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26–647 PDF








MARCH 16, 2006

Serial No. 109–121

Printed for the use of the Committee on the Judiciary
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Available via the World Wide Web: http://judiciary.house.gov


26–647 PDF








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MARCH 16, 2006

Serial No. 109–121

Printed for the use of the Committee on the Judiciary

Available via the World Wide Web: http://judiciary.house.gov


F. JAMES SENSENBRENNER, Jr., Wisconsin, Chairman
HENRY J. HYDE, Illinois
HOWARD COBLE, North Carolina
BOB INGLIS, South Carolina
MARK GREEN, Wisconsin
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DARRELL ISSA, California

JOHN CONYERS, Jr., Michigan
HOWARD L. BERMAN, California
MELVIN L. WATT, North Carolina
ZOE LOFGREN, California
MARTIN T. MEEHAN, Massachusetts
WILLIAM D. DELAHUNT, Massachusetts
ADAM B. SCHIFF, California
LINDA T. SÁNCHEZ, California
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PHILIP G. KIKO, General Counsel-Chief of Staff
PERRY H. APELBAUM, Minority Chief Counsel

Subcommittee on Crime, Terrorism, and Homeland Security

HOWARD COBLE, North Carolina, Chairman

MARK GREEN, Wisconsin

MARTIN T. MEEHAN, Massachusetts
WILLIAM D. DELAHUNT, Massachusetts
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JASON CERVENAK, Full Committee Counsel
BOBBY VASSAR, Minority Counsel


MARCH 16, 2006

    The Honorable Jeff Flake, a Representative in Congress from the State of Arizona, and acting Chair, Subcommittee on Crime, Terrorism, and Homeland Security

    The Honorable Robert C. Scott, a Representative in Congress from the State of Virginia, and Ranking Member, Subcommittee on Crime, Terrorism, and Homeland Security

    The Honorable Howard Coble, a Representative in Congress from the State of North Carolina, and Chairman, Subcommittee on Crime, Terrorism, and Homeland Security


The Honorable Ricardo H. Hinojosa, U.S. District Judge and Chairman, U.S. Sentencing Commission
Oral Testimony
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Prepared Statement

The Honorable William Mercer, Principal Associate Deputy Attorney General and U.S. Attorney for the District of Montana, U.S. Department of Justice
Oral Testimony
Prepared Statement

The Honorable Paul G. Cassell, Judge, U.S. District Court for the District of Utah
Oral Testimony
Prepared Statement

Mr. James E. Felman, Partner, Kynes, Markman & Felman, P.A.
Oral Testimony
Prepared Statement


Material Submitted for the Hearing Record

    The Honorable Howard Coble, a Representative in Congress from the State of North Carolina, and Chairman, Subcommittee on Crime, Terrorism, and Homeland Security

    The Honorable Robert C. Scott, a Representative in Congress from the State of Virginia, and Ranking Member, Subcommittee on Crime, Terrorism, and Homeland Security

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    Prepared Statement of the Honorable Tom Feeney, a Representative in Congress from the State of Florida

    Prepared Statement of the Honorable Sheila Jackson Lee, a Representative in Congress from the State of Texas

    Supplemental Testimony of James E. Felman, Esq., Kynes, Markman & Feldman, P.A., Tampa, Florida

    Prepared Statement of Carol S. Steiker, Professor of Law, Harvard Law School, Cambridge, Massachusetts

    Responses to Questions for the Record from William E. Moschella, Assistant Attorney General, Office of Legislative Affairs, U.S. Department of Justice, Washington, DC

    Responses to Questions for the Record from Judith W. Sheon, Staff Director, U.S. Sentencing Commission, Washington, DC

    Letter to the Honorable Howard Coble, Re: Revised Testimony for the Record from Judith W. Sheon, Staff Director, U.S. Sentencing Commission, Washington, DC

    Supplemental Information for the Record from the Honorable Paul G. Cassell, Judge, U.S. District Court for the District of Utah

    Letter to the Honorable Paul G. Cassell and ''Report on Post-Booker Sentencing in the United States District Court, District of Massachusetts,'' from the Honorable Mark L. Wolf, Chief Judge, U.S. District Court for the District of Massachusetts
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    Revised Testimony of the Honorable Ricardo H. Hinojosa, U.S. District Judge and Chairman, U.S. Sentencing Commission



House of Representatives,
Subcommittee on Crime, Terrorism,
and Homeland Security
Committee on the Judiciary,
Washington, DC.

    The Subcommittee met, pursuant to notice, at 12:16 p.m., in Room 2141, Rayburn House Office Building, the Honorable Jeff Flake (acting Chair of the Subcommittee) presiding.

    Mr. FLAKE [presiding]. This hearing will come to order. I am filling in for the Chairman, who will be here momentarily, but we will go ahead and get started.

    Thank you for your indulgence. When we have floor votes, obviously, we've got to be on the floor, but thank you.

    I am pleased to be here for this important hearing, the Subcommittee on Crime, Terrorism, and Homeland Security, to look at the impact of the Supreme Court decision, United States v. Booker. A lot of us have been anxious to hear, after all the hype of what this decision might mean, it will be nice to hear what it actually has met over the past year. So I look forward to the testimony of the witnesses. Thank you all for traveling here and for what you are doing.
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    Before introducing you, I should mention Chairman Coble has a statement which will be in the record, so I will not read that. Then I will turn the time over to Mr. Scott from Virginia for an opening statement.

    Mr. SCOTT. Thank you, Mr. Chairman. I am pleased to join you in the hearing on Federal sentencing since the Booker-Fanfan Supreme Court decisions. The title of this hearing is ''United States v. Booker: One Year Later—Chaos or Status Quo?'' When we are looking at the question posed by the title, it is clear from the recent Sentencing Commission Report on sentencing during this period, that the answer is clearly status quo. There is nothing to suggest chaos.

    Given the fact that the Booker decision eliminated mandatory application of guidelines and required the courts to consider a broader array of factors, including the guidelines, it's amazing that there is not a more pronounced difference in sentencing when compared to pre-Booker sentencing. Indeed, expecting sentencing to be the same, despite the changes, would be—just doesn't make sense.

    Yet, with over 69,000 cases in 94 districts during a time implementing the new sentencing regimen, judges sentenced within the guidelines 85 percent of the time that did not involve a governmental motion. With any database this large, you can find whatever you're looking for. So those looking for an anecdotal evidence that there are more unjustified downward departures can point to the fact that the percentage of prosecutor- and judge-initiated downward departures were slightly up during this post-Booker period. They can look until they find a category that happens to show a greater rate of downward departures, and they, in fact, found one, where in one small category the downward departures were, percentage-wise, somewhat large.
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    Whether it is post-Booker or pre-Booker, you can't look at sentences based on the name of a crime and expect to come up with an intelligent analysis of the sentences. A sentence usually involves, or at least should involve, input and impact of the Federal prosecutor, the probation officer, defense attorney, possibly a victim, and a judge, looking at all of the facts and circumstances in that individual case. The impact is marginalized and nullified when the data is analyzed simply on the name of the crime or the code section they're prosecuted under, and not the details of the crime itself.

    While it's good that we have given ourselves at least a year before we began to evaluate the impact of Booker and Fanfan on sentencing, given the continuing impact that practice, experience, feedback and appeals have had on focusing attention—focusing sentencing decisions, it would be premature, I believe, to take any action at this time until we've got more data that's clearly on the way.

    The impact of appeals that are pending should be awaited. There have been several circuit court appeals decided, but they have not had another Supreme Court decision since the post-Booker context. There is at least one case that the Supreme Court has already taken, Cunningham v. United States., which is due to be decided during the next term, and that would address some of the post-Booker issues including constitutionality of certain approaches. So any legislative action taken prior to that decision would clearly be premature.

    Moreover, when we look at the data regarding the circuit appeals, what we see is that circuits are more prone to affirm within guidelines and above guideline sentences, than they are to affirm sentences that are below the guidelines. Of the appeal decisions issued since Booker, all but one sentence within the guidelines has been confirmed. Of the 21 appeals of departures, 15 have been reversed, only 6 have been affirmed. At the same time, 14 appeals above the guideline sentences have been affirmed, while only 2 have been reversed. The circuits all agree that even after Booker, they still lack jurisdiction to review the court's denial of a motion of downward departure.
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    So, Mr. Chairman, I think I have spoken long enough for you to get your statement in before—but, Mr. Chairman, I believe the sentencing data clearly reflects that there is no chaos in Federal sentencing that we need to fix at this time. However, there are some things that existed before Booker that adversely affect sentencing, and in my view, need to be addressed. Among them are mandatory minimum sentencing in general, the 101 sentencing disparity between crack and powder cocaines, and the astounding disparity in substantial assistance treatment given to offenders in different circuits. We will hear more about the details of these problems from our witnesses.

    So, Mr. Chairman, I look forward to the witnesses, and look forward to your statement.

    Mr. COBLE [presiding]. Thank you, Mr. Scott, and to Mr. Scott, and to Mr. Flake and Mr. Delahunt, and to the panel and to those in the hearing room, I apologize for my belated arrival, but this is one of those days if it could go wrong, believe me, it has gone wrong. So I am hoping here in the calm of the hearing room, Mr. Scott, things will slow down.

    I am going to ask unanimous consent to have my written statement made a part of the record.

    [The prepared statement of Mr. Coble follows in the Appendix]

    Mr. COBLE. I will only say this, and I think I maybe told Mr. Scott this earlier, shortly after Booker, I called the late Chief Justice Rehnquist, and asked him for counsel and advice. I said, ''Do you have any advice for me?'' He said, ''I think the best advice is just to be deliberate and thorough for several months,'' and that is what we have done. That brings us to this hearing today.
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    And I am delighted to welcome you all here, and it's the practice of the Subcommittee to swear in all witnesses appearing before it, gentlemen, so if you all would, please, stand and raise your right hands.

    [Witnesses sworn.]

    Mr. COBLE. Let the record show that each of the witnesses answered in the affirmative. Let me suspend just a moment.


    Mr. COBLE. We have four distinguished witnesses with us today. Our first witness is the Hon. Judge Ricardo Hinojosa. Judge Hinojosa was nominated by Ronald Reagan and served as a United States District Judge for the Southern District of Texas. In addition, Judge Hinojosa is the Chairman of the United States Sentencing Commission. He joined the Commission in 2003 and has been chairman since January 31, 2004. Previously, the Judge served as a law clerk for the Texas Supreme Court, as well as working in private practice in McAllen, Texas. The Judge is a graduate of the University of Texas, and earned his J.D. at the Harvard University School of Law.

    Our second witness is the Hon. William Mercer, Associate Deputy Attorney General, and United States Attorney for the District of Montana. Mr. Mercer has served in this dual capacity since 2005. Previously he served as Assistant United States Attorney for Montana. He currently serves on the Advisory Committee on Appellate Rules for the United States Court of Appeals for the Ninth Circuit, and has previously chaired the Attorney General's Advisory Committee Subcommittee on Sentencing Guidelines. Mr. Mercer was awarded his undergraduate degree from the University of Montana, his master's degree from Harvard, and a J.D. from the George Mason University School of Law.
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    Our third witness is the Hon. Judge Paul Cassell. Judge Cassell was nominated by President Bush and currently serves as a Federal District Court Judge for the District of Utah. He is also a professor of law at the University of Utah. Previously he served as an Associate Deputy Attorney General, and as an Assistant U.S. Attorney in the Eastern District of Virginia. Judge Cassell clerked for the then-Judge Antonin Scalia of the United States Court of Appeals for the District of Columbia. He received an undergraduate and law degree from the Stanford University.

    Our fourth witness is Mr. James Felman, Partner at Kynes, Markman & Felman. Mr. Felman currently co-chairs the Practitioners Advisory Group to the United States Sentencing Commission, and served as President of the Tampa Bay Chapter of the Federal Bar Association. He is also a member of the Sentencing Initiative of the Constitution Project. Mr. Felman is also the author of numerous publications on the issue of sentencing, including ''How Should the Congress Respond if the Supreme Court Strikes Down the Sentencing Guidelines?'' He received his undergraduate degree from Wake Forest University, and I regret to advise you, Mr. Felman, I think they lost their initial game last night. I regret that as well. [Laughter.]

    And a master's degree of law from Duke University.

    Gentleman, we are delighted to have you all with us. We will, as we have previously reminded you, we would like to comply with the 5-minute rule. You will not be keel hauled if you violate it, but when you see the amber light appear on your panel, that is your warning that you will have a minute remaining before the 5-minute deadline. When the red light appears, that is your cue to wrap up. We are on a short leash today, all of us are. We will have votes on the floor, but I think we'll have enough time here to resolve the matters before us.
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    Judge, let me start with you, if I may.


    Judge HINOJOSA. Thank you, Chairman Coble, Ranking Member Scott and distinguished Members of the Subcommittee. Thank you for this invitation to testify today on behalf of the United States sentencing Commission regarding the impact of the Supreme Court's decision in United States v. Booker on Federal sentencing.

    The Commission has spent the year since Booker collecting data and monitoring appellate court decisions so that it could determine what national sentencing trends have emerged since Booker was decided. Those determinations can be found in our recently released Booker Report. Because I wish to keep my remarks brief, I will not discuss in great length during my opening remarks the over 200 pages of detailed analysis about sentencing practices over time that are contained in our Booker Report. Instead, I will give you a brief overview of the Commission's approach to the Booker Report and a brief description of our findings.

    The Commission looked at four topic areas as it prepared its Report. First: Has Booker affected the rates of imposition of sentence within and outside the applicable guideline range, if so, how has it affected sentence type and length, including the extent of departure or variance from the guideline range? Second: Has Booker affected Federal sentencing compared to sentencing practices occurring prior to the decision? Third: In what circumstances do judges find sentences outside the guideline system more appropriate than a guideline sentence? In other words, for what reasons do judges impose non-guideline sentences, and have those reasons changed after Booker? Fourth: The Commission also sought to examine the appellate courts' responses to Booker, particularly whether they were developing case law on what constitutes an unreasonable sentence?
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    The Commission concludes that the Booker decision has had an impact on Federal sentencing. The magnitude of the impact depends on which historical period one compares post-Booker sentencing practices. The Commission data indicate that after Booker, conformance with the guidelines still occurs in the majority of cases. The rate of within-guideline range sentencing is 62.2 percent after Booker, compared with 64 percent in fiscal year 2001, and 65 percent in fiscal year 2002.

    For the 7 months between October 1, 2002 and April 30, 2003, the date of enactment of the PROTECT Act, what we refer to in our report as the pre-PROTECT Act period, the within-guideline range rate was 68.3 percent. From May 1, 2003 to June 24, 2004, what we call the post-PROTECT Act period in our report, the within-guideline range rate was 71.7 percent. After Booker the Commission did detect an increase in below-range sentences. This increase was present both in the area of Government-sponsored below-range sentences, and non-Government-sponsored below-range sentences. Government-sponsored below-range sentences were imposed after Booker at a rate of 23.7 percent, compared to 22.3 percent in the pre-PROTECT Act period, and 22.0 percent during the post-PROTECT Act period.

    The post-Booker Government-sponsored below-range rate is similar to rates from fiscal year 2001, which were 24.4 percent, and fiscal year 2002, which were 23.9 percent. Non-Government-sponsored below-range sentences were imposed after Booker at a rate of 12.5 percent compared to 8.6 percent in the pre-PROTECT Act period, and 5.5 percent during the post-PROTECT Act period. In fiscal year 2001, this rate was 11.1 percent, and in fiscal year 2002, it was 10.3 percent.

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    The Commission concluded in its Booker Report, that although sentencing practices have changed since Booker, the severity of sentences has not changed. The average sentence length has slightly increased nationally after Booker to 58 months, from 56 months in the pre-PROTECT Act period, and 57 months in the post-PROTECT Act period. The Commission's Booker Report also identifies certain areas that may be of concern to some, including some regional disparities.

    After collecting data, monitoring appellate court decisions and issuing its Booker Report, the Commission believes that it is time for serious consideration of a legislative response to Booker. As anticipated by the decision itself, at 543 U.S. page 265, quote, ''Ours, of course, is not the last word. The ball now lies in Congress's court. The National Legislature is equipped to devise and install, long-term, the sentencing system, compatible with the Constitution, that Congress judges for the Federal system of justice.'' End of quote. That is a quote from the Booker decision itself.

    The Commission strongly believes that any legislation considered should preserve the core principles of the bipartisan Sentencing Reform Act of 1984 in a constitutionally sound fashion. The Commission believes that at the very least, the legislative response to Booker should include the following four adjustments, all of which can be made within the Sentencing Reform Act. First, the legislative response should include codification of the three-step process for imposing a sentence as outlined in my written testimony. Second, the Commission believes that any legislative response to Booker should address the appellate review process and standard. Third, as the Commission has noted throughout this testimony, timely and uniform use of sentencing documentation is imperative to the Commission's ability to accurately ascertain and report about national sentencing practices. Any legislative response should include the continued importance of proper and uniform sentencing documentation being sent to the Commission. Fourth, the Commission believes that a legislative response should clarify that a sentence reduction for cooperation or substantial assistance is impermissible absent a motion from the Government.
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    The Commission stands ready—and I'm just about done, Chairman Coble—the Commission stands ready to work with Congress, the judiciary, the executive branch, and all other interested parties in refining the Federal sentencing system so that it preserves the core principles of the bipartisan Sentencing Reform Act in a constitutionally sound manner that will lessen the possibility of further litigation of the system itself. Such an approach would be the best for the Federal criminal justice system.

    Thank you very much, and I would be glad to answer any questions, and thank you so much for not acting like a Federal Judge and making me stop at the end of the 5 minutes.

    [The prepared statement of Judge Hinojosa follows:]


[Note: Image(s) not available in this format. See PDF version of this file for complete hearing record.]

    Mr. COBLE. Well, Your Honor, thank you for at least acknowledging the illumination of the red light. [Laughter.]

    Judge HINOJOSA. Thank you, sir.

    Mr. COBLE. Mr. Mercer.
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    Mr. MERCER. Chairman Coble, Congressman Scott, Members of the Subcommittee, thank you for the opportunity to appear before you today and for inviting the Department of Justice to testify about this important issue.

    The Attorney General regards today's hearing as an important step, but certainly not the last step in the serious, frank, and ongoing dialogue of the Supreme Court's decision United States v. Booker has generated.

    Since the Booker decision, Department of Justice representatives have been in discussion with interested parties. We hope and expect that this fruitful exchange will continue after today's hearing.

    In the early 1980's, with crime rates at near record highs, Members of Congress from both political parties, working together, reformed Federal sentencing policy to replace a broken and weak system of indeterminate sentencing with a strong and honest determinate sentencing system that would more effectively fight crime and address inequities in sentences. The Sentencing Reform Act of 1984 brought about comprehensive reform. It created the United States Sentencing Commission, and in turn, the Federal Sentencing Guidelines. The fundamental principles underlying the act and the guidelines were: consistency, fairness and accountability in sentencing. Defendants who commit similar crimes and have similar criminal records are to receive similar sentences.
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    Today, serious crime is the lowest it's been in more than a generation. We believe that increased sentencing levels and more consistent sentencing practices have been responsible for much of this achievement. Yet, beginning with the Supreme Court's decision in Blakely v. Washington, the principles and practice of determinate sentences have been in jeopardy, putting at risk the progress we have made.

    These developments culminated last year when the Supreme Court, in Booker, held that the Federal Sentencing Guidelines violated the sixth amendment right to a jury trial. As a remedy, the Court severed two provisions of the act, thereby rendering the guidelines advisory only, and weakening the standard review for Government appeals of sentences below the applicable guidelines range.

    Given the great complexity of this issue, the Attorney General wanted to make sure that the department did not act precipitously. In the 14 months since the Booker decision, we have viewed Federal sentencing decisions with measured concern. At the same time, we have been careful not to draw premature conclusions. However, it is becoming increasingly clear that both anecdotal and statistical evidence demonstrate very troubling trends, a marked decrease in within-guideline sentences, and increased inter- and intra-district disparity in sentences.

    Some have suggested that there has been little change in Federal sentencing practices because the average length of Federal sentences has remained nearly constant at 56 to 58 months. While this is correct, we do not believe that this is the beginning and the end of the analysis. The department remains very concerned about the decline in compliance with the Federal Sentencing Guidelines because it is evidence of increasing disparity in Federal sentences. After passage of the PROTECT Act in 2003, there was an increase in the percentage of sentences imposed within the ranges set forth by the Federal Sentencing Guidelines from 65 percent in fiscal year 2002 to 72.2 percent in fiscal year 2004. However, in the year since Booker was decided, we have seen a 10 percent decline in the number of sentences within the guideline range.
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    This is a significant increase in downward departures. Indeed, nearly 8,200 defendants benefited from downward departures not endorsed by the Government in the period since Booker was decided. Moreover, we believe that the rise in sentences below the range is contrary to what Congress intended when it passed the PROTECT Act in 2003. The size in the individual departures is also troubling. The Sentencing Commission's report on post-Booker sentences indicates that a third of the defendants, approximately 2,700, who have received a downward departure not endorsed by the Government had their sentences reduced by 40 percent or more below the low end of the applicable guideline range.

    Statistics also point to significant disparities between the circuits and within the circuits as the courts exercise their new authority. In the Fifth Circuit only 8.6 percent of defendants received departures not endorsed by the Government, whereas, in the Second Circuit, 23.1 percent of the defendants received departures not endorsed by the Government. The risks to fair and consistent treatment are not simply geographic. The Sentencing Commission's data just released similarly shows that Black defendants are now receiving longer sentences than their White counterparts, a result not observed after passage of the PROTECT Act. That same data also shows that despite Congress's repeatedly expressed concerns about sexually related offenses, Booker has resulted in judges increasingly sentencing defendants to below guideline sentences for these crimes.

    While the data in the aggregate can be very instructive, it is also useful to look at particular outcomes and particular cases. My written statement identifies a number of cases, and there are many others worthy of analysis. The cases demonstrate two things. First, the new discretion given to district judges under Booker is undermining our ability to achieve the firmness and consistency necessary to accomplish Congress's purpose in establishing sentencing policies. Second, allowing appellate courts to review below guideline sentences under a reasonable standard cannot ensure achievement of the statutory purposes of punishment.
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    There are hundreds and hundreds of examples of sentences below the guidelines. As noted in our case examples, these decisions not only undermine the goal of minimizing unwarranted disparities in sentencing, but also impair key goals of the Sentencing Reform Act: deterrence, promoting respect for the law, and incapacitation.

    We know how hard Federal judges work to faithfully execute their duties every day. It is inevitable, however, that given broad discretion, well-intentioned judges will come to inconsistent and competing conclusions about what factors matter most heavily in sentencing. Ultimately, a system that produces such results is neither desirable, nor capable of sustaining long-term public confidence.

    We believe there is a clear danger to the gains we have made in reducing crime, and achieving fair and consistent sentencing will be significantly compromised if mandatory sentencing laws are not reinstituted in the Federal criminal justice system. We believe reinstituting mandatory sentencing guidelines can be done best by creating a minimum guidelines sentencing system. Under such a system, the Sentencing Guidelines minimum would have the force of law, while the guidelines' maximum sentence would remain advisory. This would comport with the constitutional requirements of Booker because defendants, upon conviction, would always be subject to the maximum statutory penalty set by Congress, rather than being subject only to the maximum set in the guidelines. The Sentencing Guidelines would work in the same manner they have since their inception, with judges identifying aggravating and mitigating factors in individual cases with carefully measured judicial discretion, and with results that are certain, consistent and just.

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    Interestingly, experts of all political and ideological stripes predicted before Booker was decided that a purely advisory system would undoubtedly lead to greater disparity, and further, that over time this disparity is likely to increase. We believe that we are beginning to see the results of that problem.

    Thank you again for the opportunity to testify. I look forward to your questions.

    [The prepared statement of Mr. Mercer follows:]


[Note: Image(s) not available in this format. See PDF version of this file for complete hearing record.]

    Mr. COBLE. Thank you, Mr. Mercer.

    Your Honor, Judge Cassell.


    Judge CASSELL. Thank you, Mr. Chairman. I am pleased to be here on behalf——

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    Mr. COBLE. Judge, your mike's not hot.

    Judge CASSELL. All right. Hopefully, it will be hot.

    Mr. Chairman, I am pleased to be here on behalf of the Judicial Conference, and on behalf of hundreds of men and women around the country who serve on the Federal Bench and struggle every day to make the tough calls that are involved in sentencing decisions. We also appreciate the fact that Congress has waited before diving into the Booker issue, and by waiting, you now have the data, as Judge Hinojosa has mentioned, and the data shows quite clearly that what has happened in the last year is judges have imposed tough sentences that protect society, while tailoring some sentences to the unique individual circumstances of particular cases.

    The most salient fact about Booker is shown on the chart here to the side. This is the bottom line average total of sentences that have been imposed over the last several years, and the bottom line is that last year judges imposed average sentences of 58 months as compared to 57 months in the year before Booker. This same pattern occurs across the most significant categories of Federal offense, drug trafficking, firearms, theft and fraud, all saw increases in average sentence length last year.

    Rather than focusing on the overarching fact that judges have, in general, been tougher after Booker, what the Justice Department has done is cherry-pick a few individual statistic on variances from the guidelines. But the bottom line here is, again, as Judge Hinojosa mentioned, 93 percent of all the cases today are being resolved exactly the way they would have come out before Booker. And what of the roughly 7 percent of the cases that are coming out a bit different? On average, judges are going down about 12 months, hardly a significant change in the grand sweep of things.
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    Now, judges have exercised their newfound discretion responsibly in all categories of offenses, including that tiny sliver of the Federal docket that I know is of interest to Congressman Feeney and some others, the sex offense area. It has been said that there has been a fivefold increase in the cases in which judges have gone down for sexual exploitation of a minor. What that means in the Nation's Federal courtrooms is that in 2004, there were 2 such cases, in 2005, there were 11 such cases, hardly a dramatic increase given that the system prosecutes 65,000 offenders every year.

    The reason for these adjustments is not, as some have tried to suggest, that we have some sort of soft spot in our heart for sex offenders. The reason is that Federal sex offense cases are not reflective of the Nation's criminal justice docket. About a half to two-thirds of these cases involve Native American defendants, who have committed State law crimes that end up being prosecuted in the Federal system solely because the defendants live within Federal jurisdiction. And indeed, if one looks at the big picture of all sex offenses, one finds that the overall situation has not changed much since Booker for criminal sexual abuse, sexual abuse of a minor, exploitation of a minor, trafficking in child pornography and possession of child pornography, sentences all went up after Booker.

    Turning to the subject of geographic disparities mentioned by Mr. Mercer, we believe that the most pernicious contributor to geographic disparity in Federal sentences today is the Justice Department's inconsistent approach to filing motions for substantial assistance reductions for defendants who cooperate with the Government. We pulled together some data that has been provided to us by the Sentencing Commission. You can see, we have adjacent jurisdictions in Pennsylvania, North Carolina—I will focus on the last two from my neck of the woods. Idaho, 30 percent of all of their criminal cases are resolved by a substantial assistance motion. In my State, next door, Utah, it is only 8 percent. There is no rational explanation for these kinds of disparities, as the Sentencing Commission has explained in a comprehensive report on the subject. Even more troubling is that the Sentencing Commission found that there were racial disparities in the way that the Government handles these motions.
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    While the department has not been able to put its own house in order, it has been quick to cast stones at particular judges who had to make some tough calls in post-Booker sentencing. In its prepared testimony, the department recites six individual cases that it believes demonstrate the need for reform. Four of those cases were decided before Booker. One of those cases is on appeal by the Government, and we don't know whether it's final. The sixth case, United States v. Montgomery, involved—although this isn't mentioned in the Government's testimony—a mentally ill defendant who was given a shorter prison term in a fraud case so that she could make greater restitution payments to her crime victim.

    I would request the opportunity to provide more details about these particular cases, but the bottom line is that these six horror stories hardly are compelling examples of judges running amuck.

    In conclusion, while there is no need for dramatic legislation in this area, I should mention several specific areas that would be appropriate for reform, such as restoring the Sentencing Commission to its traditional membership of at least three judges, creating standardized procedures for determining sentences, giving judges greater power to award appropriate restitution to crime victims, and to prevent profiteering by notorious criminals. In addition, we should eliminate inappropriate crack/power sentencing disparities. We should repeal unjustified mandatory minimums, and that the Congress should commission a report from the Sentencing Commission that would take a broad and global look at sentencing issues.

    The Judicial Conference would be happy to work with the Department of Justice, this Subcommittee, and Members of Congress, to make sure that Federal judges continue to impose sentences that are fair and just to all concerned, just as Federal judges have been doing for the last year under Booker.
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    Thank you.

    [The prepared statement of Judge Cassell follows:]


[Note: Image(s) not available in this format. See PDF version of this file for complete hearing record.]

    Mr. COBLE. Thank you, Your Honor.

    Mr. Felman, you are recognized.


    Mr. FELMAN. Mr. Chairman, Ranking Member Scott and other distinguished Members of this Subcommittee, I am truly honored to have the opportunity to address you today on the important question of whether or not there is a need for immediate legislation to address the Booker decision. I believe there is not. I believe the data makes a compelling demonstration that status quo is an overwhelmingly more reasonable explanation than chaos. The bottom line statistic in sentencing is what is the average sentence length? Before Booker it was 56 months. After Booker it is 58 months. This is not about district judges going wild and giving everybody breaks. The average sentence went up.
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    While there are a modest number of additional downward variances, we could expect that. This is not the same system we had before. I am surprised by how modest the change is. And to talk only about what is the difference in the percentage of variances before and after Booker can be very misleading, because a 2-month variance looks the same as a 20-month variance under that statistic. It is very important to focus on what is the average extent of a departure. The average extent of departures relying on Booker authority is identical to the average extent of departures pre-Booker, and it is only 12 months. It is a rather modest amount, particularly in comparison to the average substantial assistance departure which is nearly 2 1/2 times that, at 28 months. The reason sentences are outside the range more often is a Government motion, and the extent of the variance, which is such a critical factor, is much greater in a Government motion.

    While the data does not show a need for legislation, there is a compelling reason not to make legislation right now, and that is that we are in a period of considerable constitutional uncertainty that will impact whatever legislation options you may wish to consider. The United States Supreme Court, just a few weeks ago, agreed to hear a case that will determine the constitutionality of California's presumptive sentencing laws. It is inevitable that the Court's opinion in that case will help clarify some of the critical uncertainty regarding the developing constitutional doctrines under Blakely and Booker.

    There are two, as I understand it, legislative options that have been discussed. Both of them are quite potentially unconstitutional, and we will know much more about that if we wait and see what the Court says in the Cunningham v. California case.

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    The first of those options that has been discussed by Mr. Mercer today, they describe that as a minimum guideline system. I think that would be a little hard. It is suggested there be a few guidelines or they would not mean much. I would describe it as a mandatory minimum guideline system. It especially turns—and I believe the department has acknowledged in their testimony that the constitutionality of that proposal turns exclusively on the continuing viability of the Court's precedent in Harris v. United States. Harris is a 414 plurality opinion, and we have two new Justices. If both of the Justices that are being replaced, that have been replaced, voted to uphold Harris, or if either of the new Justices change the vote of the Justices they replaced, Harris would fall.

    But of particular interest is Justice Breyer's opinion in Harris. He issued the concurring opinion that resulted in—that caused that result. Justice Breyer said, ''I cannot agree that there is any logical difference between using judicial fact-finding to raise a sentencing maximum,'' which is the rule of Apprendi, ''and using judicial fact-finding to raise a guidelines minimum,'' which is what the department proposal relies upon. For Justice Breyer, he thinks there is no logical basis for that distinction. However, in Harris he said, ''Because I do not yet accept the rule of Apprendi,'' I am not prepared—''I am prepared to go along with those who would permit judicial fact-finding to raise the sentencing floor.''

    Since Justice Breyer lost the vote in Apprendi, he has lost that same vote in Ring v. Arizona. He has lost that vote in Blakely v. Washington. He has lost that vote in Booker v. United States. He may very well lose that vote in Cunningham. What are the odds now that Justice Breyer will still say he cannot yet accept that? If Justice Breyer decides he must now accept the rule of Apprendi, Harris falls. It is an incredible gamble to wager on that vote, because if Harris falls, it is not just your new mandatory minimum guideline system that falls, it is every single mandatory minimum sentence in the Federal Criminal Code. They would all be unconstitutional because they rely on Harris. It's a heck of a gamble to take.
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    Before I think you could take a gamble like that, there would have to be a compelling demonstration of chaos, a compelling demonstration that we need to act. What is the reason we should not wait a year and find out whether that is a gamble worth taking? I think that the only word I can use to describe the suggestion that we should legislate now on that is ''irresponsible.''

    The second proposal that has been suggested is so-called presumptive guidelines, that is, we could pass a law that would add additional weight to the guidelines. That pushes the constitutional envelope. We know that binding guidelines are unconstitutional. We know that advisory guidelines are not. We do not know whether presumptive guidelines are constitutional. I do not think that that approach can be supported by a cost benefit analysis.

    And I see that my time has expired, and so I will stop, but I will be happy to answer any questions that you have. Thank you.

    [The prepared statement of Mr. Felman follows:]


[Note: Image(s) not available in this format. See PDF version of this file for complete hearing record.]

    Mr. COBLE. Thank you, Mr. Felman, and thank each of you for complying with the time limit. We also impose the 5-minute time limit against ourselves, so if you all could keep your answers as tersely as possible.
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    Mr. Mercer, having reviewed the Sentencing Commission's statistics, and having discussed or listened to prosecutors in the field, walk us through very briefly what happened post—Booker.

    Mr. MERCER. As I indicated in my opening statement, we're seeing significant increases in disparity within judicial districts, and also on an inter-circuit and intra-circuit basis. I think numbers here are somewhat helpful. Let me talk for a minute about the Southern District of New York. In 2003, the non-substantial assistance downward departure rate was 8.3, and that was fairly constant after Blakely and pre-Booker in 2004, 8.1 and 8.9 percent. It is now up to 23.6 percent.

    In the Western District of Louisiana, pre, in 2003, the rate was 2.3 percent for non-substantial assistance downward departures. It was 1.8 and 1.0 percent in 2004, pre-and post-Blakely. And then it's up to 14.2 percent now. So we have seen a very significant increase in the number of cases in which courts are imposing below guideline range sentences.

    We also know from the Sentencing Commission data set—and this comports with what we've seen in the field—that of those defendants who are getting non-substantial downward departures and non-governmental-sponsored departures, 40 percent of those, one-third of that cohort of cases, about 2,700 of them, involve departures of 40 percent or more. So you've heard a couple witnesses talk about how that only means 12 months, but if we play that out in a real case, maybe a fraud case with a loss of, say, $250,000, where the guideline range is 12 to 18 months. In a case where you've got a downward departure, typically on a factor that was disfavored or unmentioned in the guidelines manual, and something that we would not have seen after the PROTECT Act, relied upon to lower a sentence, so now we may see a sentence down to zero months with one of those defendants, the other one getting 18, and a significant disparity if you've got the same fraud and the same criminal history for this defendant, and a sentence of zero months for this defendant. That is the sort of unwanted disparity that the Sentencing Reform Act was designed to get rid of.
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    Mr. COBLE. Thank you, Mr. Mercer.

    Judge Hinojosa, why, if you know, why are judges handing down more below-range sentences for the crimes of sexual abuse of a minor, sexual contact of a minor, or trafficking in child pornography, sexual exploitation of a minor, and furthermore, the below-range sentences increased for all major drugs, meth, heroin, marijuana, powder cocaine? Can you explain why?

    Judge HINOJOSA. Well, it's difficult to explain, Chairman Coble, but I will say that one thing we have found in the sex offenses is that it appears to be at the level where there is no prior criminal history, and that is where you see the highest percent of post-Booker below-range sentences, and that seems to be a common factor with regards to those.

    Mr. COBLE. Your Honor, that probably, and cooperating with the State or Federal Government in developing a case?

    Judge HINOJOSA. No. When we say the below-range, that includes basically judicially-initiated below-range sentences. The Government-sponsored ranges are kept separate.

    Mr. COBLE. I got you.

    Judge HINOJOSA. And so it would not include that. We do not see that with regards to rape cases. Those have actually, as far as the below-range sentences, gone down from the post-PROTECT Act. That is the one area where they have gone down. That is one of the explanations. Judge Cassell mentioned others.
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    With regards to the drug cases, again, basically the same thing, first-time offenders.

    Mr. COBLE. Thank you, Your Honor.

    Judge HINOJOSA. And/or low criminal history categories. There are some of these drugs that are higher than others with regard to the below-range sentences.

    Mr. COBLE. Let me go—thank you, Judge.

    Let me to Judge Cassell before my red light illuminates. Judge, do you expect the rate of below-range sentences to continue to increase over time?

    Judge CASSELL. No——

    Mr. COBLE. Your mike's not hot, Judge.

    Judge CASSELL. All right. I expect—in my testimony, I've actually got data on that, and if you look at what's happened January, February, March of this year, each month there has been an increase in the number of sentences within the guideline range, and so I would expect that to increase over time. We need to remember, Booker came down about a year ago, and the Courts of Appeals hadn't told us in the District Courts exactly what to do. They've now told us in a number of circuits that we should be giving very serious attention to the Sentencing Guidelines, and so over time, we're seeing that trend with more and more guideline compliance.
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    Mr. COBLE. Thank you, Your Honor.

    The distinguished gentleman from Virginia, Mr. Scott.

    Mr. SCOTT. Thank you, Mr. Chairman.

    Mr. Mercer, if you had two people in court pleading guilty the same day, one's a 19-year-old high school senior having consensual sex with a 15-year-old, more than 4 years difference in age, consensual sex, pleads guilty to it. At the same a 50-year-old pleads guilty to having sex with a 12-year old. They're prosecuted under the same code section. Should they get the same sentence?

    Mr. MERCER. Well, of course, we'd look at the criminal history in that case, Your Honor—excuse me—Congressman, but we—I think you're right in saying that the guideline calculation would be different in all likelihood, probably be a coercion enticement case for the 50-year-old. It depends on the facts. But I think you're right, the sentence would probably be different in that case, and that would be reflected——

    Mr. SCOTT. If there were a downward departure for the 19-year-old compared to the 50-year-old, would that be bad?

    Mr. MERCER. Well, typically, we would look for that variance to be within the guideline range.

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    Mr. SCOTT. So you would expect both of them to be sentenced within the guideline?

    Mr. MERCER. Absolutely. In fact, the example——

    Mr. SCOTT. The 19-year-old high school student having consensual sex with a 15-year-old high school student within the same guideline as a 50-year-old having sex with a 12-year-old, ought to be sentenced within the same guideline?

    Mr. MERCER. Let me—if I may back up just to talk about—we do a fair number of those cases in my district because of our jurisdiction in Indian country offenses. And we would look to whether the State law would even allow us to bring that case, depending upon the age of the victim and the age of the offender, but we've got a real——

    Mr. SCOTT. This is Federal law. We passed it. It's illegal for a 19-year-old to have consensual sex with a 15-year-old. Should they get the same sentence as the—do you see much difference? I mean, maybe you don't see a difference. I see a difference.

    Mr. MERCER. I think the thing that we see in the legislative history is that the Congress is concerned about protecting the 15 and 14-year-old girl, and so we would expect that sentence to be within the range, and that's typically what we see victims wanting.

    Mr. SCOTT. Thank you. You would expect the same guideline sentences for the two?
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    Mr. MERCER. Well, there might be an upward departure, Your Honor, if the court didn't find the range to be adequate for the older defendant.

    Mr. SCOTT. And if the range is right for the 50-year-old having sex with the 12-year-old, that it's appropriate for the 19 and 15-year-old to be in the same range?

    Mr. MERCER. Well, I think there would be specific offense characteristics that would change the sentencing calculation.

    Mr. SCOTT. If you have four people in court, one with 490 grams of powder, one with 4.8 grams of crack, one with 5.01 grams of crack, and one sharing one gram of crack with a friend, but the guy he got it from was dealing 10 pounds, so he's part of a 10-pound conspiracy, who ought to get the most time?

    Mr. MERCER. I have to admit you lost me in the hypothetical. What are the——

    Mr. SCOTT. You get 490 grams of powder; he can get probation. 4.8 grams of crack; he can get probation. 5.01 grams of crack; he's stuck with a 5-year mandatory minimum. And a friend sharing a gram of crack with his buddy, but it's part of a 10-pound conspiracy, is probably locked up for life. Does any of that make sense?

    Mr. MERCER. Well, I think what the Congress has tried to do in this area is make sure that the punishment reflects the fact that we're really concerned about what's happening in the community, and we think that the mandatory minimums in this area have really helped establish and protect the public, so——
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    Mr. SCOTT. That would make sense to you?

    Mr. MERCER. Well, I think the——

    Mr. SCOTT. If the 4.8 grams of crack walks out on probation, and the 5.01 grams of crack gets stuck with a 5-year mandatory minimum, makes sense to you?

    Mr. MERCER. We think the system will allow enough—with those sort of sentencing ranges, we think that we've been able to induce cooperation in many cases, and by doing so, work up the chain and make cases that help protect the public, and so we believe that those sentencing ranges have helped advance the purposes of punishment.

    Mr. SCOTT. All this disparity that you've been complaining about, how much of it is due to the prosecutor having the discretion, as opposed to the judge exercising common sense?

    Mr. MERCER. The Government really does take issue with what Judge Cassell has set forth in terms of substantial assistance. Let's talk about that for a minute. The Commission, and I think the Congress, has recognized that the Government needs to be able to find cooperators, and typically, those are people who were engaged in criminal activity. And by finding cooperators that can help us make cases, we're able to better protect the public and bring people to justice.

    So unlike many of the factors that we talk about in our testimony, substantial assistance is a favored practice. It's something where we're trying to induce cooperation and make cases. Things in 5(h) and 5(k) are typically—those departure factors are typically disfavored or prohibited factors. So substantial assistance is designed to serve a larger goal, and therefore, any disparity that's created there is designed to help protect the public, and we believe that that, in large part, explains why the Commission allows us to make those motions to reduce——
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    Mr. SCOTT. And you haven't asked us for these draconian sentences for white-collar crimes, where you can really go in and get some cooperation. You just say, you know, a little bit of lightweight fraud, you can get 30 years to serve unless you cooperate. You haven't——

    Mr. MERCER. I think, Congressman Scott, that Mr. Felman would say that he thinks that the Economic Crime Package in 2001 has created very substantial sentences in the economic crime area, and that, in fact, we depend very much on the cooperation in corporate fraud cases in order to identify those who were able to put those cases together for us——

    Mr. SCOTT. If I could ask one question, kind of follow in on the same area? On this cooperation, this is based on a Government motion. Apparently some judges have noticed cooperation that the prosecutor hasn't made a motion for. What's wrong with the judge noticing two people equally cooperation, one got a motion and the other one didn't, being sentenced the same, if you had the same amount of cooperation?

    Mr. MERCER. Well, I think both the historical notes in the Commission's work in the guidelines, and the—I don't know about the legislative history, but certainly, the whole concept here was to say the Government's in the best position to note who was cooperating. And to the extent that courts are then making determinations to reduce sentences, even though the Government says that cooperation either didn't exist or didn't constitute substantial assistance to what we were doing in that case or another case, it's going to undercut the Government's ability to get substantial assistance if defendants think the court's likely to cut our sentence even in the event the Government doesn't believe we've rendered cooperative—valuable cooperation.
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    Mr. SCOTT. So it's okay if the judge notices, as a finding of fact, that the cooperation of two individuals was identical, but the Government only made a motion in one of them, that they should get vastly different sentences because in one case you had a motion, the other case you didn't, although as a finding of fact, the judge found that they had cooperated equally, they should get vastly, wildly divergent sentences?

    Mr. MERCER. It might have an effect on the within-range calculation, but the whole point, I think, of the Commission saying in 5(k)1.1 that the determination of the Government was central to the motion is because the Government's in the best position to determine whether its case or another case was advanced through that cooperation. So, yes, we believe it would be very problematic if that were to change. I think the Commission's already addressed that in its proposal.

    And, frankly, the fact that we have somewhere between 280 or 290 instances where sentences were reduced below the lower end of the guideline range when the Government didn't believe cooperation was rendered, is a real serious issue for us, and one we've been worried about from the time that the Booker decision came down. So we're very concerned about that.

    Mr. FEENEY [presiding]. Thank you, and, Congressman Scott, unless there's a mad rush by our colleagues to get here and participate, I think you'll have time for another round. So I want to thank all the witnesses for being here.

    Judge Hinojosa, I wanted to, you know, use—Congressman Scott's entitled to create his own hypothesis, and I won't change it for him. I'll leave it to him. But, number one, isn't—aren't there separate offenses for coercive and—coercive sex versus consensual sex? Aren't they separate offenses under the Federal code?
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    Judge HINOJOSA. I know that we break them by guidelines, and I'm sure they are connected to the Federal code, and we call them criminal sexual abuse, and under 2(a)3.1 that would be rape, and we have criminal sexual abuse of a minor, which is statutory rape, which would be 2(a)3.2. And then we have abusive sexual conduct, which is inappropriate sexual contact, which is 2(a)3.4. And then we go to the sexual exploitation.

    But I believe because of the age, although I am not totally sure, that he has used of 19 and 50, I don't think that there is a separate criminal code section for those because——

    Mr. FEENEY. Well, the——

    Judge HINOJOSA [continuing]. This is somebody who is of majority age with someone who is a minor. Some of the State statutes—and I'm not—will make a variance based on the difference in the age as to how they classify it. I'm not sure that the criminal code——

    Mr. FEENEY. But within the guidelines——

    Judge HINOJOSA. I'd be guessing if I said that.

    Mr. FEENEY. Within the guidelines that the Commission has established, though, there is a great deal of discretion that judges have within the guidelines themselves for most offenses. Is that right?
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    Judge HINOJOSA. Well, that's true. It is also true, Congressman Feeney, that 60 percent of the cases are sentenced within the minimum range.

    Mr. FEENEY. Right.

    Judge HINOJOSA. Within the minimum——

    Mr. FEENEY. One of the red herrings in this argument is it would take——

    Judge HINOJOSA. Within the minimum amount of the guidelines.

    Mr. FEENEY. One of the red——

    Judge HINOJOSA. There is a wide range within the guideline that——

    Mr. FEENEY. Yeah, one of the red herrings in the argument is that we're taking all discretion away from judges in sentencing, and, in fact, that's not what the guidelines do. They allow a great deal of discretion within the guidelines, and in exceptional circumstances, we allow departures. But they were designed to be explicitly in the '84 legislation exceptional circumstances.

    Judge HINOJOSA. And I——
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    Mr. FEENEY. You know, if——

    Judge HINOJOSA. This would be my suspicion as a judge. I think a judge would treat both of those cases differently, whether it's within the guideline range or through a departure upward or downward.

    Mr. FEENEY. Mr. Mercer, one of the things that Mr. Felman said confused me a little bit. Maybe you could clarify. As I understood Mr. Felman's testimony, he said that the Supreme Court has ruled that advisory guidelines are constitutional, but that the guidelines on mandatory—binding guidelines are unconstitutional, I think was the language he used. In fact, seven of the nine Justices in Booker said that the guidelines, by and large, were very much constitutional, even if binding. Isn't that right? We had a bifurcated decision in Booker. We had a couple Justices that said when you add on—after the jury decision on guilt, when you add on time served with the jury participating, that denies right to a trial by jury. But the majority of the Court, a distinct majority, did not declare the binding guidelines unconstitutional. Is that right?

    Mr. MERCER. Well, in the remedial opinion that we are now working under every day, there are two very significant things that happened. One, the Court said that the guidelines as written could no longer function as a mandatory system, and that's Mr. Felman's point in terms of rendering it as an advisory system. The second thing that it did in order to achieve that remedy was to strike the de novo standard of review, which was, arguably, the most significant component of the PROTECT Act of 2003. And so——

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    Mr. FEENEY. But there's not a majority on the Court today that would rule the guidelines themselves unconstitutional.

    Mr. MERCER. Well, I think—in fact, I think the opinions—and this goes back even to what the Court said about Blakely—talked about the salutary effort and effect of having Sentencing Guidelines and the fact that they're a very positive thing in terms of trying to calibrate sentences and advance the purposes of punishment. But that remedial opinion made the system advisory as opposed to mandatory, which we view as a really significant problem and one that needs to be remedied by the Congress.

    Mr. FEENEY. One of the points that Judge Cassell makes is that the average sentencing has gone up, but a couple points about that I'd like you to address. Number one, we have increased minimum mandatories in the past few years for a number of offenses, and that's reflected in the average statistics. Number two, the average doesn't tell us anything about uniformity. In trying to treat Black defendants the same as White defendants, this disparity has been greatly enhanced by Booker, the geographic disparity and some of the other differences, for example. So while the average may have gone up, the uniformity is the problem that Congress was, by and large, trying to get to.

    And then, finally, Judge Cassell says that we've got really too few cases, if you look at just the sexual offenses, to be worried about some mass pattern. But, in fact, it's not just the sexual offense cases, which I have a particular interest in, but the departure on theft and fraud has increased from 7.3 percent to a post-PROTECT standard of 14.2 percent post-Booker. Drug trafficking has gone from departures of 6 percent to almost 13 percent, firearms from about 9 percent to over 15 percent.
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    So, in fact, almost every major set of Federal offenses has seen a significant increase in downward departures since the Booker decision. Do you want to comment on how the average statistic may be accurate but misleading in terms of what Congress was trying to accomplish with these guidelines?

    Mr. MERCER. Yes, I appreciate that, Congressman Feeney, because this is a crucial thing and something that the department's very interested in trying to work with the Committee on talking about case examples. Judge Cassell has taken issue with some of our cases. We're happy to show a number of others because we've taken appeals now in about 122 cases where we think the departures are dramatic and there shouldn't be any way that they could be viewed as reasonable sentences.

    But I share your concern about the trends and the fact that there is very significant disparity, no matter how you measure it. Let's just work some of the numbers.

    The First Circuit, Massachusetts right now, their downward departure rate, non-governmental-sponsored, is 33.6 percent. So one in three cases, you're going to have a below-the-range guideline system, even though the Government has not made a motion. In Maine, it's 5.5 percent. So the chance that someone is going to get a below-the-guideline range sentence in Maine is dramatically lower than it is within that same circuit just up the road in Massachusetts. The same thing with Rhode Island, a State that before Blakely came down had been at 3.3 and 2.1 percent, is now at 22.9 percent. And if we break that into categories—and I think Judge Cassell was trying to focus on a very narrow category. I can't remember if he was talking about the number of sentences in the sexual abuse of minor category, but certainly the child pornography category is a growing category. We had about a thousand convictions in that category in 2005. And if we look at those numbers, the numbers tell a very significant story. Before the PROTECT Act, 25 percent of the cases results in below-guideline-range sentences. After the PROTECT Act, that was down to 16.9. Now it's up to a number that exceeds where it was before the PROTECT Act was passed. It's at 26.3 percent. So more than one in four child pornography possession cases result in sentences that are below the guideline range. And, in fact, 6.6 percent of those defendants aren't going to prison at this point, which I think is very interesting given what the Congress did in 2003.
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    Trafficking in child pornography, obviously a guideline that is much more significant in terms of those purposes of punishment, the rate is way up. It's up—was it 13.7 before the PROTECT Act? Now it's at 19.1 percent of the people are getting sentences below the guideline range based upon this new Commission data.

    So we can go through every category. We can talk about first offenders. We can talk about career offenders. We can talk about the economic crimes. Every trend line is in the wrong direction, and it's going to have a big effect, as I said, when you take a defendant in Maine and a defendant in Massachusetts convicted of the same crime, whether it's fraud or child pornography, the probabilities, given these statistics, would suggest that they're going to be treated differently in terms of whether the sentence is within the range or below the range.

    Mr. FEENEY. Thank you. My time has expired.

    Mr. Delahunt, you are recognized.

    Mr. DELAHUNT. I thank the Chairman, and I happen to come from Massachusetts.

    Mr. MERCER. I know.

    Mr. DELAHUNT. So I have a particular interest in the statistics that you're using here, Mr. Mercer.

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    First let me say that I'm very familiar with the Massachusetts Federal District Court, and I hold each and every one of those justices in high regard. I've had different experiences with each of them during 22 years as a prosecutor. Some of them were former prosecutors. In fact, one of them worked for me. And I guess let me just conclude by saying I really have the utmost confidence in their decisions.

    I've heard a lot of statistics here today, but I don't necessarily accept the fact that the statistics that you cite fairly represent the decisions of these individual justices. And I'd submit to the Chair that what we should do is have a judge or two and maybe the United States Attorney from the Massachusetts district come and let's have a good, hard look at the reality of what's happening in Massachusetts. I think it would be important, and I think it would be very revealing. I'm always proud to point out that Massachusetts is probably one of the safest States in the country in terms of incidence of violence, homicides, et cetera.

    The 25-percent figure that is utilized by Mr. Mercer I would suggest relies on a product of—a methodology that isn't—doesn't really reflect the reality, because when the district court judges reported their data to the Commission, the Commission reviewed the data and interpreted the entries. In most cases, I presume they were doing it without the benefit of sentencing transcripts or decisions, because those forms had not been, my understanding is, electronically attached.

    I thought what's particular interest to me was that the statistics from the Commonwealth of Massachusetts Probation Department are different from the Commission's statistics based on the exact same form, Judge Hinojosa. And, additionally, from a very cursory review of the data, I noted a number of sentences included in the category of judge-initiated that were, in fact, agreed to by the Government.
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    So I have some serious concerns about the validity of the data as it applies to the District of Massachusetts, but I think this raises a very important question because we sit here and accept this data, and I'm sure that the data is not miscalculated intentionally, but I'd like to hear from those that supplied the data, and I'm going to request the Chair if you would consider having representatives of the Massachusetts Federal Court and possibly a representative of the U.S. Attorney's Office come down so that we can really interact together and see whether the data would lead to the same conclusions that Mr. Mercer has. I don't know whether they would come, but I think we should at least extend that invitation, because it could very well be, Mr. Chairman, that as we see in the Commission's number could be reflective of the U.S. Attorney's practices.

    Judge HINOJOSA. Do you have a question of the Commission on that, Congressman?

    Mr. DELAHUNT. No, I don't. No. I'm just up here kind of letting the pain out there a little bit. But we have some time left, Judge Hinojosa. I'd be interested in your response.

    Judge HINOJOSA. I would be glad to say something about it.

    Mr. DELAHUNT. Well, you know, maybe we can do—maybe we can have you back if the Chair honors my request about having—let's make it a case study, because conclusions have been reached relative to Massachusetts that I believe are not valid in terms of the reality of what's going on on the ground. Now, we can have stats going up and down, and bars and graphs, and we can all do it. But I'd really like to hear from those that participate, you know, the judges that are—as Judge Cassell knows, I'm sure, the judges that are here and from the U.S. Attorney to see whether there is this great disparity. Let's get to what the reality is.
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    You know, the Commission claims that the Government sponsors below-range departures nationally at a rate of 24 percent. And yet in Massachusetts it's 12 percent. You know, are the courts, are the judges trying to, you know, make it up a little bit because of the practices of the U.S. Attorney? I don't know, but I'd like to hear before—as Mr. Felman indicated, before we leap off into the abyss, it's incumbent upon us to really take all of these stats, take a good look at them, rip them apart, open them up so that we can educate ourselves.

    And I note my time is out, so I will just turn off my mike, Mr. Chairman.

    Mr. COBLE [presiding]. I thank you.

    Mr. DELAHUNT. But I would really genuinely hope that you would consider my request.

    Mr. COBLE. We'll certainly discuss that, Mr. Delahunt.

    Mr. DELAHUNT. Thank you.

    Mr. COBLE. And, gentlemen, I think this issue is significant enough to warrant a second panel or second line of questioning, and I believe time will permit that to occur.

    I thank the delegate from Massachusetts Mr. Delahunt. Many of my friends in the rural South believe that Massachusetts is a hotbed for danger, so I am going to pass it on to them that it is better than they think it is.
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    Mr. DELAHUNT. Mr. Chairman, I will tell you, if we have a hearing, we ought to come to Boston.

    Mr. COBLE. Let's go to Cape Cod.

    Mr. DELAHUNT. And we will go to Cape Cod, maybe even Nantucket. But I can assure you, I think that Massachusetts—I think Boston, in fact, has the lowest homicide rate of any major urban center in the country right now.

    Mr. COBLE. Cape Cod and Nantucket are sounding increasingly appealing.

    Mr. DELAHUNT. In fact, we could schedule it sometime in June. You could bring your tennis racket.

    Mr. COBLE. I am going to cut his mike off in a minute. [Laughter.]

    Only kidding, of course.

    Mr. Felman, I did not intend to ignore you last time. Let me ask you this: I believe you recommend leaving the reasonableness standard in place, do you not?

    Mr. FELMAN. I do.
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    Mr. COBLE. Are you concerned in any way—and maybe you're not—that the circuit courts have adopted varying definitions or standards for reasonableness?

    Mr. FELMAN. I think they're still working that out. There is not a wide disparity between them, but there is—I mean, this is a new standard of review for this type of review. There have always been reviews for reasonableness in terms of extent of departure, so it's not an unheard of standard of review. But in terms of reviewing sentences for overall reasonableness, they are still working that out. And that takes time.

    The part that bothered me the most about changing it is that what was suggested is that we ought to change it to a de novo standard of appellate review. I got to tell you, you know, that sends the signal to me that what that means is that in sentencing, as a matter of policy, the ability to actually see the human being who is going to be punished, the ability to actually observe that person is of absolutely no value to our system of justice. That is what a de novo standard of review says. It is worthless to be able to look the person in the eye who is going to be sentenced. I find that view abhorrent, and I would urge this Congress not to take that view.

    Mr. COBLE. I thank you for that, sir.

    Judge Hinojosa, you appeared that you were anxious to insert your oars into Mr. Delahunt's waters, and I am going to give you a chance to do that if you wanted to add to what he——

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    Judge HINOJOSA. Well, I will start off by saying that Massachusetts is the only other State I have ever lived in besides the State of Texas, and that was when I was in law school. So I have great respect for the State, loved my time there, and would love to get back there. And I have great respect for the judges of the District Court of Massachusetts, some of whom are my very good friends.

    What I wanted to clarify is that the Booker Report itself indicates that we do caution the reading of some of these statistics because of the fact of the way the information is sent to the Commission. The Congress wisely decided in the Sentencing Reform Act of 1984 that there should be an independent agency that would collect this information in one place and put it together as opposed to have 94 district courts with quite a few divisions having this slotted individually and then there would be no control about this information.

    So our statistics are based on the information that we receive, and the PROTECT Act required that five documents be sent to us. There is a high compliance rate with regards to the sending of the documents. However, with regards to the statement of reasons, especially post-Booker, there was a period of time where different forms were being used and sent to the Commission, and we indicate that in the report. And we caution with regards to some of these statistics about that. We have said that in the report, and we say it publicly when we use these statistics.

    In fact, there have been times where we get more than five different statement of reasons forms, some of which in no way indicate whether the Government agreed to certain things or not. And so, therefore, we base this information on the way it is sent to us, and it is checked and looked at, and we put it out based on that, but we always indicate what the caveats are.
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    We commend and thank the Congress for putting into the PATRIOT Act the requirement that all of the district courts in the United States use the same statement of reason form so that we have uniform reporting, a form that will be adopted and passed by the Judicial Conference and approved by the Commission. And so, therefore, it's important that we receive this information uniformly.

    Sometimes we do get contacted by courts, and they are sending information in different ways, which it's hard to capture. And so, therefore, if anything, what this particular situation points out is the importance of having these documents sent in the same fashion from all of the district courts that we can compare apples and apples and not apples and oranges, and that it is important to have it come to one independent agency within the judiciary that then puts out the information so there can be informed decisions made.

    Mr. COBLE. Thank you, Your Honor. My time is about to expire.

    The Chair recognizes the distinguished gentleman from Virginia, Mr. Scott.

    Mr. SCOTT. Thank you, Mr. Chairman.

    Judge Hinojosa, did I understand your testimony to be that if you saw a 19-year-old having sex with a 15-year-old, that that would—and another case where a 50-year-old was having sex with a 12-year-old, that common sense would require you to treat them differently?

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    Judge HINOJOSA. Well, certainly within the guideline range, I would suspect that I would treat them differently. I've never had such a case. And you say if I saw it. I don't know that I would see it personally, but you mean in the courtroom, I am sure, Congressman Scott. But, yes, I——

    Mr. SCOTT. I mean, are those different—those essentially are different crimes?

    Judge HINOJOSA. As we see in the commission of any type of crime, there are differences with regards to the way individuals—and I will say there is discretion within a guideline system, even the mandatory system, within the ranges and, therefore, also with departures.

    Mr. SCOTT. Judge Cassell, do you see an essential difference between two criminals, one a 19-year-old having consensual sex with a 15-year-old and a 50-year-old having sex with a 12-year-old? I mean, Mr. Mercer didn't notice much difference.

    Judge CASSELL. It would seem, having sentenced sexual abuse cases, those two cases seem to me to be dramatically different.

    Mr. SCOTT. Thank you.

    If you were to notice, Judge Cassell, that an aggressive prosecutor were to overcharge consistently, would you expect downward departures more in that jurisdiction than in a case where a prosecutor did not aggressively overcharge?
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    Judge CASSELL. I would. The system tries to bring warranted uniformity. We've heard a lot about unwarranted disparity, but there are situations where judges need to make adjustments to what other actors are doing in the system. And we have heard from Mr. Mercer that my statistics are unfair. I'm still wondering why folks in Idaho are so much more willing to cooperate than folks are in Utah. I think that there are a lot of people in Utah that would be happy to cooperate with the Government. Maybe they should just bring down some of the prosecutors from Idaho, and we can get a little more uniformity between those two jurisdictions.

    Mr. SCOTT. Thank you.

    Mr. Mercer, of the 69,000 sentences issued last year, could you remind me how many you appealed?

    Mr. MERCER. In the post-Booker period, we have taken appeals in, I think, about 125 Booker——

    Mr. SCOTT. Out of 69,000.

    Mr. MERCER. Yes.

    Mr. SCOTT. And the standard is reasonableness?

    Mr. MERCER. It is.

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    Mr. SCOTT. How many of those 122 out of 69,000 that you selected as unreasonable were found by the appellate court to, in fact, be unreasonable?

    Mr. MERCER. At this point we don't have a large body of case law from the circuits on the reasonableness question. I have not gone back to say—make a determination about how many of those cases have resulted in published opinions, but I guess I'd be surprised if it's more than 15 at this point. I talk about a couple in my full statement. I talk about the Menyweather case, which is a Ninth Circuit case. It involves a fraud of around $400,000 where the defendant only served 40 days—the term of the judgment is 40 days on consecutive weekends in a jail like——

    Mr. SCOTT. Wait a minute. We're talking about trying to fix a system that some people believe in chaos. You looked at—your department looked at 69,000 cases, picked out the most egregious 122 as being unreasonable, and won some and you lost some on those 122. Is that right?

    Mr. MERCER. Well, the point I'm trying to make is we only have a very small percentage of——

    Mr. SCOTT. Well, how many have you won and how many have you lost so far?

    Mr. MERCER. I can't—I can certainly supply that as supplemental information to the Committee, but——

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    Mr. SCOTT. But it's fair to say that you won some and lost some.

    Mr. MERCER. That's correct.

    Mr. SCOTT. And this is out of—122 out of the worst of the 69,000. I would assume that your 122 would be the worst, egregious cases of judicial mistake.

    Mr. MERCER. Well, the cohort starts with the 8,200 cases in the post-Booker period where there were sentences below the guideline range. Obviously, we aren't going to contest sentences within the guideline range, and we don't have any basis to challenge those. We believe that a sentence within the guideline range is presumptively reasonable.

    Mr. SCOTT. Well but——

    Mr. MERCER. The problem here—may I just quickly? The problem here is 8,200 cases, although we certainly are going to, as we are contesting in the district court whether a sentence below the guideline range is reasonable, for us to appeal, say, a thousand of those cases would have a dramatic effect on our ability to process all the other criminal cases that we need to do. Unlike defendants who have a constitutional right to get a lawyer and, if they can't afford it, have the Government pay for that lawyer, the United States Attorney's Offices have to figure out a way to prosecute appeals at the same time as meeting its obligation to prosecute all the other defendants that need to be prosecuted for subsequent crimes. So we are trying, in working with the Solicitor General, to take appeals, but there isn't any way that we can take 8,200 appeals.
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    Mr. SCOTT. That's right, and you picked out the worst 122 and couldn't even win a lot of those. The downward departures are, in fact, part of the process, and some downward departures are, in fact, looking at all the facts and circumstances reasonable. And when you get up with a—when you get on the appellate court with a downward departure and they say, well, that downward departure, taking everything into consideration, was reasonable. I mean, it's part of the process. So just because you have a downward departure does not mean it's unreasonable, and particularly when you look at a 50-year-old and a 12-year-old having sex, having a downward departure for the 19- and 15-year-old, the people on your left and right might think a difference was reasonable. And if you went up to the appellate court, I suspect that the court would find a difference in sentencing those two defendants reasonable.

    And so just because you have a downward departure doesn't mean it's unreasonable, and the fact that out of 69,000 cases, and you only picked out 122, and you couldn't even win those, suggests to me that the system is working pretty well.

    I yield back.

    Mr. COBLE. I thank the gentleman.

    The Chair recognizes the distinguished gentleman from Florida, Mr. Feeney.

    Mr. FEENEY. Well, Mr. Scott can be very persuasive unless you pick apart his major and minor premises.

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    Mr. Mercer, one of the reasons that you've only appealed 122 cases is the reasonableness standard is very deferential, is it not?

    Mr. MERCER. Yes. In fact, the Ninth Circuit has equated the reasonableness review to an abuse-of-discretion review, which is exactly what the Congress tried to eliminate through the PROTECT Act, because it's very difficult for the Government to challenge on an abuse-of-discretion standard departures that result in sentences that we don't believe advance the purposes of punishment. And if I may, I'll just quickly talk about——

    Mr. FEENEY. Well, let me—I think you've made the point. One of the reasons you're not appealing is because appellate judges, when asked to review whether a lower-court judge was reasonable, give a lot of deference. And that's one of the reasons why a lot of appeals may not be fruitful; whereas, had the law Congress passed been followed, which is basically to say what we've all known since 1984, that departures are in some cases reasonable, as Mr. Scott pointed out, but that they should be granted only under, in quotes, ''rare circumstances,'' end of quotes. That's the law. Unfortunately, we've got some circuits that in some instances are giving downward departures 33 percent of the time. They look at Congress's law as a suggestion, and a judge may follow our suggestion or not as he or she pleases. And that's the problem we have with uniformity, which leads to disparities in geography, in—according to race, and according to a number of other—.

    Now, one of the things I was interested in is that Judge Cassell suggested one of the problems we have with lack of uniformity is on the prosecutorial end, and he implies or stated that it would be overcharging by the prosecutor that would account for a lot of the disparity.
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    How does a prosecutor obtain a high conviction rate if he is overcharging for offenses? I mean, if you charge people for things they're not guilty of, I'd be interested in knowing how you get a conviction. It's a neat trick if you can do it, I guess.

    Mr. MERCER. I guess I want to talk about the department's charging policy because we believe we've made very important steps in this Administration in this area.

    Attorney General Ashcroft issued a memo in 2003, known as ''the Ashcroft memo,'' that says, among other things, the Government must charge the most serious, readily provable offense. That's the standard.

    So if we've got a bank larceny charge that somehow would minimize the conduct—let me use an example where we could charge something as a misdemeanor and charge something as a felony. That policy requires that we charge the case that's most serious, readily provable, and if that's the felony charge, then that's the case that we charge. We don't overcharge. We charge the criminal conduct that we believe is most serious and readily provable.

    So that's the standard. We apply that standard across the country. When we're evaluated, we're measured on whether we're, in fact, meeting that standard. So that's been the policy since 2003.

    Mr. FEENEY. Mr. Felman, maybe I'll ask you, because I think we have perhaps some, you know, fundamental differences of philosophy. You know, as old as the rule of law—I mean, Cicero, when he wrote his great his law books, indicated when it came to criminal sentencing, he said, ''Let the punishment suit the offense.'' And I think the implication there is that similar defendants in similar positions ought to be treated similarly. And I think a lot of us believe that's part of what the rule of law means.
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    I believe that article I establishes Congress's exclusive right to determine what a Federal crime is. We define what Federal offenses are. We can add them or subtract them from the law books. And I think inherent in Congress's sole and exclusive plenary power, is, if we want, to micromanage what the sentencing ought to be. If we wanted to establish a fine down to the penny or a prison sentence down to the last second, while it may not be wise—and Congress does a lot of unwise things—I think we've got that implied right under our article I power to define what a Federal offense is. Do you agree with that or not?

    Mr. FELMAN. I do, but I think that it's easy to get overly concerned with making sure that like offenses are treated in a similar manner. And I think that—I think everyone understands that it's also very important to make sure that unlike offenses are treated differently. And I think that's one of the real problems here.

    It's pretty easy to compare statutes and say anybody who violates this statute should be punished, you know, if you commit crime X you should receive sentence Y. That's pretty easy for you guys to do from Washington.

    Mr. FEENEY. Right.

    Mr. FELMAN. What makes it hard for us is that life is just so rich in its detail, and the truth is just stranger than fiction.

    Mr. FEENEY. Well, you and I agree, not all wisdom resides in Congress, so trust me. But whether or not we have the power to do something and whether we're exercising that power wisely are two different questions. I'm glad that you agree with me that we've got the inherent and implied power to micromanage sentencing if we desire, as unwise as that may be.
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    Finally, Justice Breyer in the Booker decision said that the ball's in Congress's court. I mean, he believed that there was some sorting out that had to be done legislatively. If you don't think we need to take any additional action, why is it that you disagree with Justice Breyer in the Booker decision?

    Mr. FELMAN. Well, I don't know that I said I disagreed with his decision. I think when I was referring to Justice Breyer earlier, I was talking about his concurring opinion in the Harris case and the fact that I think there's a very real possibility that he will now be forced to accept the votes of his colleagues that, when it comes to raising a sentencing ceiling—or floor—that that may not be done by judicial fact-finding, that that has to be put to the jury. And that's where I think it's really quite clear in Booker that there were five Justices who agree that if you are going to try to raise a sentencing maximum based on judicial fact-finding, that is unconstitutional. And I just respectfully would disagree with your earlier description of the case. I think that's what the merits majority opinion is about, and there's five Justices who signed it.

    Mr. FEENEY. Well, but remember, Booker was a bifurcated decision, and on the issue of the guidelines themselves—not the enhanced sentencing, the guidelines themselves—seven of the nine Justices indicated they thought the guidelines were constitutional. When they tried to figure out a remedy they could all agree on, they basically said, well, we've got to make them advisory and start from scratch. But seven of nine believed the guidelines are constitutional as of Booker. I've read the decision. I'll have to go back and read it, but it was pretty clear to me.

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    Mr. FELMAN. We'll just have to agree to disagree on that.

    Mr. COBLE. The gentleman's time has expired. If the gentleman—we are going to keep the record open for 7 days so we can continue the dialogue.

    The Chair recognizes the distinguished gentleman from Maryland—from Massachusetts. I stand corrected.

    Mr. DELAHUNT. It begins with an M, Mr. Chairman.

    You know, I heard my friend from Florida quote—I think it was Cicero, updated by Feeney. [Laughter.]

    About let punishment, you know, fit the crime. And, clearly, I believe that, you know, there has to be a sense of fairness in terms of the application of a sanction under our criminal justice system. But I would put forth that that's only one component in the equation of what our criminal justice system is about, because fundamentally the criminal justice system is our effort to secure public safety and public order.

    You know, I would just refer to the hypothetical that was mentioned by Bobby Scott about the victim in a rape case being 14 and her boyfriend being 16 and the stranger, the sexual predator being 42 with a vicious rape. I mean, you know, to say that the punishment should be the same in both of those cases just simply, I would suggest, doesn't make any sense, because a downward departure, you know, for that 16 or 17-year-old might be predicated on the fact that we don't want to introduce that particular defendant to a situation where he will become a real dangerous threat to society at 20 or 21 or 25. I mean, so it is, it's very much a system that needs to have the ability to look in a comprehensive way as to a particular case.
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    But having said all that, you know, we're talking about variances in terms of sentences. What I think is interesting as well is the variance in substantial assistance motions offered by the Government among circuits. There's a 4 percent in one circuit and a 36 percent in another circuit. That tells me—and I think it was Judge Cassell that alluded to this—to try to lay this all on the courts, the judges, the judiciary, I don't think really is fair, because the prosecutor here plays a significant role. You know, in New York, you know, maybe there's an extraordinary reliance on the use of informants, and we're talking statistics. But for those that have been prosecutors, in the—you know, again, in the real world, so to speak, you're sitting down with, you know, an unsavory character with an extensive criminal background, and you're trying to secure cooperation, you know, maybe that's a practice that exists in one district that doesn't exist in another district, the reliance on informants.

    That's why, when I made the request to take a look at Massachusetts, I think it's important to implicate the Department of Justice in this process, not just simply rely on the data supplied by the Sentencing Commission. And I understand and I do appreciate the explanation by Judge Hinojosa, and it does make sense. I think we're working our way through this.

    But while there might be a charging philosophy, is there a philosophy or a policy in the Department of Justice that is consistent in terms of substantial assistance motions being filed? Because, clearly, there is a significant departure, 4 percent and 36 percent.

    Now, maybe there is, but it comes out in a way statistically that when you examine it, you're taken aback. I'm sure there's a good explanation, but I'm just putting for an opinion. I'd be interested to hear from Judge Cassell and Mr. Mercer about how complex this is, and it just isn't simply a black-and-white and dry formula. There's much more to it.
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    Mr. COBLE. The gentleman's time has expired, but you gentlemen may respond.

    Judge CASSELL. Well, the Sentencing Commission investigated this, Congressman Delahunt, and they found no rhyme or reason to the geographical disparities in what the Justice Department was doing. They said, well, let's try to control for this. Is this the more serious cases or drug cases? They put in controls for all of that, and they ran a multiple regression equation, and they couldn't come up with any explanation.

    They also found that there were racial differences in the way that cases were being handled, and this is what disturbs me. This information was given to the Justice Department 8 years ago, that their practices were having racial disparities, and they have done nothing to fix it. And yet Monday afternoon, the Sentencing Commission for the first time says, well, we've run into some data here that may be suggesting a problem, and the Justice Department runs over and says something needs to be done right away.

    Why haven't they in 8 years gotten their house in order and eliminated these kinds of dramatic disparities from district to district that are done in secret, without any opportunity for appellate review, without any kind of a transcript or other record? That's the question that we have in the judiciary.

    Mr. MERCER. Well, I guess—I think I want to discuss the process that is set forth in the department policy because I think it might be useful, and——
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    Mr. COBLE. Mr. Mercer, as quickly as you can, because there's going to be a vote imminent.

    Mr. MERCER. Okay. Disparity, given what we have said as part of this testimony, is a significant issue for us, whether we're talking about a non-substantial assistance departure, as is the focus of this testimony, or whether we're talking about any disparity that is introduced through substantial assistance.

    It's important, I think, that the Committee know that when the Government makes a substantial assistance motion, it can't grant that motion on its own. It's got to be granted by the court. The court then makes a determination——

    Mr. DELAHUNT. Let's really be honest here. When the Government comes before a Federal district court judge and puts forth a request for substantial assistance and a downward, I would think in most cases that it's almost an automatic departure. So I don't think, with all due respect, Mr. Mercer, you can lay that one on the courts. That's the responsibility of the Department of Justice.

    Mr. MERCER. I am just laying out the way this process works, because——

    Mr. DELAHUNT. I'm familiar with how the process works.

    Mr. MERCER. And it is certainly a concern to us that, to the extent that that motion results in a departure of, say, 60 percent or 70 percent or 80 percent, there are going to be very significant disparities introduced into the system, but in terms of the way those motions are processed, typically offices have committees where they're making determinations not just on the line but in terms of whether, in fact, the defendant has rendered substantial assistance. And I think some of the differences in the averages in, say, Utah versus Idaho, I'm going to go back and take a look at that. I think it may have a lot to do with things like in Utah there's a substantial number of firearms prosecutions. In firearms prosecutions around the country, you're going to see a lot fewer substantial assistance motions than you are in drug cases, typically based upon the type of conduct we see. So there——
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    Mr. DELAHUNT. Okay. And I do respect your response. But the point is, if we're looking at this simply in a statistical fashion, as you would have this Committee do in terms of the judiciary, there is in all likelihood a rational explanation. And that's why, Mr. Chairman, I think it's important, let's take the Massachusetts case—okay?—and those statistics and have a full hearing so that we can explore the reasoning and the realities behind the stats. Fair enough, Mr. Mercer?

    Mr. MERCER. I think—we're interested in analyzing these statistics in general because disparity is something that this system is designed to——

    Mr. DELAHUNT. Whether it's the responsibility of the Government or whether it's the responsibility of the court.

    Mr. MERCER. Unwarranted disparity is a problem, and I said earlier——

    Mr. DELAHUNT. I don't think anybody—anybody—on this panel or on the panel that you're sitting on—would countenance unwarranted disparities, but the real question is: Is the disparity rational and reasonable and does it enhance public safety in the long term in a holistic, comprehensive way?

    Mr. MERCER. And as I noted when this question came up within Congressman Scott asked it, the distinction between a substantial assistance motion under 5(k)1.1 and the vast majority of the provisions in 5(h) or 5(k) of the Sentencing Guidelines are that most of those provisions in 5(h) and 5(k) were deemed to be factors that were only going to be used in exceptional cases or extraordinary circumstances. They're disfavored factors—things like age, things like whether the person has made great community service over a number of years. Those are all factors that are disfavored and only to be applied in exceptional cases.
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    Substantial assistance, the Commission has designed a system in which we have the authority to try to induce that cooperation in order to make other cases, and so they're on a different playing field, and that's got to weigh into the question of whether the disparity is warranted or unwarranted.

    Mr. COBLE. I thank the gentleman.

    We've been joined by the distinguished lady from Texas, Ms. Jackson Lee, but Mr. Scott wanted to make a comment initially.

    Mr. SCOTT. Thank you, Mr. Chairman.

    Mr. Chairman, the gentleman from Florida isn't with us, but he suggested that departures ought to be rare. My view is I don't know how often they ought to be, but you ought to have a departure when it makes common sense. That might be rare; that might be often. But whenever it makes common sense, you ought to have a departure. And there's nothing in these statistics we've seen so far that shows that anything unreasonable is going on. The department has picked out 122 of the most—apparently most egregious cases, and many of those have found—notwithstanding the fact that there are only 122 out of 69,000 have been found still to be reasonable.

    Furthermore, if you look—if you're going to have any consistency in charging—in sentencing, you've got to have consistency in charging, and when the department has articulated today that they have a new way of charging, they're going to charge the highest provable case, not the one that will produce the most rational outcome, but the highest sentence for the same action, you would expect more downward departures, down to things that make common sense.
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    So, Mr. Chairman, as I indicated, I don't—the suggestion that we're in chaos I think has just been not—hasn't been found.

    Mr. COBLE. I thank the gentleman.

    Gentlemen, I realize you all have been with us since 10:30 this morning, but I feel obliged to recognize Ms. Jackson Lee. And, Ms. Jackson Lee, if you could keep it fairly terse, I know these folks would appreciate it. But we're delighted to have you with us.

    Ms. JACKSON LEE. I will be a little bit colorful, Mr. Chairman. Let me thank you very much for giving me the opportunity. I want the gentlemen to know that the importance of this hearing is such that even with a hobbled foot and in another hearing two buildings away, I hobbled as fast as I could in order to be able to query you. So let me thank you for your patience, but my hobbled foot is hurting trying to get over here to be able to question you because this is for me an extremely important issue. And it's particularly important because I live in a State that, although this is a Federal jurisdictional question—and I will lead toward my question. I live in Texas, and so I bear the brunt of extreme decisions, sentencing decisions statewide, under the State system. And, of course, as you well know, we have a parole system, probation system under the State system.

    I also live in a State where, many of you may know, the infamous Tulia case—Tulia case in the State of Texas, and I pronounce it differently each time. But in any event, that dealt with the incarceration, innocent incarceration of individuals who were the victims of a conspiracy by, unfortunately a law enforcement officer, who then blanketed and painted the entire town with charges of drug violations and ultimately these individuals were incarcerated. This case is well proven. This is not hearsay because ultimately the rogue officer was found out under oath and indicated that he made up these stories.
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    These are the extremes, but they're very real. They break people's lives. And so let me just probe where we are.

    I was going to say—beyond my hobbled foot, I was going to use the terminology ''Halleluia for Booker,'' because I think it gives us a moment of pause. And, Mr. Hinojosa, I want to—as you have taken the lead of this Sentencing Commission that I've worked with since coming to Congress almost about a decade ago—and I respect what you do. And, in fact, you were some of our strongest allies so many years ago to raise the question of giving more flexibility or giving the Sentencing Commission back its job.

    So let me just try to ask a pointed question, and if you can not take my role and be expansive, you be concise, is the idea of the Sentencing Commission, do you feel, broken with Booker? Are you able to go along with business? And do you feel that it's given you some parameters in which to operate on to be as fair as you possibly can be under the very heavy responsibility that you have?

    Judge HINOJOSA. Well, actually, being your fellow Texan, I'm glad that you did manage to hobble here.

    Ms. JACKSON LEE. For you.

    Judge HINOJOSA. Thank you very much.

    The Commission has been extremely busy post-Booker and has continued to act in the fashion that it has always acted, whether it's in promulgating amendments or responding to congressional directives or responding to emergency amendment requests. And certainly with regards to data collection, we have turned it into real time so that we can put out the information as quickly as possible so that informed decisions can be made. So from that standpoint, I think the Booker decision itself predicted that the Commission would continue to exist and continue to operate in the same legislative statutory fashion that it had before. And so, therefore, we have.
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    We have been in a situation where we have to develop more resources with regards to the post-Booker period and trying to determine how to proceed, both from training as well as data collection as well as there was a period of time where we were affected because post-Blakeley and pre-Booker it was an uncertain period and we were unable to proceed with too much amendment with regards to guidelines that needed to be looked at, including the immigration guidelines, which you would be familiar with.

    Ms. JACKSON LEE. Very much so.

    Judge HINOJOSA. Coming from the State of Texas.

    Ms. JACKSON LEE. Let me—time is of the essence. Let me just raise these questions, Mr. Hinojosa, Mr. Mercer, and then both Mr. Cassell and Mr. Felman—Mr. Cassell—Judge Cassell, in fact, you are in the midst of, obviously, rendering sentencing.

    Mr. Mercer, you said there is a problem in that we have actually determined that sentencing has gone up. Since I happen to be the author of the good time early release bill on the Federal system because I believe we have languishing in the Nation's prisons individuals, nonviolent, over 45 years old, and wasting more time than not, that came about—came about through mandatory sentencing and no parole.

    My question to you is: What is the problem when we found that sentencing has actually gone up? Judge Cassell—let me just finish. Judge Cassell, we want the courts to have jurisdiction. Sometimes—not jurisdiction. Discretion. Sometimes I'm completely in dismay at the decision that may be made, because I've been character witnesses, my community comes to me, I'm arguing for leniency, and, of course, the mandatory comes in. How has Booker impacted you? And if you said it earlier, I apologize. I missed it. And, Mr. Felman, who deals with this on a daily basis, your thoughts on how we can make Booker the guidepost for bringing some rationale to this idea of mandatory sentencing, which really is not a key component of rehabilitation which I think we'd like to do with, particularly, nonviolent crime and make it work as opposed to now suggesting that we need to pull back either legislatively and otherwise.
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    Mr. Mercer, why is it a problem?

    Mr. MERCER. It's a problem, Congresswoman, because, first and foremost, we have seen a real significant increase in disparity among similarly situated offenders, and——

    Ms. JACKSON LEE. That's discretion. That's the court's discretion.

    Mr. MERCER. Well——

    Ms. JACKSON LEE. That's looking at the facts. That's looking at the individual situation. That's what we have Federal judges for, well trained in the law. Yes, Mr. Mercer?

    Mr. MERCER. And the guidelines, as they were promulgated back in the late eighties, and as they've been applied, and certainly applied in the post-PROTECT Act era, the notion of fairness is to say if a person has committed a crime in jurisdiction A and another person has committed the same crime in jurisdiction B—let's use as an example a fraud case of $250,000. Neither of them have any criminal history whatsoever, and so maybe the guideline range is 12 to 18 or 15 to 21 months, and there isn't anything remarkable about them other than maybe they both have been very active members in their communities. If judge A says, you know, this person really should deserve less of a sentence, first-time offender, really done a lot of great things in the community, straight probation, and if judge B says, you know, I really worry about fraud crimes because I think it really is corrosive when——
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    Ms. JACKSON LEE. If judge B says, what, you don't—you don't deserve probation and you get a sentence?

    Mr. MERCER. Judge B says I'm putting you at the top end of the guideline range, 21 months, 15 months, you've got completely comparable conduct, completely comparable criminal histories, and you've got very different outcomes, and this——

    Ms. JACKSON LEE. Well, Mr. Mercer, I like your merciful approach. You're being merciful. You're concerned about the fact that the gentleman and lady getting the higher end. Let me ask Judge Cassell, what about that? What about the individual given probation and the other judge giving 21 months? How can we fix that? That's what seems to be Mr. Mercer's problem. He wants fairness. He wants to make sure they both get probation. How do we work on that issue? [Laughter.]

    Judge CASSELL. Well, judges agree with those principles. We certainly want fairness in sentencing. But let's look at what's happened since Booker. We heard just a second ago from Mr. Mercer there's been a, quote, real significant increase in departures. What the data shows is that 93 percent of the cases are being resolved the same way today as they were before Booker. So we're talking about 7 percent of the cases around the country. What happens in those 7 percent of the cases? Men and women who work very hard on the Federal bench to reach fair decisions in these cases have found some unusual factor that is not accounted for in the guidelines or the departure provisions that they believe requires some modest adjustment in the sentence. And I say ''modest''—again, let's talk statistics.

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    The average adjustment is 12 months in prison, an adjustment down to reflect the circumstances of the case, and I should mention that there are some Federal judges that have gone up a little bit more because they've found cases that are more aggravated.

    I would suggest that what that is causing is not unwarranted disparity, but it's eliminating unwarranted uniformity. Under the old rule, we had situations where two cases, even though they were dramatically different, sometimes had to be sentenced in the same way, and the new, more discretionary system has given judges the opportunity to be judges and to render justice in those cases.

    Ms. JACKSON LEE. Mr. Felman? Thank you very much, Judge. Thank you, Mr. Chairman and Ranking Member.

    Mr. FELMAN. No doubt Booker from my perspective is an improvement to the prior guidelines system. I think there was a consistent, widespread consensus that the previous guideline system was simply too rigid. I am honored to be a part of a bipartisan group that the Constitution Project has put together. It's chaired by former Attorney General Ed Meese and former Deputy Attorney General Philip Heymann. It includes Judge Cassell. Until his appointment to the United States Supreme Court, it included Samuel Alito.

    We reached consensus on the point that the guidelines and their binding fashion were simply too rigid. Booker represents a dramatic improvement although albeit a somewhat modest one in light of the fairly modest changes in departures.

    There are still improvements that could be made, and I have four to recommend——
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    Ms. JACKSON LEE. And we can do this legislatively, are you suggesting?

    Mr. FELMAN. Yes.

    Ms. JACKSON LEE. If you can give them quickly, I'd appreciate it.

    Mr. FELMAN. Number one, fix the crack:powder ratio. It's wrong.

    Number two——

    Judge CASSELL. We agree with that, by the way.

    Ms. JACKSON LEE. And I agree with that, absolutely.

    Mr. FELMAN. Number two, there needs to be a look at the relevant conduct issue where people are sentenced for behavior they were not charged or convicted for and, indeed, might even have been acquitted for.

    Number three, there is a need for procedural reform in the system. Not many people understand this, but the Federal Rules of Criminal Procedure have never been revised to take into account the ways in which sentencing procedures happen. Pre-sentence investigation reports drive the facts at sentencing hearings. They are conducted by each of the parties submitting ex parte submissions to the court. I am not entitled to receive the factual information the Government presents to the court and upon which pre-sentence investigation reports are written. That's wrong and it could be fixed.
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    Number four, we believe that the Sentencing Commission could benefit from the addition of an ex officio member that represents the interests of the defense bar. Presently, the Department of Justice has two ex officios: one of them the chairman of the Parole Commission—Parole has been abolished for more than 20 years. They don't need that spot anymore, and the interests of the defense bar should be represented as an ex officio member of the Sentencing Commission.

    Thank you.

    Ms. JACKSON LEE. Thank you very much to the witnesses.

    Mr. Chairman, Mr. Ranking Member, let me thank you very much. I think our work is before us, and I think we need to act. I yield back.

    Mr. COBLE. I say to the distinguished lady from Texas, you've been plagued by a hobbled foot, Ms. Jackson Lee. I've been plagued by a hobbled back, so after the March work period, I hope you and I come back sound of body.

    Gentlemen, I thank you all for your—Bobby, anything else?

    Mr. SCOTT. Mr. Chairman, I'd like unanimous consent to enter in the record a statement from Carol Striker, Professor at Harvard, in reference to the importance of having judges on the Sentencing Commission.

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    Mr. COBLE. Without objection, it will be received.

    [The prepared statement of Ms. Steiker follows:]

    Mr. COBLE. And, furthermore, without objection, all Members' opening statements will be made a part of the record.

    [The prepared statement of Ms. Jackson Lee follows in the Appendix]

    Mr. COBLE. I thank the witnesses for your durability—I know you all have been here a long time—and for your testimony. We very much appreciate your contribution.

    In order to ensure a full record and adequate consideration of this important issue—and it is indeed an important issue—the record will remain open for additional submissions for 7 days. Also, any written questions that a Member wants to submit should be submitted within that same 7-day period.

    This concludes the oversight hearing on ''United States v. Booker: One Year Later—Chaos or Status Quo?'' Thank you again. This Subcommittee stands adjourned.

    [Whereupon, at 2:06 p.m., the Subcommittee was adjourned.]

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Material Submitted for the Hearing Record


    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 impact the Supreme Court's decision in United States v. Booker has had on the federal sentencing system.

    I want to commend the United States Sentencing Commission for its very thorough and comprehensive ''Report on the Impact of United States v. Booker on Federal Sentencing.'' This report is detailed and thorough, and raises many significant issues.

    There is no question that the Booker decision has had a dramatic impact on Federal sentencing. Unfortunately, the Supreme Court's decision to strike down the mandatory guidelines and replace them with an advisory system has jeopardized the fundamental principles underlying the Sentencing Reform Act of 1984. It is important to remember that the Sentencing Reform Act of 1984 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.''

    The Sentencing Commission Report documents in considerable detail how federal judges have responded to the Booker decision. The data speaks for itself and it speaks loud and clear.
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    Most significantly, the data demonstrates that the judiciary has undone, or circumvented, the basic sentencing reform measures passed overwhelmingly by the House and the Senate as part of the PROTECT Act of 2003. Those reforms were critical and the data shows that they were working—the incidents of judicial downward departures declined. Unfortunately, the data shows that once freed from the mandatory guideline system, judges have now returned to sentencing practices, and handed out unwarranted and unjustified downward departures for sex offenders, child pornographers, pedophiles, drug traffickers and career criminal offenders.

    While it is true that there has been no decline in average sentences, that fact is simply misleading. First, it does not account for the fact that Congress has passed legislation to increase sentences in several areas; and it does not account for the fact that the Sentencing Commission has raised guideline ranges in many crime categories. Significantly, that fact does not explain why there has been a dramatic increase in downward departures for sex offenders who prey on our children, child pornographers, and drug traffickers.

    The Sentencing Commission's Report shows that in the last year there has been a six hundred percent increase in below guideline sentences for defendants convicted of sexual abuse of a minor, a four hundred and fifty percent increase in below guidelines sentences for sexual exploitation of a minor, and a fifty percent increase in below guidelines sentences for defendants convicted of sexual contact of a minor, trafficking in child pornography and possession of child pornography.

    The Commission's report also reveals increases in below guidelines sentences for drug traffickers and repeat offenders, and that district judges have increasingly awarded substantial assistance departures for cooperation without the filing of a government motion. The Subcommittee intends to study these issues carefully and to examine legislative solutions to the problems identified in the Sentencing Commission's Report. In order to return to the basic principles of the Sentencing reform Act of 1984, Congress must address the issue.
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    We look forward to hearing from our distinguished panel of witnesses. I am particularly interested in hearing your proposed solutions to the issues I have outlined today. The Committee will continue to monitor these issues in the coming months. I now yield to the ranking Member of this Subcommittee, the gentleman from Virginia, Mr. Bobby Scott.



    Mr. Chairman. I am pleased to join you for this hearing on federal sentencing since the Booker/Fanfan Supreme Court decision. The title of the hearing is ''U.S. v. Booker: One Year Later—Chaos or Status Quo?'' When we look at the question posed by the title, it is clear from the recent Sentencing Commission report on sentencing during this period that the answer to the question is ''status quo''. There is nothing to suggest chaos. Given the fact that the Booker decision eliminated the mandatory application of the guidelines and required the courts to consider a broad array of factors, including the guidelines, it is amazing that there is not a much more pronounced difference in sentencing when compared to pre-Booker sentencing. Indeed, expecting sentencing to be the same despite the changes required by Booker would suggest that judges were expected to ignore the decision and go on applying the guidelines as if they were still mandated. Yet, with over 69,000 cases in 94 districts, during a time of implementing a new sentencing regimen, judges sentenced within the guidelines range in over 85% of the sentences that did not involve a government motion.
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    With any data base this large, you can find whatever you are looking for. So, those looking for anecdotal evidence that there are more unjustified downward departures can point to the fact that the percentage of prosecutor and judge initiated downward departures were slightly up during this post Booker period. And they can look until they find a category of cases that happens to show a greater rate of downward departures and say that is the evidence they were looking for. But to conclude that such departures are unjustified or unacceptable, one would have to ignore or minimize the fact that average sentences increased during the period and that upward departures doubled. Also, such a conclusion would have to ignore the fact that there were less than 200 appeals among the 69,000 sentences, a fraction of a percent.

    Whether it is post-Booker or pre-Booker, you can't look at sentences based on the name of the crime and expect to come up with an intelligent analysis of the sentences. A sentence usually involves the input and impact of a federal prosecutor, a probation officer, defense attorney, possibly a victim and a judge. Their impact is marginalized or nullified when the data is analyzed simply on the basis of the name of the crime, as some have done since the Commission's report.

    While it is good that we have given ourselves at least a year before we began to evaluate the impact of Booker/Fanfan on sentencing, given the continuing impact that practice, experience, feedback, and appeals are having on focusing sentencing decisions, it would still be premature to take any legislative action based on this first year of data. The impact of appeals should, especially be awaited. There have been several circuit court appeals decided, but we have not had another Supreme Court decision on the post Booker context. There is a case in which the Supreme Court has accepted cert, Cunningham v. U.S, which is due to be decided during the next term and would address some of the post Booker issues, including the constitutionality of certain approaches. So, any legislative action prior that decision would clearly be premature.
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    Moreover, when we look at the data regarding the circuit appeals what we see is a that the circuits are more prone to affirm within guideline and above guideline sentences than they are below guideline sentences. Of the appeal decision issued for cases since Booker, all but one sentence within the guidelines have been confirmed. And, of 21 appeals of downward departures, 15 have been reversed and only 6 affirmed. At the same time, 14 appeals of above guideline sentences have been affirmed while only 2 have been reversed. And the circuits all agree that even after Booker they still lack jurisdiction to review a court's denial of a motion for downward departure.

    So, Mr. Chairman, I believe the sentencing data clearly reflects that there is no chaos in the federal sentencing that we need to fix at this time as a result of Booker/Fanfan. However, there are some things that existed before Booker that adversely affect sentencing, in my view, and need to be addressed. Among them are mandatory minimum sentencing, the 100-to-1 sentencing disparity between crack and powder cocaine and the astounding disparity in substantial assistance treatment given offenders in the different circuits. We will hear more about the details of these problems from our witnesses.

    So, Mr. Chirman, I look forward to the testimony of our experts on the issue of sentencing and look forward to working with you to properly address the problems and advice they bring to our attention. Thank you.


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    Good Morning. I'd like to start out by welcoming everyone to the Subcommittee hearing on this vitally important issue. We are here today to discuss the effects that the Supreme Court's decision in United States v. Booker has had on the sentencing of federal criminal defendants. Approximately one year ago, the Supreme Court's decision in Booker declared that the Sentencing Guidelines promulgated by the United States Sentencing Commission were no longer mandatory requirements, but rather advisory in nature.

    Though this decision created immediate concerns over equity and fairness in sentencing, Members of Congress agreed to wait until they had more information available to thoroughly evaluate the consequences of Booker. Chairman Coble himself was advised by the late Chief Justice Rehnquist to hold Congressional action until enough time had passed to gauge the effects of the ruling. Now that a year has gone by, the Sentencing Commission has released a report just this week detailing how Booker has influenced the federal sentencing system.

    Before I address the contents of the Sentencing Commission's report, I would like to praise the Commission for its hard work in this bipartisan effort to compile data and analysis on the issue. The Commission's report is very detailed and thorough, and it shows that the Booker decision has had a dramatic impact on the way that judges sentence defendants. What troubles me the most is that the Commission's report indicates that protections for America's children are being undone by judicial discretion.

    On April 30, 2003, I was proud to stand with President Bush in the Rose Garden as he signed into law the PROTECT Act to help defend our children from sexual predators while strengthening law enforcement's ability to keep these criminals off the street. A key component of this bill was the Feeney Amendment which I authored, to ensure that those who commit sexual crimes against our nation's children will receive the full punishment of the law. The Commission's report reveals that that some judges are working to undermine this tough legislation.
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    According to the report, in the last year there has been a six-fold increase in below guideline range sentences for defendants convicted of sexual abuse of a minor, a five-fold increase in below guideline range sentences for defendants convicted of sexual exploitation of a child, and a fifty percent increase in below guideline range sentences for defendants convicted of sexual contact of a minor, trafficking in child pornography, and possession of child pornography. The sexual exploitation of children is one of the most vicious crimes conceivable, a violation of mankind's most basic duty to protect the innocent. We can not tolerate the deliberate evasion of public laws by those in our courtrooms, and American families and our children deserve protection from predators and abusers.

    After Booker, judges are no longer held accountable for ensuring that defendants convicted of heinous crimes receive the punishments they deserve. Last year in Vermont, a judge initially sentenced a defendant who had admitted to sexually abusing a young girl over a four year period to only sixty days in prison. In the middle district of Florida, a judge gave a 52% reduction from the guideline sentence to a defendant who had distributed child pornography, fled when released on bond, and had an armed standoff with police.

    The creation of the Sentencing Commission and the Sentencing Guidelines was accomplished to prevent the exercise of unreviewable, arbitrary power in the hands of judges. When the Supreme Court's decision in Booker granted this kind of authority to judges, the results speak for themselves. Sentences after Booker have exhibited a marked tendency to increase downward departures from the Guidelines. In addition to the erosion of protection for child victims of sexual abuse, the Commission's report shows that there was an increase in below range sentences for drug offenses, including those for powder cocaine, crack cocaine, heroin, marijuana, and methamphetamine. This failure to shield our children from predators and from drug offenders is a breakdown in the system that we must find intolerable and unacceptable.
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    The findings of the Sentencing Commission indicate that Booker has endangered the principles of predictability, uniformity, and toughness in federal sentencing. In the coming months, the Subcommittee plans to study this issue in depth, and we will consider legislative solutions to the problems exposed by the Commission's report. I look forward to hearing from our distinguished panel today.



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    March 14, 2006

    The Honorable Howard Coble


    Committee on the Judiciary

    Subcommittee on Crime, Terrorism and Homeland Security

    US House of Representatives

    Washington, D.C. 20515

    Dear Chairman and Subcommittee Members:

    I submit the attached statement in the hope that it will be of use in your consideration of appropriate responses to the Supreme Court's recent decisions regarding the constitutional status of the Federal Sentencing Guidelines. My statement deals with a discrete but extremely important feature of the current federal sentencing scheme: the composition of the Federal Sentencing Commission. Congress' decision three years ago to amend the Sentencing Reform Act by stripping the judiciary of mandatory representation on the Sentencing Commission is extremely problematic, both for prudential and constitutional reasons. I urge you to reconsider this aspect of the Feeney Amendment for the reasons that follow in my statement.
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    My interest and expertise in this matter stems from a twenty-year legal career focused almost exclusively on issues of criminal justice: fourteen years as a scholar of the American criminal justice system on the faculty of Harvard Law School, four years as a staff attorney representing indigent defendants in the District of Columbia courts, and two years as a judicial law clerk on the Federal Court of Appeals for the District of Columbia Circuit and the United States Supreme Court. I include a copy of my curriculum vitae with my statement.

    If there is any further information or assistance that I can provide, I can be contacted by telephone at (617) 496-5457 or by e-mail at steiker@law.harvard.edu.

    Respectfully submitted,

    Carol Steiker
    Professor of Law



I. Requiring Judicial Involvement on the Commission Serves Important Goals
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    Title IV of the Prosecutorial Remedies and Other Tools to End the Exploitation of Children (''PROTECT'') Act, (the ''Feeney Amendment,'') altered federal sentencing law by changing the composition of United States Sentencing Commission.(see footnote 1) The Feeney Amendment eliminated the prior mandatory involvement of at minimum three federal judges on the Commission; on the contrary, the Feeney Amendment required that not more than three members be judges.(see footnote 2) In implementing such a drastic change, Congress provided no notice, opportunity for discussion, or solicitation of contrary views.(see footnote 3) In doing so, it overlooked the important benefits of requiring judicial membership on the Commission and instituted a Commission that violates the separation of powers.

A. Judges are uniquely qualified to serve on the Sentencing Commission

    The United States Sentencing Commission has two purposes: to ''establish sentencing policies and practices for the Federal criminal system,''(see footnote 4) and to ''develop means of measuring the degree to which the sentencing, penal, and correctional practices are effective in meeting the purposes of sentencing. . . .''(see footnote 5) In order to accomplish these goals, it is vital that the Federal Sentencing Commission have first-hand knowledge of variations in offenders and offenses, the way in which sentences are applied, and the considerations that go into sentence determination. Judges - more than any other group - understand the particulars involved in sentencing. They learn the details of each crime and each defendant; they hear arguments from both the prosecution and the defense; they receive input from parole officers and family members - both of defendants and victims; they see and respond to changes over time in crime commission and enforcement. Judges have the everyday, ground level, case-by-case view of sentences in action. In fact, this first-hand knowledge of the law's interaction with real parties and facts is why Congress placed the Federal Sentencing Commission in the Judicial Branch of the government.(see footnote 6) In upholding the constitutionality of the original Sentencing Reform Act in Mistretta v. United States, the Court stressed that ''judicial participation on the Commission ensures that judicial experience and expertise will inform the promulgation of rules for the exercise of the Judicial Branch's own business - that of passing sentence on every criminal defendant.''(see footnote 7) It would defy the Court's understanding of the nature of the Commission and defeat the Commission's very purpose to take away the expertise that Congress initially built into its structure.
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    Unlike prosecutors, defense attorneys, or legislators, judges are also uniquely positioned to provide a long-term view of sentencing. An appointment to the federal judiciary is for life, and a judge may spend years on the bench before sitting on the Commission. Prosecutors and defense attorneys rarely spend as much time in their respective capacities. This is true of the current Commission membership.(see footnote 8)

    Judges are also less susceptible to political pressure and sudden shifts in popular opinion than are prosecutors.(see footnote 9) A sudden rise in crime will not prompt a Commissioner-judge to take extreme but perhaps unwise measures in order to satisfy immediate demands for harsher punishment. Additionally, unlike prosecutors or defense attorneys, judges do not spend their careers either trying to convict defendants or trying to acquit them. Rather, they are able to focus on the criminal justice system as a whole: with the benefit of all relevant arguments, they are more likely to be able to take a balanced view.(see footnote 10) Of course, prosecutors and defense attorneys have experience in the criminal justice system too, but the nature of the adversary system demands that they advocate zealously for their perspective, making it difficult for them to be as open to competing values.

    Moreover, judges will tend to be highly qualified even without significant experience on the bench. That they have passed the uniquely rigorous selection process applied to federal judges indicates a Congressional belief in their qualifications to determine and apply the law, including appropriate sentences.

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    Finally, the guidelines promulgated by the Commission are not applied by prosecutors, defense attorneys, or legislators; they are applied by judges. Judges thus have the most clear-eyed view of how adversaries on both sides might seek to exploit ''loopholes'' in the guidelines. They also have a unique perspective on how judges will respond to guidelines once promulgated. Judges can most effectively advise the Commission on how to make their policy goals apply in practice. That other judges will consider guidelines promulgated with substantial judicial input more credible further proves the value of having more, not fewer, judges.

B. Requiring judicial membership on the Commission insulates judicial members from Executive Branch pressure

    Even though the Commission can benefit from judicial members' expertise whether or not their participation is required, a guarantee that some members of the Commission will be from the judiciary helps ensure that judicial members will be insulated from Executive Branch pressure in their decision-making. Judicial members on the Commission serve under the awareness that the President is under no obligation to replace them with other judicial members. They also know that the Attorney General or his representative, as an ex officio member of the Commission, will be aware to every last particular of the nature of their participation on the Commission. Therefore, without a legislative requirement that judges will be part of the Commission, judicial members may feel compelled either to comply with or be more accommodating to the demands or desires of the executive so as to preserve the possibility that there will be continued judicial representation on the Commission after their terms have been served. There is thus always the danger that judicial members on the Commission will act in response to fear of executive retaliation rather than from considered judicial expertise, depriving the Commission of the benefits of judicial participation in the first place. Requiring that judges be a part of the Commission allows judicial members to provide their expertise with the reassurance that continued judicial participation will not be subject to the demands or whims of the chief executive.(see footnote 11)
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C. Judicial participation is necessary to avoid self-dealing by the Executive Branch

    Without a requirement of judicial membership on the Commission, the Executive Branch could potentially have full control of the Commission. Because the Executive Branch already holds a significant amount of power in sentencing decisions, a lack of judicial membership concentrates too much power in that branch and creates a situation where the only effective discretion in the sentencing process is the discretion of the executive. The executive would be able to determine, through the Sentencing Commission, the appropriate level of punishment for any given offense, enhancing and perhaps even perverting the power it already holds to prosecute those offenses. Without judicial involvement, the executive could engage in a form of ''self-dealing'' and use its control of the Sentencing Commission to benefit itself and make certain kinds of prosecution easier. For example, the Commission could enhance sentences attached to specific lesser crimes that are easier to prosecute to provide the executive with larger bargaining chips in pursuing more serious crimes that are more difficult to prosecute. The concentration of power in one branch in sentencing raises serious concerns that could be alleviated by a judicial ''check'' in the form of judicial participation on the Commission.

D. Judicial membership is necessary to avoid the appearance of unfairness

    Even if judicial members of the Commission do not in fact feel pressure to conform to the desires of the Executive Branch, and even if a Commission fully controlled by the Executive Branch does not engage in self-dealing, judicial membership on the Commission is necessary to avoid the appearance of improper influence and unfairness. Though judicial members may try to make their decisions free from Executive Branch influence, they may be perceived by the public as compromised by the undue influence of the executive through its appointment powers - decisions, especially unpopular ones, that may have been motivated by independent concerns will be questioned and potentially undermined by the fact that judicial membership on the Commission is not guaranteed and subject to the desires of the executive. Similarly, if the Executive Branch takes full control of the Commission, it will potentially undermine public confidence in the justness and fairness of the sentencing process and the federal criminal justice system. Our adversary system is premised on the idea of zealous partisanship by adversaries, presided over neutrally by judges, and ultimately resolved through sentencing after conviction by those same neutral judges. If one of the adversary parties in the system, the Executive Branch, is given complete control over all decisions made by the Commission, it can create the perception that the executive is both prosecuting and sentencing at the same time. Regardless of the actual fairness and justness of prosecutions by the executive, the legitimacy of its decisions will have been compromised by its complete and potentially corrupting control of the sentencing process. Thus, a guarantee of judicial membership on the Commission can help uphold in the eyes of the public and of defendants both the legitimacy of the Commission's decisions and of the Executive Branch's powers.(see footnote 12)
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II. Failure to Mandate Judicial Involvement Violates Separation of Powers Doctrine

    In addition to raising important prudential concerns about fairness within the adversarial system, the elimination of required judicial participation on the Sentencing Commission raises fundamental questions about the very constitutionality of such an organization. As the Supreme Court has held, ''the separation of governmental powers into three coordinate Branches is essential to the preservation of liberty.''(see footnote 13) By vesting sentencing decisions primarily in the Executive Branch, the Feeney Amendment's change in the necessary composition of the commission violates the separation of powers doctrine in two significant ways. It unites the power to prosecute, a purely executive function, with the power to sentence, a judicial function; additionally, the allocation of traditionally judicial responsibilities to the Executive Branch encroaches upon judicial authority while aggrandizing executive oversight.

    A Sentencing Commission with no judicial involvement falls exclusively within the purview of the Executive Branch as a matter of functional reality. With no mandated judicial involvement on the Commission, all sentencing decisions will in some way be connected to the executive branch.(see footnote 14) This degree of executive power mirrors presidential oversight of ''independent agencies,'' which fall within the scope of the Executive Branch.(see footnote 15) In independent agencies, the President retains appointment power, at minimum, of the chief administrator; the agency then formulates rules and performs other functions.(see footnote 16) Likewise, a Sentencing Commission without mandatory judicial membership will contain only Presidential appointees who may act devoid of any input from judicial actors, despite their unique experience and expertise on the issue and the long history of judicial control of the sentencing rules and processes. As one court has held, ''[t]his concentration of sentencing power in the Executive Branch is unprecedented.''(see footnote 17)
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    By functionally embedding the Sentencing Commission within the Executive Branch, the Feeney Amendment unconstitutionally united the prosecutorial and sentencing powers within one governmental sector. In Mistretta, the Supreme Court upheld the then-required appointment of at minimum three judges to the Sentencing Commission. Rather than finding a separation of powers violation due to judicial involvement, the Court instead speculated that Executive responsibility for ''promulgating sentencing guidelines'' might ''unconstitutionally. . .unite[] the power to prosecute and the power to sentence within one Branch.''(see footnote 18) Mandated judicial involvement was therefore central to the Court's upholding of the prior structure of the Sentencing Commission. In criminal cases, the prosecutor is an executive actor. The judiciary is prohibited from encroaching on the executive's wide discretion in bringing charges and trying cases, except in rare cases like overt race discrimination in jury selection.(see footnote 19) Likewise, the Executive Branch must refrain from infringement on the judiciary's role as the neutral sentencer. Placing the development of sentencing standards within the purview of the executive gives this branch both wide discretion in bringing charges, along with the ability to impact sentencing by promulgating rules that favor its own prosecutorial interests.(see footnote 20) This is exactly the type of unified action against which the Mistretta court cautioned. ''To permit the same body to serve as prosecutor, an advocate for the sovereign, and also determine the penalty for the offense, is contrary to fundamental notions of liberty and justice.''(see footnote 21)

    Not only does the Separation of Powers doctrine preclude the unification of sentencing and prosecuting powers within one branch; it also expressly prohibits any form of ''encroachment or aggrandizement of one branch at the expense of the other.''(see footnote 22) The placement of the Sentencing Commission entirely within the scope of the executive does just this. Previously, the Supreme Court has struck down laws that give one branch powers appropriately diffused among three branches, laws that undermine the authority and independence of another branch of law, and laws that reassign power vested in one branch to another branch.(see footnote 23) Though some blending of the branches' functions is appropriate, this is true only when the overlap poses ''no danger to either aggrandizement or encroachment.''(see footnote 24) However, when this blending prevents one branch from exercising its constitutionally assigned tasks, the Founders' fear of the ''hydraulic pressure inherent within each of the separate Branches to exceed the outer limits of its power'' is realized.(see footnote 25) In identifying unacceptable infringement, the Court looks to the ''practical consequences'' of a challenged plan within the context of traditional Article III principles.(see footnote 26)
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    Sentencing has long been designated as a ''primarily judicial function.''(see footnote 27) By effectively relocating the Sentencing Commission within the Executive Branch, the Feeney Amendment both interferes with the judiciary's traditional sentencing role and allows the executive to assume a function that has long been entrusted to the judiciary. The Sentencing Commission determines the appropriate range of punishments for particular offenses. Without the required application of judicial expertise to this decision-making process, the executive will have increased its ability to determine sentences, particularly when combined with its plea bargaining power and its ability to decide what charges to bring. It will simultaneously have limited or eliminated the judiciary's ability to individually tailor sentences. Such a merging of responsibilities impermissibly concentrates what has long been a diffused sentencing power among the three branches and unquestionably aggrandizes the executive's power. The ''practical consequence'' of not mandating judicial involvement on the Sentencing Commission is to aggrandize the executive's power and to encroach upon the judiciary's function as the neutral arbiter.(see footnote 28)

    Likewise, by not mandating judicial involvement on the Commission, the Feeney Amendment risks intimidating any judicial members who are lucky enough to secure an appointment to the commission, chilling their promotion of independent ideas. With no judicial positions guaranteed, a judge may be subject to removal by the executive and replaced by a non-judicial member. Under such circumstances, any judicial members who are appointed to the Commission may feel pressure to act in adherence to executive policy desires, as a failure to adhere may imperil judicial representation on the Commission in the future. This potential for intimidation undermines the necessary elicitation of judicial expertise in the Commission's deliberations and encroaches on the independence of the judiciary branch.(see footnote 29) In creating the original Sentencing Commission, Congress clearly recognized that ''any suggestion that the Executive Branch should be responsible for promulgating the guidelines would present troubling constitutional problems. . .'' and would ''fundamentally alter the relationship of Congress to the Judiciary with respect to sentencing policy and its implementation.''(see footnote 30) By not mandating judicial involvement with the Sentencing Commission, those prescient congressional fears will be realized.
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(Footnote 1 return)
See PROTECT Act, Pub. L. No. 108–21 § 401.

(Footnote 2 return)
Pub. L. No. 108–21 § 401(n)(1).

(Footnote 3 return)
See, e.g. 149 Cong. Rec. S5137–01, 5145 (daily ed. Apr. 10, 2003) (statement by Sen. Leahy) (stating, ''the Feeney amendment. . .was added to the bill on the House floor after only 20 minutes of debate.'').

(Footnote 4 return)
28 U.S.C.A. § 991(b)(1).

(Footnote 5 return)
28 U.S.C.A. § 991(b)(2).

(Footnote 6 return)
See Mistretta v. United States, 488 U.S. 361, 396 (1989) (''Congress placed the Commission in the Judicial Branch precisely because of the Judiciary's special knowledge and expertise.''). See also S. Rep. No. 98–225, at 159 (1983) (Senate Report on the Sentencing Reform Act) (''Placement of the commission in the judicial branch is based upon the committee's strong feeling that even under this legislation, sentencing should remain primarily a judicial function.'').

(Footnote 7 return)
Mistretta, 488 U.S. at 407.

(Footnote 8 return)
The Commission Chair - Judge Ricardo H. Hinojosa - has served as a federal judge for 23 years. Judge Ruben Castillo has spent 12 years as a federal judge, in addition to four years as an Assistant United States Attorney. Chief Judge William K. Sessions has served on the federal bench for 11 years, in addition to 4 years as a public defender. In contrast, Vice Chair John R. Steer has no direct experience in the criminal justice system. Commissioners Beryl A. Howell and Michael E. Horowitz served as Assistant United States Attorneys for 6 years and 8 years respectively, and neither holds that position currently.

(Footnote 9 return)
See, e.g., a statement by the President of the American Bar Association: ''By overriding the Sentencing Commission and legislatively rewriting the Guidelines, the Feeney Amendment threatens the legitimacy of the Commission. The Commission was created by Congress to ensure that important decisions about federal sentencing were made intelligently, dispassionately, and, so far as possible, uninfluenced by transient political considerations.'' Letter from Alfred P. Carlton, Jr., President of the American Bar Association to Senator Orrin G. Hatch, (Apr. 1, 2003), available at http:// www.nacdl.org/departures. See also Paul J. Hofer & Mark H. Allenbaugh, The Reason behind the Rules: Finding and Using the Philosophy of the Federal Sentencing Guidelines, 40 Am. Crim. L. Rev. 19, 28 (2003). ''[M]any guideline amendments are not initiated by the Commission based on research identifying flaws in the existing rules. The Guidelines are often amended because Congress directs the Commission to increase sentences for a particular type of crime, often a crime that has received media attention. For example, in 2000, Congress directed the Commission to increase penalties for trafficking in the 'club drug' MDMA, commonly known as 'ecstasy.' The Commission responded with an amendment doubling, and in some cases tripling, penalties.''

(Footnote 10 return)
See, e.g., Statement of Senator Leahy: ''Judges are extremely valuable members of the Commission. They bring years of highly relevant experience, not to mention reasoned judgment, to the table.'' 149 Cong. Rec. S5137–01, 5146 (daily ed. Apr. 10, 2003) (statement of Sen. Leahy).

(Footnote 11 return)
The Supreme Court has long recognized the constitutional significance of the chilling effect of fear of retaliation in the First Amendment context. See, e.g., Buckley v. Valeo, 424 U.S. 1, 68 (1976) (''It is undoubtedly true that public disclosure of contributions to candidates and political parties will deter some individuals who otherwise might contribute. In some instances, disclosure may even expose contributors to harassment or retaliation.'').

(Footnote 12 return)
The importance of the appearance of the independence of the judiciary in its adjudicative role is a longstanding concern. See, e.g., Hobson v. Hansen, 265 F. Supp. 902, 931 (D.D.C. 1967) (''The need to preserve judicial integrity is more than just a matter of judges satisfying themselves that the environment in which they work is sufficiently free of interference to enable them to administer the law honorably and efficiently. Litigants and our citizenry in general must also be satisfied.'').

(Footnote 13 return)
Mistretta v. United States, 488 U.S. 361, 380 (1989).

(Footnote 14 return)
See United States v. Detwiler, 338 F. Supp.2d 1166, 1174 (D. Or. 2004).

(Footnote 15 return)
Freytag v. Commissioner, 501 U.S. 868 (1991) (Scalia, J., concurring in part and concurring in the judgment).

(Footnote 16 return)
FMC v. S.C. State Ports Auth., 535 U.S. 743, 773 (2002); Panama Co. v. Ryan, 293 U.S. 388, 428 (1935).

(Footnote 17 return)
Detwiler, 338 F. Supp.2d at 1175.

(Footnote 18 return)
Mistretta, 488 U.S. at 391 n.17; see also Detwiler, 388 F. Supp.2d at 1175.

(Footnote 19 return)
See United States v. Robertson, 45 F.3d 1423 (10th Cir. 1995) (Separation of powers mandates that judicial independence from executive affairs and executive independence from judicial affairs).

(Footnote 20 return)
See Jamie Escuder, Congressional Lack of Discretion: Why the Feeney Amendment is Unwise (and Perhaps Unconstitutional), 16 Fed. Sent. R. 276, 276–277 (2004) (''[B]y edging judges out of the sentencing process, the Feeney Amendment removes a critical check on the Executive's ability to design a sentencing structure that is biased in its favor.'').

(Footnote 21 return)
Detwiler, 388 F. Supp.2d at 1175.

(Footnote 22 return)
Buckley v. Valeo, 424 U.S. 1, 122 (1983); INS v. Chadha, 462 U.S. 919, 951 (1983).

(Footnote 23 return)
See Mistretta, 488 U.S. at 382; see e.g., Bowsher v. Synar, 478 U.S. 714 (1986) (Congress cannot control enactment of legislation by retaining the removal power); Chadha, 462 U.S. at 951 (Congress cannot control the mechanism in which laws are executed).

(Footnote 24 return)
Mistretta, 488 U.S. at 382; Morrison v. Olson, 487 U.S. 654 (1988) (judicial appointment of independent counsel does not aggrandize its functions); Commodity Futures Trading Comm'n v. Schor, 478 U.S. 833 (1986) (the executive agency may exercise jurisdiction over state-law counterclaims).

(Footnote 25 return)
Chadha, 462 U.S. at 951; see also Nixon v. Administrator of General Services, 433 U.S. 425, 443 (1977).

(Footnote 26 return)
Commodity Futures Trading Comm'n, 478 U.S. at 857.

(Footnote 27 return)
Mistretta, 488 U.S. at 382 (''For more than a century, federal judges have enjoyed wide discretion to determine the appropriate sentence in individual cases.''); Detwiler, 388 F. Supp.2d at 1170 (the judiciary has historically determined ''what sentence is appropriate to what criminal conduct under what circumstances.'').

(Footnote 28 return)
Mistretta, 488 U.S. at 392.

(Footnote 29 return)
See Bowsher v. Synar, 478 U.S. 714, 725 (1986) (''The fundamental necessity of maintaining each of the three general departments of government entirely free from the control or coercive influence, direct or indirect, of either of the others, has often been stressed is hardly open to serious question.'').

(Footnote 30 return)
H.R. REP. 98–1017, at 94–95 (Sept. 13, 1984).