Second, the Court eliminated the de novo appellate review standard for downward departures which was passed by Congress as part of the PROTECT Act in the 108th Congress and replaced it with a vague and unspecific reasonableness standard for appellate review.
It is an understatement, in my opinion, to say that the Supreme Court's decisions have had a dramatic impact on the Federal criminal justice system. Some have characterized the impact as resulting in complete disarray, and even other characterize the decision as posing a direct and significant threat to public safety, thereby jeopardizing dramatic reductions in the crime rate in our country.
As this Committee examines this issue, we must be mindful of the fact that the Sentencing Reform Act of 1984 which created the mandatory Federal sentencing guideline system was a bipartisan measure designed to provide certainty and fairness in meeting the purposes of sentencing, avoiding unwarranted disparities among defendants with similar records who have been found guilty of similar criminal conduct.
In the short time since the Supreme Court issued its rulings in the Booker and Fanfan decisions, there have been reported instances of judges deviating from the guideline sentencing ranges, relying on varying rationales for such departures.
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It is the Congress's role to ensure that the original purposes of the Sentencing Reform Act of 1984 are adhered to by the Federal Judiciary. We all can agree that disparities among similarly situated defendants are unfair and undermine the Federal criminal justice system. Justice Breyer in his majority opinion in Booker made it clear as to our institutional responsibility when he wrote of the Court's decision, ''Ours, of course, is not the last word. The ball lies in Congress's court.''
In order to fulfill our constitutional responsibilities, today's hearing is the first step to ensuring that the Federal sentencing system continues to promote fairness, eliminate disparities, and protect the public safety so that law-abiding citizens can live in freedom without fear of crime and defendants receive fair and equal treatment in the Federal judicial system.
I am looking forward to hearing from our distinguished panel of witnesses, and now I am pleased to recognize the distinguished gentleman from Virginia, the Ranking Member of this Subcommittee, Mr. Bobby Scott.
Mr. SCOTT. Thank you, Mr. Chairman, and I thank you for convening this hearing. This is our first Subcommittee meeting and I look forward to working with you during this session of Congress.
I am pleased to join you in convening this hearing on the implications of the United States Supreme Court's Booker and Fanfan decisions and the Federal sentencing guidelines. Since the Blakely v. Washington decision last June, the viability of the Federal and many State sentencing systems have been in jeopardy. That decision made it clear that sentences based on facts found by the court after the trial that were not admitted by the defendant or established during the trial deprived the defendant of their constitutional right to a jury trial.
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We contemplated a range of options or approaches after the decision. They ranged from doing nothing to enacting an entire system of statutory minimums and maximums. However, we wisely, I believe, listened to the Council of Sentencing Experts and others suggesting that we give the courts a chance to further clarify the impact of the decision on the Federal system.
That further clarification came in the decision by a strangely divided Court in January through the Booker/Fanfan decision. That decision clarified that Blakely, indeed, was applicable to the Federal sentencing guideline system and found the system unconstitutional as applied. However, the Court delineated the aspects of the system that caused it to be unconstitutional, thereby excising the applicability of those factors, leaving the remainder of the system intact. Yet, the Court, as it properly tends to do, only answered the questions it considered to be properly before it at the time. Therefore, we are left with the issue of how the remaining system can operate consistent with its aims and purposes and the Court's decisions. Again, sentencing experts and others are advising that we await further clarification from the courts on the impact of Booker/Fanfan.
The early indications of this post-Booker/Fanfan/Blakely context is that the sky is not falling. The criminal defendants are being prosecuted and sentenced, and the sentencing guideline system is directing those sentences to essentially the same extent as it was before. So for those who found the sentencing guideline system acceptable as applied before Blakely, Booker, and Fanfan should still find the situation reasonably acceptable now. There are quirks and imperfections before the recent upheavals that required appellate court correction or clarification, and that is the situation we have today.
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For others, including myself, the Federal sentencing guidelines as applied were not satisfactory. I am concerned about the growing minority percentage of a rapidly increasing Federal prison population serving excessively long sentences for minor roles in non-violent crimes due in large part to unfair application of mandatory minimums and other reasons. These problems are detailed in two recent reports from the Sentencing Project entitled ''Racial Disparity in Sentencing: A Review of the Literature,'' and ''The Federal Prison Population: A Statistical Analysis,'' along with a recently completed 15-year study of the U.S. Sentencing Commission, of which I have an executive summary and I would ask unanimous consent that those be introduced into the record of this hearing.
Mr. COBLE. Without exception, it will be done.
[The material referred to is located in the Appendix.]
Mr. SCOTT. All of the credible data shows that minorities are less likely than whites to use illegal drugs of virtually all types, including crack cocaine, yet a grossly disproportionate percentage of the enforcement of the war against drugs falls on minorities, many of whom are bit players in the end stage of the drug trade whose involvement is based more on addiction than profit. Eighty percent of the crack prosecutions are against African-American defendants, while drug use data reflects that 60 percent of the crack is used by whites.
All of the research and demonstrations show that drug treatment and other alternatives to incarceration are much more effective and much cheaper than incarceration. Yet we continue to greatly increase our resources to lock people up, and more of these bit players get locked up for longer and longer periods while making no consideration to effective and less costly alternatives and only minimally increasing drug treatment as compared to the increases in enforcement and incarceration.
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Report after report, including these by the Sentencing Commission and others, have pointed to these gross disparities in application of the drug enforcement and sentencing policies against minorities, and while we address the atrocities before us in Blakely and Booker and Fanfan, it is certainly time to look at these sentencing policies as they affect minorities.
So, Mr. Chairman, as we carefully contemplate what needs to be fixed in the Federal guideline system, I would invite consideration of this longstanding and shameful problem in our Federal law enforcement and sentencing applications and look forward to our witnesses' testimony for any guidance they may give us as we contemplate these and other challenges in our criminal justice system, particularly as it pertains to sentencing.
I yield back.
Mr. COBLE. I thank the gentleman, and I, too, Mr. Scott, look forward to working with you during this 109th Congress.
We have been joined by the Ranking Member of the full Committee, the distinguished gentleman from Michigan, Mr. Conyers. Did you have an opening statement you wanted to make?
Mr. CONYERS. Thank you, Mr. Chairman. I wanted to commend you and Ranking Member Scott for reviewing Booker/Fanfan, and the impact on Federal guidelines. I think it is very timely and I am looking forward to the witnesses spelling out some of the directions we now may be able to look at.
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The Federal sentencing guidelines weren't originally enacted to address many of the problems that are facing us today. In fact, their original purpose was simply to make sentencing more certain and predictable. One of the things that has happened, of course, is the only thing more certain and predictable is that racial minorities are disproportionately punished under the guidelines, so we have a great challenge here in front of us.
The question might occur, how did this come about? Several reasons serve as the source of blame for the current state of affairs, but the greatest responsibility lies with those who rely stubbornly on mandatory minimums and Congressional directives to enact misguided policies all in the name of being tougher on crime. The crack-powder disparity has already been referred to. So why the disparity, even though experts firmly agree that there is no logic about it?
One look today at these sentencing guidelines provides us with a unique opportunity to consider these issues, and here is where it starts, in this Subcommittee in this room. I think it is a great opportunity for us to move forward.
We also have some probable suggestions as to really what do these new decisions really mean. They are not spelled out with any great particularity, and I think this gives us a chance with our witnesses and among ourselves to begin this dialogue, as well. So I thank you for this opportunity.
Mr. COBLE. I thank the gentleman.
Page 15 PREV PAGE TOP OF DOC We are pleased to be joined by the distinguished gentleman from Arizona, Mr. Flake, the distinguished gentleman from Massachusetts, Mr. Delahunt, and if you all have opening statements, gentlemen, they will be put into the record, as is the case of the gentlelady from Texas, Ms. Sheila Jackson Lee.
We have four distinguished witnesses with us today. Our first witness is Mr. Christopher Wray, Assistant Attorney General at the Criminal Division of the U.S. Department of Justice. Prior to this position, Mr. Wray served as the Principal Associate Deputy Attorney General and as an Assistant U.S. Attorney for the Northern District of Georgia. As a prosecutor in Atlanta, he prosecuted cases involving racketeering, arson, bank robbery, gun trafficking, counterfeiting, and immigration issues, among other things. Mr. Wray earned both his undergraduate degree and his J.D. from Yale University.
Our second witness is Judge Ricardo Hinojosa. Judge Hinojosa was nominated by Ronald Reagan and serves as the U.S. District Court 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, Judge Hinojosa served as a law clerk for the Texas Supreme Court as well as working in private practice in McAllen, Texas. Judge Hinojosa is a graduate of the University of Texas and earned his J.D. at Harvard University.
Third, we have Mr. Daniel Collins, a partner at Munger, Tolles, and Olson in Los Angeles. Mr. Collins has represented clients in various appellate cases at the Ninth Circuit, the United States Supreme Court, and the California appellate courts. He served previously at the Department of Justice as an Associate Deputy Attorney General and Chief Privacy Officer. During his tenure at DOJ, Mr. Collins worked extensively on the PROTECT Act, as well as on the establishment of the Terrorist Screening Center. Additionally, Mr. Collins was an Assistant U.S. Attorney in the Criminal Division in Los Angeles. He received his undergraduate degree from Harvard University and his J.D. from Stanford University.
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Our final witness today, Mr. Frank O. Bowman III, is a professor at the Indiana University School of Law in Indianapolis. Prior to serving in his current position, he served as an academic advisor to the Criminal Law Committee of the U.S. Judicial Conference and as Special Counsel to the U.S. Sentencing Commission in Washington, D.C. He further served as a Deputy District Attorney for Denver, Colorado, and was Deputy Chief of the Southern Criminal Division in the U.S. Attorney's Office for the Southern District of Florida. Mr. Bowman received his law degree from Harvard University.
Now, for those in the audience, I apologize for my verbose introduction, but I feel that you all, in the event that you did not know it, you need to know the credentials that these witnesses bring to the table and I think that is significant and important for all of us. It is good to have you all with us.
Gentlemen, we operate here under the 5-minute rule. Now, you won't be drawn and quartered when that red light appears, but when the red light appears, that is your information that the ice has become awfully thin on which you are skating. The amber light, when the amber light appears, I think that will give you about 30 to 60 seconds to wrap it up.
We have your written testimony. It has been examined and will be reexamined. We impose the 5-minute rule against ourselves when we question you all, if you could make your responses as brief as possible so we can beat the red light, as well.
Mr. Wray, why don't we start with you.
Page 17 PREV PAGE TOP OF DOCSTATEMENT OF THE HONORABLE CHRISTOPHER A. WRAY, ASSISTANT ATTORNEY GENERAL, CRIMINAL DIVISION, UNITED STATES DEPARTMENT OF JUSTICE
Mr. WRAY. Thank you, Mr. Chairman, and thank you for holding this hearing.
Mr. Chairman and Ranking Member Scott, distinguished members of this Subcommittee, in Booker the Supreme Court held that the mandatory nature of the Federal sentencing guidelines violated a defendant's sixth amendment right to a jury trial. The Court then severed the two provisions that make the guidelines mandatory, rendering the guidelines only advisory.
The Supreme Court, however, did not contemplate that advisory guidelines would be a permanent solution and anticipated that the Congress would consider legislation in the wake of Booker. And Mr. Chairman, as you noted, Justice Breyer himself stated that the ball lies in Congress's court.
In considering Booker's consequences, this Subcommittee has the benefit of a substantial body of evidence. The long and troubled history of sentencing before the Sentencing Reform Act demonstrates the problems of disparity and unfairness that resulted from fully discretionary sentencing. Almost two decades of experience then under the Sentencing Reform Act have also shown that the mandatory system of guidelines enacted by Congress led to consistency, transparency, and fairness and helped to bring about historic declines in crime.
Page 18 PREV PAGE TOP OF DOC Since Booker, the actions of several courts have already raised concerns about the consequences of a return to greater discretion in sentencing. Based on this record, this Committee can predict the long-term implications of Booker and can assess the need for legislative action.
The Justice Department is committed to working with Congress, with the Judiciary, with the Sentencing Commission and with other interested parties to ensure that the resulting sentencing regime is just and lasting and carries out the purposes of sentencing.
Before the passage of the Sentencing Reform Act in 1984, our country had experimented with different sentencing schemes: early release on parole, rehabilitation in place of incarceration, and unfettered judicial discretion. Those policies did not work. They failed to prevent crime and promote safe streets and they contributed to the high crime periods of the 1960's, 1970's, and 1980's. There was no coherent sentencing policy and judges enjoyed almost unlimited discretion in sentencing. That discretion was largely unreviewable and it resulted in unwarranted disparity.
In the late 1970's and early 1980's, a bipartisan Congress passed the Act. It guiding principle was consistency so that similar defendants who committed similar crimes and had similar records would receive similar sentences. Another guiding principle was transparency, so that the parties and the public would know the factual and legal basis for a sentence, providing accountability.
As one court has recently noted in a post-Booker opinion, it would be startling to discover that while Congress had created an expert agency, andI am quoting now''approved the agency's members, directed the agency to promulgate the guidelines, allowed those guidelines to go into effect, and adjusted those guidelines over a period of 15 years, that the resulting guidelines did not well serve the Congressional purposes. On the contrary, the more likely conclusion is that the guidelines reflect precisely what Congress believes is the punishment that will achieve its purposes in passing criminal statutes.'' That is from a recent Utah case decided since Booker.
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We believe that the Sentencing Reform Act has been successful in achieving Congress's goal of reducing unwarranted disparity. Statistical studies bear that out.
Another significant impact of sentencing reform has been the steep decline of crime in the United States, which is currently at a 30-year low. Following Congress's lead, many States have adopted similar guideline systems and an expanding body of literature suggests that incarceration of dangerous persons in recent years has demonstrably reduced crime.
As Congress crafts the policies which will guide Federal sentencing, we urge you to keep in mind that the ultimate goals are to promote fair sentencing by minimizing unwarranted disparity and to ensure the public safety through tough sentencing.
Since Blakely, the Department has closely studied various sentencing proposals, and although we are not here today to endorse a particular option, we are here to say that the resulting system must retain the strengths that existed in the mandatory guideline system without suffering from its constitutional weakness. We agree with those experts who predict that a purely advisory system will undoubtedly lead to greater disparity, and that over time, this disparity will likely increase. I note that at a Sentencing Commission hearing last November that a number of us attended, there was widespread agreement from professors to defense attorneys that advisory guidelines were not appropriate for the Federal justice system.
My written testimony identifies a number of particular vulnerabilities, Mr. Chairman, and I see I am coming up on that thin ice period. If I could just beg the chair's indulgence for just a minute, briefly, the vulnerabilities that I think are of particular note and should be of particular concern to this Subcommittee. One, it is essential to have consistent sentencing procedures at the hearings themselves. We have already seen in the wake of Booker some courts that have actually adopted procedures that were rejected in Booker by the Supreme Court, and that raises, I think, a very sobering thought. If lower courts don't feel constrained by a decision of the Supreme Court of the United States, then it is certainly fair to ask whether they will ever be constrained by guidelines that are merely advisory.
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Also, the guidelines had prohibited factors that were deemed by the Sentencing Commission to be inappropriate factors upon which to reduce a sentence, for example, and in the wake of Booker, some courts have already taken prohibited factors into account in sentencing defendants to lower sentences.
Third, one consequence of the advisory guidelines that we are very concerned about is the effect on cooperation. Mr. Chairman, Mr. Ranking Member, as you know, in order to make cases in terrorism, organized crime, drug cases, corporate fraud cases, cooperation of lower-level participants is absolutely essential to make those cases and the ability for us to control that cooperation credit is critical to be able to assure that we get the complete truth from the people who seek cooperation. So we would not support any proposal that did not adequately address that issue in the appropriate ways.
Mr. COBLE. Your time is about up, Mr. Wray.
Mr. WRAY. Thank you, Mr. Chairman. I would be happy to answer any further questions.
Mr. COBLE. Thank you.
[The prepared statement of Mr. Wray follows:]
PREPARED STATEMENT OF THE HONORABLE CHRISTOPHER A. WRAY
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Chairman Coble, Ranking Member Scott, distinguished members of the Subcommittee
On January 12, 2005, the Supreme Court of the United States in United States v. Booker(see footnote 1) held that the mandatory nature of the federal sentencing guidelines, promulgated pursuant to the Sentencing Reform Act of 1984, violated defendant's Sixth Amendment right to a jury trial. The Court remedied this problem by severing and invalidating the two provisions that made the Guidelines mandatory, thereby rendering the guidelines advisory. A majority of the Supreme Court contemplated that advisory guidelines would not be a permanent solution and anticipated that Congress would consider legislation in the wake of the Booker decision. Indeed, Justice Breyer stated in his majority opinion that ''the ball lies in Congress' court. The National Legislature is equipped to devise and install, long-term, the sentencing system, compatible with the Constitution, that Congress judges best for the federal system of justice.''(see footnote 2)
In considering the consequences of Booker for the future of sentencing, this Subcommittee has the benefit of a substantial body of evidence. The long and troubled history of discretionary sentencing prior to the Sentencing Reform Act demonstrates the problems of disparity and unfairness that resulted from fully discretionary sentencing. Almost two decades of experience under the Sentencing Reform Act have shown that the mandatory system of guidelines enacted by Congress led to consistency, transparency and fairness, and helped to bring about historic declines in crime. In the three weeks since Booker, the actions of several federal courts have already raised concerns about the consequences of a return to greater discretion in sentencing. Based on that record, this Subcommittee can begin to predict the long-term implications of the Supreme Court's decisions in Booker and Blakely,3 and can begin to assess the need for legislative action to address those implications. The Department of Justice is committed to working with Congress, the judiciary, and other interested parties, to ensure that the resulting sentencing regime is just and lasting and carries out the fundamental purposes of sentencing.
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PRE-SENTENCING REFORM ERA
Prior to the passage of the Sentencing Reform Act in 1984, the United States experimented with different sentencing schemes: early release on parole, rehabilitation in place of incarceration, and unfettered judicial discretion. Those policies failed to prevent crime and promote safe streets, and contributed to the high crime periods of the 1960's, 1970's, and 1980's. In spite of ample criminal laws, adequate levels of federal investigators, and vigorous prosecutions, there was no coherent sentencing policy. Judges enjoyed almost unlimited discretion at sentencing. This discretion was largely unreviewable and the exercise of it by judges throughout the nation resulted in unwarranted disparity in sentencing. Senators Edward Kennedy, Dianne Feinstein and Orrin Hatch characterized the disparity that existed before the Sentencing Reform Act as ''shameful'' and ''astounding.''(see footnote 3) This past summer, during Senate hearings, Senator Patrick Leahy referred to the time before the Sentencing Reform Act as ''the bad old days of fully indeterminate sentencing when improper factors such as race, geography and the predilections of the sentencing judge could drastically affect a defendant's sentence.''(see footnote 4)
This disparity is well-known and has been documented in a number of studies which demonstrated that sentences varied significantly depending on the judge to whom an offender was assigned.(see footnote 5) In one study, judges in the Second Circuit were sent presentence reports based upon 20 actual federal cases and asked what sentences they would impose. Judges considering the same offense and the same defendant often gave those defendants vastly different sentences. In one case the defendant's sentence differed by 9 years, in another by 13 years, and in a third case 17 years separated the most severe from the most lenient sentence. Data also showed that handfuls of judges were consistently more severe or more lenient than their colleagues. This fact may not be surprising. But the fact that a defendant's sentence could vary by 9, 13, or even 17 years depending solely on the judge assigned to the case, or that two defendants with similar characteristics who committed the same crime in the same Circuit would be sentenced to two such different sentences, underscored the need for mandatory guidelines.
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Another study analyzed the role played by each judge's sentencing philosophy by providing 264 judges with hypothetical cases. The study found that judges who were oriented toward the goals of incapacitation and deterrence gave sentences at least ten months longer on average than judges who emphasized other goals.
This type of disparity, coupled with the fact that many sentences were not sufficiently punitive, undermined the public's confidence in the federal criminal justice system and had far reaching consequences. Congress, the Department, and other analysts recognized that such inconsistency and uncertainty in federal sentencing practices was incompatible with effective crime control and with a fair system of justice. And they demanded change.
SENTENCING REFORM ACT OF 1984
In the late 1970's and early 1980's, policymakers in Washington came to a consensus view that a determinate sentencing system was necessary. Leaders of both parties came together to pass the Sentencing Reform Act of 1984. Its guiding principle was consistency, so that defendants who committed similar crimes and had similar criminal records would receive similar sentences. Another guiding principle was transparency, so that the parties and the public would know the factual and legal basis for a sentence, providing accountability. Finally, Congress articulated the purposes of punishment, which are codified in 18 U.S.C. §3553(a)(2) and in 28 U.S.C. §991(b), and directed the Commission to promulgate policies and practices to assure that they be achieved. All sentences must reflect the seriousness of the offense, promote respect for the law, provide just punishment for the offense, afford adequate deterrence to criminal conduct, protect the public from further crimes of the defendant, and provide the defendant with needed educational or vocational training, medical care, or other correctional treatment in the most effective manner.
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Under this congressional mandate, the Sentencing Commission established a uniform system of guidelines, structured to provide fairness, predictability, and consistency for similarly situated defendants. At the same time, the guidelines require each sentence to be individualized to fit the offender and the offense, and require the court to state the reasons for each sentence. The guidelines also require longer sentences for especially dangerous or recidivist criminals. Under this system, sentences no longer depended on the district where the offenders committed the offense or the judge who imposed the sentence, so the likelihood of unwarranted disparity was greatly minimized.
As directed by Congress, the Commission drafted the original guidelines based upon the averages of actual sentences imposed by judges throughout the United States and it has continued to refine the guidelines based upon actual sentencing practice. In addition to these empirical data, the Commission collaborates with all of the major stakeholders in the federal criminal justice system, advisory groups, interested observers, and the general public. Thus, the Commission ensures that the guidelines achieve congressionally-mandated purposes, and Congress reviews those guidelines and all proposed amendments to them to ensure that those purposes are met before allowing them to take on the force and effect of law. On occasion, Congress has directed the Sentencing Commission to alter existing punishment levels. Congress has also approved legislation which mandates minimum punishments for certain offenses. Because Congress and the Sentencing Commission have made judgments about the appropriate penalties for federal crimes, part of our Executive Branch enforcement responsibility is to ensure that this policy is translated into actual sentences for defendants.
As United States District Judge Paul Cassell of the District of Utah recently noted in a post-Booker opinion, ''It would be startling to discover that while Congress had created an expert agency, approved the agency's members, directed the agency to promulgate the Guidelines, allowed those Guidelines to go into effect, and adjusted those Guidelines over a period of fifteen years, that the resulting Guidelines did not well serve the congressional purposes. The more likely conclusion is that the Guidelines reflect precisely what Congress believes is the punishment that will achieve its purposes in passing criminal statutes.''(see footnote 6) The Department was pleased to see that Judge Cassell adopted in that opinion an approach of adhering insofar as is possible post-Booker to the Sentencing Guidelines, stating that ''in all future sentencings, the court will give heavy weight to the Guidelines in determining an appropriate sentence. In the exercise of its discretion, the court will only depart from those Guidelines in unusual cases for clearly identified and persuasive reasons.''(see footnote 7) The Department will urge the federal courts to adhere to the guidelines as far as possible within the limits of Booker, as we await prompt enactment of legislation in response to the Booker decision.
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THE IMPACT OF SENTENCING REFORM
The Sentencing Reform Act has been successful in achieving Congress' goal of reducing unwarranted disparity in sentencing. The Sentencing Commission's Fifteen Year Report completed in November noted that ''[r]igorous statistical study both inside and outside the Commission confirm that the guidelines have succeeded at the job they were principally designed to do: reduce unwarranted disparity arising from differences among judges.''(see footnote 8) In fact, according to the Fifteen Year Report, the reduction of unwarranted judicial disparity has been reduced by approximately one third to one half by implementation of the Guidelines.(see footnote 9)
Another significant impact of sentencing reform has been the steep decline of crime in the United States, currently at a 30-year low. Congress, through the Sentencing Reform Act of 1984, instituted determinate sentences, the elimination of parole, truth in sentencing, limited judicial discretion, and appropriate consistency. Following Congress' lead, many states adopted similar guidelines systems. Congress also used mandatory minimum sentences such as those contained in the Anti-Drug Abuse Act of 1986, to incarcerate drug dealers and reduce the violence associated with the drug trade, and once again, many states followed suit. Further, in 1994, Congress passed the Violent Crime Control and Law Enforcement Act which provided incentives to states to pass truth in sentencing laws requiring violent offenders to serve at least 85% of their sentences. This also is an example of a matter on which the states followed Congress' lead. The new sentencing systems adopted by Congress and many states recognized the need to place the public's safety from crime first and to further that end through adequate deterrence, incapacitation of violent offenders, and just punishment. The overall drop in the violent crime rate of 26% in the last decade is proof of the success of Congress' policies.
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A few critics have said that our sentencing system has been a failure and that our prisons are filled with non-violent first-time offenders. But the facts tell us otherwise. Focusing exclusively on the federal prison population, approximately 66% of all federal prisoners are in prison for violent crimes or had a prior criminal record before being incarcerated.(see footnote 10) Again looking only at federal inmates, 79% of federal inmates classified as non-violent offenders released from prison have a prior arrest. The rap sheets of federal prisoners incarcerated for non-violent offenses indicate an average of 6.4 prior arrests with an average of at least 2.0 prior convictions.(see footnote 11) Given the active criminal careers and the propensity for recidivism of most prisoners, incapacitation works.
As noted by Judge Paul Cassell and others, ''an expanding body of literature suggests that incarceration of dangerous persons in recent years has demonstrably reduced crime, through both incapacitation and deterrence.''(see footnote 12) These incapacitative and deterrent effects arise from a sentencing guidelines system which is tough, fair, and predictable. As Congress crafts the sentencing policies which will guide the federal criminal justice system, we urge you to keep in mind that the ultimate goals are to promote fair sentencing, by minimizing unwarranted disparity, and to ensure the public's safety through tough sentencing, especially sentencing that incorporates a person's prior criminal history and real offense conduct.
VULNERABILITIES OF ADVISORY GUIDELINES
Page 27 PREV PAGE TOP OF DOC Since Blakely, the Department has closely studied various sentencing proposals. Today we reaffirm our commitment to support a sentencing regime that advances the principles of consistency, fairness, transparency, accountability, and the other statutory purposes of punishment. Though we are not here today to endorse a particular option, we are here to say that the resulting system must retain the strengths of the mandatory guideline system without suffering from its constitutional weakness.
We agree with experts who predict that a purely advisory system will undoubtedly lead to greater disparity and that, over time, this disparity is likely to increase.(see footnote 13) At a hearing before the Sentencing Commission last November, there was widespread agreement among all of the panelists, from professors to public defenders, that advisory guidelines were not appropriate for the federal justice system. For example, the Practitioners Advisory Group stated that ''rules that are mandatory are valuable in controlling unwarranted disparity, and in providing certainty so that defendants can make rational decisions in negotiating plea agreements and in trial strategy.''(see footnote 14) Testimony of a witness appearing on behalf of the Federal Public Defenders stated: ''We view advisory guidelines as another means of simply evading rather than embracing the principles of Blakely.''(see footnote 15) And a law professor testified that ''[g]iven the fact that Congress has repeatedly expressed its commitment to uniformity (most recently in the Feeney Amendment), these solutions [advisory guidelines] ignore the will of the ultimate decision-maker in this area.''(see footnote 16) Further, those who would cite to state advisory systems as models for the federal system often disregard the fact that, unlike the states, the federal system casts a wide net over far flung geographical areas, with diverse legal cultures.
Page 28 PREV PAGE TOP OF DOC As we have analyzed an advisory guideline system, we have identified vulnerabilities that are inherent in advisory guidelines, which we consider serious impediments to law enforcement. We urge you to give serious consideration to these vulnerable areas and to ensure that they are addressed by whatever legislation is enacted.
The first area is the sentencing hearing itself. In order to have consistent sentences, it is essential that sentencing hearings have consistent form and substance. Although there are currently statutes and Criminal Rules of Procedure controlling sentencing proceedings (e.g., 18 U.S.C. §3552, 3553(a); Fed. R. Crim P. 32(d)), these procedures don't necessarily ensure that courts ''consult the guidelines and take them into account when sentencing'' as explicitly required by the Court in Booker. In order to comply with these requirements, the Department has issued guidance to the field instructing prosecutors to recommend guideline sentences in all but the rarest cases, and to recommend guideline departures only when justified by the facts and the law. We will also ask the sentencing court to consult the guidelines and to calculate a guideline sentence prior to any other considerations as several courts, including the Second and Fourth Circuits, have directed.(see footnote 17)
We have, however, already encountered judges who have exercised their new-found discretion to fashion sentencing procedures which were considered and explicitly rejected by Booker. In both Oklahoma and Nebraska, courts have declared that the appropriate remedy is that suggested by Justice Stevens's dissent in Bookerto require prosecutors to charge and prove all sentencing facts to a jury beyond a reasonable doubt.(see footnote 18) In Nebraska, the court used a system of its own making to impose a sentence of 36 months for an aggravated illegal reentry after deportation, when the guideline range was 5771 months.(see footnote 19)
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These examples reflect a sobering thought: if lower courts are not constrained by a clear and explicit holding of the Supreme Court of the United States, it is fair to ask whether they will be constrained by guidelines that are merely advisory. Similarly, if lower courts exercise their discretion to ignore the law concerning matters as large as what sentencing system applies in federal courts, surely courts will exercise their discretion even more freely when applying individual guidelines.
The fact is that although the guidelines are now advisory, they are still an integral part of federal sentencing. As the Second Circuit recently noted, ''the Guidelines are not casual advice, to be consulted or overlooked at the whim of the sentencing judge.''(see footnote 20) Although the law still requires that courts consider the ''applicable category of offense and . . . defendant as set forth in the guidelines,'' and ''any pertinent policy statement'' and ''the need to avoid unwarranted sentence disparities'' among similarly situated defendants,(see footnote 21) these requirements may, like the Booker opinion itself, be ignored under a purely advisory system.
With the current system of advisory guidelines, courts may believe they can consider sentencing factors that are prohibited by the guidelines. Under the mandatory guidelines system, courts were prohibited from considering certain grounds for departure which were considered improper by the Sentencing Commission, and in some cases are impermissible under the Constitution. Such grounds include the defendant's race, sex, national origin, creed, religion, and socio-economic status.(see footnote 22) The Commission also prohibited consideration of other factorssuch as the defendant''s dependence on alcohol, drugs, or gambling, lack of guidance as a youth, disadvantaged upbringing and othersand discouraged consideration of other factors.(see footnote 23) Clearly, whether under the former mandatory guidelines system, or under the post-Booker advisory guidelines system, no court may consider grounds for departure that are impermissible under the Constitution.
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Soon after the Court's decision in Booker, a number of courts sentenced defendants to sentences significantly below the applicable guideline range, relying on factors that the Sentencing Commission considered improper when imposing sentences. In Wisconsin, a judge sentenced a white collar bank officer in a bank fraud case to one year and one day when the guidelines provided for 3647 months, explicitly basing the sentence on considerations such as the defendant's motivation to keep the client's business afloat and the fact that the conviction resulted in financial distress for the defendant.(see footnote 24) In California, a judge sentenced four men, convicted of smuggling more than a ton of cocaine from Colombia, to 41 months, when the guidelines provided for a sentence of at least 235293 months. Among the reasons the court cited for the sentence was the defendants' poverty. A newspaper reporting the case quoted the court as stating that the guideline sentence recommended by the government was ''extremely harsh'' and that the ''the government is being absolutely and totally unfair.''(see footnote 25) Meanwhile, other defendants in the same district in California received sentences of 20 and 30 years for the same conductsmuggling tons of cocaine from Colombia on the high seas.
As these decisions make clear, there is a need for courts to be consistent in their application of what factors are proper to consider at sentencing. Failing to do so will result in greater disparity. We urge Congress, in whatever sentencing system it implements, to prohibit certain factors so that judges may not consider in sentencing grounds which would be improper to consider or which would create sentencing disparity based upon inappropriate characteristics of a defendant.
COOPERATION AND ACCEPTANCE OF RESPONSIBILITY
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Another consequence of the advisory guidelines is the reduced incentive for defendants to enter early plea agreements or cooperation agreements with the government, since defendants may request and obtain the same benefit from the court without such an agreement. Under the mandatory guideline system, a defendant could obtain an additional third point reduction in his guideline range as consideration for an early acceptance of responsibility only upon the Department's motion. The Department is in the best position to determine whether a defendant's early plea has save prosecutorial resources, and should retain control of who receives that consideration.
Similarly, it is essential that the Department retain control over whether consideration at sentencing will be given for cooperation. Cooperation agreements are an essential component of law enforcement and are necessary to penetrate criminal organizations and to obtain convictions in court. First, the Department is in the best position to evaluate the truthfulness and value of a cooperator's assistance, by evaluating it within the context of the entire body of investigative information and by determining whether it is consistent and corroborated by other evidence. But there is a more important reasonthe Department needs the leverage in order to insist that cooperating defendants testify to the complete truth, rather than half-truths. The integrity of the judicial system depends upon the prosecutor's ability, in good faith, to present only truthful testimony. The Department's ability to insist on complete and truthful testimony is undercut if a cooperating defendant can tell half-truths and then, himself, seek a sentence reduction based upon partial cooperation.
In a number of circumstances, there will be less of an incentive for cooperating defendants to assume the risks of cooperation if they can seek sentencing benefits without risk. The implications of the status quo are particularly troubling for the Department in those cases in which defendants and targets are not charged with an offense involving a mandatory minimum sentence. This will have grave effects on the Department's ability to prosecute a wide variety of crimes which are difficult, if not impossible, to investigate without cooperators, such as drug trafficking, gangs, corporate fraud and terrorism offenses. Moreover, it may impair the Department's ability to obtain timely information. If defendants or targets of an investigation believe a district judge will impose minimal punishment or reward the defendant's representations regarding his cooperation and its value, defendants may defer attempts to cooperate with the Department. This could have a very disruptive effect on on-going investigations.
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The potential problem created by these issues is serious enough that the Department will not support any proposal that does not appropriately address this issue.
The Supreme Court in Booker excised 3742(e), which sets forth the standard of review on appeal for departures from the applicable guideline range, and announced that henceforth appellate courts would review sentences for ''unreasonableness.''(see footnote 26) The Department believes that guideline sentences are presumptively reasonable, and that sentences outside the guidelines become less reasonable the more they vary from the guideline range. It is, however, unclear how courts will define ''reasonableness'' and it is foreseeable that courts around the country will define it differently, opening another window through which disparity can infiltrate the system. Both the majority and dissenting opinions in Booker noted point. In response to Justice Scalia's dissent that the ''reasonableness'' standard will lead to sentencing disparities, the majority noted that ''we cannot claim that use of a 'reasonableness' standard will provide the uniformity that Congress originally sought to secure.''(see footnote 27)
The Department is disappointed that the de novo standard established by the PROTECT Act for sentences outside the applicable guideline range is no longer the law. This standard proved invaluable in the re-sentencing of a number of cases. For example, the Fourth Circuit reviewed de novo a district courts one-month sentence in a cross-burning case, based upon the victim's conduct and the defendant's aberrant behavior. The Circuit concluded that the departures were unwarranted and clearly erroneous.(see footnote 28) The Seventh Circuit reviewed de novo a district court's decision to grant a downward departure to a defendant convicted of child molestation on the grounds of national origin and health. Again, the Circuit court found that the departures were not warranted.(see footnote 29)
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We are concerned that the ''reasonableness'' standard may not be sufficiently rigorous to reduce unwarranted disparity. A rigorous and consistent appellate standard is essential to any guideline system since appellate review will be an important means for the parties to obtain consistent sentencing.
REVIEW OF SENTENCING DATA
Finally, under any regime, it is important that Congress and the Sentencing Commission monitor the sentences being imposed throughout the country to determine whether the guidelines are being properly considered and applied. The impact of the Supreme Court's ruling can only be assessed with accurate, real-time information on sentencing, which is necessary to play an appropriate and effective role in the public debate. This information remains vital to determine whether it is necessary to make adjustments to the guidelines, or to impose mandatory minimum sentences for certain types of crimes. This review is also necessary to ensure that the sentences imposed in the federal system are proportionate to the crime and provide adequate punishment, incapacitation and deterrence.
The Department of Justice is committed to ensuring that the federal criminal justice system continues to impose just and appropriate sentences that meet the goals of sentencing reform, which has so well served the United States. We look forward to working with Congress and others to create a lasting system that advances these goals. We are confident that Congress will act in the near term to ensure that federal sentencing policy continues to play its vital role in bringing justice to the communities of this country.
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I would be happy to try to answer any questions that the Subcommittee may have.
Mr. COBLE. And in the sense of equity and fairness, since I gave you an extra minute, I will give you all 6 minutes if you need it. If you can do it in five, that will make the Chairman real happy.
Judge, good to have you with us. Thank you.
STATEMENT OF THE HONORABLE RICARDO H. HINOJOSA, CHAIRMAN, UNITED STATES SENTENCING COMMISSION
Judge HINOJOSA. Thank you, Chairman Coble and Ranking Member Scott and distinguished Members of the Committee. I thank you for this opportunity to be able to address you on the aftermath of Booker and its possible effect on the Federal sentencing guidelines.
As you know, the Booker decision leaves the Sentencing Reform Act intact with the exception of two excised provisions and maintains all of the Sentencing Commission's statutory obligations. My statement today presents some initial observations regarding Booker, provides early data regarding the impact of the decision, and outlines actions we are taking to ensure that the guidelines continue to be an effective sentencing tool.
Page 35 PREV PAGE TOP OF DOC After Booker, the guidelines remain an important and essential factor in the imposition of Federal sentences. Under the approach set forth by the Court, district courts must consult the guidelines and take them into account when sentencing, subject to review by the courts of appeal for unreasonableness. The Commission believes that the Booker decision makes clear that the sentencing court must consider the guidelines and that such consideration necessarily requires the sentencing court to calculate the guideline sentencing range and consider the departure policy statements of the Federal sentencing guidelines.
Significantly, Title 18, U.S. Code Section 3553(a) was left wholly intact and still instructs that in determining the particular sentence to impose, the court shall consider the kinds of sentence and the sentencing range as set forth in the guidelines. Of course, sentencing courts cannot consider the sentencing guideline range if one is not determined by the court. Appellate case law is already developing on this point.
The Booker decision does not expressly address the question of how much weight the guidelines should be accorded by the sentencing court. There are a number of district court decisions with varying opinions regarding the precise weight that should be given to the guidelines. The Commission believes that the courts should give substantial weight to the guidelines in determining the appropriate sentence because as mandated by the Sentencing Reform Act, the Commission has considered the factors listed in section 3553(a) during the process of promulgating and refining the guidelines.
The factors the Commission has considered are a virtual mirror image of the factors sentencing courts are required to consider pursuant to section 3553(a). In addition, Congressional action through the history of the Federal sentencing guidelines indicates Congress's belief that they generally achieve the statutory purposes of sentencing as they are submitted for Congressional review before they become effective, and Congressional approval can only be interpreted as a sign that Congress believes the guidelines have done so. Accordingly, sentencing courts should give the guidelines substantial weight.
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After Booker, sentencing courts also continue to be required by Title 28 U.S. Code Section 994(w) to submit to the Commission five specific sentencing documents. Judge Sim Lake, Chair of the Criminal Law Committee of the Judicial Conference of the United States, and I have issued a joint memorandum to all United States district judges and other court personnel reminding them of this ongoing statutory obligation. The submission of these sentencing documents is of utmost importance because without them, the Sentencing Commission cannot generate the sentencing data that Congress, the Commission, and others need to evaluate the impact of Booker.
The Commission is sensitive to the need for timely and thorough post-Booker data and has prioritized and reconfigured its data collection in order to analyze and disseminate post-Booker data in as close to real time as possible. As of February 4, 2005, we have received and analyzed sentencing documents from 74 Federal districts for 733 cases sentenced on or after January 12, 2005. These courts have been highly compliant with their statutory requirements to submit sentencing documentation to the Commission. The data we have compiled is preliminary in nature and not necessarily representative of the nation as a whole. I would urge extreme caution in making firm conclusions based on these figures.
The percent of cases sentenced within the guideline sentencing range post-Booker does not appear to be noticeably different from previous practice. Of the 692 cases for which complete sentencing information was available, 63.9 percent were sentenced within the applicable guideline sentencing range, which is almost identical to the data we have for the last three fiscal years of published data, which range from 64 to 65 percent.
Page 37 PREV PAGE TOP OF DOC One-third of the cases were sentenced below the applicable guideline sentencing range, which also is almost identical to the data we have for the last three fiscal years of published data. Almost two-thirds, 63.2 percent of the sentences below the applicable guideline range since Booker were based on an agreement with the Government either for substantial assistance, an early disposition or fast track program, or otherwise pursuant to a plea agreement.
Also noteworthy is that 2.7 percent of the post-Booker cases were sentenced above the sentencing guideline range, which is a relatively small number but represents more than a three-fold increase above the average upward departure rate of 0.7 percent for the last three fiscal years.
This very preliminary post-Booker data indicates that courts appear to be sentencing pursuant to the guidelines in the overwhelming majority of cases. Only 7.8 percent of cases appear to be sentenced below, and only 1.3 percent appear to be sentenced above the applicable guideline sentencing range based upon sentencing authority established in Booker. Therefore, courts sentenced pursuant to the guideline system as a whole, including upward and downward departure policy statements contained in the guideline manual, in 90.9 percent of the cases.
Next week, we have planned a 2-day hearing to continue building a record of informed discussion of Booker and we are scheduled to vote to publish for comment proposed guideline amendments that would implement Congressional directives and other legislation concerning identity theft and antitrust offenses. In short, our core work continues uninterrupted.
Page 38 PREV PAGE TOP OF DOC In closing, the Commission recognizes that Booker presents new potentially significant challenges to Federal sentencing and we are aware proposals to respond to the decision are being discussed. If Congress decides at some point to pursue legislation, we hope that it will preserve the core principles of the Sentencing Reform Act, and to the extent possible, avoid a wholesale rewriting of the system that has operated well for nearly two decades. We believe the Sentencing Reform Act was a landmark piece of legislation and the resulting guidelines have made significant strides in furthering the goals of the Act.
As we move forward, the Commission is ready to assist Congress in any way it deems appropriate, and I thank you so much for giving me the time to be here today and for going over my alloted time, Mr. Chairman. As a judge for 22 years, I know that bothers the person at the helm, so I appreciate it very much.
Mr. COBLE. Thank you, Your Honor. I appreciate that.
[The prepared statement of Judge Hinojosa follows:]
PREPARED STATEMENT OF THE HONORABLE RICARDO H. HINOJOSA
Chairman Coble, Ranking Member Scott, and Distinguished Members of the Committee, thank you for inviting me 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(see footnote 30) on the Federal Sentencing Guidelines.
Page 39 PREV PAGE TOP OF DOC After the Court's decision in Blakely v. Washington,(see footnote 31) the federal criminal justice system experienced a period of uncertainty regarding whether the Federal Sentencing Guidelines would remain valid. The Sentencing Commission, in testimony before Congress and in its own amicus brief, vigorously asserted that the holding in Blakely did not apply to the Federal Sentencing Guidelines. Although the Court ultimately extended Blakely to the Federal Sentencing Guidelines, the Booker decision resolved the uncertainty in a manner that leaves the Sentencing Reform Act intact with the exception of two excised provisions. The opinion maintains all of the Sentencing Commission's statutory obligations under the Act. In fact, the Court noted the Commission's important role in the federal criminal justice system, stating that ''the Sentencing Commission remains in place, writing Guidelines, collecting information and actual district court sentencing decisions, undertaking research, and revising the Guidelines accordingly.''(see footnote 32)
There is no doubt, however, that the Booker decision is the most significant case affecting the federal guidelines system since the Supreme Court upheld the Sentencing Reform Act in Mistretta.(see footnote 33) While it is impossible to evaluate fully the impact of Booker after less than one
month, the Sentencing Commission and its staff are committed to assisting Congress in any way it deems appropriate as you assess and respond to the decision.
The Sentencing Commission is uniquely positioned to assist all three branches of government in ensuring the continued security of the public while providing fair and just sentences. An independent agency housed in the judicial branch, the Sentencing Commission is an expert bipartisan body of federal judges, individuals with varied experience in the federal criminal justice system, and ex-officio representatives of the Executive branch whose work on sentencing guidelines must be reviewed by Congress. In short, the Sentencing Commission is at the crossroads where the three branches of government intersect to determine federal sentencing policy.
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My testimony today presents some of the Sentencing Commission's initial observations regarding Booker, provides early data regarding the impact of the decision, and outlines actions we are taking to ensure that the guidelines continue to be an effective sentencing tool.
Guidelines Still Must Be Calculated and Considered
After Booker the Federal Sentencing Guidelines remain an important and essential consideration in the imposition of federal sentences. The decision severed and excised two statutory provisions, 18 U.S.C. §3553(b)(1), which made the Federal Guidelines mandatory, and 18 U.S.C. §3742(e), an appeals provision. Under the approach set forth by the Court, ''district courts, while not bound to apply the Guidelines, must consult those Guidelines and take them into account when sentencing,'' subject to review by the courts of appeal for ''unreasonableness.''(see footnote 34)
The Sentencing Commission firmly believes that the Court's decision makes clear that the sentencing court must consider the guidelines and that such consideration necessarily requires the sentencing court to calculate the guideline sentencing range. It is significant that 18 U.S.C. §3553(a), which was left wholly intact by the decision, still instructs that sentencing courts
''. . . in determining the particular sentence to be imposed, shall consider . . . the kinds of sentence and the sentencing range established for . . . the applicable category of offense committed by the applicable category of defendant as set forth in the guidelines . . . issued by the Sentencing Commission . . .''.(see footnote 35)
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Sentencing courts of course cannot consider the sentencing guideline range if one has not been determined. Therefore, probation officers should continue preparing presentence reports with
guideline calculations, pursuant to 18 U.S.C. §3552 and Rule 32 of the Federal Rules of Criminal Procedure, both of which were unchanged by the decision.
Appellate case law is already developing on this point. The Second Circuit has held that in order to comply with the duty to ''consider'' the guidelines:
A judge cannot satisfy this duty by a general reference to the entirety of the Guidelines Manual, followed by a decision to impose a ''non-Guidelines sentence.'' Subsection 3553(a)(4) contemplates consideration of the Guidelines range applicable to the defendant, and subsection 3553(a)(5) contemplates consideration of policy statements issued by the Sentencing Commission, including departure authority. The applicable Guidelines range is normally to be determined in the manner as before Booker/Fanfan.(see footnote 36)
The Fourth Circuit similarly has held that ''[c]onsistent with the remedial scheme set forth in Booker, a district court shall first calculate (after making the appropriate findings of fact) the range prescribed by the guidelines. Then, the court shall consider that range as well as other relevant factors set forth in the guidelines and those factors set forth in §3553(a) before imposing the sentence.''(see footnote 37) Therefore, prior to imposing a sentence sentencing courts must consider the guideline range calculations and departure policy statements, pursuant to Booker and 18 U.S.C. §3553(a).
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Sentencing Guidelines Should be Given Substantial Weight
Although the Booker decision makes clear that the guidelines must be consulted and taken into account, it does not expressly address the question of how much weight they should be accorded by the sentencing court. There are a number of district court decisions with varying opinions regarding the precise weight that should be given to the guidelines. For example, a case in the District of Utah has held that the Federal Sentencing Guidelines should be given ''heavy weight'' and deviated from only in ''unusual cases for clearly identified and persuasive reasons,'' while a case in the Eastern District of Wisconsin has held that ''courts must treat the guidelines as just one of a number of sentencing factors'' enumerated at 18 U.S.C. §3553(a).(see footnote 38) The appellate courts ultimately can be expected to address this issue.
The Sentencing Commission firmly believes that sentencing courts should give substantial weight to the Federal Sentencing Guidelines in determining the appropriate sentence to impose, and that Booker should be read as requiring such weight. The Booker sentencing scheme ''requires a sentencing court to consider Guidelines ranges, see 18 U.S.C.A. §3553(a)(4) (Supp. 2004), but it permits the court to tailor the sentence in light of other statutory concerns as well, see §3553(a) (Supp. 2004).''(see footnote 39)
During the process of developing the initial set of guidelines and in refining them throughout the ensuing years, the Sentencing Commission has considered the factors listed at section 3553(a) and cited with approval in Booker. The Sentencing Reform Act, in fact, mandates such consideration by the Sentencing Commission. Section 991(b) of title 28, United States Code, expressly states that the very purposes of the Sentencing Commission are, among other things: to assure the purposes of sentencing, as set forth in section 3353(a)(2), are met; to provide certainty and fairness in sentencing; to avoid unwarranted disparities among defendants with similar records who have been found guilty of similar conduct; and to maintain sufficient flexibility to permit individualized sentences when warranted. In short, the factors the Sentencing Commission has been required to consider in developing the Sentencing Guidelines are a virtual mirror image of the factors sentencing courts are required to consider pursuant to 18 U.S.C. §3553(a) and the Booker decision.(see footnote 40) As a result, sentencing courts should give the guidelines substantial weight.
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In addition, congressional action throughout the history of the Federal Sentencing Guidelines indicates Congress's belief that they generally achieve the statutory purposes of sentencing. Pursuant to 28 U.S.C. §994(p), the Commission is required to submit all guidelines and guideline amendments for congressional review before they become effective. To date, the initial set of guidelines and 672 amendments have withstood congressional scrutiny, and many guideline amendments were promulgated in response to congressional directives. Such congressional approval can only be interpreted as a sign that Congress believes the Federal Sentencing Guidelines adequately achieve the statutory purposes of sentencing, providing further support for the Sentencing Commission's position that sentencing courts should give the guidelines substantial weight in imposing sentences.
Sentencing Documentation Must be Completed and Submitted
Sentencing courts also continue to be required by 18 U.S.C. §3553(c) (statement of reasons for imposing a sentence) and 28 U.S.C. §994(w) to submit to the Commission within 30 days of entry of judgment five specific sentencing documents: the judgment and commitment order, the statement of reasons (including the specific reasons for any departure), any plea agreement, the indictment or other charging document, and the presentence report. Booker makes no changes in the document submission requirements imposed by the PROTECT Act, and it is imperative that all districts continue to make these submissions to the Commission in a timely and complete manner.
In order to emphasize this point, on January 21, 2004, Judge Sim Lake, Chair of the Criminal Law Committee of the Judicial Conference of the United States and I issued a joint memorandum to all United States District Judges and other court personnel reminding them of the duty to continue fulfilling this ongoing statutory requirement (Attachment A). I also appeared earlier this week on a television broadcast to the courts sponsored by the Federal Judicial Center and again reiterated this point.
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The statutorily required submission of sentencing documents is of utmost importance because without these documents the Sentencing Commission cannot generate the sentencing data that Congress, the Commission, and others need to evaluate the impact of Booker on federal sentencing. As a result, we intend to continue coordinating with the Criminal Law Committee, the Administrative Office of the United States Courts, and the Federal Judicial Center to ensure that the courts provide us with the documentation and information we need, and this effort could include either revisions or supplements to forms currently in use.
Sentencing Commission's Actions in Response to Booker
The Sentencing Commission conducted a two day hearing on November 16 and 17, 2004, at which it heard testimony from the Department of Justice, defense attorneys, and academics, and the Commission and its staff have attended various conferences and meetings since the Blakely decision. Based on these interactions, the Sentencing Commission is aware that a number of proposals to respond to Booker are being discussed. These proposals include, among others, a ''wait and see'' approach, statutory implementation in some form of the Booker sentencing scheme, providing a jury trial mechanism for sentencing guideline enhancements, ''simplification'' of the guidelines either by reducing the number of guideline adjustments and/or by expanding the sentencing guideline ranges, equating the maximum of the guideline sentencing ranges with the statutory maximum for the offense of conviction, and broader reliance on statutory mandatory minimum penalties.
If Congress decides at some point to pursue legislation, we hope that it will preserve the core principles of the Sentencing Reform Act and, to the extent possible, avoid a wholesale rewriting of a system that has operated well for nearly two decades. We believe the Sentencing Reform Act was a landmark piece of legislation and the resulting guidelines have made significant strides in furthering the goals of the Act.
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The Sentencing Commission will continue fulfilling its many statutory duties and in furtherance of its ongoing mission already is taking several steps in response to Booker. The Sentencing Commission is sensitive to the need for timely and thorough post-Booker data on federal sentencing. As stated earlier, the Sentencing Commission already has communicated with the courts regarding their continuing statutory duties regarding completion and submission of sentencing documentation. In addition, the Sentencing Commission has prioritized and reconfigured its data collection modules in order to collect, analyze, and disseminate post-Booker data in as close to ''real time'' as possible.
As of February 4, 2005, the Sentencing Commission has received and analyzed sentencing documents for 733 cases sentenced on or after January 12, 2005, the date of the Booker decision. The data we have compiled is preliminary in nature and not necessarily representative of the nation as whole and, therefore, I would urge extreme caution in making firm conclusions based on these figures.
The Sentencing Commission has received sentencing documents from 74 of the 94 federal districts, and these courts have been highly compliant with the documentation submission requirements of 18 U.S.C. §3553(c) and the PROTECT Act, which remain unchanged by Booker. The sentencing documentation for these cases included 99.6% of the Judgment and Commitment Orders, 98.8% of the Presentence Reports, 97.3% of the Indictments or other charging documents, and 95.8% of the Statements of Reasons. These figures indicate that courts are continuing to take their statutorily required documentation and submission requirements seriously.
The percent of cases sentenced within the guideline sentencing range post-Booker does not appear to differ noticeably from previous practice. Of the 692 cases for which complete sentencing information was available,(see footnote 41) 63.9 percent (442) were sentenced within the applicable guideline sentencing range. During the last three fiscal years of published data, the proportion of cases sentenced within the applicable guideline sentencing range remained between 64 and 65 percent.(see footnote 42)
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Also similar to prior sentencing practice, approximately one-third of the cases33.4 percent (231)were sentenced below the applicable guideline sentencing range. Between 33.9 percent and 35.4 percent of the federal caseload in fiscal years 20002002 were sentenced below the applicable guideline sentencing range.(see footnote 43)
The majority of the sentences below the applicable guideline range since Booker were based on an agreement with the government. Of the 231 cases sentenced below the applicable guideline sentencing range, 105 (45.5%) were pursuant to a substantial assistance motion made by the government under USSG 6 5K1.1 (Substantial Assistance), 32 (13.9%) were pursuant to an early disposition or fast track motion made by the government under USSG §5K3.1 (Early Disposition Programs), and 9 (3.9%) were otherwise pursuant to a plea agreement. Therefore, the government initiated or plea bargained for almost two thirds (63.2%) of the sentences below the applicable guideline sentencing range.
Downward departures were granted for other reasons identified in the Guidelines Manual in 31 cases, which represents 13.4 percent of the cases sentenced below the applicable sentencing guideline range. The remaining 54 cases sentenced below the applicable guideline sentencing range appear to be based upon sentencing authority established in Booker, which represents 23.4 percent of the cases sentenced below the applicable guideline sentencing range.
Also noteworthy is the fact that 19 cases were sentenced above the applicable guideline sentencing range. These sentences were divided almost evenly between sentence increases pursuant to upward departure provisions contained in the Guidelines Manual and increases based upon sentencing authority established in Booker. Combined they comprise 2.7 percent of the post-Booker cases, which represents more than a three-fold increase above the average upward departure rate of 0.7 percent for fiscal years 20002002.(see footnote 44)
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This very early preliminary data since Booker seems to indicate that courts are sentencing pursuant to the Federal Sentencing Guidelines in the overwhelming majority of cases. Only 7.8 percent of the cases appear to be sentenced below, and only 1.3 percent appeal to be sentenced above, the applicable guideline sentencing range based upon sentencing authority established in Booker. Therefore, courts sentenced pursuant to the Federal Sentencing Guidelines system as a whole, including upward and downward departure policy statements contained in the Guidelines Manual, in 90.9 percent of the cases analyzed for this period.
In addition to its timely data collection and analysis, the Commission has scheduled another two-day hearing on February 15 and 16, 2005, to gauge the impact of Booker and continue building a record of informed discussion. We expect several witnesses representing a broad spectrum of parties interested in the federal criminal justice system to testify.
As evidenced by our testimony today, the Commission is monitoring closely emerging case law to see how district courts rely on the Federal Sentencing Guidelines in the post-Booker era, how appellate courts interpret what is an ''unreasonable'' sentence,(see footnote 45) and whether the Sentencing Commission must resolve any new resulting conflicts among the circuit courts.(see footnote 46)
The Commission also is continuing to train judges, probation officers, prosecutors, and defense attorneys on guideline application and the extensive provisions of the Sentencing Reform Act that remain in full force and effect.
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As further evidence of the Sentencing Commission's continued vitality and our belief in the continued relevance and importance of the Sentencing Guidelines, next week the Sentencing Commission is scheduled to vote to publish for comment proposed guideline amendments that would implement congressional directives and other legislation concerning identity theft and antitrust offenses. In short, our core work continues uninterrupted.
In closing, the Sentencing Commission recognizes that the Booker decision presents new, potentially significant challenges to federal sentencing. The Sentencing Commission concurs with a recent admonishment to sentencing courts, however, ''that Booker/Fanfan and section 3553(a) do more than render the Guidelines a body of casual advice, to be consulted or overlooked at the whim of a sentencing judge.''(see footnote 47) The Sentencing Commission firmly believes that Booker requires that sentencing courts calculate the applicable guideline sentencing range. We are noticing in some case law that different sentencing courts are giving the Federal Sentencing Guidelines varying weights. In addition, we are unsure of how appellate review for ''unreasonableness'' will work in practice, or how the courts of appeal will resolve the issue of how much weight sentencing courts should accord the guidelines.
The Sentencing Commission and its staff are closely monitoring these and other issues. We are dedicated to our mission to carry out the goals of sentencing reform and, as the Booker decision itself says, ''to provide certainty and fairness in meeting the purposes of sentencing [while] avoiding unwarranted sentencing disparities . . . [and] maintaining sufficient flexibility to permit individualized sentences when warranted.''(see footnote 48)
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As we move forward in the wake of Booker, we are ready to assist Congress in any way it deems appropriate. Mr. Chairman, Ranking Member Scott, and Members of the Committee, thank you again for holding this very important hearing. I will be glad to answer any questions you may have.
Mr. COBLE. Mr. Collins?
STATEMENT OF DANIEL P. COLLINS, PARTNER, MUNGER, TOLLES, AND OLSON LLP
Mr. COLLINS. Good morning, Chairman Coble, Ranking Member Scott, and Members of the Subcommittee. I appreciate the opportunity to testify here today.
By declaring the U.S. sentencing guidelines to be merely advisory, the United States Supreme Court's decision in Booker effectively demolishes in one stroke the entire edifice of Federal sentencing reform that had been carefully built over the course of the last 20 years. The Court has invited the Congress explicitly to rebuild a, quote, ''sentencing system compatible with the Constitution that Congress judges best for the Federal system of justice.'' I applaud you, Mr. Chairman, for moving quickly to hold hearings on this important task.
I would like to begin my remarks by emphasizing the importance of the issue before you. Federal sentencing policy is not some abstract matter about the mechanics and details of court procedure. It is a grave matter that goes to the heart of one of the Government's first and foremost responsibilities, the protection of public safety.
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In my view, it is no accident that the unprecedented and historic declines in crime rates in America have coincided with the rise of determinate sentencing under the Federal sentencing guidelines and analogous systems at the State level. Common sense suggests that if you lock up criminals for longer periods of time and lock up the very worst for very long periods of time, there will be less crime.
We simply cannot be sure that if we heed recent calls for less severity, for smaller prison populations, or for greater flexibility, we will not again see a spike in crime rates. To accede to such measures would be to engage in an irresponsible experiment that would literally gamble with the lives of this nation's citizens.
Accordingly, it is my strong recommendation that Congress act, and act promptly, to rebuild the Federal sentencing system so that it can function most nearly as it did before Booker. If Federal sentencing policy wasn't broke before Booker, don't fix it into something entirely different. The invalidation of the guidelines in Booker does not call into question any of the ultimate values or objectives of Federal sentencing policy. It simply found fault with the mechanisms by which those values were achieved in certain cases.
What, then, is the source of the flaw that was identified in Booker? Blakely and Booker are quite clear on that point. In Blakely, the Court stated that the crucial factor that distinguished Washington's sentencing system from an admittedly constitutional system of complete judicial discretion was the fact that in the absence of additional factual findings beyond those admitted by the defendant or found by the jury, the defendant has a legal right to a lesser sentence, and the word ''right'' is italicized in the Court's opinion.
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Accordingly, the flaw in the guidelines under Booker and Blakely is that in the absence of particular findings, the guidelines set a legally enforceable maximum sentence that is below the theoretical statutory maximum. By contrast, the Supreme Court has squarely held that basing a minimum sentence on additional facts found solely by the judge does not violate the sixth amendment as construed in Apprendi.
If the goal is, as I think it should be, to preserve the practical substance of the guidelines system to the greatest extent possible and with as little alteration as possible, the question about what Congress should do almost answers itself. If the problem is created only by the guidelines' use of ranges with legally enforceable maxima below the statutory maximum, then the solution is to get rid of those maxima. In other words, the sentencing guidelines would be fully restored exactly as they were before with the sole exception that in every case, the top of the authorized range would be the statutory maximum. Booker leaves little doubt that under current Supreme Court doctrine, such a system would be perfectly constitutional.
The only objection that I can perceive to this approach is the policy argument that it eliminates the protections the guidelines previously conferred against a ''hanging judge,'' but this objection is wide of the mark. We now have accumulated 15 years of empirical data of the experience under the sentencing guidelines and that practical experience confirms that there is very little need to worry about this sort of excessive severity. In the last fiscal year for which data are publicly available, upward departures occurred in only 457 out of nearly 59,000 cases, a grand total of 0.8 percent. In this system, the hanging judge is a myth. We should not make fundamental structural changes solely to accommodate a problem that does not occur in more than 99 percent of the cases.
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On the contrary, as I have testified in my previous appearances before this Committee, the problems with disparity have all been in the other direction. With the guidelines now being purely advisory, we can only expect these problems to reappear and to worsen. We should not abandon a highly successful system of guideline sentencing.
Finally, there is one additional aspect that I think ought to be addressed in any legislation. As I have noted, the Supreme Court has held in Harris that Apprendi did not apply to minima. It has also held in Almendarez/Torres that the Apprendi rule does not apply to the mere fact of a prior conviction. Those decisions were 54 and the Congress may wish to address the issue of severability and what should go into effect were the Court to reverse itself on those decisions.
I would be pleased to answer any questions the Committee may have.
Mr. COBLE. Thank you, Mr. Collins.
[The prepared statement of Mr. Collins follows:]
PREPARED STATEMENT OF DANIEL P. COLLINS
Chairman Coble and Members of the Subcommittee, I appreciate the opportunity to testify here today. By declaring the U.S. Sentencing Guidelines to be mere advisory, the United States Supreme Court's decision in United States v. Booker, 125 S. Ct. 738 (2005), effectively demolishes in one stroke the entire edifice of federal sentencing reform that has been carefully built over the last 20 years. As the Court made clear, ''[t]he ball now lies in Congress' court.'' 125 S. Ct. at 768. I applaud you, Mr. Chairman, for moving quickly to holding hearings on this important issue, so that the Congress can promptly move to rebuild a ''sentencing system, compatible with the Constitution, that Congress judges best for the federal system of justice.'' Id.
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My perspective on federal sentencing policy is informed by my service over a total of nearly eight years in various capacities in the Justice Department. During the 1990s, I served three and one-half years as a federal prosecutor in the U.S. Attorney' Office in Los Angeles. More recently, I served from June 2001 until September 2003 as an Associate Deputy Attorney General (''ADAG'') in the office of Deputy Attorney General Larry Thompson. During my time as an ADAG, I had the privilege of testifying before this Committee several times concerning a variety of provisions that were ultimately enacted into law in the Prosecutorial Remedies and Other Tools to end the Exploitation of Children Today (''PROTECT'') Act of 2003. The PROTECT Act enacted some of the most significant reforms in federal sentencing policy since the original enactment of the Sentencing Reform Act of 1984. I also helped to develop the Administration's 2002 proposal to strengthen federal sentencing of identity theft crimes, a proposal that I was pleased to see ultimately enacted into law as the Identity Theft Penalty Enhancement Act. I also helped coordinate the Department's 2003 review and revision of its policies on charging of criminal offenses, plea bargaining, sentencing recommendations, and sentencing appeals. While my views on federal sentencing policy are influenced by my prior experiences working on such matters in the Government, I am now back in private practice in Los Angeles, and I wish to emphasize that the views I offer today are solely my own.
WHAT IS AT STAKE
I would like to begin my remarks by emphasizing the importance of the issue before you. Federal sentencing policy is not some abstract matter about the mechanics and details of court procedure; it is a grave matter that goes to the heart of one of the Government's first and foremost responsibilities: the protection of public safety.
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In my view, it is no accident that the unprecedented and historic declines in crime rates in America have coincided with the rise of determinate sentencing under the federal Sentencing Guidelines and analogous systems at the state level. I recognize that correlation does not necessarily equal causation, but I do not think it is just a coincidencecommon sense suggests that if you lock up criminals for longer periods of time, and lock up the very worst for very long periods of time, there will be less crime.
In any event, I think the burden of doubt must be cast on the critics of the Sentencing Guidelines. We simply cannot be sure that the decisive move towards more determinate sentencing at the federal and state levels has not been an important factor in lowering crime rates. Put another way, we simply cannot be sure that, if we heed recent calls for less severity, for smaller prison populations, or for greater flexibility, we will not again see a spike in crime rates. To accede to such measures would be to engage in an irresponsible experiment that would literally gamble with the lives of this Nation's citizens.
Moreover, the ultimate measure for evaluating sentencing policy is not whether individual sentences can be said to meet some pre-conceived notion of a ''proportionate'' sentence. Proportionality is an important value, to be sure, and it is taken into account in the many gradations made within the guidelines system. But the vast diversity of competing views as to what constitutes a proportionate sentence is precisely what led to the enactment of the Sentencing Reform Act and the creation of the Sentencing Guidelines in the first place, and congressional consideration about how to rebuild the federal sentencing system should not get side-tracked into ultimately irresolvable debates about subjective notions of proportionality. Rather, sentencing policy must ultimately be evaluated in terms of its ability to accomplish the core goal of ensuring public safety and reducing crime. By that measure, the Sentencing Guidelines have been a unqualified success. That they have done so while simultaneously respecting and fostering important values of proportionality, consistency, and fairness, makes them all the more worth preserving and restoring.
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REBUILDING THE EDIFICE OF FEDERAL SENTENCING
Accordingly, it is my strong recommendation that the Congress actand act promptlyto rebuild the federal sentencing system so that it can function most nearly as it did before Booker. If federal sentencing policy wasn't broke before Booker, don't fix it into something entirely different. The invalidation of the Guidelines in Booker does not call into question any of the ultimate values or objectives of federal sentencing policy; it simply found fault with the mechanisms by which those values were achieved in certain cases.
In determining how to go about rebuilding the Guidelines system, it is essential to identify precisely what it was about the prior system that led to the constitutional defect identified by the Supreme Court. In Blakely v. Washington, 124 S. Ct. 2531 (2004), which addressed Washington State's sentencing system, the Court was explicit in stating that it was not ''find[ing] determinate sentencing schemes unconstitutional.'' Id. at 2540. On the contrary, the Court stated that the issue was how determinate sentencing ''can be implemented in a way that respects the Sixth Amendment'' as construed under the Court's landmark decision in Apprendi v. New Jersey, 530 U.S. 466 (2000). See Blakely, 124 S. Ct. at 2540.
What, then, is the source of the flaw? Blakely and Booker are quite clear on that point. In Blakely, the Court stated that the crucial factor that distinguished Washington's sentencing system from an admittedly constitutional system of complete judicial discretion was the fact that, in the absence of additional factual findings beyond those admitted or found by the jury, ''the defendant has a legal right to a lesser sentence.'' 124 S. Ct. at 2540 (emphasis in original). Indeed, the Court gave an example in order to illustrate its point:
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''In a system that says the judge may punish burglary with 10 to 40 years, every burglar knows he is risking 40 years in jail. In a system that punishes burglary with a 10-year sentence, with another 30 added for use of a gun, the burglar who enters a home unarmed is entitled to no more than a 10-year sentenceand by reason of the Sixth Amendment the facts bearing upon that entitlement must be found by a jury.''
Id. (emphasis in original). Likewise, in extending Blakely to the Sentencing Guidelines, the Booker Court emphasized that the defect in the Guidelines is that ''[i]t became the judge, not the jury, that determined the upper limits of sentencing, and the facts determined were not required to be raised before trial or proved by more than a preponderance.'' 125 S. Ct. at 751 (emphasis added).
Accordingly, the flaw in the Guidelines under Booker and Blakely is that, in the absence of particular findings, the Guidelines set a legally enforceable maximum sentence that is below the theoretical statutory maximum.
By contrast, the Supreme Court has squarely held that basing a minimum sentence on additional facts found solely by the judge does not violate the Sixth Amendment as construed in Apprendi. See Harris v. United States, 536 U.S. 545, 568 (2002).
If the goal is, as I think it should be, to preserve the practical substance of the Guidelines system to the greatest extent possible and with as little alteration as possible, the question about how to do that almost answers itself: if the problem is created only by the Guideline's use of ranges with legally enforceable maxima below the statutory maximum, then the solution is to get rid of those maxima. In other words, the Sentencing Guidelines would be fully restored exactly as they were before, with the sole exception that, in every case, the top of the authorized range would be the statutory maximum. Because Booker is unambiguously clear in stating that the Court has ''never doubted the authority of a judge to exercise broad discretion in imposing a sentence within a statutory range,'' 125 S. Ct. at 750, there can be little doubt that this revised system would satisfy Booker and Blakely.
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The only objection that I can perceive to this approach is the policy argument that the revised system would eliminate the ability to ensure sentencing uniformity and fairness at the top as well as at the bottom of the Guidelines. Put simply, it eliminates the protection the Guidelines had previously conferred against a ''hanging'' judge. For a number of reasons, this objection cannot carry the day. As an initial matter, this objection ignores the obvious fact that, as matters currently stand, a defendant has no protection against a hanging judge other than the Court's newly fashioned appellate review of sentences for ''reasonableness.'' Booker, 125 S. Ct. at 76567, But the objection is wide of the mark for a more fundamental reason. We now have accumulated 15 years of experience under the Sentencing Guidelines, and that practical experience confirms that there is very little need to worry about this sort of excessive severity. For example, in the last fiscal year for which data are publicly available, upward departures occurred in only 457 of 58,684 cases sentenced nationwidea grand total of 0.8%. In this system, the hanging judge is a myth. We should not make fundamental structural changes solely to accommodate a problem that does not occur in 99.2% of the cases.
On the contrary, as I have testified before in my previous appearances before this Committee, the problems with disparity have all been in the other direction. With the Guidelines now being purely advisory, we can only expect these problems to reappear and to worsen. It is therefore urgent that the Congress act promptly to restore the Guidelines system so that, as before, judges will at least be bound by the highly reticulated and carefully tailored system of minimum sentences that it contains. We should not abandon the highly successful system of Guidelines sentencing.
Page 58 PREV PAGE TOP OF DOCENSURING THAT A REBUILT SYSTEM SURVIVES
There is one additional aspect that I think ought to be addressed in any legislation that seeks to rebuild the Guidelines system after Booker and Blakely.
As I have noted, the Supreme Court held in Harris that Apprendi does not apply to mandatory minima. The Court has also continued to state that it does not apply to the mere fact of a prior conviction. Blakely, 124 S. Ct. at 2536; cf. Almendarez-Torres v. United States, 523 U.S. 224 (1998). Both Harris and Almendarez-Torres were 54 decisions, and Justice Breyer's concurrence in Harris and Justice Thomas' concurrence in Apprendi are alone enough to raise a question whether a future Court might, despite the force of stare decisis, see these matters differently. Were the Court to do so, it would be a travesty to have a replay of Booker in which a future Court might decide, once again, to ''sever'' the mandatory nature of the Guidelines so as to eliminate the constitutional difficulty.
Accordingly, I urge the Congress to give serious consideration to adding a title to whatever legislation emerges that would specifically address the severability issue. In other words, the Congress should add language that would have the effect of providing what system would go into effect if either Harris or Almendarez-Torres are overruled. There are a variety of options Congress could choose. For example, you might provide for a graded system of statutorily prescribed mandatory minima for all offenses (if Harris were overruled) or for submission of prior convictions to the jury (in the event Apprendi were extended to prior convictions). There is recent precedent, in the McCain-Feingold Act, for taking a more proactive approach toward the issue of possible severability. The Congress should likewise act to ensure that the system it puts in place here will survive for the long term. Indeed, the case for being proactive on severability is uniquely compelling here, because the Ex Post Facto Clause will prevent Congress from retroactively fixing the problem for the many thousands of cases decided in the interim.
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I would be pleased to answer any questions the Committee may have.
Mr. COBLE. We have been joined by the distinguished gentleman from Texas, Mr. Gohmert, and Judge Hinojosa, as you know, he is a former judge, so we have two judges in our presence today.
Mr. Bowman, good to have you with us.
I stand corrected. I didn't see the gentlelady from California, Ms. Waters, has joined us, as well.
STATEMENT OF FRANK O. BOWMAN, III, M. DALE PALMER PROFESSOR OF LAW, INDIANA UNIVERSITY SCHOOL OF LAW
Mr. BOWMAN. Thank you, Mr. Chairman, Ranking Member Scott, distinguished Members of the Committee. Thank you for giving me an opportunity to appear before you today.
The Federal criminal justice system has been in a state of some excitement since the Supreme Court decided Blakely v. Washington last summer. Blakely cast the constitutional validity of the Federal sentencing guidelines into uncertainty, an uncertainty that was resolved, at least sort of, by the Court's decision less than a month ago in Booker. We now know that the guidelines as they were are unconstitutional, but we find, perhaps a little bit to our surprise, that the guidelines are with a stilt, albeit in a form that few anticipated and no one yet entirely understands. So the questions before us are, one, what does Booker mean, and two, what should Congress do about it?
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I appear today in a dual capacity. On the one hand, I appear on behalf of the Sentencing Initiative of the Constitution Project, a bipartisan nonprofit organization that seeks solutions to difficult legal and constitutional problems. Shortly after Blakely was decided last summer, the Constitution Project launched its Sentencing Initiative and drew together a remarkably talented, experienced, and bipartisan group to study the Federal sentencing system generally and the impact of Blakely in particular.
The group, which is headed by former Attorney General Edwin Meese and Harvard Professor Philip Heymann, who is formerly the Deputy Attorney General of the United States, has sent a letter to the Committee urging that Congress respond to Booker with caution. I have the honor to serve along with Professor David Yellen as co-reporter of the Constitution Project and I fully endorse the call for caution expressed in its letter.
My personal message today is also a counsel of caution and a recommendation against at least immediate major legislation. In particular, I recommend that Congress not enact so-called ''topless guidelines'' as an immediate response to Booker. Those who have been aboard the Blakely to Booker roller coaster from the beginning will recognize that this recommendation puts me as the original author of the topless guidelines proposal, ably described by Mr. Collins, in the somewhat peculiar position of recommending that you not do now precisely what I said you should do last summer. At a minimum, as Ricky used to say to Lucy, ''it looks like I've got some 'splaining to do,'' so let me do it.
When Blakely was decided last summer, several things seemed clear. First, Blakely was going to create a God-awful mess in the Federal courts. On the one hand, the rationale of the opinion seemed plainly applicable to the Federal guidelines, and on the other hand, the Supreme Court reserved ruling on the Federal guidelines, so the lower courts were left in the position of some confusion until a new case brought the Federal guidelines before the Court.
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Second, if Blakely was found to apply to the Federal guidelines, only two remedies seemed available to the Court. First, keep the guideline rules intact but require that all sentencing-enhancing guidelines facts be tried to juries or admitted in a guilty plea, or two, invalidate the guidelines rules, thus rendering them either completely void or advisory in the ordinary sense of the term, that is to say, a set of useful but legally non-binding suggestions.
The first of these remedies, taking judges out of guidelines fact finding and running the guidelines through juries and pleas, would be complex to the point of unworkability. The second possible remedy, voiding the guidelines altogether or making them merely non-binding suggestions, would work, but would abandon the accomplishments of the Sentencing Reform Act in favor of transferring unprecedented, unchecked sentencing power to judges.
In short, the prospect in July 2004 seemed to be a period of turmoil while the question of Blakely's applicability worked its way up to the Supreme Court, followed by a Supreme Court ruling mandating either an unworkably complex system of Blakely-ized guidelines or an intolerable abandonment of constraint on judicial setting. In that setting, it seemed appropriate to suggest legislation that would restore order to the Federal courts and effectively restore the guideline system almost unchanged.
Now, how has the passage of time and the decision in Booker changed this assessment? First, the post-Blakely turmoil happened. It is water over the dam and no legislation passed today can undo it.
Page 62 PREV PAGE TOP OF DOC Second, I was wrong about the remedies available to the Court. Justice Breyer has crafted a third way. The nature of his remedial opinion alters the legislative equation in at least two ways. First, advisory guidelines in the Booker sense are not unworkable, as running the Federal guidelines through juries would have been. Nor are they an intolerable abandonment of constraint on judicial discretion in the sense that advisory guidelines as mere suggestions would be. Instead, Booker has given us a system that is workable in the near term and that will meaningfully constrain judicial discretion even though we don't yet know by how much.
I don't suggest that Booker created an ideal system. Congress may well want to alter it or replace it. I do suggest that the Booker system will work pretty well while we study it and consider alternatives.
Second, though Booker has created a system that will work, what Booker means as a constitutional matter is still unclear. We still don't yet know exactly what advisory means and we don't yet know how binding or presumptive guidelines can be before they will offend the Constitution. Thus, we can't be certain how much Booker-ized guidelines will differ in practice from the old system and we can't be sure how to draft any replacement without falling afoul of the undefined limits of the Booker doctrine.
My own sense is that Booker is not simply an application of the Blakely doctrine to the Federal guidelines. In this sense, Justices Scalia and Stevens are correct, I think, in their complaint that the Booker remedy is inconsistent with the Blakely principle. It appears that this Court is deeply split between Justice Scalia's formalistic emphasis on jury fact finding and Justice Breyer's effort to create constitutional space for sentencing guidelines based on judicial fact finding. Booker creates, but does not resolve, this doctrinal split.
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And the outcome of the settle over the split will turn, in part, on unknown, unpredictable factors. Justice Ginsberg's reasons for joining the Booker remedial majority, the state of the Chief Justice's health, the identity of his successor, should he retire, and lots of other things, we cannot know.
Therefore, in an environment of such profound constitutional uncertainty, Congress should exercise the greatest caution before legislating. The last thing we need is a brand new sentencing regime that will itself be found unconstitutional within months of its enactment.
Thank you, Mr. Chairman.
Mr. COBLE. Mr. Bowman, you do not have a corner on the market of having some explaining to do. Each of us finds ourselves in that position from time to time.
[The prepared statement of Mr. Bowman follows:]
PREPARED STATEMENT OF FRANK O. BOWMAN, III(see footnote 49)
A COUNSEL OF CAUTION
Page 64 PREV PAGE TOP OF DOC I am grateful to the Subcommittee for the opportunity to testify today regarding the impact on the federal sentencing system of the U.S. Supreme Court's recent decision in United States v. Booker, XXU.S.XX, 125 S.Ct. 738 (Jan. 12, 2005), and the nature of an appropriate congressional response to that decision. I appear today primarily in my individual capacity, but also as a representative of the Sentencing Initiative of the Constitution Project.
The Constitution Project is a bipartisan, nonprofit organization that seeks consensus-based solutions to difficult legal and constitutional issues through study, consultation, and policy advocacy. Last summer, in response to the Supreme Court's decision in Blakely v. Washington, XXU.S.XX, 124 S.Ct. 2531 (June 24, 2004), the Constitution Project created the Sentencing Initiative, a group co-chaired by former Attorney General Edwin Meese, now of the Heritage Foundation, and Philip Heymann, James Barr Ames Professor of Law at Harvard and former Deputy Attorney General of the United States. The members of the group represent a broad cross-section of institutional interests and political views. Professor David Yellen of Hofstra University and I are reporters to the Sentencing Initiative. Attorney General Meese and Professor Heymann have already forwarded a letter to Chairman Sensenbrenner expressing the consensus of the Constitution Project group that Congress should respond to the Booker opinion with caution. The Constitution Project anticipates issuing a more detailed report addressing the state of the federal sentencing system, the impact of Blakely and Booker, and recommendations about how the system might be improved.
I agree wholeheartedly with the position expressed in the Constitution Project letter and will be happy to answer any questions about the letter and the ongoing work of the Constitution Project's Sentencing Initiative. That said, the particulars of the analysis contained in the remainder of this testimony represent my personal views and not those of the Constitution Project's Sentencing Initiative or any of its members.
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II. From Blakely to Booker
This is the second time in the past seven months that I have had the honor of appearing before this Subcommittee. On July 6, 2004, I testified about H. 4547, a bill involving drug crime, and about the impact of the immediate predecessor to the Booker decision, Blakely v. Washington, XXU.S.XX, 124 S.Ct. 2531 (June 24, 2004).(see footnote 50) On that occasion, and again the following week in the Senate Judiciary Committee,(see footnote 51) I analyzed the Blakely opinion, concluded that it probably rendered the Federal Sentencing Guidelines unconstitutional as then applied, and offered a proposal to cure the apparent constitutional defect.(see footnote 52) That proposal, sometimes referred to colloquially as ''topless guidelines,'' and other suggested responses to Blakely have been the subject of ongoing debate. Today, in the wake of Booker, I find myself in the curious position of recommending that Congress not do what I recommended that it should do after Blakely. In short, along with the other members of the Constitution Project, I urge Congress to be cautious, to monitor the effects of the Booker decision on the operation of federal sentencing, and not to legislate unless and until it is clear that legislation is absolutely necessary and that any proposed legislation will withstand constitutional scrutiny.
My views on what Congress should do have changed because the Booker decision changed the legal landscape in ways that virtually no one anticipated. The balance of this testimony is devoted to explaining Booker's surprising outcome and its implications for sentencing policy.
Page 66 PREV PAGE TOP OF DOCA. Blakely v. Washington
The legal tempest that brings us here today began on June 24, 2004, with Blakely v. Washington. The case involved a challenge to the Washington state sentencing guidelines. In Washington, a defendant's conviction of a felony produced two immediate sentencing consequencesfirst, the conviction made the defendant legally subject to a sentence within the upper boundary set by the statutory maximum sentence for the crime of conviction, and second, the conviction placed the defendant in a presumptive sentencing range set by the state sentencing guidelines. This guideline range was within the statutory minimum and maximum sentences. Under the Washington state sentencing guidelines, a judge was entitled to adjust this range upward, but not beyond the statutory maximum, if after conviction the judge found certain additional facts. For example, Blakely was convicted of second degree kidnapping with a firearm, a crime that carried a statutory maximum sentence of ten years. The fact of conviction generated a ''standard range'' of 4953 months; however, after conviction, the judge found that Blakely had committed the crime with ''deliberate cruelty,'' a statutorily enumerated factor that permitted imposition of a sentence above the standard range, and imposed a sentence of ninety months. The U.S. Supreme Court found that imposition of the enhanced sentence violated the defendant's Sixth Amendment right to a trial by jury.
In reaching its result, the Court relied on a rule it had announced four years before in Apprendi v. New Jersey, 530 U.S. 466, 490 (2000): ''Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.'' In the years following Apprendi, most observers assumed that Apprendi's rule applied only if a post-conviction judicial finding of fact could raise the defendant's sentence higher than the maximum sentence allowable by statute for the underlying offense of conviction. For example, in Apprendi itself, the maximum statutory sentence for the crime of which Apprendi was convicted was ten years, but under New Jersey law the judge was allowed to raise that sentence to twenty years if, after the trial or plea, he found that the defendant's motive in committing the offense was racial animus. The Supreme Court held that increasing Apprendi's sentence beyond the ten-year statutory maximum based on a post-conviction judicial finding of fact was unconstitutional.
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In Blakely, however, the Supreme Court found that the Sixth Amendment can be violated even by a sentence below what we had always thought of as the statutory maximum. Writing for a five-member majority, Justice Scalia held that, ''the 'statutory maximum' for Apprendi purposes is the maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant.''(see footnote 53) Any fact that had the effect of increasing this newly defined ''statutory maximum'' must be found by a jury.
Accordingly, the Federal Sentencing Guidelines seemed to violate the Blakely rule. A defendant convicted of a federal offense is nominally subject to any sentence between the minimum and maximum sentences provided by statute; however, under the Guidelines, the actual sentence which a judge may impose can only be ascertained after a series of post-conviction findings of fact. The maximum guideline sentence applicable to a defendant increases as the judge finds more facts triggering upward adjustments of the defendant's offense level. In their essentials, therefore, the Federal Sentencing Guidelines are indistinguishable from the Washington guidelines struck down by the Court.
Although in Blakely the Supreme Court reserved ruling on the applicability of its holding to the federal guidelines, the obvious implications of the opinion for the guidelines caused immediate consternation. Within weeks after Blakely, dozens of federal trial and appellate courts issued opinions on whether it affected the federal sentencing system, and if so how. A legion of commentators added their voices to the conversation.(see footnote 54) From this cascade of analysis, three basic possibilities seemed to emerge.
Page 68 PREV PAGE TOP OF DOC First, the Department of Justice and a number of courts of appeals contended that the federal sentencing system should survive Blakely intact. They attempted to distinguish the federal system from the Washington state system at issue in Blakely because Washington's guideline sentencing ranges were set by statute while the federal guidelines were drafted by a sentencing commission.
Second, some courts and commentators suggested that the Supreme Court could ''Blakely-ize'' the federal guidelines by holding that their sentencing rules survive, but requiring substitution of a system of jury trials and jury waivers for the structure of post-conviction judicial fact-finding and appellate review created by the Sentencing Reform Act.
Third, other courts and commentators argued that the Guidelines' sentencing rules cannot be severed from the procedure of post-conviction judicial fact-finding contemplated by the Sentencing Reform Act and formalized in the Guidelines. In this view, Blakely rendered the Guidelines unconstitutional in toto. The practical effect of such a ruling was thought to be that the Guidelines would become either wholly void and legally nugatory or at most advisory.
My reaction to these three apparent options was that the first was logically unsupportable and the latter two were practically undesirable. First, it seemed unlikely that the Supreme Court would distinguish the federal system from the Washington state system based on the institution that drafted the sentencing rules.
Second, judicial ''Blakely-ization'' of the existing federal guidelines was not an attractive prospect. It would require the courts, the Sentencing Commission, and Congress to reconfigure the entire process of adjudicating and sentencing criminal cases, from the Guidelines themselves to indictment and grand jury practice, discovery, plea negotiation practice, trial procedure, evidence rules, and appellate review. The simple fact is that the current Guidelines were never meant to be administered through jury trials. Trying to engraft them onto the jury system would be both a practical and theoretical nightmare.
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Finally, the possibility that the Court would void the Guidelines entirely or declare them in some sense advisory seemed equally unattractive. Having no guidelines at all would confer even more discretion on sentencing judges than was true before the Sentencing Reform Act. Prior to the SRA, judges had largely unconstrained discretion to impose sentences, while the Parole Commission retained substantial authority over actual release dates. But the SRA abolished parole, and in a world with neither sentencing guidelines nor a Parole Commission, judicial sentencing authority would be absolute. Alternatively, ''advisory guidelines'' produced by constitutional invalidation of mandatory guidelines seemed almost indistinguishable from no guidelines at all. I, at least, could not see how the guidelines, once declared unconstitutional, could be anything more than useful, but legally nonbinding, suggestions.
B. ''Topless Guidelines''
Faced with these three unappealing possibilities and the prospect of a long period of turmoil in the federal criminal courts, I suggested an interim legislative alternative. I proposed that the Guidelines structure could be brought into compliance with Blakely and preserved essentially unchanged by amending the sentencing ranges on the Chapter 5 Sentencing Table to increase the top of each guideline range to the statutory maximum of the offense(s) of conviction.
This proposal depended on a peculiarity of the constitutional structure erected in Blakely. As written, Blakely necessarily affects only cases in which post-conviction judicial findings of fact mandate or authorize an increase in the maximum of the otherwise applicable sentencing range. Prior to Blakely, the Supreme Court had held in McMillan v. Pennsylvania, 477 U.S. 79, 8990 (1986), and reaffirmed in Harris v. United States, 536 U.S. 545 (2002), that a post-conviction judicial finding of fact could raise the minimum sentence, so long as that minimum was itself within the legislatively authorized statutory maximum. Therefore, so long as facts found by judges applying the sentencing guidelines increase only the minimum sentence to be served by a defendant, and not the maximum sentence to which he was exposed, there would be no constitutional violation. In effect, the ''topless guidelines'' approach would convert the Guidelines into a system of permeable mandatory minimums. That is, the Guidelines would continue to function exactly in the way they always have, except that the sentencing range produced by guidelines calculations in any given case would have the same lower value now specified by the Chapter Five sentencing table, while the upper value would be set at the statutory maximum. Judges would still be able to depart downwards using the existing departure mechanism, but would not have to formally ''depart'' to impose a sentence higher than the top of the ranges now specified in the sentencing table.
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This proposal would require legislation because the expanded sentencing ranges produced by the proposal would fall afoul of the so-called ''25% rule,'' 28 U.S.C. §994(b)(2), which mandates that the top of any guideline range be no more than six months or 25% greater than its bottom.(see footnote 55)
The proposal for ''topless guidelines'' was subject to a number of criticisms. The idea suffers from the notable disadvantage to defendants of imposing enforceable limits on judges' ability to sentence below the bottom of guideline ranges, while removing restrictions on judges' power to impose sentences above the top of the guideline range. Moreover, whatever its substantive merits, the constitutionality of this approach depends on the continued viability of Harris v. United States. Following the Blakely decision, many observers questioned the continued viability of Harris, a 54 decision about which even Justice Breyer (a member of the Harris majority) has expressed some doubt.
Thus far, of course, Congress has responded to Blakely with caution and has not adopted either ''topless guidelines'' or any other legislative approach. The question before the Subcommittee today is whether, now that Booker has found the Guidelines unconstitutional as formerly applied, Congress should act
C. Booker v. United States
The principle thrust of my testimony is that the Booker decision has altered the landscape in at least three critical respects, all of which suggest that Congress should respond with caution.
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1. The meaning of Booker is not yet clear
As the Subcommittee is aware, in Booker, a five-member majority found that the Guidelines process of post-conviction judicial fact-finding was unconstitutional under the Sixth Amendment, but an almost completely different five-member majority wrote the opinion describing the proper remedy for the constitutional violation.(see footnote 56) Justice Breyer, writing for the remedial majority, did not require juries to find all sentencing-enhancing guidelines facts, nor did he invalidate the Guidelines in toto. Instead, he merely excised two short sections of the Sentencing Reform Act,(see footnote 57) leaving the remainder of the SRA intact, and thus keeping the guidelines intact but rendering them ''effectively advisory.''(see footnote 58) Perhaps even more importantly, the remedial opinion found that both the government and defendants retained a right to appeal sentences, and that appellate courts should review sentences for ''reasonableness.''
The remedial opinion lends itself to different interpretations. Some have read ''advisory'' to mean that the Guidelines are no longer legally binding on trial judges and that the Guidelines are now merely useful advice to sentencing courts. However, a closer reading of the opinion suggests something quite different. First, because the opinion leaves virtually the entire SRA and all of the Guidelines intact, the requirement that judges find facts and making guideline calculations based on those facts survives. Second, because the remedies opinion retains a right of appeal of sentences and imposes a reasonableness standard of review, appellate courts will have to determine what is reasonable. The remedies opinion left undisturbed 18 U.S.C. §3553(a), which lists the factors a judge must consider in imposing a sentence and includes on that list the type and length of sentence called for by the guidelines. Thus, the determination of ''reasonableness'' under the statute will necessarily include consideration of whether a sentence conforms to the Guidelines. The unresolved question is the weight that will be accorded to the guidelines sentencewill it be considered at least presumptively correct or will it be reduced to the status of only one among many other factors?
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We do not know how the courts will resolve this critical question. Still, there are good reasons to think that the vast majority of judges will accord great weight to the sentencing guidelines. For example, in a thoughtful decision issued the day after Booker was announced, Judge Paul Cassell examined Booker and concluded that he was obliged to continue to sentence within the applicable guidelines range unless there were exceptional aggravating or mitigating circumstances.(see footnote 59) Other judges have concluded that they have more flexibility after Booker,(see footnote 60) but no court has held that the guidelines could be ignored. Appellate courts have just begun addressing Booker, but there is every reason to think that they will move expeditiously to resolve the questions it presents and that they will give adherence to the Guidelines a prominent place in their analysis of sentence reasonableness. For example, the United States Court of Appeals for the Second Circuit recently held in that judges do not have ''unfettered discretion'' after Booker and that the congressionally-mandated factors set forth in the Sentencing Reform Act, prominently including the Guidelines, still constrain the imposition of criminal sentences.(see footnote 61)
In short, we don't yet know what the post-Booker sentencing regime will look like. At a minimum, Congress should abstain from legislative intervention long enough for the courts to clarify what Booker means in practice. If Congress is to legislate, it should have a clear understanding of the situation it is setting out to correct.
2. The post-Booker system may be preferable to the uncertainties of legislating a new sentencing system
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If Booker produces a system in which the federal sentencing guidelines are strongly presumptive, that may be a satisfactory outcome for many, at least in the short to medium term. Such a system would operate very much as the Guidelines always have, with the undoubted difference that judges would have somewhat greater freedom to sentence outside the guideline range. So long as the judges do not employ the increased flexibility to excess, and so long as both the Department of Justice and Congress are prepared to view some modest increase in judicial variance from the guidelines with a wary but tolerant eye, the system could work surprisingly well. At a minimum, it could work well enough to give all the institutional actors time to study and consider thoroughgoing reform of the Guideline system in the post-Booker era.
With respect to ''topless guidelines'' in particular, I suggested them in July 2004 because I was troubled by the prospect of prolonged turmoil in the federal courts following Blakely, and because neither of the seemingly likely results of applying Blakely to the federal system''Blakely-ized'' guidelines run through juries or purely advisory guidelines-as-non-binding-suggestionswas desirable. Both of these considerations have altered. First, a good deal of the disruption I hoped might be avoided through rapid legislation in July 2004 has already happened, cannot be undone, and may be compounded by over-hasty legislation. Second, in Booker, the Court adopted neither ''Blakely-ized'' nor purely advisory guidelines, but a system that in the vast majority of cases will probably work just like the pre-Booker guidelines. At worst, Booker seems to have created a system that is not an obvious disaster in need of immediate legislation, but a workable system whose strengths and weaknesses have yet to be determined.
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3. Booker creates tremendous uncertainty about the basic constitutional rules governing sentencing and thus raises doubts about the constitutional viability of legislative responses to that decision.
As noted in the Constitution Project's letter, ''If Congress decides to act, the most basic requirement for a new system is reasonable certainty that it will survive constitutional challenge.'' Booker throws the basic constitutional rules governing criminal sentencing into even greater confusion than did Blakely. Blakely laid out a simple, almost mechanical, rule: Any fact that increases a defendant's maximum sentencing exposure must be found by a jury. This rule seemed so absolute that it would render unconstitutional any structured sentencing system in which judicial fact-finding could raise the top of a defendant's guideline sentencing range, even if as was the case under the Washington guidelines, that range was only strongly presumptive.
However, Booker seems to take an entirely different approach. The federal guidelines survive. Judges must find facts and use those fact findings to determine guidelines ranges with both tops and bottoms. Some courts have interpreted Booker to mean that the guideline rangesincluding their topsare at least presumptively reasonable. It would appear that Justice Breyer is trying to shift this line of cases away from Justice Scalia's narrow focus on the role of juries toward a world in which guidelines setting presumptive sentencing ranges are constitutionally valid. At a minimum, the Court is struggling mightily to define its direction and until it speaks more definitively, it will be difficult, if not impossible, for Congress to enact any remedial legislation with real confidence in its constitutionality.
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Even more particularly, I think the Booker decision casts additional doubt on the continued viability of Harris v. United States and thus on the desirability of turning immediately to ''topless guidelines.'' We know that Booker authorizes guideline ranges, with tops, determined by post-conviction judicial fact-finding. If the Court ultimately accords those ranges at least some measure of legally presumptive effect, then the distinction between constitutional and unconstitutional guideline systems becomes the degree of presumptiveness of the tops of the guideline ranges. Put another way, the constitutional distinction between a ''statutory maximum'' which must be determined by a jury under Blakely and the top of a presumptive guideline range that can be determined by a judge under Booker can only be the degree of discretion afforded the judge to sentence above the top of the range. If the Court decides that presumptive limits on maximum sentences are constitutionally acceptable, it is hard to see why the same reasoning should not apply to minimum sentences.
Those who doubted the continued viability of Harris have noted that Justice Breyer was the fifth vote for preserving statutes that set minimum sentences through post-conviction judicial fact-finding, and that he expressed doubt about how Harris could be squared with Apprendi. Before Booker, it seemed plausible that Justice Breyer and other members of the Court who favor keeping the Constitution hospitable to structured sentencing systems would hold on to Harris because it provided at least one tool of structured sentencing. A system that constrains judicial discretion only by setting minimums is awkward and asymmetrical, but not wholly useless. After Booker, it is no longer clear that the weird asymmetry of Blakely and Harris is necessary. It would make far greater sense for the Court to hold that real, hard, impermeable statutory maximum and minimum sentences can only result from facts found by juries or admitted by plea, while at the same time permitting structured sentencing systems that use judicial fact-finding to generate sentencing ranges, presumptive at both top and bottom, inside the statutory limits. Such an approach would appeal to many members of the Court because it treats minimum and maximum sentences consistently, gives a meaningful role to juries in setting the actual minimum sentences that matter more to defendants than theoretical maximums, preserves the accomplishments of the structured sentencing movement, and confers constitutional status on judicial sentencing discretion.(see footnote 62) If this is the direction the Court is heading, then Harris is in danger and ''topless guidelines'' could be found unconstitutional in short order.
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III. Beyond Bookerthe Future of Federal Sentencing
The Federal Sentencing Guidelines have been immensely controversial since their advent in 1987. They have actually enjoyed many successes, but the chorus of criticism has grown over the years. As my professional biography suggests, I believe that vigorous law enforcement and the imposition of meaningful terms of incarceration on serious criminal violators are crucial tools in the fight against crime. Likewise, I am not a proponent of unchecked judicial sentencing discretion. My practice experience, my time with the Sentencing Commission, and my subsequent work in the academy have convinced me of the importance of sentencing guidelines and other mechanisms of structured sentencing in achieving just, equitable, and effective criminal sentences. More particularly, I have been a vocal advocate of the federal sentencing guidelines.(see footnote 63) Nonetheless, even I have reluctantly concluded that the federal sentencing system has in recent years developed in such unhealthy and dysfunctional ways that serious rethinking of the guidelines is now called for.(see footnote 64) The Blakely and Booker decisions have provided the crisis that public institutions sometimes require before they engage in careful self-examination. I enlisted as reporter to the Constitution Project because it seemed an ideal forum for considering the state of federal sentencing working with a remarkably diverse and talented group of people. Our work so far has confirmed what I, and I think all of us, suspectedthat the difficulties with federal sentencing are serious and can be seen and agreed upon by well-informed legal professionals of widely divergent political and institutional perspectives.
My counsel to the Subcommittee is a counsel of caution. Do not act precipitously because doing so may make an uncertain situation worse. Instead, study what Booker has wrought. Direct others, notably the Sentencing Commission and the Department of Justice, to gather the information and perform the analysis that will assist you in your study. And take the opportunity created by Blakely and Booker to work together with all the many people of goodwill who are eager to work with Congress, with the Justice Department, with the judiciary, and with the Sentencing Commission to improve the administration of federal criminal justice.
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Mr. COBLE. Gentlemen, thank you very much for your contribution. Keep in mind, the 5-minute rule applies to us, as well, so if you could keep your responses as terse as possible, we would be appreciative.
Mr. Wray, from a law enforcement perspective, would you outline for the Subcommittee in a little greater depth how an advisory system of guidelines will hamper a prosecutor's ability to gain cooperation from criminal defendants?
Mr. WRAY. Yes, Mr. Chairman. I think you have put your finger on what I would consider one of the most important vulnerabilities in the post-Booker environment.
First, we think that under the guidelines as they existed before Booker, a defendant could only obtain consideration for his cooperation at sentencing based on a motion by the Government. In the post-Booker world, that is no longer the case. The reason why that is a problem is because the Department is in the best position to evaluate the truthfulness and value of the cooperator's assistance, by putting it in the context of the entire body of the investigation to determine whether it is consistent, corroborated by other evidence. And that is critical because we all want to ensure that people who cooperate in criminal investigations are telling not half-truths, but complete truth.
Second, the Booker environment creates less of an incentive for cooperating defendants because they can seek to assume some of the benefits of cooperation without the risks. That is, they can tell part of the story, but not the whole story, and that is particularly troubling for the Government's effort to try to secure cooperation in organized criminal cases, terrorism, corporate fraud, drugs, gangs, and that sort of thing. That may be particularly critical where timeliness of information for cooperators, as all the members of this Subcommittee know, can be critical to advancing cases against CEOs in corporate fraud cases, drug leaders in big drug cartel cases, and so forth.
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Mr. COBLE. Thank you, sir.
Mr. Collins, what impact did the de novo standard of review have on judges who granted downward departures after the PROTECT Act, and if any, those who imposed enhanced sentences?
Mr. COLLINS. Mr. Chairman, the Sentencing Commission's 15-year report specifically notes that the Department had indicatedand it cites a number of cases in the report where immediately after the enactment of PROTECT and the application of the de novo standard of reviewthere were a notable increase in the number of instances of appellate reversals of downward departures, suggesting that the change in the standard of review did have a positive effect on curing a problem that Congress was concerned with.
Mr. COBLE. Mr. Wray, again I am going to ask you, do you have examples of courts that have sentenced defendants to unreasonable sentences or based sentences upon factors prohibited by the guidelines?
Mr. WRAY. Yes, Mr. Chairman. We have a couple of examples that are mentioned a little bit in my written statement. I would mention in particular a California case, I think it was in Southern California, where four men were convicted of smuggling more than a ton of cocaine from Colombia. They were sentenced to 41 months when the guidelines provided for a sentence of 235 to 293 months. That is a situation where you are going to have defendantsin fact, we have had defendants in the same State engaged in the same conduct receiving sentences of 20 or 30 years, whereas those defendants got 41 months for no principled reason.
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In Wisconsin, we had a bank fraud involving an officer where the guidelines provided for a 36 to 47 month sentence and the judge reduced it in the wake of Booker, based on considerations like the defendant's motivation to keep the client's business afloat and the fact that the conviction resulted in financial distress for the defendant. So there are examples that are starting to emerge that make that point.
Mr. COBLE. Thank you.
Judge Hinojosa, in your testimony at page four, you indicate you believe that sentencing courts should give substantial weight to the Federal sentencing guidelines in determining the appropriate sentence to impose. Explain your position on whether or not there is support for such a standard under Booker.
Judge HINOJOSA. The Court was silent on that issue, as far as I can tell. However, I think the support exists, as I indicated in the written and the oral statement that I have made here, in the fact that the Sentencing Commission in promulgating and refining the guidelines has made determinations based on statutorily directed factors that are used under 3553(a). In fact, the Commission was directed in promulgating and refining the guidelines to take those into consideration, in addition to the fact that Congress itself has the right to review the guidelines as they are presented by the Commission and it must indicate to us that Congress' approval of the guidelines indicates that Congress itself feels strongly that the goals of the Sentencing Reform Act are met by the guidelines. Therefore, they should be given substantial weight.
Page 80 PREV PAGE TOP OF DOC Mr. COBLE. My red light illuminates in my eye. Mr. Bowman, I will get to you later.
Mr. SCOTT. Thank you, Mr. Chairman.
Mr. Wray, I was intrigued by your statement that the Federal guidelines have reduced crime. What portion of the violent criminals that are sentenced in America today are sentenced in Federal court?
Mr. WRAY. Ranking Member Scott, I don't have that percentage. I can tell you thatand I believe what I meant to say, I am not sure if I said this or not, is that sentencing regimes like the Federal sentencing guidelinesin other words, I think I pointed out that a number of States have followed Congress's lead in adopting similar systems and it is our view that the combination of the Federal guidelines in the Federal system, and in the State systems which track in many ways the Federal system, have resulted in that reduction in violent crime.
Mr. SCOTT. And do you have some studies that show the pattern that those States that actually increase sentences had a larger reduction in crime than the general reduction that was going on all over the country?
Mr. WRAY. I don't have that information for you today. I would be happy to try to provide that in supplemental questions. I do think there is information, if I recall correctly, that shows, for example, in California that there have been significant reductions in the wake of their adoption of a system like that.
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Mr. SCOTT. I am saying I know there are reductions. We had Project Exile in Richmond, Virginia. When it went into effect, the crime rate went down. When you look at other cities similarly situated that didn't have Project Exile, the crime rate went down more. So my question is whether or not you see any pattern that there is a real effect on longer sentences and reduced crime. Just in some States did it go down. But in all States, the crime rate went down. There are plenty of studies that show there is no pattern at all and I was just wondering, in abolishing parole and all that kind of stuff, do you have any credible studies that back up what you said?
Mr. WRAY. I do believe we have information that shows that the implementation of so-called truth-in-sentencing regimes across the country, both in the Federal system and in the majority of the States, have contributed to a significant reduction in violent crime. I would be happy to respond in supplemental written questions to provide more information if that would be helpful.
Mr. SCOTT. It would be helpful, and I would hope it would be in the form that would show a pattern, not just that you did it and crime went down, but you did it but crime went down in a pattern that suggests that the longer sentences had something to do with the reduction. So I look forward to that information.
Judge Hinojosa, you tried a lot of cases and I am sure you would recognize that the seriousness of a crime isn't always conveyed by the code section that was violated. Some people can violate the same code section and common sense tells you that one crime was much more serious than the other and that ought to be reflected in the sentence.
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You still have the guidelines. In the present system with them being advisory and not mandatory, is it more likely or less likely that the defendant will get an intelligent sentence in the present system or with the mandatory guidelines?
Judge HINOJOSA. I guess Congressman Coble pointed out how long I have been on the bench, more or less, by indicating who appointed me to the bench, so I have actually done sentencing both under pre-guideline system for close to 5 years and after the guidelines. I have to say that the guideline system was of great benefit to the sentencing process, which is the most difficult thing that a judge has to do.
Prior to the guidelines, you wanted to be consistent, you wanted to treat like defendants for like criminal law offenses more or less the same, but it was very difficult without having a guideline system and you spent a lot of your time trying to determine what you had done in a similar case with someone with a similar prior history with regard to their particular sentence because you wanted to be consistent, you wanted to be fair, and you wanted to give the type of sentence you were giving on a regular basis, but that was just you individually as opposed to all the other judges.
The guideline system under the Sentencing Reform Act was created to try to prevent those kind of problems and it had its effect. It is a difficult process, but I do think that the Federal guideline system provides the considerations under the Sentencing Reform Act. As they are now, as advisory, the Commission's position as well as my position continues to be that the Booker decision, and I may have misspoken with regard to Congressman Coble's question, does indicate that the guidelines have to be consulted and considered with regard to every sentence, which would therefore mean substantial weight should be given to them, and I do think that it is important to do that.
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As a judge, you have to make the findings on the record within the guideline system, or if not, you cannot just generally say, I have considered the guidelines but I have decided to proceed with this sentence because we will go right back to the situation we were beforehand.
Mr. SCOTT. The present situation gives you flexibility. Is that helpful in assessing an intelligent situation? I mean, some people similarly situated actually come into your court charged under different code sections, and you look at it and it is exactly the same behavior.
Judge HINOJOSA. There is flexibility, obviously, under the Booker decision, but I strongly believe after the number of years that I have sentenced individuals under the guidelines system that there was flexibility within the guidelines system. I did not have to proceed with relevant conduct unless I made a finding that I was convinced that that was the individual's relevant conduct. With regard to role in the offense, I can make adjustments upward or downward depending on what I saw the evidence is like with regard to every single finding under the guidelines.
I do have to say those were decisions I would make without ever telling an individual when I would sentence somebody before the guidelines system whether there was a firearm involved, what kind of drugs were involved, the amount of the drugs involved. Those were all factors with no transparency in the pre-guidelines system. But I do think there was some discretion within the guidelines system that we have failed to state within the past in the system itself because the judge still had to make those findings.
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Mr. COBLE. The gentleman's time has expired.
The gentleman from Arizona, Mr. Flake, is recognized for 5 minutes.
Mr. FLAKE. Thank you, Mr. Chairman, and I thank the witnesses.
While this hearing is focusing on sentencing, that is kind of the tail end of the criminal justice system. Some argue that we need to look much broader, at the front end, the criminal laws that we have on the books. I think Attorney Generals Meese and Thornburg have criticized the rapid expansion of the code. Last year, the Federalist Society published a study noting there are more than 4,000 Federal offenses that carry criminal penalties.
My question is this, and I will go to Mr. Wray first. Why does it not make sense to take a year and to see how Booker plays out, and during that time, have a commission to look at the code itself and then come back, if we need to, and make changes to both the code and the sentencing guidelines?
Mr. WRAY. Congressman, I think we believe that while Congress should certainly not act rashly, that we do believe that there are certain vulnerabilities that exist in the post-Booker world that we already know are there and that are already problematic and that already require attention. We also know, with a considerable body of experience, we have the landscape that existed in the years before the Sentencing Reform Act as well as the experience under the sentencing guidelines under the Sentencing Reform Act, as Judge Hinojosa has described, and I think that tells us certain things about how judicial discretion works in our system.
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So I think that is a reason why we think there are certain things that Congress ought to tend to in a prompt fashion.
Mr. FLAKE. I understand, and I don't think anybody is looking to return to a pre-guideline period. You have mentioned there are certain problematic things already. What are those?
Mr. WRAY. The ones that I would point to in particular are the ability for courts to consider prohibited factors that they couldn't consider under the guidelines as they existed before Booker, factors that the Commission, based on its diversified experience and so forth over the years have already identified as things that shouldn't be considered as a basis in this, so that is one.
The second is its effect on cooperation, which is absolutely a critical tool for law enforcement in everything from terrorism to corporate fraud to any kind of organized criminal activity.
The third would be the appellate standard, this reasonableness standard that we have already talked about a little bit. We are very concerned that this will produce greater disparity because different courts are going to have different definitions of what reasonableness means and that won't provide the kind of rigorous, consistent review that the Congress, I think, intended with the Sentencing Reform Act and that we so badly need to keep in the system.
Page 86 PREV PAGE TOP OF DOC Mr. FLAKE. Judge Hinojosa, returning to the code, 4,000 Federal offenses, do you see a need to go into that?
Judge HINOJOSA. I think for a long time, people have seen a need for that, Congressman. Whether that can be done quickly with all the policy issues that that brings up, it would be something you would be better equipped to answer than a Federal judge or a Chair of the Sentencing Commission.
I will say that if there was an interest on the part of Congress to do so, the Commission, with the diversity of the members of the Commission, from our experience standpoint, and the staff, would be willing to help in any way that we could and to provide any information or service to the Congress that you would be interested in us doing.
Mr. FLAKE. Judge, I take from your testimony that you think that we could go a year and gather some evidence and see where we are after Booker to be better informed about what we need to do in the future. Is that the case?
Judge HINOJOSA. That is ultimately your decision, but I will say that if you are going to wait a year in order to gather this information, what would be important during this period of a year is that we make sure that the sentencing courts during this period of time, so we can compare apples and apples rather than apples and oranges, are still making the findings on the record with regard to the sentencing guidelines and departure policy within the guidelines, and then if they are sentencing varying from the guidelines, stating the reasons for varying from the guidelines, because if not, if we are just paying lip service to, ''I considered the guidelines,'' but without going through the findings, we will not be able to compare that data to the previous years' data when the guidelines were actually mandatory.
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And I think also it would be important with regard to this potential weight that is given, or the weight that is given to the guidelines, for that to be uniform across the country in order for you and for the Commission and every other interested party to have valuable information to be able to compare the system, because if not, during that 1-year period, we will be comparing apples and oranges with different situations possibly in different parts of the country, or depending on the appellate decisions or sentencing court decisions.
Mr. FLAKE. Thank you, Mr. Chairman.
Mr. COBLE. The gentleman's time has been expired.
We have been joined by the distinguished gentleman from Ohio, Mr. Chabot.
The chair recognizes the gentlelady from Texas, Ms. Jackson Lee, for 5 minutes.
Ms. JACKSON LEE. Thank you very much, Mr. Chairman. Let me thank both you and the Ranking Member for both a timely and what I believe to be a crucial hearing that I hope will lead us to answering the call of Mr. Wray, which is that the Congress acts in a reasonable, responsible manner that takes into account what I think is a very concise and, as well, very clear mandate from the United States Supreme Court.
I am not sure what arguments one would make to thwart a pronouncement that says that the sentencing guidelines violate a constitutional amendment. So, therefore, I believe it is imperative that we act and I welcome your advice and counsel.
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Let me have you succinctly state the position of the Department of Justice at this time, in light of the recent Supreme Court decision. Mr. Wray, I am sorry.
Mr. WRAY. Congresswoman, I just want to be sure that in order to be succinct that I am clear on our position on which aspect of the entire
Ms. JACKSON LEE. The sixth amendment aspect, the mandatory sentencing violating the sixth amendment.
Mr. WRAY. Well, we obviously argued to the Supreme Court that the Federal sentencing guidelines were distinct and differentdistinguishable and different from the Washington State system, but in the wake of the decision, the Supreme Court obviously disagreed with us on that point.
We do think it is possible to have, for example, a system, the so-called topless system that a couple of the other witnesses have described, we do think that would be constitutional even after Booker.
Ms. JACKSON LEE. The topless system?
Mr. WRAY. The proposal that Professor Bowman would no longer like to have his name attached to, but that Mr. Collins described, and that is a system where the minimum, if you will, the floor can be set by the judge, but the top is determined by the statutory maximum that the Congress has imposed and the judge has discretion in that range. So, therefore, you no longer have to acquire jury findings
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Ms. JACKSON LEE. You would be open to that?
Mr. WRAY. We would be open to the topless system, yes.
Ms. JACKSON LEE. Mr. Collins, I know you have seen the numbers, excessive numbers of minorities in State and Federal prisons. In fact, I am looking at a number in the State of Texas, and we are talking about Federal prisons, Federal law now, 70 percent of the inmate population in the State of Texas happens to be African Americans.
The system that we had before, or the concept that many of us in Congress had thought would be reasonable, is giving well-qualified judges, a well-qualified judiciary the bare opportunity of using discretion in some cases. The ones that come to mind in particular are the so-called conspiracy drug cases where you are standing on the street corner with another person and you are caught up in a conspiracy. Your mandatory is 25 years.
What is your interpretation of the latitude the Congress now has under Booker?
Mr. COLLINS. Well, obviously you have very wide latitude under Booker.
Ms. JACKSON LEE. And I hope it is wise latitude.
Mr. COLLINS. And hopefully it is wise. The Sentencing Commissionyou raise a very serious question. The Sentencing Commission carefully looked at this issue in its 15-year report, had an entire chapter on the subject. Its conclusion was that very little of the racial disparity that exists in terms of outcomes and results in the Federal system is attributable to the guidelines itself. Some of it may be due to disparate impacts of particular provisions of law, particularly with respect to drug amount, et cetera. Also, the Commission cited in its report studies that indicated that introducing discretion actually had the effect of introducing racial disparity
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Ms. JACKSON LEE. That was some original thought, you are right. I think that was one of the basis of mandatory sentencing, but go ahead. It is turned around on the wrong end because of the impact on certain sentencing in certain populations being in those certain offenses.
Mr. COLLINS. Well, one of the goals of the Sentencing Reform Act, and I think the Commission's 15-year report shows that it was achieved, is to try and do as much as you could to take out improper and irrelevant facts that had no business being a part of sentencing, having even an implicit role in it, and I think the report indicates that with respect to the issue of racial disparities that the guidelines are not a source of racial disparity and, indeed, probably
Ms. JACKSON LEE. Mr. Bowmanthank you. Mr. Bowman, would you comment, and as I do that, Mr. Chairman, I would like to submit into the record H.R. 256, which is a bill entitled ''A Good Time Relief Bill'' and a letter from Mr. Burton I. Cohen(see footnote 65) writing in support of that bill. It was filed last year, an individual that has sat on several disciplinary committees. But it deals with numbers of individuals incarcerated for long periods of time under the mandatory and the release of those individuals for good time behavior. I would ask unanimous consent to have these submitted into the record.
Mr. COBLE. Without objection, they will be received.
[The bill, H.R. 256, follows.]
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Ms. JACKSON LEE. May I allow Mr. Bowman just to answer what his interpretation of Booker is in terms of the latitude that we now have in Congress?
Mr. COBLE. If you will do that as quickly as you can, Mr. Bowman.
Mr. BOWMAN. I confess, Congresswoman, I am not entirely sure of your question. I think that
Ms. JACKSON LEE. Let me be clear. Just give me your assessment of the Booker case with respect to the latitude of Congress in mandatory sentencing.
Mr. BOWMAN. I think that that is pretty unclear. I think that, as I said in my testimony, I think that Booker casts the rationale of Blakely into some doubt and that it is somewhat unclear exactly what the Court, a majority of the Court thinks about the proper constitutional limits on structured sentencing. And it is for precisely that reason that I have suggestedinconsistently, frankly, with what I had said 7 months ago when I didn't anticipate Bookerthat we need some time to figure outlet the courts help us find out what they need.
Mr. COBLE. The gentlelady's time has expired.
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Ms. JACKSON LEE. Thank you very much, Mr. Chairman.
Mr. COBLE. You are welcome.
I overlooked the gentleman from California. We have been joined by Mr. Lungren. It is good to have you with us, sir.
I recognize the gentleman from Texas, Mr. Gohmert, for 5 minutes.
Mr. GOHMERT. Thank you, Mr. Chairman.
If you will pardon me, I read the Booker opinion in total last night for the first time and it seemed to me that was a muddled mass of murky malarkey, I am telling you.
Judge, you had indicated at one point in your opening statement that one thing that seemed clear, I am telling you, I didn't see anything that looked real clear. And when you have judges that come out with the Blakely decision, give indications of one thing, and then come back with a decision in which Stevens delivers the opinion for himself, Scalia, Souter, Thomas, Breyer delivers the opinion for O'Connor, Kennedy, Ginsberg, and himself, then Stevens delivers a dissenting opinion for himself and Souter and Scalia, and then Scalia gives a dissenting opinion, Thomas gives a dissenting opinion, and then Breyer gives a dissenting opinion in part for himself and Chief Justices O'Connor and Kennedy, it seems to me that if they wake up on a different side of the bed one morning, we have got a whole new decision come 6 months or a year from now and that is rather disappointing that Justices come down that way.
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Obviously, you are in favoryou say you appreciate the guidelines, in effect. Is there any polling data of where the Federal judges, the district judges stand on their support for the guidelines or wish they would go away back like they were 20 years ago when you first started?
Judge HINOJOSA. Well, I guess that is a subject of discussion among judges on a pretty regular basis. Yes, I guess there have been studies in the past, and the support varies, I guess. But I will say that privately, judges probably express more support for a guidelines system than is the public aspect of the discussion, for the same reasons that I have stated. It is the most difficult part, as you know, that a judge does with regard to their job and you do want to be consistent. You want to be transparent with regard to due process and having the defendant, as well as the public, know what factors are being considered with regard to sentencing.
And a guidelines system, whether it is a State or Federal system, provides that guidance and that public discussion with regard to the issues that are being considered by the judge in making the determination.
You have mentioned something about the Booker case and I will say that there has been a quote of Ricky Ricardo, and I will say that sometime when I first read the Booker decision, I guess one comment I would have made would have been, ''Ay carramba,'' to quote Ricky Ricardo. But as you read it more, you do see the themes that come across with regard to at least that the guidelines need to be considered and certainly consulted with and determinations made in order for a judge to make the ultimate sentencing decision on a 3553(a).
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But as you well know, any decisionas a judge, the system, when it first came into effect, probably did not have widespread judicial support. But I do feel that there is more support for it than is sometimes evident in the public.
Mr. GOHMERT. Dealing with the murkiness as we have it, or at least I see it in this opinion, I was curious, with regard to the guidelines and their apparent position that if it is a factor that takes it outside the range, then it has to be found beyond a reasonable doubt by a jury or agreed by the defendant, do you see the possibility of a system in which, like some States, like Texas has a bifurcated system. The defendant can waive a jury on sentencing so that that is when judges sentence, but not necessarily having a jury assess the sentence, but if there are factors of which the prosecutor is aware that may push it up beyond the guidelines, then as soon as a jury finding came back finding the defendant guilty, immediately move into a bifurcated portion in which the jury would determine then beyond a reasonable doubt any of those factors the prosecutor wished to pursue? Do you feel like that would be too troublesome?
Judge HINOJOSA. Actually, some judges were doing this post-Blakely but pre-Booker and there were some judges who were supportive of this. Judge Sven Holmes in Oklahoma is a prime example of that. And some judges felt that they could work with that.
It is more cumbersome, as you know, Judge, having practiced in the State courts of Texas, to have the guilty-not guilty phase and then also the sentencing phase. It is something that could be worked with. Obviously, it would require rule changes with regard to the rules of criminal procedure. It would require changes with regard to how we do business on a daily basis. It would, in some cases where you have a heavy criminal load, maybe present some issues with regard to resources, including time resources.
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It does also create some other possibilities, which would mean that prosecutors and defense attorneys could probably control the sentences a lot more because they could make stipulations with regard to what they had agreed on, and then the judges and/or juries would have less to say about sentencing because there would be more stipulations between the prosecution and the defense attorneys.
Mr. COBLE. The gentleman's time
Mr. GOHMERT. May I do one follow-up?
Mr. COBLE. Very quickly, if you will, Mr. Gohmert.
Mr. GOHMERT. To Mr. Wray, what the Judge got to was something I was wondering about, if you did have that threat of an additional part of the trial, if that might not lead to more agreements immediately after a finding of guilty, an agreement to waive the jury on the additional issue and give prosecutors yet another tool to bring about an agreement prior to sentencing. Do you see that as a possibility?
Mr. WRAY. Congressman, I think we believe that the sort of bifurcated system that you are describing, as Judge Hinojosa mentioned, some judges were doing that and our offices were having to deal with that in some districts, is likely to, in a way, generate more disparity, because as he indicated, it puts control in the hands of the parties and you are having people making calculations about whether or not they want to run a risk with a jury pool in this State versus that State, and so I think you would probably end up with significant geographic disparities and major logistical and resource nightmares.
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Mr. GOHMERT. But would you support it or not?
Mr. WRAY. Well, I am not in a position here today to be able to endorse a specific legislative proposal
Mr. GOHMERT. Not on behalf of your office, but you personally. [Laughter.]
Mr. COBLE. The gentleman's time has expired. I will bail you out, Mr. Wray. [Laughter.]
Mr. GOHMERT. Thank you, Mr. Chairman.
Mr. COBLE. The gentleman from Michigan is recognized for 5 minutes.
Mr. CONYERS. Thank you, Mr. Chairman.
I wanted to extend a personal welcome to our newest colleague from Texas, Mr. Gohmert, who is reviewing the murkiness of Supreme Court decisions. But, sir, you are going to have a much bigger job in the Judiciary Committee trying to separate out what we are doing here, not only among the witnesses but among the members of this Committee, as well. So I wanted to extend my personal welcome to you and look forward to working with you in that regard.
Page 97 PREV PAGE TOP OF DOC Mr. GOHMERT. Thank you.
Mr. CONYERS. Now, in some respects, notwithstanding the very distinctive and well thought-out presentations that have been made this morning, we are further away from any agreement than we were before this hearing was called, gentlemen. We now have even larger schools of thought, wider ranges of disparity, and it is curious to me, and I didn't hear all of the opening statements, but there hasn't been one word mentioned throughout a couple of hours here about the crack cocaine-powder disparity. It is likeand we have mentioned it and none of you have even acknowledged that it exists. And then the whole question of racial disparity and the sentencing process.
Now, I don't know which legal literature you are reading, but the kind that my staff and I are looking at say that it is horrendous. And now I am treated this morning to all of the phrases and the support of the Sentencing Commission and that crime has gone down as a result of it, things arewe don't want to rock the boat too much, we don't want to override these decisions.
But can you, Mr. Bowman, give me some clue as to why there is such a wide gulf that apparently exists between many members of this Committee and many in the criminal justice arena and what we are talking about today?
Mr. BOWMAN. I am not sure I can attempt to plumb the minds of the Members of the Committee, but perhaps I can try to respond and connect the concern expressed by a number of members about crack-powder and racial disparity with the conversation that we are having here today.
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One of theas I listened to my fellow witnesses, to a certain extent, the picture that emerges here is one in which the current guideline sentences, or for that matter, the statutory sentences for things like crack, are taken to a certain extent as a given and as a desirable one and any deviations from guideline levels or perhaps statutory ones are expressly or impliedly labeled as being undesirable, somehow disruptive or even undermining the system.
I think that is probably the wrong approach to take. I think an approach that we should consider over the whatever period of time the Booker system of advisory or presumptive guidelines is allowed to persist, whether it is a short time or a long one, I think this Committee, and indeed Congress in general, should not look at what judges do when they deviate from the guidelines as some sort of weird aberration but consider and study whether or not there are some patterns in those deviations that suggest that some of the rules could be revised.
And thus, if it were to happen that a good many of the deviations from the guidelines that appear post-Booker were in crack cases, this might strongly suggest that Congress should, as the Commission has often recommended, revisit the question of the crack-powder disparity. In short, I am suggesting
Mr. CONYERS. The light just turned red and the bells are ringing. Let me just rudely interrupt you. This hearing, in my view, is non-relevant to the mostthe two most important issues that are bedeviling the criminal justice system in America for decades. I mean, these are interesting asides about the two decisions that have just come out and what they mean to discretion, but for us in this Committee, in this room, to hold a hearing for this long a period and not talk about the racial disparity and the crack cocaine-powder disparity means to me that they do not occupy a very important level of concern for discussion before the one Committee that has jurisdiction in the House of Representatives.
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I thank the Chairman for his
Mr. COBLE. The gentleman's time has expired.
Let me think aloud for a minute. Mr. Lungren, I think you can be recognized for 5 minutes, and Ms. Waters, if you want to examine these witnesses, we will come back after the vote. Do you have a preference?
Ms. WATERS. No, I don't want you to have to come back for me.
Mr. COBLE. I don't mind doing it.
Ms. WATERS. I don't need to examine them, but I need to tell them something.
Mr. COBLE. Let us go with Mr. Lungren first and then I will recognize you.
Ms. WATERS. All right. Thank you.
Mr. COBLE. Mr. Lungren, 5 minutes.
Mr. LUNGREN. Thank you, Mr. Chairman.
Page 100 PREV PAGE TOP OF DOC It is a pleasure to be here with these distinguished panelists. As one of the fathers of the sentencing guidelines, I originally got involved in the process when I was visited by a young woman who was a constituent of mine in my previous district who had been sentenced by a Federal judge to an extraordinary sentence for certain marijuana possession which was so out of sorts with what other people were getting and so out of sorts with what violent criminals were getting that I began to investigate this and worked with others to set up the sentencing guidelines system, which until the Supreme Court gave us its very clear decision, I thought was working relatively well, certainly in comparison to what we had before. The great disparities we saw in the Federal system were largely eliminated. There was some consistency.
I just remarked to my friend from Michigan that the problem with respect to crack cocaine-powder disparity is really not one of the Sentencing Commission, it is complete direction by this Congress. I can recall when we made that decision brought to us by, with all due respect, members of the other side of the aisle, Congressman Bill Hughes of New Jersey and Congressman Rangel, who came together and said that crack cocaine was killing their communities, was a scourge on their communities, and we needed to do something about it and we needed to create far greater penalties for crack cocaine than we did for powder cocaine.
We reacted in response to that direction given to us by Representatives in this institution who were representing people from those communities and listening to the cries of the people in those communities which were being devastated by it. So it ought to be Congress that revisits it after 15 years rather than putting this on the Sentencing Commission and any suggestion that that is one reason why the Sentencing Commission decision by the Supreme Court was a good thing, I think ought to be recalculated.
Page 101 PREV PAGE TOP OF DOC Here is my question to the panel and it is a very simple one. The Sentencing Commission was specifically established for purposes, and the guidelines, for purposes of getting rid of disparity, giving a certainty to the system, giving some expectations that would be realized by those in the system, both those charged with crimes and the victims of crime.
Given what we have now, that is, the result of the Supreme Court decision, other than the bifurcated system that we have dealt with in California and other States in capital cases, how are we really going to deal with this? The way I take it from the Supreme Court, they have said that we want the Federal judges to take the guidelines seriously, but not that seriously, because if they consider it that seriously, it is unconstitutional. So long as it is an 80 percent seriousness, it is constitutional, but if it is 100 percent seriousness, it is unconstitutional.
Am I wrong on that? What do we have left? It reminds me of some people whowell, I won't go into that.
Let me just ask the four of you, and I know we have a short period of time, what can we do? I know you gave us time constraints or time imperatives, but essentially, in very short order, what can we in Congress do, or do we need to do anything now that the courts are at least trying to react to this?
Mr. BOWMAN. Mr. Lungren, if I might respond to that, I don't know if perhaps you are addressing it to someone else.
Mr. LUNGREN. All four of you.
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Mr. BOWMAN. Congressman, I think that, in fact, there are a lot of smart people out there trying to figure out how to respond to this and I think that there areincluding the folks on the Constitution Project, Attorney General Meese, Professor Heymann, and the judges and other folks on that group, and there are a lot of other groups out there thinking very hard about this. And I can tell you, although I can't go into the details because of time, but there are a number of proposals being worked through that would combine the concernsaddressing the concerns of Congressman Flake about simplifying the Federal sentencing system and Federal criminal laws with meeting some of the concerns expressed by Justice Scalia in Blakely and also addressing the alternative constitutional model put forward in Booker.
There are some folks out there working very hard who I think, if given some time, can actually present to you some reasonable proposals that can try to bring together and address a number of these problems.
Mr. COLLINS. Congressman, I think the case for delay is a weak one. If we think of the Sentencing Commission and the sentencing guidelines as the vehicle for Congress's accomplishing the goals of Federal sentencing policy, Booker is the equivalent of a flat tire. And while we stand by the side of the road, it is not time to argue about reupholstering the interior, painting the vehicle. We need to get it moving again, and it is very simple what to do. You simply remove the capsthat would make the system constitutional. If other issues want to be revisited, people can revisit those. But this system needs to get moving again in the direction of accomplishing what we all know from the pre-Booker period it was accomplishing what Congress wanted it to do.
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Judge HINOJOSA. Congressman Lungren, I guess in some ways Professor Bowman has been more successful than he thinks he is, because to a certain extent, the Booker decision gives us topless guidelines.
Mr. COBLE. Judge, if you will suspend just one momentagain, I am thinking aloud. Ms. Waters, how long will it take you to make your comment?
Ms. WATERS. Just a few minutes.
Mr. COBLE. How long?
Ms. WATERS. Just a couple of minutes.
Mr. COBLE. I am just thinking, folks, in the interest of time, to give Ms. Waters due time and to let Mr. Lungren finish, the time is running down. Why don't we suspend very briefly. We will go vote and then we will come back and Mr. Lungren can finish his line of questioning, and then we will recognize Ms. Waters.
Ms. WATERS. Well, no, if you are going to come back anyway, I will just come back and take my whole 5 minutes.
Mr. COBLE. That would be fine.
Page 104 PREV PAGE TOP OF DOC Ms. WATERS. I was trying to do it out of consideration to the Committee. I think they had answered basically Mr. Lungren's question in their presentations and talking about what they thought we could do. I have heard it over and over again. But if you want to do that
Mr. COBLE. Well, to be sure none of us miss the vote, let us suspend and we will come back after the vote and then we will wrap it up with Mr. Lungren and then Ms. Waters.
Mr. COBLE. We will resume our activity here.
Mr. Lungren, I think you had the floor and you were examining the witnesses. You may continue.
Mr. LUNGREN. The Chairman is very generous in his use of the word ''examining.'' I am being very nice. I am just asking. I think the Judge was responding.
Judge HINOJOSA. That is correct, Congressman. What I was saying was that Professor Bowman has probably been more successful than he would like to admit in that under an advisory guideline system, if you consider the Sentencing Reform Act factors, you could go to the top, the statutory maximum. We also can go to the bottom.
The Commission's position has been that in considering and consulting the guidelines as Booker requires and as certainly the Sentencing Reform Act itself states, you should consider the guideline ranges, applicable guideline ranges, the policy statements as the Act itself requires, then make determinations under the guidelines system, and then determine in consideration of the Sentencing Reform Act 3553(a) factors if you are going to stay within the guidelines system, including the policy statements, or going outside of the system.
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But in many ways, we do have topless guidelines for those that are interested in that. The issue then becomes with regard to whether appellate review should be the same for guideline sentences versus non-guideline sentences since it is above the guidelines, below the guidelines, departures within the guidelines system, and that is certainly something that Congress will eventually decide. If not, the appellate courts are also going through that at the present time and we are already seeing some decisions at the appellate court level with regard to the review that is being used with regard to the sentence.
Mr. WRAY. Congressman, I think, if I remember correctly, the question as you had posed it was sort of what can you do in the wake of Booker, and I think what I would say, in addition to what the other witnesses have already said, is a couple of things.
You could address the courts' ability that they now seem to have in the wake of Booker to consider what would otherwise be prohibited factors in sentencing, something I mentioned earlier in my testimony. You could address the cooperation issue, which is so important to areas of criminal enforcement that are very important to every member of this Committee and every member of this country. You could address the appellate review standard, this reasonableness issue which we think will result in less rigorous and less consistent appellate review. You couldand I think that is a very important issue to cover.
I think there are some other variations that have been discussed already by some of the other members of the panel. There are things that can be done like a topless guideline system, but that may not be the only way. There may be things that can be done as long as we work collaboratively together and the Department would like to work with the Congress on that in a way to come up with something that would lead to the best interest of the public.
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Mr. LUNGREN. Thank you very much. Mr. Chairman, my concern is that I thought that the guidelines within the large ranges that we gave from Congress were the best way to address the situation. Now the Court has put us in the situation where a response by Congress may be to increase the minimum ranges that we have statutorily as a way of making sure that the Federal system doesn't do what we feared before, which I don't think is a good thing. And so we are sort of in a dilemma now where I thought we had a system that worked pretty well to ensure that we had consistency but yet, with maybe some exceptions that ought to be examined by the Congress on due penalties attached. I am not sure the Supreme Court thinks about those things, that the reaction of Congress might be just exactly the opposite of what they are concerned about. Thanks very much.
Mr. COBLE. I thank the gentleman.
The gentlelady from California, Ms. Waters, is recognized for 5 minutes.
Ms. WATERS. Thank you very much, Mr. Chairman. I appreciate the opportunity to have this platform today to talk about an issue that troubles me and others on this Committee and obviously Mr. Conyers so much.
Even though we are here to talk about Booker and to talk about the guidelines becoming advisory, that is not the major issue for me. As a matter of fact, I would submit to you without having talked to all of my colleagues, those of us who understand what racism and discrimination are all about, we would like to have clear rules that everybody would have to abide by. I think we are served better by that.
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So when you talk about the sentencing guidelines being advisory and you have the opportunity for judges to go up or down, et cetera, that is a little bit troubling because we know that we will suffer under that kind of discretion, for the most part. History has proven that and I don't think it is going to change.
So for me, it is not a big issue, but here is the issue for me: Mandatory minimum sentencing. As my colleague said on the opposite side of the aisle, that is our fault. What happened in the Congress of the United States led by two of the gentlemen that he identified, and I just asked Mr. Regula about it and he didn't quite remember it, is what I am concerned about.
Now, what do you have to do with that? I mean, you didn't come here to talk about mandatory minimum sentencing as it relates to crack cocaine, et cetera. But we are watching all of these low-level drug persons with five grams of crack cocaine be sentenced to 5 years in prison or more and the judge has no discretion in the issue. They are filling up the prisons and lives are being destroyed. Nineteen-year-olds, 20-year-olds are going to prison, some of them in college. They are not criminals, they are just stupid. They are not criminals and their lives should not be shut off in that manner.
So here is what we are saying. While we are discussing these kinds of issues, can we use this as an opportunity to talk about not only what the Congress should be considering as we take a look at Booker, but what we should be thinking about and how we can encourage the Congress of the United States to look at these mandatory minimum sentences.
Page 108 PREV PAGE TOP OF DOC I believe that the Sentencing Commission, and I have towe have to accept blame for that on both sides of the aisle. I can recall when the Sentencing Commission came up with different guidelines and Bill Clinton vetoed it, as I remember, or didn't do something which caused it to go into effect.
So because you are listened to, because you are in the Justice Department, because you are people who deal with these issues, let us couple our discussion about mandatory minimum sentencing as we talk about these sentencing guidelines. Let me tell you, under these mandatory minimum sentences, not only do we have people being sentenced more harshly than we have people who commit real crimes being sentenced, we have people who are committing crimes of robbery and rape and other kinds of serious felonies who are not sentenced as harshly as a 19-year-old who is stupid enough to try to have five grams of crack cocaine in their possession. And they are disproportionately minority, even though the greater number who are involved with crack cocaine are not minority.
So when you hear us talk about this, it is not because we are blaming you. It is not because we think you can fix it. But we think that you can couple the discussion so that we can try and move the Congress of the United States to correct mandatory minimum sentencing. I disagreed with all mandatory minimum sentences. I think judges should have some discretion. I think they should have the ability to look at the individual, to look at their past history, to look at the intent, everything. However, I am focused on mandatory minimum sentences as it relates to crack cocaine sentencing.
So if you heard my colleague John Conyers today, what he is saying to you is, why aren't any of you interested in discussing mandatory minimum sentencing, particularly as it relates to these drug offenses? You know in your heart that these sentences are excessive and that they are detrimental and that they are doing nothing to deter crime. As a matter of fact, criminals, real criminals, are getting away with much lighter sentencing.
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Having said that, I told my Chairman I had no questions, but I had something I wanted to tell you. I have told you. That is it. Thank you. I yield back the balance of my time.
Mr. COBLE. I thank the gentlelady.
Ladies and gentlemen, our border security bill is now on the floor and we need to adjourn, but I think the gentleman from Virginia may have a question or two. Mr. Scott, if you could, and then we will wrap it up.
Mr. SCOTT. Thanks, Mr. Chairman.
I had just a couple of technical questions if we do something. There is an old adage, slightly rephrased, that we might abide by and that is don't just do something, stand there. [Laughter.]
If we do something, what would happen to a pre-sentence report. Pre-sentence reports, under mandatory guidelines, would be useless, I would imagine. Is that right, Judge?
Judge HINOJOSA. Well, under the present system, the pre-sentence report still, according to the rules, needs to be prepared as it was being prepared beforehand.
Page 110 PREV PAGE TOP OF DOC Mr. SCOTT. And under the voluntary guidelines, you could still consider the pre-sentence report today. But if we had mandatory guidelines, it would bethe findings in the pre-sentence report, since they were not found by a judge, could not be used.
Judge HINOJOSA. Well, they would always be found by a judge, Congressman, because these are just recommendations from our probation officers. The advantage to that system, when it was created, was we have always had pre-sentence reports. After the guidelines, obviously, they were geared toward recommendations of the guidelines findings. But eventually, it is the judge's decision.
The advantage to the present system is there is a report that is given to the prosecution and the defense. There is a period of time within which they can object to it. Then there is a period within which the probation office responds to it. And then there is an actual hearing before the court. But as most probation officers find out, it is the judge who makes the decision, not the probation officer.
Mr. SCOTT. If the guidelines were made somehow mandatory, you couldn't use the pre-sentence report without a finding by a jury along with the facts in the pre-sentence report.
Judge HINOJOSA. It would depend on what the defendant had admitted at the time of the guilty plea or what the jury verdict had been with regard to the charge and the way it was worded in the instructions to the jury at the time of the conviction. And so it might very well be that the determinations would be made under Blakely and under Booker constitutionally.
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Mr. SCOTT. But if we don't do anything, you can consider the information in a pre-sentence report today, if we don't do anything?
Judge HINOJOSA. Well, what it appears to me that Justice Breyer and the five members of that majority were doing was saying, yes, you the other majority have said Blakely applies to the Federal guidelines with regard to sixth amendment rights, but since they are now advisory, the judges can continue making the findings under the standards of proof that they have used in the past and under the same methods of determining the guidelines system without having to have a jury determine these because these are now advisory and are being considered as one of the factors within 3553(a), although a very strong factor and one obviously that the Commission feels deserves substantial weight.
Mr. SCOTT. If there is a guilty plea, obviously, you didn't find anything by a jury beyond a reasonable doubt. How do you consider the various factors today without any findings?
Judge HINOJOSA. In my case, as to what procedure I am following, I am following the same procedure and making the findings in the same fashion as I did beforehand. It is open. It is a discussion of the factors that need to be considered, opportunity for both sides to come forward with whatever information they have so that the court can make the decision here.
And I do have to say that under the old system, I made those decisions without ever having to tell a soul that I was doing that, and there was no standard with regard to beyond a reasonable doubt or a preponderance and those factors were all being considered.
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Mr. SCOTT. Mr. Bowman, did you want to comment on that, or on both of those questions, what do you do with the pre-sentence report and a guilty plea?
Mr. COBLE. And, Mr. Bowman, if you would as quickly as you can because we do need to adjourn, but go ahead, Mr. Bowman.
Mr. BOWMAN. Another way of putting what Judge Hinojosa is saying, which may help clarify this, is at least my understanding of what Booker has held, and I think this is what Judge Hinojosa is saying, as well, is that after Booker, everything essentially remainsin terms of procedure in the courtseverything remains exactly as it was before Booker. Factual determinations must be made. A sentencing hearing must be held. A guidelines determination must be made. Everything remains exactly as it was up to the point at which the guideline determination is made and the judge then has to decide whether to sentence inside that range or outside that range.
So procedurally, if you leave things exactly as they are, if you don't disturb Booker, the Booker mechanism seems to be one in which the fact-finding process is exactly the same as it was before.
Mr. SCOTT. Mr. Chairman, could I ask one other quick question, and that is to Mr. Wray on the cooperation credit. Can you say a word about the policy implications of requiring defendants to waive attorney-client and other privileges?
Mr. WRAY. Sure, Ranking Member Scott. The issue of attorney-client privilege waiver comes up most typically, at least in my experience, in the context of corporate fraud cases. I am not aware of very many instances that I have seen where anyone is asking for such a waiver in the context of an individual defendant. But has not been the Department's policy to insist on such a wavier.
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It is, howeverthere are cases where a defendant, typically a corporate defendant, that is, a company that is under investigation, will choose to do that to demonstrate how cooperative they are being and how helpful they are being, and we want to make sure that when companies and institutions do that, they get appropriate credit for doing that, because we recognize that is a very significant step that is not to be taken lightly.
Mr. SCOTT. May I have unanimous consent to request documents be added to the record?
Mr. COBLE. Without objection.
I would also like unanimous consent with a number of documents, as well.
Ladies and gentlemen, this has been a very productive hearing.
I want to apologize for some of the Members of the Subcommittee who were not here. Their absence does not indicate lack of interest in this subject. We had other hearings and other Committee meetings that were in conflict, so I assure you, we will keep our eye on the ball on this.
But I do thank you all for your testimony and your contribution. In order to ensure a full record and adequate consideration of this important issue, the record will be left open for an additional 7 days for subsequent submissions if you all want to submit something further. Any written questions that a member wants to submit should be submitted within the same 7-day period.
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This concludes the oversight hearing on the ''Implication of the Booker/Fanfan Decisions for the Federal Sentencing Guidelines.'' Thank you all for your cooperation. The Subcommittee stands adjourned.
[Whereupon, at 12:05 p.m., the Subcommittee was adjourned.]
A P P E N D I X
Material Submitted for the Hearing Record
PREPARED STATEMENT OF THE HONORABLE HOWARD COBLE, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF NORTH CAROLINA, AND CHAIRMAN, SUBCOMMITTEE ON CRIME, TERRORISM, AND HOMELAND SECURITY
Good morning. I want to welcome everyone to this very important oversight hearing before the Subcommittee on Crime, Terrorism and Homeland Security to examine the implications of two recent Supreme Court decisions, in United States v. Booker, and United States v. Fanfan, to the federal Sentencing Guidelines.
The Supreme Court's rulings eviscerated two critical aspects of the federal Sentencing Guidelines: first, the Court ruled the Sentencing Guidelines are no longer mandatory but are ''advisory;'' second, the Court eliminated the de novo appellate review standard for downward departures, which was passed by Congress as part of the PROTECT Act in the 108th Congress, and replaced it with a vague and unspecific ''reasonableness'' standard for appellate review.
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It is an understatement to say that the Supreme Court's decisions have had a dramatic impact on the federal criminal justice system. Some have characterized the impact as resulting in complete disarray, and even others characterize the decisions as posing a direct and significant threat to public safety, thereby jeopardizing dramatic reductions in the crime rate in our country.
As this Committee examines this issue, we must be mindful of the fact that the Sentencing Reform Act of 1984, which created the mandatory federal Sentencing Guideline system was a bi-partisan measure designed ''to provide certainty and fairness in meeting the purposes of sentencing, avoiding unwarranted disparities among defendants with similar records who have been found guilty of similar criminal conduct.''
In the short time since the Supreme Court issued its rulings in the Booker/Fanfan decisions, there already have been reported instances of judges deviating from the guideline sentencing ranges, relying on varying rationales for such departures. It is Congress' role to ensure that the original purposes of the Sentencing Reform Act of 1984 are adhered to by the federal judiciarywe all can agree that disparities among similarly situated defendants are unfair and undermine the federal criminal justice system.
Justice Breyer in his majority opinion in Booker made it clear as to our institutional responsibility when he wrote of the Court's decision, ''Ours, of course, is not the last word: The ball now lies in Congress' court.''
In order to fulfill our Constitutional responsibility, today's hearing is the first step to ensuring that the federal sentencing system continues to promote fairness, eliminate disparities, and protect the public safetyso that law-abiding citizens can live in freedom without fear of crime, and defendants receive fair and equal treatment in the federal judicial system.
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I am anxious to hear from our distinguished panel of witnesses and now yield to the ranking Member of this Subcommittee, the gentleman from Virginia, Mr. Bobby Scott.
PREPARED STATEMENT OF THE HONORABLE ROBERT C. SCOTT, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF VIRGINIA, AND RANKING MEMBER, SUBCOMMITTEE ON CRIME, TERRORISM, AND HOMELAND SECURITY
Thank you, Mr. Chairman. I am pleased to join you in convening this hearing on the implications of the U.S. Supreme Court's Booker/Fanfan decision on the federal sentencing guidelines. Since the Blakely v. Washington decision last June, the viability of the federal, and many state, sentencing systems have been in jeopardy. That decision made it clear that sentences based on facts found by the court after the trial, that were not admitted by the defendant or established during the trial, deprived the defendant of the constitutional right to a jury trial. We contemplated a range of options or approaches after the decision. They ranged from do nothing to enacting an entire system of statutory minimums and maximums. However, we wisely, I believe, listened to the counsel of sentencing experts, and others, suggesting that we give the courts a chance to further clarify the impact of the decision on the federal system.
That further clarification came in a decision by a strangely divided Court in January through the Booker/Fanfan decision. That decision clarified that Blakely, indeed was applicable to the federal sentencing guidelines system, and found the system unconstitutional as applied. However, the court delineated the aspects of the system that caused it to be unconstitutional, thereby excising the applicability of those factors, leaving the remainder of the system intact. Yet, the Court, as it properly tends to do, only answered the questions it considered to be properly before it at the time. Therefore, we are left with the issue of how the remaining system can operate consistent with its aims and purposes and the Court's decisions. And, again, sentencing experts and others are advising that we await further clarification from the courts on the impact of Booker/Fanfan.
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The early indications in this post Blakely/Booker/Fanfan context is that the sky is not falling; that criminal defendants are being prosecuted and sentenced and that the sentencing guidelines system is directing those sentences to essentially the same extent as it was before. So, for those who found the sentencing guidelines system acceptable as applied before Blakely and Booker/Fanfan should find it acceptable now. There were quirks and imperfections before the recent upheavals that required appellant court correction or clarification, and that's the situation today.
For others of us, including myself, the federal sentencing guidelines system as applied was not satisfactory. I am very concerned about the growing minority percentage of a rapidly increasing federal prison population serving excessively long sentences for minor roles in non-violent crimes, due in large part to unfair applications of mandatory minimum sentences and prosecutorial concentrations. These problems are detailed in these 2 recent reports from the Sentencing Project entitled ''Racial Disparity in Sentencing: A Review of the Literature,'' ''The Federal Prison Population: A Statistical Analysis,'' and the recently completed 15-year study report by the U.S. Sentencing Commission, of which I have the executive summary here.
All the credible data shows that minorities are less likely than whites to use illegal drugs of virtually all types, including crack cocaine. Yet, a grossly disproportionate percentage of the enforcement war against drugs falls upon minorities, many of whom are bit players at the end stage of the drug trade whose involvement is based more on addiction than profit. For example over 80% of the crack prosecutions are against African American offenders while drug use data reflects that 60% of the use of crack is by Whites.
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And all the research and all the demonstrations show that drug treatment, and other alternatives to incarceration are much more effective and much cheaper than incarceration. Yet, we continue to greatly increase our resources to lock up more and more of these bit players for longer and longer periods while making no consideration to effective and less costly alternatives and only minimally increasing drug treatment as compared to the increases in enforcement. Report after report, including these by the Sentencing Commission and others, have pointed to these gross disparities in application of our drug enforcement and sentencing policies against minorities. It was high time that we addressed these atrocities before Blakely and Booker/Fanfan, and it is certainly time to do so now.
So, Mr. Chairman, as we carefully contemplate what needs to be fixed in the federal sentencing guidelines system, I would invite consideration to this longstanding and shameful problem in our federal law enforcement and sentencing applications. I look forward to the testimony of our witnesses for any guidance they give us as we contemplate these and other challenges in our criminal justice system, and to working with you to meet the challenges. Thank you.
PREPARED STATEMENT OF THE HONORABLE SHEILA JACKSON LEE, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF TEXAS
Chairman Coble and Ranking Member Scott, thank you for the opportunity that this body will have today to exercise oversight in such an important area of the criminal justice system that has so many stakeholders. The holding of the high court in U.S. v. Booker v. Fanfan(see footnote 66) has given the Federal Sentencing Guidelines advisory weight rather than mandatory.
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Mr. Chairman, I agree with many of my colleagues as well as a good number of federal trial court judges that the guidelines are an instrument created by the United States Sentencing Commission to reduce negative trends and disparities in sentencingon their face.
However, my experience as Ranking Democrat of the Subcommittee on Immigration, Border Security, and Claims has shown me that strict application of the guidelines on a mandatory basis can preclude judges from exercising discretion as to whether or not to consider ''history and characteristics of the defendant'' under 18 U.S.C. 3553, the Federal Sentencing Act. The Booker case that was decided on January 12 has the force and effect of severing the Federal Sentencing Act to excise the provision that makes the Sentencing Guidelines mandatory.
While I am a proponent of making federal sentencing more uniform and consistent, I am not yet convinced that the Guidelines achieve this end. To date, certain serious crimes have led to minor sentences while more minor crimes have led to numerous years in prison. We must carefully balance the need to instill order, uniformity, and judicial efficiency into the criminal justice system while preserving judicial discretion.
Application of the Guidelines in strict form has contributed to the exponential growth of the federal prison and justice systems. Since 1980, the number of federal prisoners has increased nearly seven-fold, rising from 24,000 in 1980 to 106,000 in 1996 and to over 170,000 in 2003.
Because of this rise in incarcerations, we have seen a rise in the number of federal nonviolent offenders who may have been victims of excessive sentencing under the Guidelines.
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This was the impetus for my introduction of the Federal Prison Bureau Nonviolent Offender Relief Act of 2005 which calls for the early release of nonviolent offenders under certain circumstances.
Mr. Chairman, this body must explore this matter thoroughly and follow the path that has been made by the jurisprudence of Booker.
PREPARED STATEMENT OF THE HONORABLE JOHN CONYERS, JR., A REPRESENTATIVE IN CONGRESS FROM THE STATE OF MICHIGAN, AND RANKING MEMBER, COMMITTEE ON THE JUDICIARY
Let me begin by thanking Chairman Coble and Ranking Member Scott for convening this timely hearing on the Booker/FanFan decisions and their impact on the federal sentencing guidelines.
With more than 2.1 million Americans currently in jail or prisonroughly quadruple the number of individuals incarcerated in 1985it's hard to deny that our criminal justice is facing a real crisis.
Today, this country incarcerates its citizens at a rate 14 times that of Japan, 8 times the rate of France and 6 times the rate of Canada.
We spend an estimated $40 billion a year to imprison criminal offenders, we choose to build prisons over schools and we fail to provide inmates released from prison with the necessary tools and assistance for a successful re-entry into society.
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In short, we have turned a nation of peace-loving people who have come to this country in search of nothing more than freedom and equality into a nation of convicts.
Admittedly, the federal sentencing guidelines were not originally enacted to address many of these problems. In fact, their primary purpose was to simply make sentencing more certain and predictable. Regrettably, two decades later, it's sad to say that the only thing more ''certain and predictable'' is that the current system targets and punishes racial minorities in a disproportionately harsher manner.
For instance, while the majority of federal offenders in the pre-guidelines era were White (60%), minorities dominate the federal criminal docket today. Moreover, while the gap in average sentences between White and Black offenders was relatively small in the preguidelines era, Blacks now receive sentences that are approximately 70% longer than Whites.
On average, Blacks now serve virtually as much time in prison for a drug offense (57.2 months) as Whites do for a violent offense (58.8 months).
The current system may be certainly predictable, but it is undeniably unfair.
Several reasons serve as the source of blame for our current state of affairs. However, the greatest responsibility lies with those who stubbornly rely on mandatory minimums and congressional directives to enact misguided and ineffective policies all in the name of appearing tough on crime.
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For example, there currently exists a 1 to 100 disparity in the ratio in sentencing powder versus crack cocaine, even though all experts agree that the harms associated with the use of crack cocaine do not justify substantially harsher treatment. So, why the disparity?
Our look today at the federal sentencing guidelines provides us with a unique opportunity to consider some of these issues and debate ways to bring about meaningful reform.
Such reform has already taken place at the state level. For example, over the past couple of years, more than 25 states have passed laws eliminating some of their lengthy mandatory minimum sentences and have begun to divert non-violent drug offenders to treatment programs instead of incarceration. The day has come for us to follow their lead.
Again, I would like to thank the Chairman and Ranking Member for convening this important hearing. And, I look forward to hearing the testimony of the witnesses.
PREPARED STATEMENT OF THE HONORABLE ADAM B. SCHIFF, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF CALIFORNIA
I would like to thank the distinguished Chairman, Mr. Coble and Ranking Member Scott for holding this important hearing on the implications of the recent Supreme Court decision in Booker/Fanfan on the Federal Sentencing Guidelines.
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The Booker/Fanfan decision brought about a far-reaching, if poorly reasoned result. The sentencing guidelines are no longer mandatory, but advisory, and yet they are still subject to a test of reasonableness. Justice Breyer noted that the ball now lies in Congress' court. This is an understatement.
Although the merits of the Court's opinions are subject to legitimate criticism, Congress should use the opportunity to carefully consider the strengths and weaknesses of the sentencing guidelines and determine the best method of ensuring a sentencing regime that is tough, fair, and promotes public safety.
As a former federal prosecutor, I had the opportunity to work in the criminal justice system both before and after the sentencing guidelines originally went into effect. The guidelines, although certainly imperfect, did have the laudable effect of eliminating some of the greatest disparities in sentencing. At the same time, they eliminated judicial discretion to an unprecedented degree.
The challenge for the Congress is to revise the sentencing regime consistent with the Court's opinion, establish a completely new process, or allow time to evaluate the effects of the advisory system and reasonableness standard.
I look forward to working with Chairman Sensenbrenner and Chairman Coble and our other Judiciary Committee colleagues, the Department of Justice, federal judges, defense attorneys, the Sentencing Commission, and other experts and practitioners as we face this challenge.
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MATERIAL SUBMITTED FOR THE RECORD BY REP. SCOTT
LETTER FROM THE ASSOCIATION OF CORPORATE COUNSEL (FORMERLY THE AMERICAN CORPORATE COUNSEL ASSOCIATION), THE BUSINESS CIVIL LIBERTIES, INC., THE BUSINESS ROUNDTABLE, THE NATIONAL ASSOCIATION OF MANUFACTURERS, AND THE U.S. CHAMBER OF COMMERCE
LETTER FROM KEITH DARCY, ACTING EXECUTIVE DIRECTOR, ETHICS OFFICER ASSOCIATION (EOA)
LETTER FROM ROBERT EVANS, DIRECTOR, GOVERNMENTAL AFFAIRS OFFICE, THE AMERICAN BAR ASSOCIATION (ABA), DATED FEBRUARY 9, 2005
LETTER FROM ROBERT EVANS, DIRECTOR, GOVERNMENTAL AFFAIRS OFFICE, THE AMERICAN BAR ASSOCIATION (ABA), DATED FEBRUARY 17, 2005
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LETTER FROM EDWIN MEESE, III, AND PHILIP HEYMANN, CO-CHAIRS, SENTENCING INITIATIVES, THE CONSTITUTION PROJECT
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PREPARED STATEMENT OF LAWRENCE PIERSOL, PRESIDENT, THE FEDERAL JUDGES ASSOCIATION, AND CHIEF JUDGE OF THE DISTRICT OF SOUTH DAKOTA
LETTER FROM KENT SCHEIDEGGER, LEGAL DIRECTOR AND GENERAL COUNSEL, CRIMINAL JUSTICE LEGAL FOUNDATION
LETTER FROM ROBERT L. WILKINS, AND KARL A. RACINE, PARTNERS, VENEABLE LLP
(Footnote 1 return)
United States v. Booker, 125 S.Ct. 738 (2005).
(Footnote 2 return)
Id. at 768.
(Footnote 3 return)
Brief of Amici Curiae Senators Kennedy, Feinstein, and Hatch, United States v. Booker, 125 S.Ct. 738 (2005) (Nos. 04104, 04105).
(Footnote 4 return)
Blakely v. Washington and the Future of Federal Sentencing Guidelines: Hearing Before the Senate Judiciary Comm, 108th Cong. 8573 (2004), available at http://judiciary.senate.gov/testimony.cfm?id=1260&witid=2629.
(Footnote 5 return)
U.S. Sentencing Commission, Fifteen Years of Guidelines Sentencing 80 (2004) [hereinafter Fifteen Year Report] (studies cited therein).
(Footnote 6 return)
United States v. Wilson, 2005 WL 78552, at *4 (D. Utah 2005).
(Footnote 7 return)
Id. at *12.
(Footnote 8 return)
See Fifteen Year Report, supra note 6, at 140.
(Footnote 9 return)
See id. at 9798.
(Footnote 10 return)
Bureau of Justice Statistics, Correctional Populations in the United States (Nov. 1997).
(Footnote 11 return)
Bureau of Prisons, Office of Research and Evaluation (Nov. 2004).
(Footnote 12 return)
Wilson, 2005 WL 78552, at *7.
(Footnote 13 return)
Felman, James, How Should the Congress Respond if the Supreme Court Strikes Down the Federal Sentencing Guidelines?, 17 Federal Sentencing Reporter 97 (Dec. 2004).
(Footnote 14 return)
Letter from Practitioners Advisory Group to the United States Sentencing Commission 12 (Nov. 4, 2004), available at http://www.usscpag.com/index.asp.
(Footnote 15 return)
Jon Sands, Submitted Testimony before Sentencing Commission 4 (Nov. 17, 2004), available at http://www.ussc.gov/hearings/111604/Porter1.pdf.
(Footnote 16 return)
Professor Stephanos Bibas, Submitted Testimony before Sentencing Commission 5 (Nov. 17, 2004), available at: http://www.ussc.gov/hearings/111604/Bibas.pdf.
(Footnote 17 return)
United States v. Crosby, 2005 WL 240916 (2nd Cir. 2005); United States v. Hughes, 2005 WL 147059 (4th Cir. 2005).
(Footnote 18 return)
The two remedies considered at length in Booker were whether to render the guidelines advisory or to require proof of sentencing facts to a jury. The Supreme Court chose the former and the federal courts must apply it until the Congress enacts a more appropriate remedy. But, in United States v. Barkley, Case No. 04CR119H (N.D. Okla. Jan. 24, 2005), the district court did not follow the Booker decision on the remedy. In Barkley, the district court said ''for purposes of determining the viability of the new, advisory system now legislated by the Supreme Court, Congress was never called upon to choose between such an advisory system and a modified mandatory system. Nevertheless, the Supreme Court amended the federal statute to reflect its belief as to what Congress would have done if presented with these alternatives. This Court believes that Congress will be motivated to reimpose a mandatory sentencing system which, under Booker, must reflect such modifications as are necessary to accommodate the Sixth Amendment rights described in Blakely.'' Id,. slip op. at 89. The district court ultimately concluded in Barkley that ''as a matter of history, policy and common sense, a mandatory sentencing system that accommodates the Sixth Amendment rights described in Blakely and Booker is preferable to an advisory application of the Guidelines. The Court believes that applying the guidelines, modified to satisfy Blakely, will have the additional benefit of contributing to the public debate when Congress determines whether to reimpose the mandatory components of federal sentencing.'' Id., slip op. at 32. In United States v. Jose Huerta-Rodriguez, No. 8:04CR365 (D. Neb. Feb. 1, 2005), the district court concluded that ''it will continue to require that facts that enhance a sentence are properly pled in an indictment or information, and either admitted, or submitted to a jury (or to the court if the right to a trial by jury is waived) for determination by proof beyond a reasonable doubt. The court finds that although Booker's Sixth Amendment holding may not require such a procedure, it is not precluded.'' Id., slip op. at 12. These district court opinions cannot be squared with the statement of the majority of the Supreme Court in Booker that ''we must apply today's holdingsboth the Sixth Amendment holding and our remedial interpretation of the Sentencing Actto all cases on direct review.'' Booker, 125 S. Ct. at 769.
(Footnote 19 return)
Huerta-Rodriguez, Case No. 8:04 CR365 (D. Neb. Feb. 1 2005); United States v. Barkley, Case No. 04CR119 (N.D. Okla. Jan. 24, 2005).
(Footnote 20 return)
Crosby, 2005 WL 240916, at *7.
(Footnote 21 return)
18 U.S.C. §3553(a)(4), (a)(5), and (a)(6).
(Footnote 22 return)
USSG §5H1.10, 5H.12. See generally USSG §5K2.0.
(Footnote 23 return)
(Footnote 24 return)
United States v. Ranum, 2005 WL 161223 (E.D. Wis. Jan, 19, 2005).
(Footnote 25 return)
Soto, Onell R., Four Colombians Get Light Sentences, Judge Cites Threats, at http://SignOnSanDiego.com/news/metro/2005012899997m28fast.html.
(Footnote 26 return)
Booker, 125 S.Ct. at 745.
(Footnote 27 return)
Id. at 767.
(Footnote 28 return)
United States v. May, 359 F.3d 683 (4th Cir. 2004).
(Footnote 29 return)
United States v. Mallon, 345 F.3d 943 (7th Cir. 2004). See also United States v Tucker, 386 F.3d 273 (DC Cir. 2004); United States v. Mandhai, 375 F.3d 1243 (11th Cir. 2004).
(Footnote 30 return)
United States v. Booker, 125 S. Ct. 738 (2005).
(Footnote 31 return)
Blakely v. Washington, 542 U.S. (2004) (holding that any fact (other than a prior conviction) which is necessary to support a sentence exceeding the maximum authorized by the facts established by a plea of guilty or a jury verdict must be admitted by the defendant or proved to a jury beyond a reasonable doubt).
(Footnote 32 return)
Booker, 125 S. Ct. at 767 (opinion of BREYER, J.).
(Footnote 33 return)
Mistretta v. United States, 488 U.S. 361 (1989).
(Footnote 34 return)
Booker, 124 S. Ct. at 767 (opinion of BREYER, J.) (emphasis added).
(Footnote 35 return)
18 U.S.C. §3553(a)(4) (emphasis added).
(Footnote 36 return)
See, e.g., United States v. Crosby, F.3d , 2005 WL 240916 (2nd Cir Feb. 2, 2005), at *5 (emphasis added).
(Footnote 37 return)
United States v. Hughes, F.3d , 2005 WL 147059 (4th Cir. Jan. 24, 2005), at *3. (emphasis added).
(Footnote 38 return)
United States v. Wilson, 2005 WL 78552 (D. Utah Jan 13, 2005); United States v. Ranum, 2005 WL 161223 (E.D. Wis. Jan 19, 2005).
(Footnote 39 return)
Booker, 125 S. Ct. at 757 (opinion of BREYER. J.).
(Footnote 40 return)
There is considerable pre-Booker case law supporting the proposition that the Sentencing Guidelines take into account the factors set forth at 18 U.S.C. §3553(a)(2). See, e.g., United States v. Davern, 970 F.2d 1490 (6th Cir. 1992); United States v. Mogel, 956 F.2d 1555 (5th Cir. 1992); United States v. Hefferman, 43 F.3d 1144 (7th Cir. 1994); United States v. Breeding, 109 F.3d 308 (6th Cir. 1997).
(Footnote 41 return)
Of the 733 cases analyzed, in 41 cases the Commission was unable to determine whether the sentence was within the guideline sentencing range, including for example class A misdemeanors for which there was no applicable guideline range or immigration offenses in which the presentence report was waived and the sentence imposed was ''time served.''
(Footnote 42 return)
See, Table 26 of the 2002, 2001, and 2000 Sourcebook of Federal Sentencing Statistics.
(Footnote 43 return)
(Footnote 44 return)
(Footnote 45 return)
See, United States v. Crosby, F.3d. , 2005 WL 240916 (2nd Cir.) (recognizing that ''reasonableness'' is ''inherently a concept of flexible meaning, generally lacking precise boundaries'' and declining to establish per se standards of reasonableness).
(Footnote 46 return)
See, Braxton v. United States, 500 U.S. 344 (1991).
(Footnote 47 return)
Crosby, 2005 WL 240916, at *7.
(Footnote 48 return)
Booker, 125 S. Ct. at 767 (opinion of BREYER, J) (quoting 28 U.S.C. §991(b)(1)(B)).
(Footnote 49 return)
M. Dale Palmer Professor of Law, Indiana University School of LawIndianapolis. Formerly Trial Attorney for the Criminal Division of the U.S. Department of Justice (197982); Deputy District Attorney, Denver, Colorado (198387); Assistant U.S. Attorney for the Southern District of Florida (Miami) (198996); Special Counsel, U.S. Sentencing Commission (199596) (on detail from U.S. Department of Justice).
(Footnote 50 return)
Defending America's Most Vulnerable: Safe Access to Drug Treatment and Child Protection Act of 2004, Hearing on H.R. 4547 Before the Subcommittee on Crime, Terrorism, and Homeland Security, House Comm. on the Judiciary, 108th Cong. (2004) (testimony of Frank O. Bowman, III), available at http://www.house.gov/judiciary/bowman070604.pdf.
(Footnote 51 return)
Blakely v. Washington and the Future of the Federal Sentencing Guidelines, Hearing Before the Senate Comm. on the Judiciary, 108th Cong. (2004) (testimony of Frank O. Bowman, III), available at http://judiciary.senate.gov/testimony.cfm?id=1260&witid=647.
(Footnote 52 return)
The most completely developed version of the proposal appears in my written Senate testimony, id. See also, Frank O. Bowman, III, A Proposal for Bringing the Federal Sentencing Guidelines Into Conformity with Blakely v. Washington, 16 Fed. Sent. Rep. 364 (2004). For critiques of the proposal, see Blakely v. Washington and the Future of the Federal Sentencing Guidelines, Hearing Before the Senate Comm. on the Judiciary, 108th Cong. (July 13, 2004) (testimony of Rachel Barkow), available at http://judiciary.senate.gov/testimony.cfm?id=1260&witid=3684; Id. (testimony of Ronald Weich), available at http://judiciary.senate.gov/testimony.cfm?id=1260&witid=3685. See also, Douglas Berman, ''The 'Bowman Proposal': White Knight or Force of Darkness?,'' available at http://sentencing.typepad.com/sentencinglawandpolicy/2004/07/whiteknightor.html, and other critiques posted or referenced on Professor Berman's invaluable blog, Sentencing Law & Policy, http://www.sentencing.typepad.com.
(Footnote 53 return)
Blakely v. Washington, 124 S. Ct. 2531, 2537 (2004) (emphasis in the original).
(Footnote 54 return)
For discussion of the Blakely opinion and lower federal court opinions construing it, see Frank O. Bowman, III, Train Wreck? Or Can the Federal Sentencing System Be Saved'' A Plea for Rapid Reversal of Blakely v. Washington, 41 Amer. Crim. L. Rev. 217 (2004)
(Footnote 55 return)
The proposal in its original form would have made any sentence above the guideline minimum appealable on an abuse of discretion standard. The fact that a judge imposed a sentence higher than that suggested by the policy statement for a typical case would be a factor in the determination of whether the judge had abused his or her discretion. I also recommended that the legislation creating ''topless guidelines'' sunset after eighteen months.
(Footnote 56 return)
Only Justice Ginsburg joined both halves of the Court's opinion.
(Footnote 57 return)
18 U.S.C. §3553(b)(1) and 18 U.S.C. §3742(e).
(Footnote 58 return)
Booker, 2005 WL 50108, at *16.
(Footnote 59 return)
United States v. Wilson, Case No. 2:03CR00882 PGC (D. Utah).
(Footnote 60 return)
See, e.g., United States v. Nellum, 2005 US Dist LEXIS 1568 (N.D. Ind. Feb. 3, 2005).
(Footnote 61 return)
United States v. Crosby, 2005 WL 240916 (2d Cir. Feb. 2, 2005). See also, United States v. Hughes, XXF.3dXX, 2005 WL 147059 at *3 (4th Cir. Jan. 24, 2005) (holding that ''[c]onsistent with the remedial scheme set forth in Booker, a district court shall first calculate (after making the appropriate findings of fact) the range prescribed by the guidelines. Then, the court shall consider that range as well as other relevant factors set forth in the guidelines and those factors set forth in §3553(a) before imposing the sentence.'') (emphasis added).
(Footnote 62 return)
For a more complete outline of how this constitutional model of sentencing might work, see Frank O. Bowman, III, Function Over Formalism: A Provisional Theory of the Constitutional Law of Crime and Punishment, 17 Federal Sentencing Reporter 1 (October 2004).
(Footnote 63 return)
See, e.g., Id.; Frank O. Bowman, III, Fear of Law: Thoughts on 'Fear of Judging' and the State of the Federal Sentencing Guidelines, 44 St. Louis L.J. 299 (2000) (defending the federal sentencing guidelines as a beneficial set of constraints on judicial sentencing authority).
(Footnote 64 return)
See Frank O. Bowman, III, The Failure of the Federal Sentencing Guidelines: A Functional Analysis,Columbia L. Rev. XX(forthcoming Spring 2005).
(Footnote 65 return)
The letter from Burton I. Cohen was not available at the time this hearing was printed.
(Footnote 66 return)
125 S. Ct. 738, 73 USLW 4056 (2005).