[House Hearing, 109 Congress]
[From the U.S. Government Publishing Office]
IMPLICATIONS OF THE BOOKER/FANFAN DECISIONS FOR THE FEDERAL SENTENCING
GUIDELINES
=======================================================================
HEARING
BEFORE THE
SUBCOMMITTEE ON CRIME, TERRORISM,
AND HOMELAND SECURITY
OF THE
COMMITTEE ON THE JUDICIARY
HOUSE OF REPRESENTATIVES
ONE HUNDRED NINTH CONGRESS
FIRST SESSION
__________
FEBRUARY 10, 2005
__________
Serial No. 109-1
__________
Printed for the use of the Committee on the Judiciary
Available via the World Wide Web: http://www.house.gov/judiciary
______
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COMMITTEE ON THE JUDICIARY
F. JAMES SENSENBRENNER, Jr., Wisconsin, Chairman
HENRY J. HYDE, Illinois JOHN CONYERS, Jr., Michigan
HOWARD COBLE, North Carolina HOWARD L. BERMAN, California
LAMAR SMITH, Texas RICK BOUCHER, Virginia
ELTON GALLEGLY, California JERROLD NADLER, New York
BOB GOODLATTE, Virginia ROBERT C. SCOTT, Virginia
STEVE CHABOT, Ohio MELVIN L. WATT, North Carolina
DANIEL E. LUNGREN, California ZOE LOFGREN, California
WILLIAM L. JENKINS, Tennessee SHEILA JACKSON LEE, Texas
CHRIS CANNON, Utah MAXINE WATERS, California
SPENCER BACHUS, Alabama MARTIN T. MEEHAN, Massachusetts
BOB INGLIS, South Carolina WILLIAM D. DELAHUNT, Massachusetts
JOHN N. HOSTETTLER, Indiana ROBERT WEXLER, Florida
MARK GREEN, Wisconsin ANTHONY D. WEINER, New York
RIC KELLER, Florida ADAM B. SCHIFF, California
DARRELL ISSA, California LINDA T. SANCHEZ, California
JEFF FLAKE, Arizona ADAM SMITH, Washington
MIKE PENCE, Indiana CHRIS VAN HOLLEN, Maryland
J. RANDY FORBES, Virginia
STEVE KING, Iowa
TOM FEENEY, Florida
TRENT FRANKS, Arizona
LOUIE GOHMERT, Texas
Philip G. Kiko, Chief of Staff-General Counsel
Perry H. Apelbaum, Minority Chief Counsel
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Subcommittee on Crime, Terrorism, and Homeland Security
HOWARD COBLE, North Carolina, Chairman
DANIEL E. LUNGREN, California ROBERT C. SCOTT, Virginia
MARK GREEN, Wisconsin SHEILA JACKSON LEE, Texas
TOM FEENEY, Florida MAXINE WATERS, California
STEVE CHABOT, Ohio MARTIN T. MEEHAN, Massachusetts
RIC KELLER, Florida WILLIAM D. DELAHUNT, Massachusetts
JEFF FLAKE, Arizona ANTHONY D. WEINER, New York
MIKE PENCE, Indiana
J. RANDY FORBES, Virginia
LOUIE GOHMERT, Texas
Jay Apperson, Chief Counsel
Elizabeth Sokul, Counsel
Katy Crooks, Counsel
Jason Cervenak, Full Committee Counsel
Michael Volkov, Counsel
Bobby Vassar, Minority Counsel
C O N T E N T S
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FEBRUARY 10, 2005
OPENING STATEMENT
Page
The Honorable Howard Coble, a Representative in Congress from the
State of North Carolina, and Chairman, Subcommittee on Crime,
Terrorism, and Homeland Security............................... 1
The Honorable Robert C. Scott, a Representative in Congress from
the State of Virginia, and Ranking Member, Subcommittee on
Crime, Terrorism, and Homeland Security........................ 3
The Honorable John Conyers, Jr., a Representative in Congress
from the State of Michigan, and Ranking Member, Committee on
the Judiciary.................................................. 4
WITNESSES
The Honorable Christopher A. Wray, Assistant Attorney General,
Criminal Division, United States Department of Justice
Oral Testimony................................................. 6
Prepared Statement............................................. 8
The Honorable Ricardo H. Hinojosa, Chairman, United States
Sentencing Commission
Oral Testimony................................................. 14
Prepared Statement............................................. 17
Mr. Daniel P. Collins, Partner, Munger, Tolles, and Olson LLP
Oral Testimony................................................. 24
Prepared Statement............................................. 25
Mr. Frank O. Bowman, III, M. Dale Palmer Professor of Law,
Indiana University School of Law
Oral Testimony................................................. 28
Prepared Statement............................................. 31
APPENDIX
Material Submitted for the Hearing Record
Prepared Statement of the Honorable Howard Coble, a
Representative in Congress from the State of North Carolina,
and Chairman, Subcommittee on Crime, Terrorism, and Homeland
Security....................................................... 59
Prepared Statement of the Honorable Robert C. Scott, a
Representative in Congress from the State of Virginia, and
Ranking Member, Subcommittee on Crime, Terrorism, and Homeland
Security....................................................... 59
Prepared Statement of the Honorable Sheila Jackson Lee, a
Representative in Congress from the State of Texas............. 60
Prepared Statement of the Honorable John Conyers, Jr., a
Representative in Congress from the State of Michigan, and
Ranking Member, Committee on the Judiciary..................... 61
Prepared Statement of the Honorable Adam B. Schiff, a
Representative in Congress from the State of California........ 62
Material submitted for the record by Rep. Scott.................. 63
Letter from the Association of Corporate Counsel (formerly the
American Corporate Counsel Association), the Business Civil
Liberties, Inc., the Business Roundtable, the National
Association of Manufacturers, and the U.S. Chamber of Commerce. 101
Letter from Keith Darcy, Acting Executive Director, Ethics
Officer Association (EOA)...................................... 104
Letter from Robert Evans, Director, Governmental Affairs Office,
the American Bar Association (ABA), dated February 9, 2005..... 112
Letter from Robert Evans, Director, Governmental Affairs Office,
the American Bar Association (ABA), dated February 17, 2005.... 115
Letter from Edwin Meese, III, and Philip Heymann, Co-Chairs,
Sentencing Initiatives, The Constitution Project............... 131
Prepared Statement of Lawrence Piersol, President, the Federal
Judges Association, and Chief Judge of the District of South
Dakota......................................................... 140
Letter from Kent Scheidegger, Legal Director and General Counsel,
Criminal Justice Legal Foundation.............................. 141
Letter from Robert L. Wilkins, and Karl A. Racine, Partners,
Veneable LLP................................................... 145
IMPLICATIONS OF THE BOOKER/FANFAN DECISIONS FOR THE FEDERAL SENTENCING
GUIDELINES
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THURSDAY, FEBRUARY 10, 2005
House of Representatives,
Subcommittee on Crime, Terrorism,
and Homeland Security
Committee on the Judiciary,
Washington, DC.
The Subcommittee met, pursuant to notice, at 10 a.m., in
Room 2141, Rayburn House Office Building, Hon. Howard Coble
(Chair of the Subcommittee) presiding.
Mr. Coble. Good morning, ladies and gentlemen. Welcome to
the Judiciary hearing room.
Let me think aloud for a moment or two. This sentencing
guidelines is very significantly important, as all of you know.
We will have the border security bill, which came from this
Committee, on the floor for debate around 11:30. I am hoping we
can finish examining you witnesses by that time. I hate to
inconvenience you all. If, however, we come to 11:30 and
additional examination may be done, we may have to have you
fellows go get a bite to eat and just keep your eye on the TV
monitor. I am thinking, however, that if luck is with us, we
can probably finish this on or about the time when we have to
suspend.
I want to welcome everyone to this very important oversight
hearing before the Subcommittee on Crime, Terrorism, and
Homeland Security to examine the implication of two recent
Supreme Court decisions in United States v. Booker and United
States v. Fanfan to the Federal sentencing guidelines.
The Supreme Court's rulings eliminated two critical
provisions of the Federal sentencing guidelines. First, the
Court ruled the sentencing guidelines were no longer mandatory
but are advisory. Second, the Court eliminated the de novo
appellate review standard for downward departures which was
passed by Congress as part of the PROTECT Act in the 108th
Congress and replaced it with a vague and unspecific
reasonableness standard for appellate review.
It is an understatement, in my opinion, to say that the
Supreme Court's decisions have had a dramatic impact on the
Federal criminal justice system. Some have characterized the
impact as resulting in complete disarray, and even other
characterize the decision as posing a direct and significant
threat to public safety, thereby jeopardizing dramatic
reductions in the crime rate in our country.
As this Committee examines this issue, we must be mindful
of the fact that the Sentencing Reform Act of 1984 which
created the mandatory Federal sentencing guideline system was a
bipartisan measure designed to provide certainty and fairness
in meeting the purposes of sentencing, avoiding unwarranted
disparities among defendants with similar records who have been
found guilty of similar criminal conduct.
In the short time since the Supreme Court issued its
rulings in the Booker and Fanfan decisions, there have been
reported instances of judges deviating from the guideline
sentencing ranges, relying on varying rationales for such
departures.
It is the Congress's role to ensure that the original
purposes of the Sentencing Reform Act of 1984 are adhered to by
the Federal Judiciary. We all can agree that disparities among
similarly situated defendants are unfair and undermine the
Federal criminal justice system. Justice Breyer in his majority
opinion in Booker made it clear as to our institutional
responsibility when he wrote of the Court's decision, ``Ours,
of course, is not the last word. The ball lies in Congress's
court.''
In order to fulfill our constitutional responsibilities,
today's hearing is the first step to ensuring that the Federal
sentencing system continues to promote fairness, eliminate
disparities, and protect the public safety so that law-abiding
citizens can live in freedom without fear of crime and
defendants receive fair and equal treatment in the Federal
judicial system.
I am looking forward to hearing from our distinguished
panel of witnesses, and now I am pleased to recognize the
distinguished gentleman from Virginia, the Ranking Member of
this Subcommittee, Mr. Bobby Scott.
Mr. Scott. Thank you, Mr. Chairman, and I thank you for
convening this hearing. This is our first Subcommittee meeting
and I look forward to working with you during this session of
Congress.
I am pleased to join you in convening this hearing on the
implications of the United States Supreme Court's Booker and
Fanfan decisions and the Federal sentencing guidelines. Since
the Blakely v. Washington decision last June, the viability of
the Federal and many State sentencing systems have been in
jeopardy. That decision made it clear that sentences based on
facts found by the court after the trial that were not admitted
by the defendant or established during the trial deprived the
defendant of their constitutional right to a jury trial.
We contemplated a range of options or approaches after the
decision. They ranged from doing nothing to enacting an entire
system of statutory minimums and maximums. However, we wisely,
I believe, listened to the Council of Sentencing Experts and
others suggesting that we give the courts a chance to further
clarify the impact of the decision on the Federal system.
That further clarification came in the decision by a
strangely divided Court in January through the Booker/Fanfan
decision. That decision clarified that Blakely, indeed, was
applicable to the Federal sentencing guideline system and found
the system unconstitutional as applied. However, the Court
delineated the aspects of the system that caused it to be
unconstitutional, thereby excising the applicability of those
factors, leaving the remainder of the system intact. Yet, the
Court, as it properly tends to do, only answered the questions
it considered to be properly before it at the time. Therefore,
we are left with the issue of how the remaining system can
operate consistent with its aims and purposes and the Court's
decisions. Again, sentencing experts and others are advising
that we await further clarification from the courts on the
impact of Booker/Fanfan.
The early indications of this post-Booker/Fanfan/Blakely
context is that the sky is not falling. The criminal defendants
are being prosecuted and sentenced, and the sentencing
guideline system is directing those sentences to essentially
the same extent as it was before. So for those who found the
sentencing guideline system acceptable as applied before
Blakely, Booker, and Fanfan should still find the situation
reasonably acceptable now. There are quirks and imperfections
before the recent upheavals that required appellate court
correction or clarification, and that is the situation we have
today.
For others, including myself, the Federal sentencing
guidelines as applied were not satisfactory. I am concerned
about the growing minority percentage of a rapidly increasing
Federal prison population serving excessively long sentences
for minor roles in non-violent crimes due in large part to
unfair application of mandatory minimums and other reasons.
These problems are detailed in two recent reports from the
Sentencing Project entitled ``Racial Disparity in Sentencing: A
Review of the Literature,'' and ``The Federal Prison
Population: A Statistical Analysis,'' along with a recently
completed 15-year study of the U.S. Sentencing Commission, of
which I have an executive summary and I would ask unanimous
consent that those be introduced into the record of this
hearing.
Mr. Coble. Without exception, it will be done.
[The material referred to is located in the Appendix.]
Mr. Scott. All of the credible data shows that minorities
are less likely than whites to use illegal drugs of virtually
all types, including crack cocaine, yet a grossly
disproportionate percentage of the enforcement of the war
against drugs falls on minorities, many of whom are bit players
in the end stage of the drug trade whose involvement is based
more on addiction than profit. Eighty percent of the crack
prosecutions are against African-American defendants, while
drug use data reflects that 60 percent of the crack is used by
whites.
All of the research and demonstrations show that drug
treatment and other alternatives to incarceration are much more
effective and much cheaper than incarceration. Yet we continue
to greatly increase our resources to lock people up, and more
of these bit players get locked up for longer and longer
periods while making no consideration to effective and less
costly alternatives and only minimally increasing drug
treatment as compared to the increases in enforcement and
incarceration.
Report after report, including these by the Sentencing
Commission and others, have pointed to these gross disparities
in application of the drug enforcement and sentencing policies
against minorities, and while we address the atrocities before
us in Blakely and Booker and Fanfan, it is certainly time to
look at these sentencing policies as they affect minorities.
So, Mr. Chairman, as we carefully contemplate what needs to
be fixed in the Federal guideline system, I would invite
consideration of this longstanding and shameful problem in our
Federal law enforcement and sentencing applications and look
forward to our witnesses' testimony for any guidance they may
give us as we contemplate these and other challenges in our
criminal justice system, particularly as it pertains to
sentencing.
I yield back.
Mr. Coble. I thank the gentleman, and I, too, Mr. Scott,
look forward to working with you during this 109th Congress.
We have been joined by the Ranking Member of the full
Committee, the distinguished gentleman from Michigan, Mr.
Conyers. Did you have an opening statement you wanted to make?
Mr. Conyers. Thank you, Mr. Chairman. I wanted to commend
you and Ranking Member Scott for reviewing Booker/Fanfan, and
the impact on Federal guidelines. I think it is very timely and
I am looking forward to the witnesses spelling out some of the
directions we now may be able to look at.
The Federal sentencing guidelines weren't originally
enacted to address many of the problems that are facing us
today. In fact, their original purpose was simply to make
sentencing more certain and predictable. One of the things that
has happened, of course, is the only thing more certain and
predictable is that racial minorities are disproportionately
punished under the guidelines, so we have a great challenge
here in front of us.
The question might occur, how did this come about? Several
reasons serve as the source of blame for the current state of
affairs, but the greatest responsibility lies with those who
rely stubbornly on mandatory minimums and Congressional
directives to enact misguided policies all in the name of being
tougher on crime. The crack-powder disparity has already been
referred to. So why the disparity, even though experts firmly
agree that there is no logic about it?
One look today at these sentencing guidelines provides us
with a unique opportunity to consider these issues, and here is
where it starts, in this Subcommittee in this room. I think it
is a great opportunity for us to move forward.
We also have some probable suggestions as to really what do
these new decisions really mean. They are not spelled out with
any great particularity, and I think this gives us a chance
with our witnesses and among ourselves to begin this dialogue,
as well. So I thank you for this opportunity.
Mr. Coble. I thank the gentleman.
We are pleased to be joined by the distinguished gentleman
from Arizona, Mr. Flake, the distinguished gentleman from
Massachusetts, Mr. Delahunt, and if you all have opening
statements, gentlemen, they will be put into the record, as is
the case of the gentlelady from Texas, Ms. Sheila Jackson Lee.
We have four distinguished witnesses with us today. Our
first witness is Mr. Christopher Wray, Assistant Attorney
General at the Criminal Division of the U.S. Department of
Justice. Prior to this position, Mr. Wray served as the
Principal Associate Deputy Attorney General and as an Assistant
U.S. Attorney for the Northern District of Georgia. As a
prosecutor in Atlanta, he prosecuted cases involving
racketeering, arson, bank robbery, gun trafficking,
counterfeiting, and immigration issues, among other things. Mr.
Wray earned both his undergraduate degree and his J.D. from
Yale University.
Our second witness is Judge Ricardo Hinojosa. Judge
Hinojosa was nominated by Ronald Reagan and serves as the U.S.
District Court Judge for the Southern District of Texas. In
addition, Judge Hinojosa is the Chairman of the United States
Sentencing Commission. He joined the Commission in 2003 and has
been Chairman since January 31, 2004. Previously, Judge
Hinojosa served as a law clerk for the Texas Supreme Court as
well as working in private practice in McAllen, Texas. Judge
Hinojosa is a graduate of the University of Texas and earned
his J.D. at Harvard University.
Third, we have Mr. Daniel Collins, a partner at Munger,
Tolles, and Olson in Los Angeles. Mr. Collins has represented
clients in various appellate cases at the Ninth Circuit, the
United States Supreme Court, and the California appellate
courts. He served previously at the Department of Justice as an
Associate Deputy Attorney General and Chief Privacy Officer.
During his tenure at DOJ, Mr. Collins worked extensively on the
PROTECT Act, as well as on the establishment of the Terrorist
Screening Center. Additionally, Mr. Collins was an Assistant
U.S. Attorney in the Criminal Division in Los Angeles. He
received his undergraduate degree from Harvard University and
his J.D. from Stanford University.
Our final witness today, Mr. Frank O. Bowman III, is a
professor at the Indiana University School of Law in
Indianapolis. Prior to serving in his current position, he
served as an academic advisor to the Criminal Law Committee of
the U.S. Judicial Conference and as Special Counsel to the U.S.
Sentencing Commission in Washington, D.C. He further served as
a Deputy District Attorney for Denver, Colorado, and was Deputy
Chief of the Southern Criminal Division in the U.S. Attorney's
Office for the Southern District of Florida. Mr. Bowman
received his law degree from Harvard University.
Now, for those in the audience, I apologize for my verbose
introduction, but I feel that you all, in the event that you
did not know it, you need to know the credentials that these
witnesses bring to the table and I think that is significant
and important for all of us. It is good to have you all with
us.
Gentlemen, we operate here under the 5-minute rule. Now,
you won't be drawn and quartered when that red light appears,
but when the red light appears, that is your information that
the ice has become awfully thin on which you are skating. The
amber light, when the amber light appears, I think that will
give you about 30 to 60 seconds to wrap it up.
We have your written testimony. It has been examined and
will be reexamined. We impose the 5-minute rule against
ourselves when we question you all, if you could make your
responses as brief as possible so we can beat the red light, as
well.
Mr. Wray, why don't we start with you.
STATEMENT OF THE HONORABLE CHRISTOPHER A. WRAY, ASSISTANT
ATTORNEY GENERAL, CRIMINAL DIVISION, UNITED STATES DEPARTMENT
OF JUSTICE
Mr. Wray. Thank you, Mr. Chairman, and thank you for
holding this hearing.
Mr. Chairman and Ranking Member Scott, distinguished
members of this Subcommittee, in Booker the Supreme Court held
that the mandatory nature of the Federal sentencing guidelines
violated a defendant's sixth amendment right to a jury trial.
The Court then severed the two provisions that make the
guidelines mandatory, rendering the guidelines only advisory.
The Supreme Court, however, did not contemplate that
advisory guidelines would be a permanent solution and
anticipated that the Congress would consider legislation in the
wake of Booker. And Mr. Chairman, as you noted, Justice Breyer
himself stated that the ball lies in Congress's court.
In considering Booker's consequences, this Subcommittee has
the benefit of a substantial body of evidence. The long and
troubled history of sentencing before the Sentencing Reform Act
demonstrates the problems of disparity and unfairness that
resulted from fully discretionary sentencing. Almost two
decades of experience then under the Sentencing Reform Act have
also shown that the mandatory system of guidelines enacted by
Congress led to consistency, transparency, and fairness and
helped to bring about historic declines in crime.
Since Booker, the actions of several courts have already
raised concerns about the consequences of a return to greater
discretion in sentencing. Based on this record, this Committee
can predict the long-term implications of Booker and can assess
the need for legislative action.
The Justice Department is committed to working with
Congress, with the Judiciary, with the Sentencing Commission
and with other interested parties to ensure that the resulting
sentencing regime is just and lasting and carries out the
purposes of sentencing.
Before the passage of the Sentencing Reform Act in 1984,
our country had experimented with different sentencing schemes:
early release on parole, rehabilitation in place of
incarceration, and unfettered judicial discretion. Those
policies did not work. They failed to prevent crime and promote
safe streets and they contributed to the high crime periods of
the 1960's, 1970's, and 1980's. There was no coherent
sentencing policy and judges enjoyed almost unlimited
discretion in sentencing. That discretion was largely
unreviewable and it resulted in unwarranted disparity.
In the late 1970's and early 1980's, a bipartisan Congress
passed the Act. It guiding principle was consistency so that
similar defendants who committed similar crimes and had similar
records would receive similar sentences. Another guiding
principle was transparency, so that the parties and the public
would know the factual and legal basis for a sentence,
providing accountability.
As one court has recently noted in a post-Booker opinion,
it would be startling to discover that while Congress had
created an expert agency, and--I am quoting now--``approved the
agency's members, directed the agency to promulgate the
guidelines, allowed those guidelines to go into effect, and
adjusted those guidelines over a period of 15 years, that the
resulting guidelines did not well serve the Congressional
purposes. On the contrary, the more likely conclusion is that
the guidelines reflect precisely what Congress believes is the
punishment that will achieve its purposes in passing criminal
statutes.'' That is from a recent Utah case decided since
Booker.
We believe that the Sentencing Reform Act has been
successful in achieving Congress's goal of reducing unwarranted
disparity. Statistical studies bear that out.
Another significant impact of sentencing reform has been
the steep decline of crime in the United States, which is
currently at a 30-year low. Following Congress's lead, many
States have adopted similar guideline systems and an expanding
body of literature suggests that incarceration of dangerous
persons in recent years has demonstrably reduced crime.
As Congress crafts the policies which will guide Federal
sentencing, we urge you to keep in mind that the ultimate goals
are to promote fair sentencing by minimizing unwarranted
disparity and to ensure the public safety through tough
sentencing.
Since Blakely, the Department has closely studied various
sentencing proposals, and although we are not here today to
endorse a particular option, we are here to say that the
resulting system must retain the strengths that existed in the
mandatory guideline system without suffering from its
constitutional weakness. We agree with those experts who
predict that a purely advisory system will undoubtedly lead to
greater disparity, and that over time, this disparity will
likely increase. I note that at a Sentencing Commission hearing
last November that a number of us attended, there was
widespread agreement from professors to defense attorneys that
advisory guidelines were not appropriate for the Federal
justice system.
My written testimony identifies a number of particular
vulnerabilities, Mr. Chairman, and I see I am coming up on that
thin ice period. If I could just beg the chair's indulgence for
just a minute, briefly, the vulnerabilities that I think are of
particular note and should be of particular concern to this
Subcommittee. One, it is essential to have consistent
sentencing procedures at the hearings themselves. We have
already seen in the wake of Booker some courts that have
actually adopted procedures that were rejected in Booker by the
Supreme Court, and that raises, I think, a very sobering
thought. If lower courts don't feel constrained by a decision
of the Supreme Court of the United States, then it is certainly
fair to ask whether they will ever be constrained by guidelines
that are merely advisory.
Also, the guidelines had prohibited factors that were
deemed by the Sentencing Commission to be inappropriate factors
upon which to reduce a sentence, for example, and in the wake
of Booker, some courts have already taken prohibited factors
into account in sentencing defendants to lower sentences.
Third, one consequence of the advisory guidelines that we
are very concerned about is the effect on cooperation. Mr.
Chairman, Mr. Ranking Member, as you know, in order to make
cases in terrorism, organized crime, drug cases, corporate
fraud cases, cooperation of lower-level participants is
absolutely essential to make those cases and the ability for us
to control that cooperation credit is critical to be able to
assure that we get the complete truth from the people who seek
cooperation. So we would not support any proposal that did not
adequately address that issue in the appropriate ways.
Mr. Coble. Your time is about up, Mr. Wray.
Mr. Wray. Thank you, Mr. Chairman. I would be happy to
answer any further questions.
Mr. Coble. Thank you.
[The prepared statement of Mr. Wray follows:]
Prepared Statement of the Honorable Christopher A. Wray
INTRODUCTION
Chairman Coble, Ranking Member Scott, distinguished members of the
Subcommittee--
On January 12, 2005, the Supreme Court of the United States in
United States v. Booker \1\ held that the mandatory nature of the
federal sentencing guidelines, promulgated pursuant to the Sentencing
Reform Act of 1984, violated defendant's Sixth Amendment right to a
jury trial. The Court remedied this problem by severing and
invalidating the two provisions that made the Guidelines mandatory,
thereby rendering the guidelines advisory. A majority of the Supreme
Court contemplated that advisory guidelines would not be a permanent
solution and anticipated that Congress would consider legislation in
the wake of the Booker decision. Indeed, Justice Breyer stated in his
majority opinion that ``the ball lies in Congress' court. The National
Legislature is equipped to devise and install, long-term, the
sentencing system, compatible with the Constitution, that Congress
judges best for the federal system of justice.'' \2\
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\1\ United States v. Booker, 125 S.Ct. 738 (2005).
\2\ Id. at 768.
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In considering the consequences of Booker for the future of
sentencing, this Subcommittee has the benefit of a substantial body of
evidence. The long and troubled history of discretionary sentencing
prior to the Sentencing Reform Act demonstrates the problems of
disparity and unfairness that resulted from fully discretionary
sentencing. Almost two decades of experience under the Sentencing
Reform Act have shown that the mandatory system of guidelines enacted
by Congress led to consistency, transparency and fairness, and helped
to bring about historic declines in crime. In the three weeks since
Booker, the actions of several federal courts have already raised
concerns about the consequences of a return to greater discretion in
sentencing. Based on that record, this Subcommittee can begin to
predict the long-term implications of the Supreme Court's decisions in
Booker and Blakely,3 and can begin to assess the need for legislative
action to address those implications. The Department of Justice is
committed to working with Congress, the judiciary, and other interested
parties, to ensure that the resulting sentencing regime is just and
lasting and carries out the fundamental purposes of sentencing.
PRE-SENTENCING REFORM ERA
Prior to the passage of the Sentencing Reform Act in 1984, the
United States experimented with different sentencing schemes: early
release on parole, rehabilitation in place of incarceration, and
unfettered judicial discretion. Those policies failed to prevent crime
and promote safe streets, and contributed to the high crime periods of
the 1960's, 1970's, and 1980's. In spite of ample criminal laws,
adequate levels of federal investigators, and vigorous prosecutions,
there was no coherent sentencing policy. Judges enjoyed almost
unlimited discretion at sentencing. This discretion was largely
unreviewable and the exercise of it by judges throughout the nation
resulted in unwarranted disparity in sentencing. Senators Edward
Kennedy, Dianne Feinstein and Orrin Hatch characterized the disparity
that existed before the Sentencing Reform Act as ``shameful'' and
``astounding.'' \3\ This past summer, during Senate hearings, Senator
Patrick Leahy referred to the time before the Sentencing Reform Act as
``the bad old days of fully indeterminate sentencing when improper
factors such as race, geography and the predilections of the sentencing
judge could drastically affect a defendant's sentence.'' \4\
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\3\ Brief of Amici Curiae Senators Kennedy, Feinstein, and Hatch,
United States v. Booker, 125 S.Ct. 738 (2005) (Nos. 04-104, 04-105).
\4\ Blakely v. Washington and the Future of Federal Sentencing
Guidelines: Hearing Before the Senate Judiciary Comm, 108th Cong. 8573
(2004), available at http://judiciary.senate.gov/
testimony.cfm?id=1260&wit--id=2629.
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This disparity is well-known and has been documented in a number of
studies which demonstrated that sentences varied significantly
depending on the judge to whom an offender was assigned.\5\ In one
study, judges in the Second Circuit were sent presentence reports based
upon 20 actual federal cases and asked what sentences they would
impose. Judges considering the same offense and the same defendant
often gave those defendants vastly different sentences. In one case the
defendant's sentence differed by 9 years, in another by 13 years, and
in a third case 17 years separated the most severe from the most
lenient sentence. Data also showed that handfuls of judges were
consistently more severe or more lenient than their colleagues. This
fact may not be surprising. But the fact that a defendant's sentence
could vary by 9, 13, or even 17 years depending solely on the judge
assigned to the case, or that two defendants with similar
characteristics who committed the same crime in the same Circuit would
be sentenced to two such different sentences, underscored the need for
mandatory guidelines.
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\5\ U.S. Sentencing Commission, Fifteen Years of Guidelines
Sentencing 80 (2004) [hereinafter Fifteen Year Report] (studies cited
therein).
---------------------------------------------------------------------------
Another study analyzed the role played by each judge's sentencing
philosophy by providing 264 judges with hypothetical cases. The study
found that judges who were oriented toward the goals of incapacitation
and deterrence gave sentences at least ten months longer on average
than judges who emphasized other goals.
This type of disparity, coupled with the fact that many sentences
were not sufficiently punitive, undermined the public's confidence in
the federal criminal justice system and had far reaching consequences.
Congress, the Department, and other analysts recognized that such
inconsistency and uncertainty in federal sentencing practices was
incompatible with effective crime control and with a fair system of
justice. And they demanded change.
SENTENCING REFORM ACT OF 1984
In the late 1970's and early 1980's, policymakers in Washington
came to a consensus view that a determinate sentencing system was
necessary. Leaders of both parties came together to pass the Sentencing
Reform Act of 1984. Its guiding principle was consistency, so that
defendants who committed similar crimes and had similar criminal
records would receive similar sentences. Another guiding principle was
transparency, so that the parties and the public would know the factual
and legal basis for a sentence, providing accountability. Finally,
Congress articulated the purposes of punishment, which are codified in
18 U.S.C. Sec. 3553(a)(2) and in 28 U.S.C. Sec. 991(b), and directed
the Commission to promulgate policies and practices to assure that they
be achieved. All sentences must reflect the seriousness of the offense,
promote respect for the law, provide just punishment for the offense,
afford adequate deterrence to criminal conduct, protect the public from
further crimes of the defendant, and provide the defendant with needed
educational or vocational training, medical care, or other correctional
treatment in the most effective manner.
Under this congressional mandate, the Sentencing Commission
established a uniform system of guidelines, structured to provide
fairness, predictability, and consistency for similarly situated
defendants. At the same time, the guidelines require each sentence to
be individualized to fit the offender and the offense, and require the
court to state the reasons for each sentence. The guidelines also
require longer sentences for especially dangerous or recidivist
criminals. Under this system, sentences no longer depended on the
district where the offenders committed the offense or the judge who
imposed the sentence, so the likelihood of unwarranted disparity was
greatly minimized.
As directed by Congress, the Commission drafted the original
guidelines based upon the averages of actual sentences imposed by
judges throughout the United States and it has continued to refine the
guidelines based upon actual sentencing practice. In addition to these
empirical data, the Commission collaborates with all of the major
stakeholders in the federal criminal justice system, advisory groups,
interested observers, and the general public. Thus, the Commission
ensures that the guidelines achieve congressionally-mandated purposes,
and Congress reviews those guidelines and all proposed amendments to
them to ensure that those purposes are met before allowing them to take
on the force and effect of law. On occasion, Congress has directed the
Sentencing Commission to alter existing punishment levels. Congress has
also approved legislation which mandates minimum punishments for
certain offenses. Because Congress and the Sentencing Commission have
made judgments about the appropriate penalties for federal crimes, part
of our Executive Branch enforcement responsibility is to ensure that
this policy is translated into actual sentences for defendants.
As United States District Judge Paul Cassell of the District of
Utah recently noted in a post-Booker opinion, ``It would be startling
to discover that while Congress had created an expert agency, approved
the agency's members, directed the agency to promulgate the Guidelines,
allowed those Guidelines to go into effect, and adjusted those
Guidelines over a period of fifteen years, that the resulting
Guidelines did not well serve the congressional purposes. The more
likely conclusion is that the Guidelines reflect precisely what
Congress believes is the punishment that will achieve its purposes in
passing criminal statutes.'' \6\ The Department was pleased to see that
Judge Cassell adopted in that opinion an approach of adhering insofar
as is possible post-Booker to the Sentencing Guidelines, stating that
``in all future sentencings, the court will give heavy weight to the
Guidelines in determining an appropriate sentence. In the exercise of
its discretion, the court will only depart from those Guidelines in
unusual cases for clearly identified and persuasive reasons.'' \7\ The
Department will urge the federal courts to adhere to the guidelines as
far as possible within the limits of Booker, as we await prompt
enactment of legislation in response to the Booker decision.
---------------------------------------------------------------------------
\6\ United States v. Wilson, 2005 WL 78552, at *4 (D. Utah 2005).
\7\ Id. at *12.
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THE IMPACT OF SENTENCING REFORM
The Sentencing Reform Act has been successful in achieving
Congress' goal of reducing unwarranted disparity in sentencing. The
Sentencing Commission's Fifteen Year Report completed in November noted
that ``[r]igorous statistical study both inside and outside the
Commission confirm that the guidelines have succeeded at the job they
were principally designed to do: reduce unwarranted disparity arising
from differences among judges.'' \8\ In fact, according to the Fifteen
Year Report, the reduction of unwarranted judicial disparity has been
reduced by approximately one third to one half by implementation of the
Guidelines.\9\
---------------------------------------------------------------------------
\8\ See Fifteen Year Report, supra note 6, at 140.
\9\ See id. at 97-98.
---------------------------------------------------------------------------
Another significant impact of sentencing reform has been the steep
decline of crime in the United States, currently at a 30-year low.
Congress, through the Sentencing Reform Act of 1984, instituted
determinate sentences, the elimination of parole, truth in sentencing,
limited judicial discretion, and appropriate consistency. Following
Congress' lead, many states adopted similar guidelines systems.
Congress also used mandatory minimum sentences such as those contained
in the Anti-Drug Abuse Act of 1986, to incarcerate drug dealers and
reduce the violence associated with the drug trade, and once again,
many states followed suit. Further, in 1994, Congress passed the
Violent Crime Control and Law Enforcement Act which provided incentives
to states to pass truth in sentencing laws requiring violent offenders
to serve at least 85% of their sentences. This also is an example of a
matter on which the states followed Congress' lead. The new sentencing
systems adopted by Congress and many states recognized the need to
place the public's safety from crime first and to further that end
through adequate deterrence, incapacitation of violent offenders, and
just punishment. The overall drop in the violent crime rate of 26% in
the last decade is proof of the success of Congress' policies.
A few critics have said that our sentencing system has been a
failure and that our prisons are filled with non-violent first-time
offenders. But the facts tell us otherwise. Focusing exclusively on the
federal prison population, approximately 66% of all federal prisoners
are in prison for violent crimes or had a prior criminal record before
being incarcerated.\10\ Again looking only at federal inmates, 79% of
federal inmates classified as non-violent offenders released from
prison have a prior arrest. The rap sheets of federal prisoners
incarcerated for non-violent offenses indicate an average of 6.4 prior
arrests with an average of at least 2.0 prior convictions.\11\ Given
the active criminal careers and the propensity for recidivism of most
prisoners, incapacitation works.
---------------------------------------------------------------------------
\10\ Bureau of Justice Statistics, Correctional Populations in the
United States (Nov. 1997).
\11\ Bureau of Prisons, Office of Research and Evaluation (Nov.
2004).
---------------------------------------------------------------------------
As noted by Judge Paul Cassell and others, ``an expanding body of
literature suggests that incarceration of dangerous persons in recent
years has demonstrably reduced crime, through both incapacitation and
deterrence.'' \12\ These incapacitative and deterrent effects arise
from a sentencing guidelines system which is tough, fair, and
predictable. As Congress crafts the sentencing policies which will
guide the federal criminal justice system, we urge you to keep in mind
that the ultimate goals are to promote fair sentencing, by minimizing
unwarranted disparity, and to ensure the public's safety through tough
sentencing, especially sentencing that incorporates a person's prior
criminal history and real offense conduct.
---------------------------------------------------------------------------
\12\ Wilson, 2005 WL 78552, at *7.
---------------------------------------------------------------------------
VULNERABILITIES OF ADVISORY GUIDELINES
Since Blakely, the Department has closely studied various
sentencing proposals. Today we reaffirm our commitment to support a
sentencing regime that advances the principles of consistency,
fairness, transparency, accountability, and the other statutory
purposes of punishment. Though we are not here today to endorse a
particular option, we are here to say that the resulting system must
retain the strengths of the mandatory guideline system without
suffering from its constitutional weakness.
We agree with experts who predict that a purely advisory system
will undoubtedly lead to greater disparity and that, over time, this
disparity is likely to increase.\13\ At a hearing before the Sentencing
Commission last November, there was widespread agreement among all of
the panelists, from professors to public defenders, that advisory
guidelines were not appropriate for the federal justice system. For
example, the Practitioners Advisory Group stated that ``rules that are
mandatory are valuable in controlling unwarranted disparity, and in
providing certainty so that defendants can make rational decisions in
negotiating plea agreements and in trial strategy.'' \14\ Testimony of
a witness appearing on behalf of the Federal Public Defenders stated:
``We view advisory guidelines as another means of simply evading rather
than embracing the principles of Blakely.'' \15\ And a law professor
testified that ``[g]iven the fact that Congress has repeatedly
expressed its commitment to uniformity (most recently in the Feeney
Amendment), these solutions [advisory guidelines] ignore the will of
the ultimate decision-maker in this area.'' \16\ Further, those who
would cite to state advisory systems as models for the federal system
often disregard the fact that, unlike the states, the federal system
casts a wide net over far flung geographical areas, with diverse legal
cultures.
---------------------------------------------------------------------------
\13\ Felman, James, How Should the Congress Respond if the Supreme
Court Strikes Down the Federal Sentencing Guidelines?, 17 Federal
Sentencing Reporter 97 (Dec. 2004).
\14\ Letter from Practitioners Advisory Group to the United States
Sentencing Commission 12 (Nov. 4, 2004), available at http://
www.usscpag.com/index.asp.
\15\ Jon Sands, Submitted Testimony before Sentencing Commission 4
(Nov. 17, 2004), available at http://www.ussc.gov/hearings/11--16--04/
Porter1.pdf.
\16\ Professor Stephanos Bibas, Submitted Testimony before
Sentencing Commission 5 (Nov. 17, 2004), available at: http://
www.ussc.gov/hearings/11--16--04/Bibas.pdf.
---------------------------------------------------------------------------
As we have analyzed an advisory guideline system, we have
identified vulnerabilities that are inherent in advisory guidelines,
which we consider serious impediments to law enforcement. We urge you
to give serious consideration to these vulnerable areas and to ensure
that they are addressed by whatever legislation is enacted.
SENTENCING PROCEEDINGS
The first area is the sentencing hearing itself. In order to have
consistent sentences, it is essential that sentencing hearings have
consistent form and substance. Although there are currently statutes
and Criminal Rules of Procedure controlling sentencing proceedings
(e.g., 18 U.S.C. Sec. Sec. 3552, 3553(a); Fed. R. Crim P. 32(d)), these
procedures don't necessarily ensure that courts ``consult the
guidelines and take them into account when sentencing'' as explicitly
required by the Court in Booker. In order to comply with these
requirements, the Department has issued guidance to the field
instructing prosecutors to recommend guideline sentences in all but the
rarest cases, and to recommend guideline departures only when justified
by the facts and the law. We will also ask the sentencing court to
consult the guidelines and to calculate a guideline sentence prior to
any other considerations as several courts, including the Second and
Fourth Circuits, have directed.\17\
---------------------------------------------------------------------------
\17\ United States v. Crosby, 2005 WL 240916 (2nd Cir. 2005);
United States v. Hughes, 2005 WL 147059 (4th Cir. 2005).
---------------------------------------------------------------------------
We have, however, already encountered judges who have exercised
their new-found discretion to fashion sentencing procedures which were
considered and explicitly rejected by Booker. In both Oklahoma and
Nebraska, courts have declared that the appropriate remedy is that
suggested by Justice Stevens's dissent in Booker--to require
prosecutors to charge and prove all sentencing facts to a jury beyond a
reasonable doubt.\18\ In Nebraska, the court used a system of its own
making to impose a sentence of 36 months for an aggravated illegal
reentry after deportation, when the guideline range was 57-71
months.\19\
---------------------------------------------------------------------------
\18\ The two remedies considered at length in Booker were whether
to render the guidelines advisory or to require proof of sentencing
facts to a jury. The Supreme Court chose the former and the federal
courts must apply it until the Congress enacts a more appropriate
remedy. But, in United States v. Barkley, Case No. 04-CR-119-H (N.D.
Okla. Jan. 24, 2005), the district court did not follow the Booker
decision on the remedy. In Barkley, the district court said ``for
purposes of determining the viability of the new, advisory system now
legislated by the Supreme Court, Congress was never called upon to
choose between such an advisory system and a modified mandatory system.
Nevertheless, the Supreme Court amended the federal statute to reflect
its belief as to what Congress would have done if presented with these
alternatives. This Court believes that Congress will be motivated to
reimpose a mandatory sentencing system which, under Booker, must
reflect such modifications as are necessary to accommodate the Sixth
Amendment rights described in Blakely.'' Id,. slip op. at 8-9. The
district court ultimately concluded in Barkley that ``as a matter of
history, policy and common sense, a mandatory sentencing system that
accommodates the Sixth Amendment rights described in Blakely and Booker
is preferable to an advisory application of the Guidelines. The Court
believes that applying the guidelines, modified to satisfy Blakely,
will have the additional benefit of contributing to the public debate
when Congress determines whether to reimpose the mandatory components
of federal sentencing.'' Id., slip op. at 32. In United States v. Jose
Huerta-Rodriguez, No. 8:04CR365 (D. Neb. Feb. 1, 2005), the district
court concluded that ``it will continue to require that facts that
enhance a sentence are properly pled in an indictment or information,
and either admitted, or submitted to a jury (or to the court if the
right to a trial by jury is waived) for determination by proof beyond a
reasonable doubt. The court finds that although Booker's Sixth
Amendment holding may not require such a procedure, it is not
precluded.'' Id., slip op. at 12. These district court opinions cannot
be squared with the statement of the majority of the Supreme Court in
Booker that ``we must apply today's holdings--both the Sixth Amendment
holding and our remedial interpretation of the Sentencing Act--to all
cases on direct review.'' Booker, 125 S. Ct. at 769.
\19\ Huerta-Rodriguez, Case No. 8:04 CR365 (D. Neb. Feb. 1 2005);
United States v. Barkley, Case No. 04-CR-119 (N.D. Okla. Jan. 24,
2005).
---------------------------------------------------------------------------
These examples reflect a sobering thought: if lower courts are not
constrained by a clear and explicit holding of the Supreme Court of the
United States, it is fair to ask whether they will be constrained by
guidelines that are merely advisory. Similarly, if lower courts
exercise their discretion to ignore the law concerning matters as large
as what sentencing system applies in federal courts, surely courts will
exercise their discretion even more freely when applying individual
guidelines.
The fact is that although the guidelines are now advisory, they are
still an integral part of federal sentencing. As the Second Circuit
recently noted, ``the Guidelines are not casual advice, to be consulted
or overlooked at the whim of the sentencing judge.'' \20\ Although the
law still requires that courts consider the ``applicable category of
offense and . . . defendant as set forth in the guidelines,'' and ``any
pertinent policy statement'' and ``the need to avoid unwarranted
sentence disparities'' among similarly situated defendants,\21\ these
requirements may, like the Booker opinion itself, be ignored under a
purely advisory system.
---------------------------------------------------------------------------
\20\ Crosby, 2005 WL 240916, at *7.
\21\ 18 U.S.C. Sec. Sec. 3553(a)(4), (a)(5), and (a)(6).
---------------------------------------------------------------------------
PROHIBITED FACTORS
With the current system of advisory guidelines, courts may believe
they can consider sentencing factors that are prohibited by the
guidelines. Under the mandatory guidelines system, courts were
prohibited from considering certain grounds for departure which were
considered improper by the Sentencing Commission, and in some cases are
impermissible under the Constitution. Such grounds include the
defendant's race, sex, national origin, creed, religion, and socio-
economic status.\22\ The Commission also prohibited consideration of
other factors--such as the defendant''s dependence on alcohol, drugs,
or gambling, lack of guidance as a youth, disadvantaged upbringing and
others--and discouraged consideration of other factors.\23\ Clearly,
whether under the former mandatory guidelines system, or under the
post-Booker advisory guidelines system, no court may consider grounds
for departure that are impermissible under the Constitution.
---------------------------------------------------------------------------
\22\ USSG Sec. Sec. 5H1.10, 5H.12. See generally USSG Sec. 5K2.0.
\23\ USSG Sec. 5H1.4
---------------------------------------------------------------------------
Soon after the Court's decision in Booker, a number of courts
sentenced defendants to sentences significantly below the applicable
guideline range, relying on factors that the Sentencing Commission
considered improper when imposing sentences. In Wisconsin, a judge
sentenced a white collar bank officer in a bank fraud case to one year
and one day when the guidelines provided for 36-47 months, explicitly
basing the sentence on considerations such as the defendant's
motivation to keep the client's business afloat and the fact that the
conviction resulted in financial distress for the defendant.\24\ In
California, a judge sentenced four men, convicted of smuggling more
than a ton of cocaine from Colombia, to 41 months, when the guidelines
provided for a sentence of at least 235-293 months. Among the reasons
the court cited for the sentence was the defendants' poverty. A
newspaper reporting the case quoted the court as stating that the
guideline sentence recommended by the government was ``extremely
harsh'' and that the ``the government is being absolutely and totally
unfair.'' \25\ Meanwhile, other defendants in the same district in
California received sentences of 20 and 30 years for the same conduct--
smuggling tons of cocaine from Colombia on the high seas.
---------------------------------------------------------------------------
\24\ United States v. Ranum, 2005 WL 161223 (E.D. Wis. Jan, 19,
2005).
\25\ Soto, Onell R., Four Colombians Get Light Sentences, Judge
Cites Threats, at http://SignOnSanDiego.com/news/metro/20050128-9999-
7m28fast.html.
---------------------------------------------------------------------------
As these decisions make clear, there is a need for courts to be
consistent in their application of what factors are proper to consider
at sentencing. Failing to do so will result in greater disparity. We
urge Congress, in whatever sentencing system it implements, to prohibit
certain factors so that judges may not consider in sentencing grounds
which would be improper to consider or which would create sentencing
disparity based upon inappropriate characteristics of a defendant.
COOPERATION AND ACCEPTANCE OF RESPONSIBILITY
Another consequence of the advisory guidelines is the reduced
incentive for defendants to enter early plea agreements or cooperation
agreements with the government, since defendants may request and obtain
the same benefit from the court without such an agreement. Under the
mandatory guideline system, a defendant could obtain an additional
third point reduction in his guideline range as consideration for an
early acceptance of responsibility only upon the Department's motion.
The Department is in the best position to determine whether a
defendant's early plea has save prosecutorial resources, and should
retain control of who receives that consideration.
Similarly, it is essential that the Department retain control over
whether consideration at sentencing will be given for cooperation.
Cooperation agreements are an essential component of law enforcement
and are necessary to penetrate criminal organizations and to obtain
convictions in court. First, the Department is in the best position to
evaluate the truthfulness and value of a cooperator's assistance, by
evaluating it within the context of the entire body of investigative
information and by determining whether it is consistent and
corroborated by other evidence. But there is a more important reason--
the Department needs the leverage in order to insist that cooperating
defendants testify to the complete truth, rather than half-truths. The
integrity of the judicial system depends upon the prosecutor's ability,
in good faith, to present only truthful testimony. The Department's
ability to insist on complete and truthful testimony is undercut if a
cooperating defendant can tell half-truths and then, himself, seek a
sentence reduction based upon partial cooperation.
In a number of circumstances, there will be less of an incentive
for cooperating defendants to assume the risks of cooperation if they
can seek sentencing benefits without risk. The implications of the
status quo are particularly troubling for the Department in those cases
in which defendants and targets are not charged with an offense
involving a mandatory minimum sentence. This will have grave effects on
the Department's ability to prosecute a wide variety of crimes which
are difficult, if not impossible, to investigate without cooperators,
such as drug trafficking, gangs, corporate fraud and terrorism
offenses. Moreover, it may impair the Department's ability to obtain
timely information. If defendants or targets of an investigation
believe a district judge will impose minimal punishment or reward the
defendant's representations regarding his cooperation and its value,
defendants may defer attempts to cooperate with the Department. This
could have a very disruptive effect on on-going investigations.
The potential problem created by these issues is serious enough
that the Department will not support any proposal that does not
appropriately address this issue.
APPELLATE REVIEW
The Supreme Court in Booker excised 3742(e), which sets forth the
standard of review on appeal for departures from the applicable
guideline range, and announced that henceforth appellate courts would
review sentences for ``unreasonableness.'' \26\ The Department believes
that guideline sentences are presumptively reasonable, and that
sentences outside the guidelines become less reasonable the more they
vary from the guideline range. It is, however, unclear how courts will
define ``reasonableness'' and it is foreseeable that courts around the
country will define it differently, opening another window through
which disparity can infiltrate the system. Both the majority and
dissenting opinions in Booker noted point. In response to Justice
Scalia's dissent that the ``reasonableness'' standard will lead to
sentencing disparities, the majority noted that ``we cannot claim that
use of a 'reasonableness' standard will provide the uniformity that
Congress originally sought to secure.'' \27\
---------------------------------------------------------------------------
\26\ Booker, 125 S.Ct. at 745.
\27\ Id. at 767.
---------------------------------------------------------------------------
The Department is disappointed that the de novo standard
established by the PROTECT Act for sentences outside the applicable
guideline range is no longer the law. This standard proved invaluable
in the re-sentencing of a number of cases. For example, the Fourth
Circuit reviewed de novo a district courts one-month sentence in a
cross-burning case, based upon the victim's conduct and the defendant's
aberrant behavior. The Circuit concluded that the departures were
unwarranted and clearly erroneous.\28\ The Seventh Circuit reviewed de
novo a district court's decision to grant a downward departure to a
defendant convicted of child molestation on the grounds of national
origin and health. Again, the Circuit court found that the departures
were not warranted.\29\
---------------------------------------------------------------------------
\28\ United States v. May, 359 F.3d 683 (4th Cir. 2004).
\29\ United States v. Mallon, 345 F.3d 943 (7th Cir. 2004). See
also United States v Tucker, 386 F.3d 273 (DC Cir. 2004); United States
v. Mandhai, 375 F.3d 1243 (11th Cir. 2004).
---------------------------------------------------------------------------
We are concerned that the ``reasonableness'' standard may not be
sufficiently rigorous to reduce unwarranted disparity. A rigorous and
consistent appellate standard is essential to any guideline system
since appellate review will be an important means for the parties to
obtain consistent sentencing.
REVIEW OF SENTENCING DATA
Finally, under any regime, it is important that Congress and the
Sentencing Commission monitor the sentences being imposed throughout
the country to determine whether the guidelines are being properly
considered and applied. The impact of the Supreme Court's ruling can
only be assessed with accurate, real-time information on sentencing,
which is necessary to play an appropriate and effective role in the
public debate. This information remains vital to determine whether it
is necessary to make adjustments to the guidelines, or to impose
mandatory minimum sentences for certain types of crimes. This review is
also necessary to ensure that the sentences imposed in the federal
system are proportionate to the crime and provide adequate punishment,
incapacitation and deterrence.
CONCLUSION
The Department of Justice is committed to ensuring that the federal
criminal justice system continues to impose just and appropriate
sentences that meet the goals of sentencing reform, which has so well
served the United States. We look forward to working with Congress and
others to create a lasting system that advances these goals. We are
confident that Congress will act in the near term to ensure that
federal sentencing policy continues to play its vital role in bringing
justice to the communities of this country.
I would be happy to try to answer any questions that the
Subcommittee may have.
Mr. Coble. And in the sense of equity and fairness, since I
gave you an extra minute, I will give you all 6 minutes if you
need it. If you can do it in five, that will make the Chairman
real happy.
Judge, good to have you with us. Thank you.
STATEMENT OF THE HONORABLE RICARDO H. HINOJOSA, CHAIRMAN,
UNITED STATES SENTENCING COMMISSION
Judge Hinojosa. Thank you, Chairman Coble and Ranking
Member Scott and distinguished Members of the Committee. I
thank you for this opportunity to be able to address you on the
aftermath of Booker and its possible effect on the Federal
sentencing guidelines.
As you know, the Booker decision leaves the Sentencing
Reform Act intact with the exception of two excised provisions
and maintains all of the Sentencing Commission's statutory
obligations. My statement today presents some initial
observations regarding Booker, provides early data regarding
the impact of the decision, and outlines actions we are taking
to ensure that the guidelines continue to be an effective
sentencing tool.
After Booker, the guidelines remain an important and
essential factor in the imposition of Federal sentences. Under
the approach set forth by the Court, district courts must
consult the guidelines and take them into account when
sentencing, subject to review by the courts of appeal for
unreasonableness. The Commission believes that the Booker
decision makes clear that the sentencing court must consider
the guidelines and that such consideration necessarily requires
the sentencing court to calculate the guideline sentencing
range and consider the departure policy statements of the
Federal sentencing guidelines.
Significantly, Title 18, U.S. Code Section 3553(a) was left
wholly intact and still instructs that in determining the
particular sentence to impose, the court shall consider the
kinds of sentence and the sentencing range as set forth in the
guidelines. Of course, sentencing courts cannot consider the
sentencing guideline range if one is not determined by the
court. Appellate case law is already developing on this point.
The Booker decision does not expressly address the question
of how much weight the guidelines should be accorded by the
sentencing court. There are a number of district court
decisions with varying opinions regarding the precise weight
that should be given to the guidelines. The Commission believes
that the courts should give substantial weight to the
guidelines in determining the appropriate sentence because as
mandated by the Sentencing Reform Act, the Commission has
considered the factors listed in section 3553(a) during the
process of promulgating and refining the guidelines.
The factors the Commission has considered are a virtual
mirror image of the factors sentencing courts are required to
consider pursuant to section 3553(a). In addition,
Congressional action through the history of the Federal
sentencing guidelines indicates Congress's belief that they
generally achieve the statutory purposes of sentencing as they
are submitted for Congressional review before they become
effective, and Congressional approval can only be interpreted
as a sign that Congress believes the guidelines have done so.
Accordingly, sentencing courts should give the guidelines
substantial weight.
After Booker, sentencing courts also continue to be
required by Title 28 U.S. Code Section 994(w) to submit to the
Commission five specific sentencing documents. Judge Sim Lake,
Chair of the Criminal Law Committee of the Judicial Conference
of the United States, and I have issued a joint memorandum to
all United States district judges and other court personnel
reminding them of this ongoing statutory obligation. The
submission of these sentencing documents is of utmost
importance because without them, the Sentencing Commission
cannot generate the sentencing data that Congress, the
Commission, and others need to evaluate the impact of Booker.
The Commission is sensitive to the need for timely and
thorough post-Booker data and has prioritized and reconfigured
its data collection in order to analyze and disseminate post-
Booker data in as close to real time as possible. As of
February 4, 2005, we have received and analyzed sentencing
documents from 74 Federal districts for 733 cases sentenced on
or after January 12, 2005. These courts have been highly
compliant with their statutory requirements to submit
sentencing documentation to the Commission. The data we have
compiled is preliminary in nature and not necessarily
representative of the nation as a whole. I would urge extreme
caution in making firm conclusions based on these figures.
The percent of cases sentenced within the guideline
sentencing range post-Booker does not appear to be noticeably
different from previous practice. Of the 692 cases for which
complete sentencing information was available, 63.9 percent
were sentenced within the applicable guideline sentencing
range, which is almost identical to the data we have for the
last three fiscal years of published data, which range from 64
to 65 percent.
One-third of the cases were sentenced below the applicable
guideline sentencing range, which also is almost identical to
the data we have for the last three fiscal years of published
data. Almost two-thirds, 63.2 percent of the sentences below
the applicable guideline range since Booker were based on an
agreement with the Government either for substantial
assistance, an early disposition or fast track program, or
otherwise pursuant to a plea agreement.
Also noteworthy is that 2.7 percent of the post-Booker
cases were sentenced above the sentencing guideline range,
which is a relatively small number but represents more than a
three-fold increase above the average upward departure rate of
0.7 percent for the last three fiscal years.
This very preliminary post-Booker data indicates that
courts appear to be sentencing pursuant to the guidelines in
the overwhelming majority of cases. Only 7.8 percent of cases
appear to be sentenced below, and only 1.3 percent appear to be
sentenced above the applicable guideline sentencing range based
upon sentencing authority established in Booker. Therefore,
courts sentenced pursuant to the guideline system as a whole,
including upward and downward departure policy statements
contained in the guideline manual, in 90.9 percent of the
cases.
Next week, we have planned a 2-day hearing to continue
building a record of informed discussion of Booker and we are
scheduled to vote to publish for comment proposed guideline
amendments that would implement Congressional directives and
other legislation concerning identity theft and antitrust
offenses. In short, our core work continues uninterrupted.
In closing, the Commission recognizes that Booker presents
new potentially significant challenges to Federal sentencing
and we are aware proposals to respond to the decision are being
discussed. If Congress decides at some point to pursue
legislation, we hope that it will preserve the core principles
of the Sentencing Reform Act, and to the extent possible, avoid
a wholesale rewriting of the system that has operated well for
nearly two decades. We believe the Sentencing Reform Act was a
landmark piece of legislation and the resulting guidelines have
made significant strides in furthering the goals of the Act.
As we move forward, the Commission is ready to assist
Congress in any way it deems appropriate, and I thank you so
much for giving me the time to be here today and for going over
my alloted time, Mr. Chairman. As a judge for 22 years, I know
that bothers the person at the helm, so I appreciate it very
much.
Mr. Coble. Thank you, Your Honor. I appreciate that.
[The prepared statement of Judge Hinojosa follows:]
Prepared Statement of the Honorable Ricardo H. Hinojosa
Chairman Coble, Ranking Member Scott, and Distinguished Members of
the Committee, thank you for inviting me to testify today on behalf of
the United States Sentencing Commission regarding the impact of the
Supreme Court's decision in United States v. Booker \1\ on the Federal
Sentencing Guidelines.
---------------------------------------------------------------------------
\1\ United States v. Booker, 125 S. Ct. 738 (2005).
---------------------------------------------------------------------------
After the Court's decision in Blakely v. Washington,\2\ the federal
criminal justice system experienced a period of uncertainty regarding
whether the Federal Sentencing Guidelines would remain valid. The
Sentencing Commission, in testimony before Congress and in its own
amicus brief, vigorously asserted that the holding in Blakely did not
apply to the Federal Sentencing Guidelines. Although the Court
ultimately extended Blakely to the Federal Sentencing Guidelines, the
Booker decision resolved the uncertainty in a manner that leaves the
Sentencing Reform Act intact with the exception of two excised
provisions. The opinion maintains all of the Sentencing Commission's
statutory obligations under the Act. In fact, the Court noted the
Commission's important role in the federal criminal justice system,
stating that ``the Sentencing Commission remains in place, writing
Guidelines, collecting information and actual district court sentencing
decisions, undertaking research, and revising the Guidelines
accordingly.'' \3\
---------------------------------------------------------------------------
\2\ Blakely v. Washington, 542 U.S. (2004) (holding that any fact
(other than a prior conviction) which is necessary to support a
sentence exceeding the maximum authorized by the facts established by a
plea of guilty or a jury verdict must be admitted by the defendant or
proved to a jury beyond a reasonable doubt).
\3\ Booker, 125 S. Ct. at 767 (opinion of BREYER, J.).
---------------------------------------------------------------------------
There is no doubt, however, that the Booker decision is the most
significant case affecting the federal guidelines system since the
Supreme Court upheld the Sentencing Reform Act in Mistretta.\4\ While
it is impossible to evaluate fully the impact of Booker after less than
---------------------------------------------------------------------------
\4\ Mistretta v. United States, 488 U.S. 361 (1989).
---------------------------------------------------------------------------
one month, the Sentencing Commission and its staff are committed to
assisting Congress in any way it deems appropriate as you assess and
respond to the decision.
The Sentencing Commission is uniquely positioned to assist all
three branches of government in ensuring the continued security of the
public while providing fair and just sentences. An independent agency
housed in the judicial branch, the Sentencing Commission is an expert
bipartisan body of federal judges, individuals with varied experience
in the federal criminal justice system, and ex-officio representatives
of the Executive branch whose work on sentencing guidelines must be
reviewed by Congress. In short, the Sentencing Commission is at the
crossroads where the three branches of government intersect to
determine federal sentencing policy.
My testimony today presents some of the Sentencing Commission's
initial observations regarding Booker, provides early data regarding
the impact of the decision, and outlines actions we are taking to
ensure that the guidelines continue to be an effective sentencing tool.
Guidelines Still Must Be Calculated and Considered
After Booker the Federal Sentencing Guidelines remain an important
and essential consideration in the imposition of federal sentences. The
decision severed and excised two statutory provisions, 18 U.S.C.
Sec. 3553(b)(1), which made the Federal Guidelines mandatory, and 18
U.S.C. Sec. 3742(e), an appeals provision. Under the approach set forth
by the Court, ``district courts, while not bound to apply the
Guidelines, must consult those Guidelines and take them into account
when sentencing,'' subject to review by the courts of appeal for
``unreasonableness.'' \5\
---------------------------------------------------------------------------
\5\ Booker, 124 S. Ct. at 767 (opinion of BREYER, J.) (emphasis
added).
---------------------------------------------------------------------------
The Sentencing Commission firmly believes that the Court's decision
makes clear that the sentencing court must consider the guidelines and
that such consideration necessarily requires the sentencing court to
calculate the guideline sentencing range. It is significant that 18
U.S.C. Sec. 3553(a), which was left wholly intact by the decision,
still instructs that sentencing courts
``. . . in determining the particular sentence to be imposed, shall
consider . . . the kinds of sentence and the sentencing range
established for . . . the applicable category of offense committed by
the applicable category of defendant as set forth in the guidelines . .
. issued by the Sentencing Commission . . .''.\6\
---------------------------------------------------------------------------
\6\ 18 U.S.C. Sec. 3553(a)(4) (emphasis added).
---------------------------------------------------------------------------
Sentencing courts of course cannot consider the sentencing
guideline range if one has not been determined. Therefore, probation
officers should continue preparing presentence reports with
guideline calculations, pursuant to 18 U.S.C. Sec. 3552 and Rule 32
of the Federal Rules of Criminal Procedure, both of which were
unchanged by the decision.
Appellate case law is already developing on this point. The Second
Circuit has held that in order to comply with the duty to ``consider''
the guidelines:
A judge cannot satisfy this duty by a general reference to the
entirety of the Guidelines Manual, followed by a decision to impose a
``non-Guidelines sentence.'' Subsection 3553(a)(4) contemplates
consideration of the Guidelines range applicable to the defendant, and
subsection 3553(a)(5) contemplates consideration of policy statements
issued by the Sentencing Commission, including departure authority. The
applicable Guidelines range is normally to be determined in the manner
as before Booker/Fanfan.\7\
---------------------------------------------------------------------------
\7\ See, e.g., United States v. Crosby, F.3d , 2005 WL 240916 (2nd
Cir Feb. 2, 2005), at *5 (emphasis added).
---------------------------------------------------------------------------
The Fourth Circuit similarly has held that ``[c]onsistent with the
remedial scheme set forth in Booker, a district court shall first
calculate (after making the appropriate findings of fact) the range
prescribed by the guidelines. Then, the court shall consider that range
as well as other relevant factors set forth in the guidelines and those
factors set forth in Sec. 3553(a) before imposing the sentence.'' \8\
Therefore, prior to imposing a sentence sentencing courts must consider
the guideline range calculations and departure policy statements,
pursuant to Booker and 18 U.S.C. Sec. 3553(a).
---------------------------------------------------------------------------
\8\ United States v. Hughes, F.3d , 2005 WL 147059 (4th Cir. Jan.
24, 2005), at *3. (emphasis added).
---------------------------------------------------------------------------
Sentencing Guidelines Should be Given Substantial Weight
Although the Booker decision makes clear that the guidelines must
be consulted and taken into account, it does not expressly address the
question of how much weight they should be accorded by the sentencing
court. There are a number of district court decisions with varying
opinions regarding the precise weight that should be given to the
guidelines. For example, a case in the District of Utah has held that
the Federal Sentencing Guidelines should be given ``heavy weight'' and
deviated from only in ``unusual cases for clearly identified and
persuasive reasons,'' while a case in the Eastern District of Wisconsin
has held that ``courts must treat the guidelines as just one of a
number of sentencing factors'' enumerated at 18 U.S.C. Sec. 3553(a).\9\
The appellate courts ultimately can be expected to address this issue.
---------------------------------------------------------------------------
\9\ United States v. Wilson, 2005 WL 78552 (D. Utah Jan 13, 2005);
United States v. Ranum, 2005 WL 161223 (E.D. Wis. Jan 19, 2005).
---------------------------------------------------------------------------
The Sentencing Commission firmly believes that sentencing courts
should give substantial weight to the Federal Sentencing Guidelines in
determining the appropriate sentence to impose, and that Booker should
be read as requiring such weight. The Booker sentencing scheme
``requires a sentencing court to consider Guidelines ranges, see 18
U.S.C.A. Sec. 3553(a)(4) (Supp. 2004), but it permits the court to
tailor the sentence in light of other statutory concerns as well, see
Sec. 3553(a) (Supp. 2004).'' \10\
---------------------------------------------------------------------------
\10\ Booker, 125 S. Ct. at 757 (opinion of BREYER. J.).
---------------------------------------------------------------------------
During the process of developing the initial set of guidelines and
in refining them throughout the ensuing years, the Sentencing
Commission has considered the factors listed at section 3553(a) and
cited with approval in Booker. The Sentencing Reform Act, in fact,
mandates such consideration by the Sentencing Commission. Section
991(b) of title 28, United States Code, expressly states that the very
purposes of the Sentencing Commission are, among other things: to
assure the purposes of sentencing, as set forth in section 3353(a)(2),
are met; to provide certainty and fairness in sentencing; to avoid
unwarranted disparities among defendants with similar records who have
been found guilty of similar conduct; and to maintain sufficient
flexibility to permit individualized sentences when warranted. In
short, the factors the Sentencing Commission has been required to
consider in developing the Sentencing Guidelines are a virtual mirror
image of the factors sentencing courts are required to consider
pursuant to 18 U.S.C. Sec. 3553(a) and the Booker decision.\11\ As a
result, sentencing courts should give the guidelines substantial
weight.
---------------------------------------------------------------------------
\11\ There is considerable pre-Booker case law supporting the
proposition that the Sentencing Guidelines take into account the
factors set forth at 18 U.S.C. Sec. 3553(a)(2). See, e.g., United
States v. Davern, 970 F.2d 1490 (6th Cir. 1992); United States v.
Mogel, 956 F.2d 1555 (5th Cir. 1992); United States v. Hefferman, 43
F.3d 1144 (7th Cir. 1994); United States v. Breeding, 109 F.3d 308 (6th
Cir. 1997).
---------------------------------------------------------------------------
In addition, congressional action throughout the history of the
Federal Sentencing Guidelines indicates Congress's belief that they
generally achieve the statutory purposes of sentencing. Pursuant to 28
U.S.C. Sec. 994(p), the Commission is required to submit all guidelines
and guideline amendments for congressional review before they become
effective. To date, the initial set of guidelines and 672 amendments
have withstood congressional scrutiny, and many guideline amendments
were promulgated in response to congressional directives. Such
congressional approval can only be interpreted as a sign that Congress
believes the Federal Sentencing Guidelines adequately achieve the
statutory purposes of sentencing, providing further support for the
Sentencing Commission's position that sentencing courts should give the
guidelines substantial weight in imposing sentences.
SENTENCING DOCUMENTATION MUST BE COMPLETED AND SUBMITTED
Sentencing courts also continue to be required by 18 U.S.C.
Sec. 3553(c) (statement of reasons for imposing a sentence) and 28
U.S.C. Sec. 994(w) to submit to the Commission within 30 days of entry
of judgment five specific sentencing documents: the judgment and
commitment order, the statement of reasons (including the specific
reasons for any departure), any plea agreement, the indictment or other
charging document, and the presentence report. Booker makes no changes
in the document submission requirements imposed by the PROTECT Act, and
it is imperative that all districts continue to make these submissions
to the Commission in a timely and complete manner.
In order to emphasize this point, on January 21, 2004, Judge Sim
Lake, Chair of the Criminal Law Committee of the Judicial Conference of
the United States and I issued a joint memorandum to all United States
District Judges and other court personnel reminding them of the duty to
continue fulfilling this ongoing statutory requirement (Attachment A).
I also appeared earlier this week on a television broadcast to the
courts sponsored by the Federal Judicial Center and again reiterated
this point.
The statutorily required submission of sentencing documents is of
utmost importance because without these documents the Sentencing
Commission cannot generate the sentencing data that Congress, the
Commission, and others need to evaluate the impact of Booker on federal
sentencing. As a result, we intend to continue coordinating with the
Criminal Law Committee, the Administrative Office of the United States
Courts, and the Federal Judicial Center to ensure that the courts
provide us with the documentation and information we need, and this
effort could include either revisions or supplements to forms currently
in use.
SENTENCING COMMISSION'S ACTIONS IN RESPONSE TO BOOKER
The Sentencing Commission conducted a two day hearing on November
16 and 17, 2004, at which it heard testimony from the Department of
Justice, defense attorneys, and academics, and the Commission and its
staff have attended various conferences and meetings since the Blakely
decision. Based on these interactions, the Sentencing Commission is
aware that a number of proposals to respond to Booker are being
discussed. These proposals include, among others, a ``wait and see''
approach, statutory implementation in some form of the Booker
sentencing scheme, providing a jury trial mechanism for sentencing
guideline enhancements, ``simplification'' of the guidelines either by
reducing the number of guideline adjustments and/or by expanding the
sentencing guideline ranges, equating the maximum of the guideline
sentencing ranges with the statutory maximum for the offense of
conviction, and broader reliance on statutory mandatory minimum
penalties.
If Congress decides at some point to pursue legislation, we hope
that it will preserve the core principles of the Sentencing Reform Act
and, to the extent possible, avoid a wholesale rewriting of a system
that has operated well for nearly two decades. We believe the
Sentencing Reform Act was a landmark piece of legislation and the
resulting guidelines have made significant strides in furthering the
goals of the Act.
The Sentencing Commission will continue fulfilling its many
statutory duties and in furtherance of its ongoing mission already is
taking several steps in response to Booker. The Sentencing Commission
is sensitive to the need for timely and thorough post-Booker data on
federal sentencing. As stated earlier, the Sentencing Commission
already has communicated with the courts regarding their continuing
statutory duties regarding completion and submission of sentencing
documentation. In addition, the Sentencing Commission has prioritized
and reconfigured its data collection modules in order to collect,
analyze, and disseminate post-Booker data in as close to ``real time''
as possible.
As of February 4, 2005, the Sentencing Commission has received and
analyzed sentencing documents for 733 cases sentenced on or after
January 12, 2005, the date of the Booker decision. The data we have
compiled is preliminary in nature and not necessarily representative of
the nation as whole and, therefore, I would urge extreme caution in
making firm conclusions based on these figures.
The Sentencing Commission has received sentencing documents from 74
of the 94 federal districts, and these courts have been highly
compliant with the documentation submission requirements of 18 U.S.C.
Sec. 3553(c) and the PROTECT Act, which remain unchanged by Booker. The
sentencing documentation for these cases included 99.6% of the Judgment
and Commitment Orders, 98.8% of the Presentence Reports, 97.3% of the
Indictments or other charging documents, and 95.8% of the Statements of
Reasons. These figures indicate that courts are continuing to take
their statutorily required documentation and submission requirements
seriously.
The percent of cases sentenced within the guideline sentencing
range post-Booker does not appear to differ noticeably from previous
practice. Of the 692 cases for which complete sentencing information
was available,\12\ 63.9 percent (442) were sentenced within the
applicable guideline sentencing range. During the last three fiscal
years of published data, the proportion of cases sentenced within the
applicable guideline sentencing range remained between 64 and 65
percent.\13\
---------------------------------------------------------------------------
\12\ Of the 733 cases analyzed, in 41 cases the Commission was
unable to determine whether the sentence was within the guideline
sentencing range, including for example class A misdemeanors for which
there was no applicable guideline range or immigration offenses in
which the presentence report was waived and the sentence imposed was
``time served.''
\13\ See, Table 26 of the 2002, 2001, and 2000 Sourcebook of
Federal Sentencing Statistics.
---------------------------------------------------------------------------
Also similar to prior sentencing practice, approximately one-third
of the cases--33.4 percent (231)--were sentenced below the applicable
guideline sentencing range. Between 33.9 percent and 35.4 percent of
the federal caseload in fiscal years 2000-2002 were sentenced below the
applicable guideline sentencing range.\14\
---------------------------------------------------------------------------
\14\ Id.
---------------------------------------------------------------------------
The majority of the sentences below the applicable guideline range
since Booker were based on an agreement with the government. Of the 231
cases sentenced below the applicable guideline sentencing range, 105
(45.5%) were pursuant to a substantial assistance motion made by the
government under USSG 6 5K1.1 (Substantial Assistance), 32 (13.9%) were
pursuant to an early disposition or fast track motion made by the
government under USSG Sec. 5K3.1 (Early Disposition Programs), and 9
(3.9%) were otherwise pursuant to a plea agreement. Therefore, the
government initiated or plea bargained for almost two thirds (63.2%) of
the sentences below the applicable guideline sentencing range.
Downward departures were granted for other reasons identified in
the Guidelines Manual in 31 cases, which represents 13.4 percent of the
cases sentenced below the applicable sentencing guideline range. The
remaining 54 cases sentenced below the applicable guideline sentencing
range appear to be based upon sentencing authority established in
Booker, which represents 23.4 percent of the cases sentenced below the
applicable guideline sentencing range.
Also noteworthy is the fact that 19 cases were sentenced above the
applicable guideline sentencing range. These sentences were divided
almost evenly between sentence increases pursuant to upward departure
provisions contained in the Guidelines Manual and increases based upon
sentencing authority established in Booker. Combined they comprise 2.7
percent of the post-Booker cases, which represents more than a three-
fold increase above the average upward departure rate of 0.7 percent
for fiscal years 2000-2002.\15\
---------------------------------------------------------------------------
\15\ Id.
---------------------------------------------------------------------------
This very early preliminary data since Booker seems to indicate
that courts are sentencing pursuant to the Federal Sentencing
Guidelines in the overwhelming majority of cases. Only 7.8 percent of
the cases appear to be sentenced below, and only 1.3 percent appeal to
be sentenced above, the applicable guideline sentencing range based
upon sentencing authority established in Booker. Therefore, courts
sentenced pursuant to the Federal Sentencing Guidelines system as a
whole, including upward and downward departure policy statements
contained in the Guidelines Manual, in 90.9 percent of the cases
analyzed for this period.
In addition to its timely data collection and analysis, the
Commission has scheduled another two-day hearing on February 15 and 16,
2005, to gauge the impact of Booker and continue building a record of
informed discussion. We expect several witnesses representing a broad
spectrum of parties interested in the federal criminal justice system
to testify.
As evidenced by our testimony today, the Commission is monitoring
closely emerging case law to see how district courts rely on the
Federal Sentencing Guidelines in the post-Booker era, how appellate
courts interpret what is an ``unreasonable'' sentence,\16\ and whether
the Sentencing Commission must resolve any new resulting conflicts
among the circuit courts.\17\
---------------------------------------------------------------------------
\16\ See, United States v. Crosby, F.3d. , 2005 WL 240916 (2nd
Cir.) (recognizing that ``reasonableness'' is ``inherently a concept of
flexible meaning, generally lacking precise boundaries'' and declining
to establish per se standards of reasonableness).
\17\ See, Braxton v. United States, 500 U.S. 344 (1991).
---------------------------------------------------------------------------
The Commission also is continuing to train judges, probation
officers, prosecutors, and defense attorneys on guideline application
and the extensive provisions of the Sentencing Reform Act that remain
in full force and effect.
As further evidence of the Sentencing Commission's continued
vitality and our belief in the continued relevance and importance of
the Sentencing Guidelines, next week the Sentencing Commission is
scheduled to vote to publish for comment proposed guideline amendments
that would implement congressional directives and other legislation
concerning identity theft and antitrust offenses. In short, our core
work continues uninterrupted.
CONCLUSION
In closing, the Sentencing Commission recognizes that the Booker
decision presents new, potentially significant challenges to federal
sentencing. The Sentencing Commission concurs with a recent
admonishment to sentencing courts, however, ``that Booker/Fanfan and
section 3553(a) do more than render the Guidelines a body of casual
advice, to be consulted or overlooked at the whim of a sentencing
judge.'' \18\ The Sentencing Commission firmly believes that Booker
requires that sentencing courts calculate the applicable guideline
sentencing range. We are noticing in some case law that different
sentencing courts are giving the Federal Sentencing Guidelines varying
weights. In addition, we are unsure of how appellate review for
``unreasonableness'' will work in practice, or how the courts of appeal
will resolve the issue of how much weight sentencing courts should
accord the guidelines.
---------------------------------------------------------------------------
\18\ Crosby, 2005 WL 240916, at *7.
---------------------------------------------------------------------------
The Sentencing Commission and its staff are closely monitoring
these and other issues. We are dedicated to our mission to carry out
the goals of sentencing reform and, as the Booker decision itself says,
``to provide certainty and fairness in meeting the purposes of
sentencing [while] avoiding unwarranted sentencing disparities . . .
[and] maintaining sufficient flexibility to permit individualized
sentences when warranted.'' \19\
---------------------------------------------------------------------------
\19\ Booker, 125 S. Ct. at 767 (opinion of BREYER, J) (quoting 28
U.S.C. Sec. 991(b)(1)(B)).
---------------------------------------------------------------------------
As we move forward in the wake of Booker, we are ready to assist
Congress in any way it deems appropriate. Mr. Chairman, Ranking Member
Scott, and Members of the Committee, thank you again for holding this
very important hearing. I will be glad to answer any questions you may
have.
Mr. Coble. Mr. Collins?
STATEMENT OF DANIEL P. COLLINS, PARTNER,
MUNGER, TOLLES, AND OLSON LLP
Mr. Collins. Good morning, Chairman Coble, Ranking Member
Scott, and Members of the Subcommittee. I appreciate the
opportunity to testify here today.
By declaring the U.S. sentencing guidelines to be merely
advisory, the United States Supreme Court's decision in Booker
effectively demolishes in one stroke the entire edifice of
Federal sentencing reform that had been carefully built over
the course of the last 20 years. The Court has invited the
Congress explicitly to rebuild a, quote, ``sentencing system
compatible with the Constitution that Congress judges best for
the Federal system of justice.'' I applaud you, Mr. Chairman,
for moving quickly to hold hearings on this important task.
I would like to begin my remarks by emphasizing the
importance of the issue before you. Federal sentencing policy
is not some abstract matter about the mechanics and details of
court procedure. It is a grave matter that goes to the heart of
one of the Government's first and foremost responsibilities,
the protection of public safety.
In my view, it is no accident that the unprecedented and
historic declines in crime rates in America have coincided with
the rise of determinate sentencing under the Federal sentencing
guidelines and analogous systems at the State level. Common
sense suggests that if you lock up criminals for longer periods
of time and lock up the very worst for very long periods of
time, there will be less crime.
We simply cannot be sure that if we heed recent calls for
less severity, for smaller prison populations, or for greater
flexibility, we will not again see a spike in crime rates. To
accede to such measures would be to engage in an irresponsible
experiment that would literally gamble with the lives of this
nation's citizens.
Accordingly, it is my strong recommendation that Congress
act, and act promptly, to rebuild the Federal sentencing system
so that it can function most nearly as it did before Booker. If
Federal sentencing policy wasn't broke before Booker, don't fix
it into something entirely different. The invalidation of the
guidelines in Booker does not call into question any of the
ultimate values or objectives of Federal sentencing policy. It
simply found fault with the mechanisms by which those values
were achieved in certain cases.
What, then, is the source of the flaw that was identified
in Booker? Blakely and Booker are quite clear on that point. In
Blakely, the Court stated that the crucial factor that
distinguished Washington's sentencing system from an admittedly
constitutional system of complete judicial discretion was the
fact that in the absence of additional factual findings beyond
those admitted by the defendant or found by the jury, the
defendant has a legal right to a lesser sentence, and the word
``right'' is italicized in the Court's opinion.
Accordingly, the flaw in the guidelines under Booker and
Blakely is that in the absence of particular findings, the
guidelines set a legally enforceable maximum sentence that is
below the theoretical statutory maximum. By contrast, the
Supreme Court has squarely held that basing a minimum sentence
on additional facts found solely by the judge does not violate
the sixth amendment as construed in Apprendi.
If the goal is, as I think it should be, to preserve the
practical substance of the guidelines system to the greatest
extent possible and with as little alteration as possible, the
question about what Congress should do almost answers itself.
If the problem is created only by the guidelines' use of ranges
with legally enforceable maxima below the statutory maximum,
then the solution is to get rid of those maxima. In other
words, the sentencing guidelines would be fully restored
exactly as they were before with the sole exception that in
every case, the top of the authorized range would be the
statutory maximum. Booker leaves little doubt that under
current Supreme Court doctrine, such a system would be
perfectly constitutional.
The only objection that I can perceive to this approach is
the policy argument that it eliminates the protections the
guidelines previously conferred against a ``hanging judge,''
but this objection is wide of the mark. We now have accumulated
15 years of empirical data of the experience under the
sentencing guidelines and that practical experience confirms
that there is very little need to worry about this sort of
excessive severity. In the last fiscal year for which data are
publicly available, upward departures occurred in only 457 out
of nearly 59,000 cases, a grand total of 0.8 percent. In this
system, the hanging judge is a myth. We should not make
fundamental structural changes solely to accommodate a problem
that does not occur in more than 99 percent of the cases.
On the contrary, as I have testified in my previous
appearances before this Committee, the problems with disparity
have all been in the other direction. With the guidelines now
being purely advisory, we can only expect these problems to
reappear and to worsen. We should not abandon a highly
successful system of guideline sentencing.
Finally, there is one additional aspect that I think ought
to be addressed in any legislation. As I have noted, the
Supreme Court has held in Harris that Apprendi did not apply to
minima. It has also held in Almendarez/Torres that the Apprendi
rule does not apply to the mere fact of a prior conviction.
Those decisions were 5-4 and the Congress may wish to address
the issue of severability and what should go into effect were
the Court to reverse itself on those decisions.
I would be pleased to answer any questions the Committee
may have.
Mr. Coble. Thank you, Mr. Collins.
[The prepared statement of Mr. Collins follows:]
Prepared Statement of Daniel P. Collins
Chairman Coble and Members of the Subcommittee, I appreciate the
opportunity to testify here today. By declaring the U.S. Sentencing
Guidelines to be mere advisory, the United States Supreme Court's
decision in United States v. Booker, 125 S. Ct. 738 (2005), effectively
demolishes in one stroke the entire edifice of federal sentencing
reform that has been carefully built over the last 20 years. As the
Court made clear, ``[t]he ball now lies in Congress' court.'' 125 S.
Ct. at 768. I applaud you, Mr. Chairman, for moving quickly to holding
hearings on this important issue, so that the Congress can promptly
move to rebuild a ``sentencing system, compatible with the
Constitution, that Congress judges best for the federal system of
justice.'' Id.
My perspective on federal sentencing policy is informed by my
service over a total of nearly eight years in various capacities in the
Justice Department. During the 1990s, I served three and one-half years
as a federal prosecutor in the U.S. Attorney' Office in Los Angeles.
More recently, I served from June 2001 until September 2003 as an
Associate Deputy Attorney General (``ADAG'') in the office of Deputy
Attorney General Larry Thompson. During my time as an ADAG, I had the
privilege of testifying before this Committee several times concerning
a variety of provisions that were ultimately enacted into law in the
Prosecutorial Remedies and Other Tools to end the Exploitation of
Children Today (``PROTECT'') Act of 2003. The PROTECT Act enacted some
of the most significant reforms in federal sentencing policy since the
original enactment of the Sentencing Reform Act of 1984. I also helped
to develop the Administration's 2002 proposal to strengthen federal
sentencing of identity theft crimes, a proposal that I was pleased to
see ultimately enacted into law as the Identity Theft Penalty
Enhancement Act. I also helped coordinate the Department's 2003 review
and revision of its policies on charging of criminal offenses, plea
bargaining, sentencing recommendations, and sentencing appeals. While
my views on federal sentencing policy are influenced by my prior
experiences working on such matters in the Government, I am now back in
private practice in Los Angeles, and I wish to emphasize that the views
I offer today are solely my own.
WHAT IS AT STAKE
I would like to begin my remarks by emphasizing the importance of
the issue before you. Federal sentencing policy is not some abstract
matter about the mechanics and details of court procedure; it is a
grave matter that goes to the heart of one of the Government's first
and foremost responsibilities: the protection of public safety.
In my view, it is no accident that the unprecedented and historic
declines in crime rates in America have coincided with the rise of
determinate sentencing under the federal Sentencing Guidelines and
analogous systems at the state level. I recognize that correlation does
not necessarily equal causation, but I do not think it is just a
coincidence--common sense suggests that if you lock up criminals for
longer periods of time, and lock up the very worst for very long
periods of time, there will be less crime.
In any event, I think the burden of doubt must be cast on the
critics of the Sentencing Guidelines. We simply cannot be sure that the
decisive move towards more determinate sentencing at the federal and
state levels has not been an important factor in lowering crime rates.
Put another way, we simply cannot be sure that, if we heed recent calls
for less severity, for smaller prison populations, or for greater
flexibility, we will not again see a spike in crime rates. To accede to
such measures would be to engage in an irresponsible experiment that
would literally gamble with the lives of this Nation's citizens.
Moreover, the ultimate measure for evaluating sentencing policy is
not whether individual sentences can be said to meet some pre-conceived
notion of a ``proportionate'' sentence. Proportionality is an important
value, to be sure, and it is taken into account in the many gradations
made within the guidelines system. But the vast diversity of competing
views as to what constitutes a proportionate sentence is precisely what
led to the enactment of the Sentencing Reform Act and the creation of
the Sentencing Guidelines in the first place, and congressional
consideration about how to rebuild the federal sentencing system should
not get side-tracked into ultimately irresolvable debates about
subjective notions of proportionality. Rather, sentencing policy must
ultimately be evaluated in terms of its ability to accomplish the core
goal of ensuring public safety and reducing crime. By that measure, the
Sentencing Guidelines have been a unqualified success. That they have
done so while simultaneously respecting and fostering important values
of proportionality, consistency, and fairness, makes them all the more
worth preserving and restoring.
REBUILDING THE EDIFICE OF FEDERAL SENTENCING
Accordingly, it is my strong recommendation that the Congress act--
and act promptly--to rebuild the federal sentencing system so that it
can function most nearly as it did before Booker. If federal sentencing
policy wasn't broke before Booker, don't fix it into something entirely
different. The invalidation of the Guidelines in Booker does not call
into question any of the ultimate values or objectives of federal
sentencing policy; it simply found fault with the mechanisms by which
those values were achieved in certain cases.
In determining how to go about rebuilding the Guidelines system, it
is essential to identify precisely what it was about the prior system
that led to the constitutional defect identified by the Supreme Court.
In Blakely v. Washington, 124 S. Ct. 2531 (2004), which addressed
Washington State's sentencing system, the Court was explicit in stating
that it was not ``find[ing] determinate sentencing schemes
unconstitutional.'' Id. at 2540. On the contrary, the Court stated that
the issue was how determinate sentencing ``can be implemented in a way
that respects the Sixth Amendment'' as construed under the Court's
landmark decision in Apprendi v. New Jersey, 530 U.S. 466 (2000). See
Blakely, 124 S. Ct. at 2540.
What, then, is the source of the flaw? Blakely and Booker are quite
clear on that point. In Blakely, the Court stated that the crucial
factor that distinguished Washington's sentencing system from an
admittedly constitutional system of complete judicial discretion was
the fact that, in the absence of additional factual findings beyond
those admitted or found by the jury, ``the defendant has a legal right
to a lesser sentence.'' 124 S. Ct. at 2540 (emphasis in original).
Indeed, the Court gave an example in order to illustrate its point:
``In a system that says the judge may punish burglary with 10
to 40 years, every burglar knows he is risking 40 years in
jail. In a system that punishes burglary with a 10-year
sentence, with another 30 added for use of a gun, the burglar
who enters a home unarmed is entitled to no more than a 10-year
sentence--and by reason of the Sixth Amendment the facts
bearing upon that entitlement must be found by a jury.''
Id. (emphasis in original). Likewise, in extending Blakely to the
Sentencing Guidelines, the Booker Court emphasized that the defect in
the Guidelines is that ``[i]t became the judge, not the jury, that
determined the upper limits of sentencing, and the facts determined
were not required to be raised before trial or proved by more than a
preponderance.'' 125 S. Ct. at 751 (emphasis added).
Accordingly, the flaw in the Guidelines under Booker and Blakely is
that, in the absence of particular findings, the Guidelines set a
legally enforceable maximum sentence that is below the theoretical
statutory maximum.
By contrast, the Supreme Court has squarely held that basing a
minimum sentence on additional facts found solely by the judge does not
violate the Sixth Amendment as construed in Apprendi. See Harris v.
United States, 536 U.S. 545, 568 (2002).
If the goal is, as I think it should be, to preserve the practical
substance of the Guidelines system to the greatest extent possible and
with as little alteration as possible, the question about how to do
that almost answers itself: if the problem is created only by the
Guideline's use of ranges with legally enforceable maxima below the
statutory maximum, then the solution is to get rid of those maxima. In
other words, the Sentencing Guidelines would be fully restored exactly
as they were before, with the sole exception that, in every case, the
top of the authorized range would be the statutory maximum. Because
Booker is unambiguously clear in stating that the Court has ``never
doubted the authority of a judge to exercise broad discretion in
imposing a sentence within a statutory range,'' 125 S. Ct. at 750,
there can be little doubt that this revised system would satisfy Booker
and Blakely.
The only objection that I can perceive to this approach is the
policy argument that the revised system would eliminate the ability to
ensure sentencing uniformity and fairness at the top as well as at the
bottom of the Guidelines. Put simply, it eliminates the protection the
Guidelines had previously conferred against a ``hanging'' judge. For a
number of reasons, this objection cannot carry the day. As an initial
matter, this objection ignores the obvious fact that, as matters
currently stand, a defendant has no protection against a hanging judge
other than the Court's newly fashioned appellate review of sentences
for ``reasonableness.'' Booker, 125 S. Ct. at 765-67, But the objection
is wide of the mark for a more fundamental reason. We now have
accumulated 15 years of experience under the Sentencing Guidelines, and
that practical experience confirms that there is very little need to
worry about this sort of excessive severity. For example, in the last
fiscal year for which data are publicly available, upward departures
occurred in only 457 of 58,684 cases sentenced nationwide--a grand
total of 0.8%. In this system, the hanging judge is a myth. We should
not make fundamental structural changes solely to accommodate a problem
that does not occur in 99.2% of the cases.
On the contrary, as I have testified before in my previous
appearances before this Committee, the problems with disparity have all
been in the other direction. With the Guidelines now being purely
advisory, we can only expect these problems to reappear and to worsen.
It is therefore urgent that the Congress act promptly to restore the
Guidelines system so that, as before, judges will at least be bound by
the highly reticulated and carefully tailored system of minimum
sentences that it contains. We should not abandon the highly successful
system of Guidelines sentencing.
ENSURING THAT A REBUILT SYSTEM SURVIVES
There is one additional aspect that I think ought to be addressed
in any legislation that seeks to rebuild the Guidelines system after
Booker and Blakely.
As I have noted, the Supreme Court held in Harris that Apprendi
does not apply to mandatory minima. The Court has also continued to
state that it does not apply to the mere fact of a prior conviction.
Blakely, 124 S. Ct. at 2536; cf. Almendarez-Torres v. United States,
523 U.S. 224 (1998). Both Harris and Almendarez-Torres were 5-4
decisions, and Justice Breyer's concurrence in Harris and Justice
Thomas' concurrence in Apprendi are alone enough to raise a question
whether a future Court might, despite the force of stare decisis, see
these matters differently. Were the Court to do so, it would be a
travesty to have a replay of Booker in which a future Court might
decide, once again, to ``sever'' the mandatory nature of the Guidelines
so as to eliminate the constitutional difficulty.
Accordingly, I urge the Congress to give serious consideration to
adding a title to whatever legislation emerges that would specifically
address the severability issue. In other words, the Congress should add
language that would have the effect of providing what system would go
into effect if either Harris or Almendarez-Torres are overruled. There
are a variety of options Congress could choose. For example, you might
provide for a graded system of statutorily prescribed mandatory minima
for all offenses (if Harris were overruled) or for submission of prior
convictions to the jury (in the event Apprendi were extended to prior
convictions). There is recent precedent, in the McCain-Feingold Act,
for taking a more proactive approach toward the issue of possible
severability. The Congress should likewise act to ensure that the
system it puts in place here will survive for the long term. Indeed,
the case for being proactive on severability is uniquely compelling
here, because the Ex Post Facto Clause will prevent Congress from
retroactively fixing the problem for the many thousands of cases
decided in the interim.
I would be pleased to answer any questions the Committee may have.
Mr. Coble. We have been joined by the distinguished
gentleman from Texas, Mr. Gohmert, and Judge Hinojosa, as you
know, he is a former judge, so we have two judges in our
presence today.
Mr. Bowman, good to have you with us.
I stand corrected. I didn't see the gentlelady from
California, Ms. Waters, has joined us, as well.
STATEMENT OF FRANK O. BOWMAN, III, M. DALE PALMER PROFESSOR OF
LAW, INDIANA UNIVERSITY SCHOOL OF LAW
Mr. Bowman. Thank you, Mr. Chairman, Ranking Member Scott,
distinguished Members of the Committee. Thank you for giving me
an opportunity to appear before you today.
The Federal criminal justice system has been in a state of
some excitement since the Supreme Court decided Blakely v.
Washington last summer. Blakely cast the constitutional
validity of the Federal sentencing guidelines into uncertainty,
an uncertainty that was resolved, at least sort of, by the
Court's decision less than a month ago in Booker. We now know
that the guidelines as they were are unconstitutional, but we
find, perhaps a little bit to our surprise, that the guidelines
are with a stilt, albeit in a form that few anticipated and no
one yet entirely understands. So the questions before us are,
one, what does Booker mean, and two, what should Congress do
about it?
I appear today in a dual capacity. On the one hand, I
appear on behalf of the Sentencing Initiative of the
Constitution Project, a bipartisan nonprofit organization that
seeks solutions to difficult legal and constitutional problems.
Shortly after Blakely was decided last summer, the Constitution
Project launched its Sentencing Initiative and drew together a
remarkably talented, experienced, and bipartisan group to study
the Federal sentencing system generally and the impact of
Blakely in particular.
The group, which is headed by former Attorney General Edwin
Meese and Harvard Professor Philip Heymann, who is formerly the
Deputy Attorney General of the United States, has sent a letter
to the Committee urging that Congress respond to Booker with
caution. I have the honor to serve along with Professor David
Yellen as co-reporter of the Constitution Project and I fully
endorse the call for caution expressed in its letter.
My personal message today is also a counsel of caution and
a recommendation against at least immediate major legislation.
In particular, I recommend that Congress not enact so-called
``topless guidelines'' as an immediate response to Booker.
Those who have been aboard the Blakely to Booker roller coaster
from the beginning will recognize that this recommendation puts
me as the original author of the topless guidelines proposal,
ably described by Mr. Collins, in the somewhat peculiar
position of recommending that you not do now precisely what I
said you should do last summer. At a minimum, as Ricky used to
say to Lucy, ``it looks like I've got some 'splaining to do,''
so let me do it.
When Blakely was decided last summer, several things seemed
clear. First, Blakely was going to create a God-awful mess in
the Federal courts. On the one hand, the rationale of the
opinion seemed plainly applicable to the Federal guidelines,
and on the other hand, the Supreme Court reserved ruling on the
Federal guidelines, so the lower courts were left in the
position of some confusion until a new case brought the Federal
guidelines before the Court.
Second, if Blakely was found to apply to the Federal
guidelines, only two remedies seemed available to the Court.
First, keep the guideline rules intact but require that all
sentencing-enhancing guidelines facts be tried to juries or
admitted in a guilty plea, or two, invalidate the guidelines
rules, thus rendering them either completely void or advisory
in the ordinary sense of the term, that is to say, a set of
useful but legally non-binding suggestions.
The first of these remedies, taking judges out of
guidelines fact finding and running the guidelines through
juries and pleas, would be complex to the point of
unworkability. The second possible remedy, voiding the
guidelines altogether or making them merely non-binding
suggestions, would work, but would abandon the accomplishments
of the Sentencing Reform Act in favor of transferring
unprecedented, unchecked sentencing power to judges.
In short, the prospect in July 2004 seemed to be a period
of turmoil while the question of Blakely's applicability worked
its way up to the Supreme Court, followed by a Supreme Court
ruling mandating either an unworkably complex system of
Blakely-ized guidelines or an intolerable abandonment of
constraint on judicial setting. In that setting, it seemed
appropriate to suggest legislation that would restore order to
the Federal courts and effectively restore the guideline system
almost unchanged.
Now, how has the passage of time and the decision in Booker
changed this assessment? First, the post-Blakely turmoil
happened. It is water over the dam and no legislation passed
today can undo it.
Second, I was wrong about the remedies available to the
Court. Justice Breyer has crafted a third way. The nature of
his remedial opinion alters the legislative equation in at
least two ways. First, advisory guidelines in the Booker sense
are not unworkable, as running the Federal guidelines through
juries would have been. Nor are they an intolerable abandonment
of constraint on judicial discretion in the sense that advisory
guidelines as mere suggestions would be. Instead, Booker has
given us a system that is workable in the near term and that
will meaningfully constrain judicial discretion even though we
don't yet know by how much.
I don't suggest that Booker created an ideal system.
Congress may well want to alter it or replace it. I do suggest
that the Booker system will work pretty well while we study it
and consider alternatives.
Second, though Booker has created a system that will work,
what Booker means as a constitutional matter is still unclear.
We still don't yet know exactly what advisory means and we
don't yet know how binding or presumptive guidelines can be
before they will offend the Constitution. Thus, we can't be
certain how much Booker-ized guidelines will differ in practice
from the old system and we can't be sure how to draft any
replacement without falling afoul of the undefined limits of
the Booker doctrine.
My own sense is that Booker is not simply an application of
the Blakely doctrine to the Federal guidelines. In this sense,
Justices Scalia and Stevens are correct, I think, in their
complaint that the Booker remedy is inconsistent with the
Blakely principle. It appears that this Court is deeply split
between Justice Scalia's formalistic emphasis on jury fact
finding and Justice Breyer's effort to create constitutional
space for sentencing guidelines based on judicial fact finding.
Booker creates, but does not resolve, this doctrinal split.
And the outcome of the settle over the split will turn, in
part, on unknown, unpredictable factors. Justice Ginsberg's
reasons for joining the Booker remedial majority, the state of
the Chief Justice's health, the identity of his successor,
should he retire, and lots of other things, we cannot know.
Therefore, in an environment of such profound
constitutional uncertainty, Congress should exercise the
greatest caution before legislating. The last thing we need is
a brand new sentencing regime that will itself be found
unconstitutional within months of its enactment.
Thank you, Mr. Chairman.
Mr. Coble. Mr. Bowman, you do not have a corner on the
market of having some explaining to do. Each of us finds
ourselves in that position from time to time.
[The prepared statement of Mr. Bowman follows:]
Prepared Statement of Frank O. Bowman, III*
---------------------------------------------------------------------------
* M. Dale Palmer Professor of Law, Indiana University School of
Law--Indianapolis. Formerly Trial Attorney for the Criminal Division of
the U.S. Department of Justice (1979-82); Deputy District Attorney,
Denver, Colorado (1983-87); Assistant U.S. Attorney for the Southern
District of Florida (Miami) (1989-96); Special Counsel, U.S. Sentencing
Commission (1995-96) (on detail from U.S. Department of Justice).
---------------------------------------------------------------------------
A COUNSEL OF CAUTION
I. Introduction
I am grateful to the Subcommittee for the opportunity to testify
today regarding the impact on the federal sentencing system of the U.S.
Supreme Court's recent decision in United States v. Booker, __U.S.__,
125 S.Ct. 738 (Jan. 12, 2005), and the nature of an appropriate
congressional response to that decision. I appear today primarily in my
individual capacity, but also as a representative of the Sentencing
Initiative of the Constitution Project.
The Constitution Project is a bipartisan, nonprofit organization
that seeks consensus-based solutions to difficult legal and
constitutional issues through study, consultation, and policy advocacy.
Last summer, in response to the Supreme Court's decision in Blakely v.
Washington, __U.S.__, 124 S.Ct. 2531 (June 24, 2004), the Constitution
Project created the Sentencing Initiative, a group co-chaired by former
Attorney General Edwin Meese, now of the Heritage Foundation, and
Philip Heymann, James Barr Ames Professor of Law at Harvard and former
Deputy Attorney General of the United States. The members of the group
represent a broad cross-section of institutional interests and
political views. Professor David Yellen of Hofstra University and I are
reporters to the Sentencing Initiative. Attorney General Meese and
Professor Heymann have already forwarded a letter to Chairman
Sensenbrenner expressing the consensus of the Constitution Project
group that Congress should respond to the Booker opinion with caution.
The Constitution Project anticipates issuing a more detailed report
addressing the state of the federal sentencing system, the impact of
Blakely and Booker, and recommendations about how the system might be
improved.
I agree wholeheartedly with the position expressed in the
Constitution Project letter and will be happy to answer any questions
about the letter and the ongoing work of the Constitution Project's
Sentencing Initiative. That said, the particulars of the analysis
contained in the remainder of this testimony represent my personal
views and not those of the Constitution Project's Sentencing Initiative
or any of its members.
II. From Blakely to Booker
This is the second time in the past seven months that I have had
the honor of appearing before this Subcommittee. On July 6, 2004, I
testified about H. 4547, a bill involving drug crime, and about the
impact of the immediate predecessor to the Booker decision, Blakely v.
Washington, __U.S.__, 124 S.Ct. 2531 (June 24, 2004).\1\ On that
occasion, and again the following week in the Senate Judiciary
Committee,\2\ I analyzed the Blakely opinion, concluded that it
probably rendered the Federal Sentencing Guidelines unconstitutional as
then applied, and offered a proposal to cure the apparent
constitutional defect.\3\ That proposal, sometimes referred to
colloquially as ``topless guidelines,'' and other suggested responses
to Blakely have been the subject of ongoing debate. Today, in the wake
of Booker, I find myself in the curious position of recommending that
Congress not do what I recommended that it should do after Blakely. In
short, along with the other members of the Constitution Project, I urge
Congress to be cautious, to monitor the effects of the Booker decision
on the operation of federal sentencing, and not to legislate unless and
until it is clear that legislation is absolutely necessary and that any
proposed legislation will withstand constitutional scrutiny.
---------------------------------------------------------------------------
\1\ Defending America's Most Vulnerable: Safe Access to Drug
Treatment and Child Protection Act of 2004, Hearing on H.R. 4547 Before
the Subcommittee on Crime, Terrorism, and Homeland Security, House
Comm. on the Judiciary, 108th Cong. (2004) (testimony of Frank O.
Bowman, III), available at http://www.house.gov/judiciary/
bowman070604.pdf.
\2\ Blakely v. Washington and the Future of the Federal Sentencing
Guidelines, Hearing Before the Senate Comm. on the Judiciary, 108th
Cong. (2004) (testimony of Frank O. Bowman, III), available at http://
judiciary.senate.gov/testimony.cfm?id=1260&wit--id=647.
\3\ The most completely developed version of the proposal appears
in my written Senate testimony, id. See also, Frank O. Bowman, III, A
Proposal for Bringing the Federal Sentencing Guidelines Into Conformity
with Blakely v. Washington, 16 Fed. Sent. Rep. 364 (2004). For
critiques of the proposal, see Blakely v. Washington and the Future of
the Federal Sentencing Guidelines, Hearing Before the Senate Comm. on
the Judiciary, 108th Cong. (July 13, 2004) (testimony of Rachel
Barkow), available at http://judiciary.senate.gov/
testimony.cfm?id=1260&wit--id=3684; Id. (testimony of Ronald Weich),
available at http://judiciary.senate.gov/testimony.cfm?id=1260&wit--
id=3685. See also, Douglas Berman, ``The `Bowman Proposal': White
Knight or Force of Darkness?,'' available at http://
sentencing.typepad.com/sentencing--law--and--policy/2004/07/white--
knight--or.html, and other critiques posted or referenced on Professor
Berman's invaluable blog, Sentencing Law & Policy, http://
www.sentencing.typepad.com.
---------------------------------------------------------------------------
My views on what Congress should do have changed because the Booker
decision changed the legal landscape in ways that virtually no one
anticipated. The balance of this testimony is devoted to explaining
Booker's surprising outcome and its implications for sentencing policy.
A. Blakely v. Washington
The legal tempest that brings us here today began on June 24, 2004,
with Blakely v. Washington. The case involved a challenge to the
Washington state sentencing guidelines. In Washington, a defendant's
conviction of a felony produced two immediate sentencing consequences--
first, the conviction made the defendant legally subject to a sentence
within the upper boundary set by the statutory maximum sentence for the
crime of conviction, and second, the conviction placed the defendant in
a presumptive sentencing range set by the state sentencing guidelines.
This guideline range was within the statutory minimum and maximum
sentences. Under the Washington state sentencing guidelines, a judge
was entitled to adjust this range upward, but not beyond the statutory
maximum, if after conviction the judge found certain additional facts.
For example, Blakely was convicted of second degree kidnapping with a
firearm, a crime that carried a statutory maximum sentence of ten
years. The fact of conviction generated a ``standard range'' of 49-53
months; however, after conviction, the judge found that Blakely had
committed the crime with ``deliberate cruelty,'' a statutorily
enumerated factor that permitted imposition of a sentence above the
standard range, and imposed a sentence of ninety months. The U.S.
Supreme Court found that imposition of the enhanced sentence violated
the defendant's Sixth Amendment right to a trial by jury.
In reaching its result, the Court relied on a rule it had announced
four years before in Apprendi v. New Jersey, 530 U.S. 466, 490 (2000):
``Other than the fact of a prior conviction, any fact that increases
the penalty for a crime beyond the prescribed statutory maximum must be
submitted to a jury, and proved beyond a reasonable doubt.'' In the
years following Apprendi, most observers assumed that Apprendi's rule
applied only if a post-conviction judicial finding of fact could raise
the defendant's sentence higher than the maximum sentence allowable by
statute for the underlying offense of conviction. For example, in
Apprendi itself, the maximum statutory sentence for the crime of which
Apprendi was convicted was ten years, but under New Jersey law the
judge was allowed to raise that sentence to twenty years if, after the
trial or plea, he found that the defendant's motive in committing the
offense was racial animus. The Supreme Court held that increasing
Apprendi's sentence beyond the ten-year statutory maximum based on a
post-conviction judicial finding of fact was unconstitutional.
In Blakely, however, the Supreme Court found that the Sixth
Amendment can be violated even by a sentence below what we had always
thought of as the statutory maximum. Writing for a five-member
majority, Justice Scalia held that, ``the `statutory maximum' for
Apprendi purposes is the maximum sentence a judge may impose solely on
the basis of the facts reflected in the jury verdict or admitted by the
defendant.'' \4\ Any fact that had the effect of increasing this newly
defined ``statutory maximum'' must be found by a jury.
---------------------------------------------------------------------------
\4\ Blakely v. Washington, 124 S. Ct. 2531, 2537 (2004) (emphasis
in the original).
---------------------------------------------------------------------------
Accordingly, the Federal Sentencing Guidelines seemed to violate
the Blakely rule. A defendant convicted of a federal offense is
nominally subject to any sentence between the minimum and maximum
sentences provided by statute; however, under the Guidelines, the
actual sentence which a judge may impose can only be ascertained after
a series of post-conviction findings of fact. The maximum guideline
sentence applicable to a defendant increases as the judge finds more
facts triggering upward adjustments of the defendant's offense level.
In their essentials, therefore, the Federal Sentencing Guidelines are
indistinguishable from the Washington guidelines struck down by the
Court.
Although in Blakely the Supreme Court reserved ruling on the
applicability of its holding to the federal guidelines, the obvious
implications of the opinion for the guidelines caused immediate
consternation. Within weeks after Blakely, dozens of federal trial and
appellate courts issued opinions on whether it affected the federal
sentencing system, and if so how. A legion of commentators added their
voices to the conversation.\5\ From this cascade of analysis, three
basic possibilities seemed to emerge.
---------------------------------------------------------------------------
\5\ For discussion of the Blakely opinion and lower federal court
opinions construing it, see Frank O. Bowman, III, Train Wreck? Or Can
the Federal Sentencing System Be Saved'' A Plea for Rapid Reversal of
Blakely v. Washington, 41 Amer. Crim. L. Rev. 217 (2004)
---------------------------------------------------------------------------
First, the Department of Justice and a number of courts of appeals
contended that the federal sentencing system should survive Blakely
intact. They attempted to distinguish the federal system from the
Washington state system at issue in Blakely because Washington's
guideline sentencing ranges were set by statute while the federal
guidelines were drafted by a sentencing commission.
Second, some courts and commentators suggested that the Supreme
Court could ``Blakely-ize'' the federal guidelines by holding that
their sentencing rules survive, but requiring substitution of a system
of jury trials and jury waivers for the structure of post-conviction
judicial fact-finding and appellate review created by the Sentencing
Reform Act.
Third, other courts and commentators argued that the Guidelines'
sentencing rules cannot be severed from the procedure of post-
conviction judicial fact-finding contemplated by the Sentencing Reform
Act and formalized in the Guidelines. In this view, Blakely rendered
the Guidelines unconstitutional in toto. The practical effect of such a
ruling was thought to be that the Guidelines would become either wholly
void and legally nugatory or at most advisory.
My reaction to these three apparent options was that the first was
logically unsupportable and the latter two were practically
undesirable. First, it seemed unlikely that the Supreme Court would
distinguish the federal system from the Washington state system based
on the institution that drafted the sentencing rules.
Second, judicial ``Blakely-ization'' of the existing federal
guidelines was not an attractive prospect. It would require the courts,
the Sentencing Commission, and Congress to reconfigure the entire
process of adjudicating and sentencing criminal cases, from the
Guidelines themselves to indictment and grand jury practice, discovery,
plea negotiation practice, trial procedure, evidence rules, and
appellate review. The simple fact is that the current Guidelines were
never meant to be administered through jury trials. Trying to engraft
them onto the jury system would be both a practical and theoretical
nightmare.
Finally, the possibility that the Court would void the Guidelines
entirely or declare them in some sense advisory seemed equally
unattractive. Having no guidelines at all would confer even more
discretion on sentencing judges than was true before the Sentencing
Reform Act. Prior to the SRA, judges had largely unconstrained
discretion to impose sentences, while the Parole Commission retained
substantial authority over actual release dates. But the SRA abolished
parole, and in a world with neither sentencing guidelines nor a Parole
Commission, judicial sentencing authority would be absolute.
Alternatively, ``advisory guidelines'' produced by constitutional
invalidation of mandatory guidelines seemed almost indistinguishable
from no guidelines at all. I, at least, could not see how the
guidelines, once declared unconstitutional, could be anything more than
useful, but legally nonbinding, suggestions.
B. ``Topless Guidelines''
Faced with these three unappealing possibilities and the prospect
of a long period of turmoil in the federal criminal courts, I suggested
an interim legislative alternative. I proposed that the Guidelines
structure could be brought into compliance with Blakely and preserved
essentially unchanged by amending the sentencing ranges on the Chapter
5 Sentencing Table to increase the top of each guideline range to the
statutory maximum of the offense(s) of conviction.
This proposal depended on a peculiarity of the constitutional
structure erected in Blakely. As written, Blakely necessarily affects
only cases in which post-conviction judicial findings of fact mandate
or authorize an increase in the maximum of the otherwise applicable
sentencing range. Prior to Blakely, the Supreme Court had held in
McMillan v. Pennsylvania, 477 U.S. 79, 89-90 (1986), and reaffirmed in
Harris v. United States, 536 U.S. 545 (2002), that a post-conviction
judicial finding of fact could raise the minimum sentence, so long as
that minimum was itself within the legislatively authorized statutory
maximum. Therefore, so long as facts found by judges applying the
sentencing guidelines increase only the minimum sentence to be served
by a defendant, and not the maximum sentence to which he was exposed,
there would be no constitutional violation. In effect, the ``topless
guidelines'' approach would convert the Guidelines into a system of
permeable mandatory minimums. That is, the Guidelines would continue to
function exactly in the way they always have, except that the
sentencing range produced by guidelines calculations in any given case
would have the same lower value now specified by the Chapter Five
sentencing table, while the upper value would be set at the statutory
maximum. Judges would still be able to depart downwards using the
existing departure mechanism, but would not have to formally ``depart''
to impose a sentence higher than the top of the ranges now specified in
the sentencing table.
This proposal would require legislation because the expanded
sentencing ranges produced by the proposal would fall afoul of the so-
called ``25% rule,'' 28 U.S.C. Sec. 994(b)(2), which mandates that the
top of any guideline range be no more than six months or 25% greater
than its bottom.\6\
---------------------------------------------------------------------------
\6\ The proposal in its original form would have made any sentence
above the guideline minimum appealable on an abuse of discretion
standard. The fact that a judge imposed a sentence higher than that
suggested by the policy statement for a typical case would be a factor
in the determination of whether the judge had abused his or her
discretion. I also recommended that the legislation creating ``topless
guidelines'' sunset after eighteen months.
---------------------------------------------------------------------------
The proposal for ``topless guidelines'' was subject to a number of
criticisms. The idea suffers from the notable disadvantage to
defendants of imposing enforceable limits on judges' ability to
sentence below the bottom of guideline ranges, while removing
restrictions on judges' power to impose sentences above the top of the
guideline range. Moreover, whatever its substantive merits, the
constitutionality of this approach depends on the continued viability
of Harris v. United States. Following the Blakely decision, many
observers questioned the continued viability of Harris, a 5-4 decision
about which even Justice Breyer (a member of the Harris majority) has
expressed some doubt.
Thus far, of course, Congress has responded to Blakely with caution
and has not adopted either ``topless guidelines'' or any other
legislative approach. The question before the Subcommittee today is
whether, now that Booker has found the Guidelines unconstitutional as
formerly applied, Congress should act
C. Booker v. United States
The principle thrust of my testimony is that the Booker decision
has altered the landscape in at least three critical respects, all of
which suggest that Congress should respond with caution.
1. The meaning of Booker is not yet clear
As the Subcommittee is aware, in Booker, a five-member majority
found that the Guidelines process of post-conviction judicial fact-
finding was unconstitutional under the Sixth Amendment, but an almost
completely different five-member majority wrote the opinion describing
the proper remedy for the constitutional violation.\7\ Justice Breyer,
writing for the remedial majority, did not require juries to find all
sentencing-enhancing guidelines facts, nor did he invalidate the
Guidelines in toto. Instead, he merely excised two short sections of
the Sentencing Reform Act,\8\ leaving the remainder of the SRA intact,
and thus keeping the guidelines intact but rendering them ``effectively
advisory.'' \9\ Perhaps even more importantly, the remedial opinion
found that both the government and defendants retained a right to
appeal sentences, and that appellate courts should review sentences for
``reasonableness.''
---------------------------------------------------------------------------
\7\ Only Justice Ginsburg joined both halves of the Court's
opinion.
\8\ 18 U.S.C. Sec. 3553(b)(1) and 18 U.S.C. Sec. 3742(e).
\9\ Booker, 2005 WL 50108, at *16.
---------------------------------------------------------------------------
The remedial opinion lends itself to different interpretations.
Some have read ``advisory'' to mean that the Guidelines are no longer
legally binding on trial judges and that the Guidelines are now merely
useful advice to sentencing courts. However, a closer reading of the
opinion suggests something quite different. First, because the opinion
leaves virtually the entire SRA and all of the Guidelines intact, the
requirement that judges find facts and making guideline calculations
based on those facts survives. Second, because the remedies opinion
retains a right of appeal of sentences and imposes a reasonableness
standard of review, appellate courts will have to determine what is
reasonable. The remedies opinion left undisturbed 18 U.S.C.
Sec. 3553(a), which lists the factors a judge must consider in imposing
a sentence and includes on that list the type and length of sentence
called for by the guidelines. Thus, the determination of
``reasonableness'' under the statute will necessarily include
consideration of whether a sentence conforms to the Guidelines. The
unresolved question is the weight that will be accorded to the
guidelines sentence--will it be considered at least presumptively
correct or will it be reduced to the status of only one among many
other factors?
We do not know how the courts will resolve this critical question.
Still, there are good reasons to think that the vast majority of judges
will accord great weight to the sentencing guidelines. For example, in
a thoughtful decision issued the day after Booker was announced, Judge
Paul Cassell examined Booker and concluded that he was obliged to
continue to sentence within the applicable guidelines range unless
there were exceptional aggravating or mitigating circumstances.\10\
Other judges have concluded that they have more flexibility after
Booker,\11\ but no court has held that the guidelines could be ignored.
Appellate courts have just begun addressing Booker, but there is every
reason to think that they will move expeditiously to resolve the
questions it presents and that they will give adherence to the
Guidelines a prominent place in their analysis of sentence
reasonableness. For example, the United States Court of Appeals for the
Second Circuit recently held in that judges do not have ``unfettered
discretion'' after Booker and that the congressionally-mandated factors
set forth in the Sentencing Reform Act, prominently including the
Guidelines, still constrain the imposition of criminal sentences.\12\
---------------------------------------------------------------------------
\10\ United States v. Wilson, Case No. 2:03-CR-00882 PGC (D. Utah).
\11\ See, e.g., United States v. Nellum, 2005 US Dist LEXIS 1568
(N.D. Ind. Feb. 3, 2005).
\12\ United States v. Crosby, 2005 WL 240916 (2d Cir. Feb. 2,
2005). See also, United States v. Hughes, __F.3d__, 2005 WL 147059 at
*3 (4th Cir. Jan. 24, 2005) (holding that ``[c]onsistent with the
remedial scheme set forth in Booker, a district court shall first
calculate (after making the appropriate findings of fact) the range
prescribed by the guidelines. Then, the court shall consider that range
as well as other relevant factors set forth in the guidelines and those
factors set forth in Sec. 3553(a) before imposing the sentence.'')
(emphasis added).
---------------------------------------------------------------------------
In short, we don't yet know what the post-Booker sentencing regime
will look like. At a minimum, Congress should abstain from legislative
intervention long enough for the courts to clarify what Booker means in
practice. If Congress is to legislate, it should have a clear
understanding of the situation it is setting out to correct.
2. The post-Booker system may be preferable to the
uncertainties of legislating a new sentencing
system
If Booker produces a system in which the federal sentencing
guidelines are strongly presumptive, that may be a satisfactory outcome
for many, at least in the short to medium term. Such a system would
operate very much as the Guidelines always have, with the undoubted
difference that judges would have somewhat greater freedom to sentence
outside the guideline range. So long as the judges do not employ the
increased flexibility to excess, and so long as both the Department of
Justice and Congress are prepared to view some modest increase in
judicial variance from the guidelines with a wary but tolerant eye, the
system could work surprisingly well. At a minimum, it could work well
enough to give all the institutional actors time to study and consider
thoroughgoing reform of the Guideline system in the post-Booker era.
With respect to ``topless guidelines'' in particular, I suggested
them in July 2004 because I was troubled by the prospect of prolonged
turmoil in the federal courts following Blakely, and because neither of
the seemingly likely results of applying Blakely to the federal
system--``Blakely-ized'' guidelines run through juries or purely
advisory guidelines-as-non-binding-suggestions--was desirable. Both of
these considerations have altered. First, a good deal of the disruption
I hoped might be avoided through rapid legislation in July 2004 has
already happened, cannot be undone, and may be compounded by over-hasty
legislation. Second, in Booker, the Court adopted neither ``Blakely-
ized'' nor purely advisory guidelines, but a system that in the vast
majority of cases will probably work just like the pre-Booker
guidelines. At worst, Booker seems to have created a system that is not
an obvious disaster in need of immediate legislation, but a workable
system whose strengths and weaknesses have yet to be determined.
3. Booker creates tremendous uncertainty about the basic
constitutional rules governing sentencing and thus
raises doubts about the constitutional viability of
legislative responses to that decision.
As noted in the Constitution Project's letter, ``If Congress
decides to act, the most basic requirement for a new system is
reasonable certainty that it will survive constitutional challenge.''
Booker throws the basic constitutional rules governing criminal
sentencing into even greater confusion than did Blakely. Blakely laid
out a simple, almost mechanical, rule: Any fact that increases a
defendant's maximum sentencing exposure must be found by a jury. This
rule seemed so absolute that it would render unconstitutional any
structured sentencing system in which judicial fact-finding could raise
the top of a defendant's guideline sentencing range, even if as was the
case under the Washington guidelines, that range was only strongly
presumptive.
However, Booker seems to take an entirely different approach. The
federal guidelines survive. Judges must find facts and use those fact
findings to determine guidelines ranges with both tops and bottoms.
Some courts have interpreted Booker to mean that the guideline ranges--
including their tops--are at least presumptively reasonable. It would
appear that Justice Breyer is trying to shift this line of cases away
from Justice Scalia's narrow focus on the role of juries toward a world
in which guidelines setting presumptive sentencing ranges are
constitutionally valid. At a minimum, the Court is struggling mightily
to define its direction and until it speaks more definitively, it will
be difficult, if not impossible, for Congress to enact any remedial
legislation with real confidence in its constitutionality.
Even more particularly, I think the Booker decision casts
additional doubt on the continued viability of Harris v. United States
and thus on the desirability of turning immediately to ``topless
guidelines.'' We know that Booker authorizes guideline ranges, with
tops, determined by post-conviction judicial fact-finding. If the Court
ultimately accords those ranges at least some measure of legally
presumptive effect, then the distinction between constitutional and
unconstitutional guideline systems becomes the degree of
presumptiveness of the tops of the guideline ranges. Put another way,
the constitutional distinction between a ``statutory maximum'' which
must be determined by a jury under Blakely and the top of a presumptive
guideline range that can be determined by a judge under Booker can only
be the degree of discretion afforded the judge to sentence above the
top of the range. If the Court decides that presumptive limits on
maximum sentences are constitutionally acceptable, it is hard to see
why the same reasoning should not apply to minimum sentences.
Those who doubted the continued viability of Harris have noted that
Justice Breyer was the fifth vote for preserving statutes that set
minimum sentences through post-conviction judicial fact-finding, and
that he expressed doubt about how Harris could be squared with
Apprendi. Before Booker, it seemed plausible that Justice Breyer and
other members of the Court who favor keeping the Constitution
hospitable to structured sentencing systems would hold on to Harris
because it provided at least one tool of structured sentencing. A
system that constrains judicial discretion only by setting minimums is
awkward and asymmetrical, but not wholly useless. After Booker, it is
no longer clear that the weird asymmetry of Blakely and Harris is
necessary. It would make far greater sense for the Court to hold that
real, hard, impermeable statutory maximum and minimum sentences can
only result from facts found by juries or admitted by plea, while at
the same time permitting structured sentencing systems that use
judicial fact-finding to generate sentencing ranges, presumptive at
both top and bottom, inside the statutory limits. Such an approach
would appeal to many members of the Court because it treats minimum and
maximum sentences consistently, gives a meaningful role to juries in
setting the actual minimum sentences that matter more to defendants
than theoretical maximums, preserves the accomplishments of the
structured sentencing movement, and confers constitutional status on
judicial sentencing discretion.\13\ If this is the direction the Court
is heading, then Harris is in danger and ``topless guidelines'' could
be found unconstitutional in short order.
---------------------------------------------------------------------------
\13\ For a more complete outline of how this constitutional model
of sentencing might work, see Frank O. Bowman, III, Function Over
Formalism: A Provisional Theory of the Constitutional Law of Crime and
Punishment, 17 Federal Sentencing Reporter 1 (October 2004).
---------------------------------------------------------------------------
III. Beyond Booker--the Future of Federal Sentencing
The Federal Sentencing Guidelines have been immensely controversial
since their advent in 1987. They have actually enjoyed many successes,
but the chorus of criticism has grown over the years. As my
professional biography suggests, I believe that vigorous law
enforcement and the imposition of meaningful terms of incarceration on
serious criminal violators are crucial tools in the fight against
crime. Likewise, I am not a proponent of unchecked judicial sentencing
discretion. My practice experience, my time with the Sentencing
Commission, and my subsequent work in the academy have convinced me of
the importance of sentencing guidelines and other mechanisms of
structured sentencing in achieving just, equitable, and effective
criminal sentences. More particularly, I have been a vocal advocate of
the federal sentencing guidelines.\14\ Nonetheless, even I have
reluctantly concluded that the federal sentencing system has in recent
years developed in such unhealthy and dysfunctional ways that serious
rethinking of the guidelines is now called for.\15\ The Blakely and
Booker decisions have provided the crisis that public institutions
sometimes require before they engage in careful self-examination. I
enlisted as reporter to the Constitution Project because it seemed an
ideal forum for considering the state of federal sentencing working
with a remarkably diverse and talented group of people. Our work so far
has confirmed what I, and I think all of us, suspected--that the
difficulties with federal sentencing are serious and can be seen and
agreed upon by well-informed legal professionals of widely divergent
political and institutional perspectives.
---------------------------------------------------------------------------
\14\ See, e.g., Id.; Frank O. Bowman, III, Fear of Law: Thoughts on
`Fear of Judging' and the State of the Federal Sentencing Guidelines,
44 St. Louis L.J. 299 (2000) (defending the federal sentencing
guidelines as a beneficial set of constraints on judicial sentencing
authority).
\15\ See Frank O. Bowman, III, The Failure of the Federal
Sentencing Guidelines: A Functional Analysis,--Columbia L. Rev.
__(forthcoming Spring 2005).
---------------------------------------------------------------------------
My counsel to the Subcommittee is a counsel of caution. Do not act
precipitously because doing so may make an uncertain situation worse.
Instead, study what Booker has wrought. Direct others, notably the
Sentencing Commission and the Department of Justice, to gather the
information and perform the analysis that will assist you in your
study. And take the opportunity created by Blakely and Booker to work
together with all the many people of goodwill who are eager to work
with Congress, with the Justice Department, with the judiciary, and
with the Sentencing Commission to improve the administration of federal
criminal justice.
Mr. Coble. Gentlemen, thank you very much for your
contribution. Keep in mind, the 5-minute rule applies to us, as
well, so if you could keep your responses as terse as possible,
we would be appreciative.
Mr. Wray, from a law enforcement perspective, would you
outline for the Subcommittee in a little greater depth how an
advisory system of guidelines will hamper a prosecutor's
ability to gain cooperation from criminal defendants?
Mr. Wray. Yes, Mr. Chairman. I think you have put your
finger on what I would consider one of the most important
vulnerabilities in the post-Booker environment.
First, we think that under the guidelines as they existed
before Booker, a defendant could only obtain consideration for
his cooperation at sentencing based on a motion by the
Government. In the post-Booker world, that is no longer the
case. The reason why that is a problem is because the
Department is in the best position to evaluate the truthfulness
and value of the cooperator's assistance, by putting it in the
context of the entire body of the investigation to determine
whether it is consistent, corroborated by other evidence. And
that is critical because we all want to ensure that people who
cooperate in criminal investigations are telling not half-
truths, but complete truth.
Second, the Booker environment creates less of an incentive
for cooperating defendants because they can seek to assume some
of the benefits of cooperation without the risks. That is, they
can tell part of the story, but not the whole story, and that
is particularly troubling for the Government's effort to try to
secure cooperation in organized criminal cases, terrorism,
corporate fraud, drugs, gangs, and that sort of thing. That may
be particularly critical where timeliness of information for
cooperators, as all the members of this Subcommittee know, can
be critical to advancing cases against CEOs in corporate fraud
cases, drug leaders in big drug cartel cases, and so forth.
Mr. Coble. Thank you, sir.
Mr. Collins, what impact did the de novo standard of review
have on judges who granted downward departures after the
PROTECT Act, and if any, those who imposed enhanced sentences?
Mr. Collins. Mr. Chairman, the Sentencing Commission's 15-
year report specifically notes that the Department had
indicated--and it cites a number of cases in the report where
immediately after the enactment of PROTECT and the application
of the de novo standard of review--there were a notable
increase in the number of instances of appellate reversals of
downward departures, suggesting that the change in the standard
of review did have a positive effect on curing a problem that
Congress was concerned with.
Mr. Coble. Mr. Wray, again I am going to ask you, do you
have examples of courts that have sentenced defendants to
unreasonable sentences or based sentences upon factors
prohibited by the guidelines?
Mr. Wray. Yes, Mr. Chairman. We have a couple of examples
that are mentioned a little bit in my written statement. I
would mention in particular a California case, I think it was
in Southern California, where four men were convicted of
smuggling more than a ton of cocaine from Colombia. They were
sentenced to 41 months when the guidelines provided for a
sentence of 235 to 293 months. That is a situation where you
are going to have defendants--in fact, we have had defendants
in the same State engaged in the same conduct receiving
sentences of 20 or 30 years, whereas those defendants got 41
months for no principled reason.
In Wisconsin, we had a bank fraud involving an officer
where the guidelines provided for a 36 to 47 month sentence and
the judge reduced it in the wake of Booker, based on
considerations like the defendant's motivation to keep the
client's business afloat and the fact that the conviction
resulted in financial distress for the defendant. So there are
examples that are starting to emerge that make that point.
Mr. Coble. Thank you.
Judge Hinojosa, in your testimony at page four, you
indicate you believe that sentencing courts should give
substantial weight to the Federal sentencing guidelines in
determining the appropriate sentence to impose. Explain your
position on whether or not there is support for such a standard
under Booker.
Judge Hinojosa. The Court was silent on that issue, as far
as I can tell. However, I think the support exists, as I
indicated in the written and the oral statement that I have
made here, in the fact that the Sentencing Commission in
promulgating and refining the guidelines has made
determinations based on statutorily directed factors that are
used under 3553(a). In fact, the Commission was directed in
promulgating and refining the guidelines to take those into
consideration, in addition to the fact that Congress itself has
the right to review the guidelines as they are presented by the
Commission and it must indicate to us that Congress' approval
of the guidelines indicates that Congress itself feels strongly
that the goals of the Sentencing Reform Act are met by the
guidelines. Therefore, they should be given substantial weight.
Mr. Coble. My red light illuminates in my eye. Mr. Bowman,
I will get to you later.
Mr. Scott?
Mr. Scott. Thank you, Mr. Chairman.
Mr. Wray, I was intrigued by your statement that the
Federal guidelines have reduced crime. What portion of the
violent criminals that are sentenced in America today are
sentenced in Federal court?
Mr. Wray. Ranking Member Scott, I don't have that
percentage. I can tell you that--and I believe what I meant to
say, I am not sure if I said this or not, is that sentencing
regimes like the Federal sentencing guidelines--in other words,
I think I pointed out that a number of States have followed
Congress's lead in adopting similar systems and it is our view
that the combination of the Federal guidelines in the Federal
system, and in the State systems which track in many ways the
Federal system, have resulted in that reduction in violent
crime.
Mr. Scott. And do you have some studies that show the
pattern that those States that actually increase sentences had
a larger reduction in crime than the general reduction that was
going on all over the country?
Mr. Wray. I don't have that information for you today. I
would be happy to try to provide that in supplemental
questions. I do think there is information, if I recall
correctly, that shows, for example, in California that there
have been significant reductions in the wake of their adoption
of a system like that.
Mr. Scott. I am saying I know there are reductions. We had
Project Exile in Richmond, Virginia. When it went into effect,
the crime rate went down. When you look at other cities
similarly situated that didn't have Project Exile, the crime
rate went down more. So my question is whether or not you see
any pattern that there is a real effect on longer sentences and
reduced crime. Just in some States did it go down. But in all
States, the crime rate went down. There are plenty of studies
that show there is no pattern at all and I was just wondering,
in abolishing parole and all that kind of stuff, do you have
any credible studies that back up what you said?
Mr. Wray. I do believe we have information that shows that
the implementation of so-called truth-in-sentencing regimes
across the country, both in the Federal system and in the
majority of the States, have contributed to a significant
reduction in violent crime. I would be happy to respond in
supplemental written questions to provide more information if
that would be helpful.
Mr. Scott. It would be helpful, and I would hope it would
be in the form that would show a pattern, not just that you did
it and crime went down, but you did it but crime went down in a
pattern that suggests that the longer sentences had something
to do with the reduction. So I look forward to that
information.
Judge Hinojosa, you tried a lot of cases and I am sure you
would recognize that the seriousness of a crime isn't always
conveyed by the code section that was violated. Some people can
violate the same code section and common sense tells you that
one crime was much more serious than the other and that ought
to be reflected in the sentence.
You still have the guidelines. In the present system with
them being advisory and not mandatory, is it more likely or
less likely that the defendant will get an intelligent sentence
in the present system or with the mandatory guidelines?
Judge Hinojosa. I guess Congressman Coble pointed out how
long I have been on the bench, more or less, by indicating who
appointed me to the bench, so I have actually done sentencing
both under pre-guideline system for close to 5 years and after
the guidelines. I have to say that the guideline system was of
great benefit to the sentencing process, which is the most
difficult thing that a judge has to do.
Prior to the guidelines, you wanted to be consistent, you
wanted to treat like defendants for like criminal law offenses
more or less the same, but it was very difficult without having
a guideline system and you spent a lot of your time trying to
determine what you had done in a similar case with someone with
a similar prior history with regard to their particular
sentence because you wanted to be consistent, you wanted to be
fair, and you wanted to give the type of sentence you were
giving on a regular basis, but that was just you individually
as opposed to all the other judges.
The guideline system under the Sentencing Reform Act was
created to try to prevent those kind of problems and it had its
effect. It is a difficult process, but I do think that the
Federal guideline system provides the considerations under the
Sentencing Reform Act. As they are now, as advisory, the
Commission's position as well as my position continues to be
that the Booker decision, and I may have misspoken with regard
to Congressman Coble's question, does indicate that the
guidelines have to be consulted and considered with regard to
every sentence, which would therefore mean substantial weight
should be given to them, and I do think that it is important to
do that.
As a judge, you have to make the findings on the record
within the guideline system, or if not, you cannot just
generally say, I have considered the guidelines but I have
decided to proceed with this sentence because we will go right
back to the situation we were beforehand.
Mr. Scott. The present situation gives you flexibility. Is
that helpful in assessing an intelligent situation? I mean,
some people similarly situated actually come into your court
charged under different code sections, and you look at it and
it is exactly the same behavior.
Judge Hinojosa. There is flexibility, obviously, under the
Booker decision, but I strongly believe after the number of
years that I have sentenced individuals under the guidelines
system that there was flexibility within the guidelines system.
I did not have to proceed with relevant conduct unless I made a
finding that I was convinced that that was the individual's
relevant conduct. With regard to role in the offense, I can
make adjustments upward or downward depending on what I saw the
evidence is like with regard to every single finding under the
guidelines.
I do have to say those were decisions I would make without
ever telling an individual when I would sentence somebody
before the guidelines system whether there was a firearm
involved, what kind of drugs were involved, the amount of the
drugs involved. Those were all factors with no transparency in
the pre-guidelines system. But I do think there was some
discretion within the guidelines system that we have failed to
state within the past in the system itself because the judge
still had to make those findings.
Mr. Coble. The gentleman's time has expired.
The gentleman from Arizona, Mr. Flake, is recognized for 5
minutes.
Mr. Flake. Thank you, Mr. Chairman, and I thank the
witnesses.
While this hearing is focusing on sentencing, that is kind
of the tail end of the criminal justice system. Some argue that
we need to look much broader, at the front end, the criminal
laws that we have on the books. I think Attorney Generals Meese
and Thornburg have criticized the rapid expansion of the code.
Last year, the Federalist Society published a study noting
there are more than 4,000 Federal offenses that carry criminal
penalties.
My question is this, and I will go to Mr. Wray first. Why
does it not make sense to take a year and to see how Booker
plays out, and during that time, have a commission to look at
the code itself and then come back, if we need to, and make
changes to both the code and the sentencing guidelines?
Mr. Wray. Congressman, I think we believe that while
Congress should certainly not act rashly, that we do believe
that there are certain vulnerabilities that exist in the post-
Booker world that we already know are there and that are
already problematic and that already require attention. We also
know, with a considerable body of experience, we have the
landscape that existed in the years before the Sentencing
Reform Act as well as the experience under the sentencing
guidelines under the Sentencing Reform Act, as Judge Hinojosa
has described, and I think that tells us certain things about
how judicial discretion works in our system.
So I think that is a reason why we think there are certain
things that Congress ought to tend to in a prompt fashion.
Mr. Flake. I understand, and I don't think anybody is
looking to return to a pre-guideline period. You have mentioned
there are certain problematic things already. What are those?
Mr. Wray. The ones that I would point to in particular are
the ability for courts to consider prohibited factors that they
couldn't consider under the guidelines as they existed before
Booker, factors that the Commission, based on its diversified
experience and so forth over the years have already identified
as things that shouldn't be considered as a basis in this, so
that is one.
The second is its effect on cooperation, which is
absolutely a critical tool for law enforcement in everything
from terrorism to corporate fraud to any kind of organized
criminal activity.
The third would be the appellate standard, this
reasonableness standard that we have already talked about a
little bit. We are very concerned that this will produce
greater disparity because different courts are going to have
different definitions of what reasonableness means and that
won't provide the kind of rigorous, consistent review that the
Congress, I think, intended with the Sentencing Reform Act and
that we so badly need to keep in the system.
Mr. Flake. Judge Hinojosa, returning to the code, 4,000
Federal offenses, do you see a need to go into that?
Judge Hinojosa. I think for a long time, people have seen a
need for that, Congressman. Whether that can be done quickly
with all the policy issues that that brings up, it would be
something you would be better equipped to answer than a Federal
judge or a Chair of the Sentencing Commission.
I will say that if there was an interest on the part of
Congress to do so, the Commission, with the diversity of the
members of the Commission, from our experience standpoint, and
the staff, would be willing to help in any way that we could
and to provide any information or service to the Congress that
you would be interested in us doing.
Mr. Flake. Judge, I take from your testimony that you think
that we could go a year and gather some evidence and see where
we are after Booker to be better informed about what we need to
do in the future. Is that the case?
Judge Hinojosa. That is ultimately your decision, but I
will say that if you are going to wait a year in order to
gather this information, what would be important during this
period of a year is that we make sure that the sentencing
courts during this period of time, so we can compare apples and
apples rather than apples and oranges, are still making the
findings on the record with regard to the sentencing guidelines
and departure policy within the guidelines, and then if they
are sentencing varying from the guidelines, stating the reasons
for varying from the guidelines, because if not, if we are just
paying lip service to, ``I considered the guidelines,'' but
without going through the findings, we will not be able to
compare that data to the previous years' data when the
guidelines were actually mandatory.
And I think also it would be important with regard to this
potential weight that is given, or the weight that is given to
the guidelines, for that to be uniform across the country in
order for you and for the Commission and every other interested
party to have valuable information to be able to compare the
system, because if not, during that 1-year period, we will be
comparing apples and oranges with different situations possibly
in different parts of the country, or depending on the
appellate decisions or sentencing court decisions.
Mr. Flake. Thank you, Mr. Chairman.
Mr. Coble. The gentleman's time has been expired.
We have been joined by the distinguished gentleman from
Ohio, Mr. Chabot.
The chair recognizes the gentlelady from Texas, Ms. Jackson
Lee, for 5 minutes.
Ms. Jackson Lee. Thank you very much, Mr. Chairman. Let me
thank both you and the Ranking Member for both a timely and
what I believe to be a crucial hearing that I hope will lead us
to answering the call of Mr. Wray, which is that the Congress
acts in a reasonable, responsible manner that takes into
account what I think is a very concise and, as well, very clear
mandate from the United States Supreme Court.
I am not sure what arguments one would make to thwart a
pronouncement that says that the sentencing guidelines violate
a constitutional amendment. So, therefore, I believe it is
imperative that we act and I welcome your advice and counsel.
Let me have you succinctly state the position of the
Department of Justice at this time, in light of the recent
Supreme Court decision. Mr. Wray, I am sorry.
Mr. Wray. Congresswoman, I just want to be sure that in
order to be succinct that I am clear on our position on which
aspect of the entire----
Ms. Jackson Lee. The sixth amendment aspect, the mandatory
sentencing violating the sixth amendment.
Mr. Wray. Well, we obviously argued to the Supreme Court
that the Federal sentencing guidelines were distinct and
different--distinguishable and different from the Washington
State system, but in the wake of the decision, the Supreme
Court obviously disagreed with us on that point.
We do think it is possible to have, for example, a system,
the so-called topless system that a couple of the other
witnesses have described, we do think that would be
constitutional even after Booker.
Ms. Jackson Lee. The topless system?
Mr. Wray. The proposal that Professor Bowman would no
longer like to have his name attached to, but that Mr. Collins
described, and that is a system where the minimum, if you will,
the floor can be set by the judge, but the top is determined by
the statutory maximum that the Congress has imposed and the
judge has discretion in that range. So, therefore, you no
longer have to acquire jury findings----
Ms. Jackson Lee. You would be open to that?
Mr. Wray. We would be open to the topless system, yes.
Ms. Jackson Lee. Mr. Collins, I know you have seen the
numbers, excessive numbers of minorities in State and Federal
prisons. In fact, I am looking at a number in the State of
Texas, and we are talking about Federal prisons, Federal law
now, 70 percent of the inmate population in the State of Texas
happens to be African Americans.
The system that we had before, or the concept that many of
us in Congress had thought would be reasonable, is giving well-
qualified judges, a well-qualified judiciary the bare
opportunity of using discretion in some cases. The ones that
come to mind in particular are the so-called conspiracy drug
cases where you are standing on the street corner with another
person and you are caught up in a conspiracy. Your mandatory is
25 years.
What is your interpretation of the latitude the Congress
now has under Booker?
Mr. Collins. Well, obviously you have very wide latitude
under Booker.
Ms. Jackson Lee. And I hope it is wise latitude.
Mr. Collins. And hopefully it is wise. The Sentencing
Commission--you raise a very serious question. The Sentencing
Commission carefully looked at this issue in its 15-year
report, had an entire chapter on the subject. Its conclusion
was that very little of the racial disparity that exists in
terms of outcomes and results in the Federal system is
attributable to the guidelines itself. Some of it may be due to
disparate impacts of particular provisions of law, particularly
with respect to drug amount, et cetera. Also, the Commission
cited in its report studies that indicated that introducing
discretion actually had the effect of introducing racial
disparity----
Ms. Jackson Lee. That was some original thought, you are
right. I think that was one of the basis of mandatory
sentencing, but go ahead. It is turned around on the wrong end
because of the impact on certain sentencing in certain
populations being in those certain offenses.
Mr. Collins. Well, one of the goals of the Sentencing
Reform Act, and I think the Commission's 15-year report shows
that it was achieved, is to try and do as much as you could to
take out improper and irrelevant facts that had no business
being a part of sentencing, having even an implicit role in it,
and I think the report indicates that with respect to the issue
of racial disparities that the guidelines are not a source of
racial disparity and, indeed, probably----
Ms. Jackson Lee. Mr. Bowman--thank you. Mr. Bowman, would
you comment, and as I do that, Mr. Chairman, I would like to
submit into the record H.R. 256, which is a bill entitled ``A
Good Time Relief Bill'' and a letter from Mr. Burton I. Cohen
\1\ writing in support of that bill. It was filed last year, an
individual that has sat on several disciplinary committees. But
it deals with numbers of individuals incarcerated for long
periods of time under the mandatory and the release of those
individuals for good time behavior. I would ask unanimous
consent to have these submitted into the record.
---------------------------------------------------------------------------
\1\ The letter from Burton I. Cohen was not available at the time
this hearing was printed.
---------------------------------------------------------------------------
Mr. Coble. Without objection, they will be received.
[The bill, H.R. 256, follows.]
Ms. Jackson Lee. May I allow Mr. Bowman just to answer what
his interpretation of Booker is in terms of the latitude that
we now have in Congress?
Mr. Coble. If you will do that as quickly as you can, Mr.
Bowman.
Mr. Bowman. I confess, Congresswoman, I am not entirely
sure of your question. I think that----
Ms. Jackson Lee. Let me be clear. Just give me your
assessment of the Booker case with respect to the latitude of
Congress in mandatory sentencing.
Mr. Bowman. I think that that is pretty unclear. I think
that, as I said in my testimony, I think that Booker casts the
rationale of Blakely into some doubt and that it is somewhat
unclear exactly what the Court, a majority of the Court thinks
about the proper constitutional limits on structured
sentencing. And it is for precisely that reason that I have
suggested--inconsistently, frankly, with what I had said 7
months ago when I didn't anticipate Booker--that we need some
time to figure out--let the courts help us find out what they
need.
Mr. Coble. The gentlelady's time has expired.
Ms. Jackson Lee. Thank you very much, Mr. Chairman.
Mr. Coble. You are welcome.
I overlooked the gentleman from California. We have been
joined by Mr. Lungren. It is good to have you with us, sir.
I recognize the gentleman from Texas, Mr. Gohmert, for 5
minutes.
Mr. Gohmert. Thank you, Mr. Chairman.
If you will pardon me, I read the Booker opinion in total
last night for the first time and it seemed to me that was a
muddled mass of murky malarkey, I am telling you.
Judge, you had indicated at one point in your opening
statement that one thing that seemed clear, I am telling you, I
didn't see anything that looked real clear. And when you have
judges that come out with the Blakely decision, give
indications of one thing, and then come back with a decision in
which Stevens delivers the opinion for himself, Scalia, Souter,
Thomas, Breyer delivers the opinion for O'Connor, Kennedy,
Ginsberg, and himself, then Stevens delivers a dissenting
opinion for himself and Souter and Scalia, and then Scalia
gives a dissenting opinion, Thomas gives a dissenting opinion,
and then Breyer gives a dissenting opinion in part for himself
and Chief Justices O'Connor and Kennedy, it seems to me that if
they wake up on a different side of the bed one morning, we
have got a whole new decision come 6 months or a year from now
and that is rather disappointing that Justices come down that
way.
Obviously, you are in favor--you say you appreciate the
guidelines, in effect. Is there any polling data of where the
Federal judges, the district judges stand on their support for
the guidelines or wish they would go away back like they were
20 years ago when you first started?
Judge Hinojosa. Well, I guess that is a subject of
discussion among judges on a pretty regular basis. Yes, I guess
there have been studies in the past, and the support varies, I
guess. But I will say that privately, judges probably express
more support for a guidelines system than is the public aspect
of the discussion, for the same reasons that I have stated. It
is the most difficult part, as you know, that a judge does with
regard to their job and you do want to be consistent. You want
to be transparent with regard to due process and having the
defendant, as well as the public, know what factors are being
considered with regard to sentencing.
And a guidelines system, whether it is a State or Federal
system, provides that guidance and that public discussion with
regard to the issues that are being considered by the judge in
making the determination.
You have mentioned something about the Booker case and I
will say that there has been a quote of Ricky Ricardo, and I
will say that sometime when I first read the Booker decision, I
guess one comment I would have made would have been, ``Ay
carramba,'' to quote Ricky Ricardo. But as you read it more,
you do see the themes that come across with regard to at least
that the guidelines need to be considered and certainly
consulted with and determinations made in order for a judge to
make the ultimate sentencing decision on a 3553(a).
But as you well know, any decision--as a judge, the system,
when it first came into effect, probably did not have
widespread judicial support. But I do feel that there is more
support for it than is sometimes evident in the public.
Mr. Gohmert. Dealing with the murkiness as we have it, or
at least I see it in this opinion, I was curious, with regard
to the guidelines and their apparent position that if it is a
factor that takes it outside the range, then it has to be found
beyond a reasonable doubt by a jury or agreed by the defendant,
do you see the possibility of a system in which, like some
States, like Texas has a bifurcated system. The defendant can
waive a jury on sentencing so that that is when judges
sentence, but not necessarily having a jury assess the
sentence, but if there are factors of which the prosecutor is
aware that may push it up beyond the guidelines, then as soon
as a jury finding came back finding the defendant guilty,
immediately move into a bifurcated portion in which the jury
would determine then beyond a reasonable doubt any of those
factors the prosecutor wished to pursue? Do you feel like that
would be too troublesome?
Judge Hinojosa. Actually, some judges were doing this post-
Blakely but pre-Booker and there were some judges who were
supportive of this. Judge Sven Holmes in Oklahoma is a prime
example of that. And some judges felt that they could work with
that.
It is more cumbersome, as you know, Judge, having practiced
in the State courts of Texas, to have the guilty-not guilty
phase and then also the sentencing phase. It is something that
could be worked with. Obviously, it would require rule changes
with regard to the rules of criminal procedure. It would
require changes with regard to how we do business on a daily
basis. It would, in some cases where you have a heavy criminal
load, maybe present some issues with regard to resources,
including time resources.
It does also create some other possibilities, which would
mean that prosecutors and defense attorneys could probably
control the sentences a lot more because they could make
stipulations with regard to what they had agreed on, and then
the judges and/or juries would have less to say about
sentencing because there would be more stipulations between the
prosecution and the defense attorneys.
Mr. Coble. The gentleman's time----
Mr. Gohmert. May I do one follow-up?
Mr. Coble. Very quickly, if you will, Mr. Gohmert.
Mr. Gohmert. To Mr. Wray, what the Judge got to was
something I was wondering about, if you did have that threat of
an additional part of the trial, if that might not lead to more
agreements immediately after a finding of guilty, an agreement
to waive the jury on the additional issue and give prosecutors
yet another tool to bring about an agreement prior to
sentencing. Do you see that as a possibility?
Mr. Wray. Congressman, I think we believe that the sort of
bifurcated system that you are describing, as Judge Hinojosa
mentioned, some judges were doing that and our offices were
having to deal with that in some districts, is likely to, in a
way, generate more disparity, because as he indicated, it puts
control in the hands of the parties and you are having people
making calculations about whether or not they want to run a
risk with a jury pool in this State versus that State, and so I
think you would probably end up with significant geographic
disparities and major logistical and resource nightmares.
Mr. Gohmert. But would you support it or not?
Mr. Wray. Well, I am not in a position here today to be
able to endorse a specific legislative proposal----
Mr. Gohmert. Not on behalf of your office, but you
personally. [Laughter.]
Mr. Coble. The gentleman's time has expired. I will bail
you out, Mr. Wray. [Laughter.]
Mr. Gohmert. Thank you, Mr. Chairman.
Mr. Coble. The gentleman from Michigan is recognized for 5
minutes.
Mr. Conyers. Thank you, Mr. Chairman.
I wanted to extend a personal welcome to our newest
colleague from Texas, Mr. Gohmert, who is reviewing the
murkiness of Supreme Court decisions. But, sir, you are going
to have a much bigger job in the Judiciary Committee trying to
separate out what we are doing here, not only among the
witnesses but among the members of this Committee, as well. So
I wanted to extend my personal welcome to you and look forward
to working with you in that regard.
Mr. Gohmert. Thank you.
Mr. Conyers. Now, in some respects, notwithstanding the
very distinctive and well thought-out presentations that have
been made this morning, we are further away from any agreement
than we were before this hearing was called, gentlemen. We now
have even larger schools of thought, wider ranges of disparity,
and it is curious to me, and I didn't hear all of the opening
statements, but there hasn't been one word mentioned throughout
a couple of hours here about the crack cocaine-powder
disparity. It is like--and we have mentioned it and none of you
have even acknowledged that it exists. And then the whole
question of racial disparity and the sentencing process.
Now, I don't know which legal literature you are reading,
but the kind that my staff and I are looking at say that it is
horrendous. And now I am treated this morning to all of the
phrases and the support of the Sentencing Commission and that
crime has gone down as a result of it, things are--we don't
want to rock the boat too much, we don't want to override these
decisions.
But can you, Mr. Bowman, give me some clue as to why there
is such a wide gulf that apparently exists between many members
of this Committee and many in the criminal justice arena and
what we are talking about today?
Mr. Bowman. I am not sure I can attempt to plumb the minds
of the Members of the Committee, but perhaps I can try to
respond and connect the concern expressed by a number of
members about crack-powder and racial disparity with the
conversation that we are having here today.
One of the--as I listened to my fellow witnesses, to a
certain extent, the picture that emerges here is one in which
the current guideline sentences, or for that matter, the
statutory sentences for things like crack, are taken to a
certain extent as a given and as a desirable one and any
deviations from guideline levels or perhaps statutory ones are
expressly or impliedly labeled as being undesirable, somehow
disruptive or even undermining the system.
I think that is probably the wrong approach to take. I
think an approach that we should consider over the whatever
period of time the Booker system of advisory or presumptive
guidelines is allowed to persist, whether it is a short time or
a long one, I think this Committee, and indeed Congress in
general, should not look at what judges do when they deviate
from the guidelines as some sort of weird aberration but
consider and study whether or not there are some patterns in
those deviations that suggest that some of the rules could be
revised.
And thus, if it were to happen that a good many of the
deviations from the guidelines that appear post-Booker were in
crack cases, this might strongly suggest that Congress should,
as the Commission has often recommended, revisit the question
of the crack-powder disparity. In short, I am suggesting----
Mr. Conyers. The light just turned red and the bells are
ringing. Let me just rudely interrupt you. This hearing, in my
view, is non-relevant to the most--the two most important
issues that are bedeviling the criminal justice system in
America for decades. I mean, these are interesting asides about
the two decisions that have just come out and what they mean to
discretion, but for us in this Committee, in this room, to hold
a hearing for this long a period and not talk about the racial
disparity and the crack cocaine-powder disparity means to me
that they do not occupy a very important level of concern for
discussion before the one Committee that has jurisdiction in
the House of Representatives.
I thank the Chairman for his----
Mr. Coble. The gentleman's time has expired.
Let me think aloud for a minute. Mr. Lungren, I think you
can be recognized for 5 minutes, and Ms. Waters, if you want to
examine these witnesses, we will come back after the vote. Do
you have a preference?
Ms. Waters. No, I don't want you to have to come back for
me.
Mr. Coble. I don't mind doing it.
Ms. Waters. I don't need to examine them, but I need to
tell them something.
Mr. Coble. Let us go with Mr. Lungren first and then I will
recognize you.
Ms. Waters. All right. Thank you.
Mr. Coble. Mr. Lungren, 5 minutes.
Mr. Lungren. Thank you, Mr. Chairman.
It is a pleasure to be here with these distinguished
panelists. As one of the fathers of the sentencing guidelines,
I originally got involved in the process when I was visited by
a young woman who was a constituent of mine in my previous
district who had been sentenced by a Federal judge to an
extraordinary sentence for certain marijuana possession which
was so out of sorts with what other people were getting and so
out of sorts with what violent criminals were getting that I
began to investigate this and worked with others to set up the
sentencing guidelines system, which until the Supreme Court
gave us its very clear decision, I thought was working
relatively well, certainly in comparison to what we had before.
The great disparities we saw in the Federal system were largely
eliminated. There was some consistency.
I just remarked to my friend from Michigan that the problem
with respect to crack cocaine-powder disparity is really not
one of the Sentencing Commission, it is complete direction by
this Congress. I can recall when we made that decision brought
to us by, with all due respect, members of the other side of
the aisle, Congressman Bill Hughes of New Jersey and
Congressman Rangel, who came together and said that crack
cocaine was killing their communities, was a scourge on their
communities, and we needed to do something about it and we
needed to create far greater penalties for crack cocaine than
we did for powder cocaine.
We reacted in response to that direction given to us by
Representatives in this institution who were representing
people from those communities and listening to the cries of the
people in those communities which were being devastated by it.
So it ought to be Congress that revisits it after 15 years
rather than putting this on the Sentencing Commission and any
suggestion that that is one reason why the Sentencing
Commission decision by the Supreme Court was a good thing, I
think ought to be recalculated.
Here is my question to the panel and it is a very simple
one. The Sentencing Commission was specifically established for
purposes, and the guidelines, for purposes of getting rid of
disparity, giving a certainty to the system, giving some
expectations that would be realized by those in the system,
both those charged with crimes and the victims of crime.
Given what we have now, that is, the result of the Supreme
Court decision, other than the bifurcated system that we have
dealt with in California and other States in capital cases, how
are we really going to deal with this? The way I take it from
the Supreme Court, they have said that we want the Federal
judges to take the guidelines seriously, but not that
seriously, because if they consider it that seriously, it is
unconstitutional. So long as it is an 80 percent seriousness,
it is constitutional, but if it is 100 percent seriousness, it
is unconstitutional.
Am I wrong on that? What do we have left? It reminds me of
some people who--well, I won't go into that.
Let me just ask the four of you, and I know we have a short
period of time, what can we do? I know you gave us time
constraints or time imperatives, but essentially, in very short
order, what can we in Congress do, or do we need to do anything
now that the courts are at least trying to react to this?
Mr. Bowman. Mr. Lungren, if I might respond to that, I
don't know if perhaps you are addressing it to someone else.
Mr. Lungren. All four of you.
Mr. Bowman. Congressman, I think that, in fact, there are a
lot of smart people out there trying to figure out how to
respond to this and I think that there are--including the folks
on the Constitution Project, Attorney General Meese, Professor
Heymann, and the judges and other folks on that group, and
there are a lot of other groups out there thinking very hard
about this. And I can tell you, although I can't go into the
details because of time, but there are a number of proposals
being worked through that would combine the concerns--
addressing the concerns of Congressman Flake about simplifying
the Federal sentencing system and Federal criminal laws with
meeting some of the concerns expressed by Justice Scalia in
Blakely and also addressing the alternative constitutional
model put forward in Booker.
There are some folks out there working very hard who I
think, if given some time, can actually present to you some
reasonable proposals that can try to bring together and address
a number of these problems.
Mr. Collins. Congressman, I think the case for delay is a
weak one. If we think of the Sentencing Commission and the
sentencing guidelines as the vehicle for Congress's
accomplishing the goals of Federal sentencing policy, Booker is
the equivalent of a flat tire. And while we stand by the side
of the road, it is not time to argue about reupholstering the
interior, painting the vehicle. We need to get it moving again,
and it is very simple what to do. You simply remove the caps--
that would make the system constitutional. If other issues want
to be revisited, people can revisit those. But this system
needs to get moving again in the direction of accomplishing
what we all know from the pre-Booker period it was
accomplishing what Congress wanted it to do.
Judge Hinojosa. Congressman Lungren, I guess in some ways
Professor Bowman has been more successful than he thinks he is,
because to a certain extent, the Booker decision gives us
topless guidelines.
Mr. Coble. Judge, if you will suspend just one moment--
again, I am thinking aloud. Ms. Waters, how long will it take
you to make your comment?
Ms. Waters. Just a few minutes.
Mr. Coble. How long?
Ms. Waters. Just a couple of minutes.
Mr. Coble. I am just thinking, folks, in the interest of
time, to give Ms. Waters due time and to let Mr. Lungren
finish, the time is running down. Why don't we suspend very
briefly. We will go vote and then we will come back and Mr.
Lungren can finish his line of questioning, and then we will
recognize Ms. Waters.
Ms. Waters. Well, no, if you are going to come back anyway,
I will just come back and take my whole 5 minutes.
Mr. Coble. That would be fine.
Ms. Waters. I was trying to do it out of consideration to
the Committee. I think they had answered basically Mr.
Lungren's question in their presentations and talking about
what they thought we could do. I have heard it over and over
again. But if you want to do that----
Mr. Coble. Well, to be sure none of us miss the vote, let
us suspend and we will come back after the vote and then we
will wrap it up with Mr. Lungren and then Ms. Waters.
[Recess.]
Mr. Coble. We will resume our activity here.
Mr. Lungren, I think you had the floor and you were
examining the witnesses. You may continue.
Mr. Lungren. The Chairman is very generous in his use of
the word ``examining.'' I am being very nice. I am just asking.
I think the Judge was responding.
Judge Hinojosa. That is correct, Congressman. What I was
saying was that Professor Bowman has probably been more
successful than he would like to admit in that under an
advisory guideline system, if you consider the Sentencing
Reform Act factors, you could go to the top, the statutory
maximum. We also can go to the bottom.
The Commission's position has been that in considering and
consulting the guidelines as Booker requires and as certainly
the Sentencing Reform Act itself states, you should consider
the guideline ranges, applicable guideline ranges, the policy
statements as the Act itself requires, then make determinations
under the guidelines system, and then determine in
consideration of the Sentencing Reform Act 3553(a) factors if
you are going to stay within the guidelines system, including
the policy statements, or going outside of the system.
But in many ways, we do have topless guidelines for those
that are interested in that. The issue then becomes with regard
to whether appellate review should be the same for guideline
sentences versus non-guideline sentences since it is above the
guidelines, below the guidelines, departures within the
guidelines system, and that is certainly something that
Congress will eventually decide. If not, the appellate courts
are also going through that at the present time and we are
already seeing some decisions at the appellate court level with
regard to the review that is being used with regard to the
sentence.
Mr. Wray. Congressman, I think, if I remember correctly,
the question as you had posed it was sort of what can you do in
the wake of Booker, and I think what I would say, in addition
to what the other witnesses have already said, is a couple of
things.
You could address the courts' ability that they now seem to
have in the wake of Booker to consider what would otherwise be
prohibited factors in sentencing, something I mentioned earlier
in my testimony. You could address the cooperation issue, which
is so important to areas of criminal enforcement that are very
important to every member of this Committee and every member of
this country. You could address the appellate review standard,
this reasonableness issue which we think will result in less
rigorous and less consistent appellate review. You could--and I
think that is a very important issue to cover.
I think there are some other variations that have been
discussed already by some of the other members of the panel.
There are things that can be done like a topless guideline
system, but that may not be the only way. There may be things
that can be done as long as we work collaboratively together
and the Department would like to work with the Congress on that
in a way to come up with something that would lead to the best
interest of the public.
Mr. Lungren. Thank you very much. Mr. Chairman, my concern
is that I thought that the guidelines within the large ranges
that we gave from Congress were the best way to address the
situation. Now the Court has put us in the situation where a
response by Congress may be to increase the minimum ranges that
we have statutorily as a way of making sure that the Federal
system doesn't do what we feared before, which I don't think is
a good thing. And so we are sort of in a dilemma now where I
thought we had a system that worked pretty well to ensure that
we had consistency but yet, with maybe some exceptions that
ought to be examined by the Congress on due penalties attached.
I am not sure the Supreme Court thinks about those things, that
the reaction of Congress might be just exactly the opposite of
what they are concerned about. Thanks very much.
Mr. Coble. I thank the gentleman.
The gentlelady from California, Ms. Waters, is recognized
for 5 minutes.
Ms. Waters. Thank you very much, Mr. Chairman. I appreciate
the opportunity to have this platform today to talk about an
issue that troubles me and others on this Committee and
obviously Mr. Conyers so much.
Even though we are here to talk about Booker and to talk
about the guidelines becoming advisory, that is not the major
issue for me. As a matter of fact, I would submit to you
without having talked to all of my colleagues, those of us who
understand what racism and discrimination are all about, we
would like to have clear rules that everybody would have to
abide by. I think we are served better by that.
So when you talk about the sentencing guidelines being
advisory and you have the opportunity for judges to go up or
down, et cetera, that is a little bit troubling because we know
that we will suffer under that kind of discretion, for the most
part. History has proven that and I don't think it is going to
change.
So for me, it is not a big issue, but here is the issue for
me: Mandatory minimum sentencing. As my colleague said on the
opposite side of the aisle, that is our fault. What happened in
the Congress of the United States led by two of the gentlemen
that he identified, and I just asked Mr. Regula about it and he
didn't quite remember it, is what I am concerned about.
Now, what do you have to do with that? I mean, you didn't
come here to talk about mandatory minimum sentencing as it
relates to crack cocaine, et cetera. But we are watching all of
these low-level drug persons with five grams of crack cocaine
be sentenced to 5 years in prison or more and the judge has no
discretion in the issue. They are filling up the prisons and
lives are being destroyed. Nineteen-year-olds, 20-year-olds are
going to prison, some of them in college. They are not
criminals, they are just stupid. They are not criminals and
their lives should not be shut off in that manner.
So here is what we are saying. While we are discussing
these kinds of issues, can we use this as an opportunity to
talk about not only what the Congress should be considering as
we take a look at Booker, but what we should be thinking about
and how we can encourage the Congress of the United States to
look at these mandatory minimum sentences.
I believe that the Sentencing Commission, and I have to--we
have to accept blame for that on both sides of the aisle. I can
recall when the Sentencing Commission came up with different
guidelines and Bill Clinton vetoed it, as I remember, or didn't
do something which caused it to go into effect.
So because you are listened to, because you are in the
Justice Department, because you are people who deal with these
issues, let us couple our discussion about mandatory minimum
sentencing as we talk about these sentencing guidelines. Let me
tell you, under these mandatory minimum sentences, not only do
we have people being sentenced more harshly than we have people
who commit real crimes being sentenced, we have people who are
committing crimes of robbery and rape and other kinds of
serious felonies who are not sentenced as harshly as a 19-year-
old who is stupid enough to try to have five grams of crack
cocaine in their possession. And they are disproportionately
minority, even though the greater number who are involved with
crack cocaine are not minority.
So when you hear us talk about this, it is not because we
are blaming you. It is not because we think you can fix it. But
we think that you can couple the discussion so that we can try
and move the Congress of the United States to correct mandatory
minimum sentencing. I disagreed with all mandatory minimum
sentences. I think judges should have some discretion. I think
they should have the ability to look at the individual, to look
at their past history, to look at the intent, everything.
However, I am focused on mandatory minimum sentences as it
relates to crack cocaine sentencing.
So if you heard my colleague John Conyers today, what he is
saying to you is, why aren't any of you interested in
discussing mandatory minimum sentencing, particularly as it
relates to these drug offenses? You know in your heart that
these sentences are excessive and that they are detrimental and
that they are doing nothing to deter crime. As a matter of
fact, criminals, real criminals, are getting away with much
lighter sentencing.
Having said that, I told my Chairman I had no questions,
but I had something I wanted to tell you. I have told you. That
is it. Thank you. I yield back the balance of my time.
Mr. Coble. I thank the gentlelady.
Ladies and gentlemen, our border security bill is now on
the floor and we need to adjourn, but I think the gentleman
from Virginia may have a question or two. Mr. Scott, if you
could, and then we will wrap it up.
Mr. Scott. Thanks, Mr. Chairman.
I had just a couple of technical questions if we do
something. There is an old adage, slightly rephrased, that we
might abide by and that is don't just do something, stand
there. [Laughter.]
If we do something, what would happen to a pre-sentence
report. Pre-sentence reports, under mandatory guidelines, would
be useless, I would imagine. Is that right, Judge?
Judge Hinojosa. Well, under the present system, the pre-
sentence report still, according to the rules, needs to be
prepared as it was being prepared beforehand.
Mr. Scott. And under the voluntary guidelines, you could
still consider the pre-sentence report today. But if we had
mandatory guidelines, it would be--the findings in the pre-
sentence report, since they were not found by a judge, could
not be used.
Judge Hinojosa. Well, they would always be found by a
judge, Congressman, because these are just recommendations from
our probation officers. The advantage to that system, when it
was created, was we have always had pre-sentence reports. After
the guidelines, obviously, they were geared toward
recommendations of the guidelines findings. But eventually, it
is the judge's decision.
The advantage to the present system is there is a report
that is given to the prosecution and the defense. There is a
period of time within which they can object to it. Then there
is a period within which the probation office responds to it.
And then there is an actual hearing before the court. But as
most probation officers find out, it is the judge who makes the
decision, not the probation officer.
Mr. Scott. If the guidelines were made somehow mandatory,
you couldn't use the pre-sentence report without a finding by a
jury along with the facts in the pre-sentence report.
Judge Hinojosa. It would depend on what the defendant had
admitted at the time of the guilty plea or what the jury
verdict had been with regard to the charge and the way it was
worded in the instructions to the jury at the time of the
conviction. And so it might very well be that the
determinations would be made under Blakely and under Booker
constitutionally.
Mr. Scott. But if we don't do anything, you can consider
the information in a pre-sentence report today, if we don't do
anything?
Judge Hinojosa. Well, what it appears to me that Justice
Breyer and the five members of that majority were doing was
saying, yes, you the other majority have said Blakely applies
to the Federal guidelines with regard to sixth amendment
rights, but since they are now advisory, the judges can
continue making the findings under the standards of proof that
they have used in the past and under the same methods of
determining the guidelines system without having to have a jury
determine these because these are now advisory and are being
considered as one of the factors within 3553(a), although a
very strong factor and one obviously that the Commission feels
deserves substantial weight.
Mr. Scott. If there is a guilty plea, obviously, you didn't
find anything by a jury beyond a reasonable doubt. How do you
consider the various factors today without any findings?
Judge Hinojosa. In my case, as to what procedure I am
following, I am following the same procedure and making the
findings in the same fashion as I did beforehand. It is open.
It is a discussion of the factors that need to be considered,
opportunity for both sides to come forward with whatever
information they have so that the court can make the decision
here.
And I do have to say that under the old system, I made
those decisions without ever having to tell a soul that I was
doing that, and there was no standard with regard to beyond a
reasonable doubt or a preponderance and those factors were all
being considered.
Mr. Scott. Mr. Bowman, did you want to comment on that, or
on both of those questions, what do you do with the pre-
sentence report and a guilty plea?
Mr. Coble. And, Mr. Bowman, if you would as quickly as you
can because we do need to adjourn, but go ahead, Mr. Bowman.
Mr. Bowman. Another way of putting what Judge Hinojosa is
saying, which may help clarify this, is at least my
understanding of what Booker has held, and I think this is what
Judge Hinojosa is saying, as well, is that after Booker,
everything essentially remains--in terms of procedure in the
courts--everything remains exactly as it was before Booker.
Factual determinations must be made. A sentencing hearing must
be held. A guidelines determination must be made. Everything
remains exactly as it was up to the point at which the
guideline determination is made and the judge then has to
decide whether to sentence inside that range or outside that
range.
So procedurally, if you leave things exactly as they are,
if you don't disturb Booker, the Booker mechanism seems to be
one in which the fact-finding process is exactly the same as it
was before.
Mr. Scott. Mr. Chairman, could I ask one other quick
question, and that is to Mr. Wray on the cooperation credit.
Can you say a word about the policy implications of requiring
defendants to waive attorney-client and other privileges?
Mr. Wray. Sure, Ranking Member Scott. The issue of
attorney-client privilege waiver comes up most typically, at
least in my experience, in the context of corporate fraud
cases. I am not aware of very many instances that I have seen
where anyone is asking for such a waiver in the context of an
individual defendant. But has not been the Department's policy
to insist on such a wavier.
It is, however--there are cases where a defendant,
typically a corporate defendant, that is, a company that is
under investigation, will choose to do that to demonstrate how
cooperative they are being and how helpful they are being, and
we want to make sure that when companies and institutions do
that, they get appropriate credit for doing that, because we
recognize that is a very significant step that is not to be
taken lightly.
Mr. Scott. May I have unanimous consent to request
documents be added to the record?
Mr. Coble. Without objection.
I would also like unanimous consent with a number of
documents, as well.
Ladies and gentlemen, this has been a very productive
hearing.
I want to apologize for some of the Members of the
Subcommittee who were not here. Their absence does not indicate
lack of interest in this subject. We had other hearings and
other Committee meetings that were in conflict, so I assure
you, we will keep our eye on the ball on this.
But I do thank you all for your testimony and your
contribution. In order to ensure a full record and adequate
consideration of this important issue, the record will be left
open for an additional 7 days for subsequent submissions if you
all want to submit something further. Any written questions
that a member wants to submit should be submitted within the
same 7-day period.
This concludes the oversight hearing on the ``Implication
of the Booker/Fanfan Decisions for the Federal Sentencing
Guidelines.'' Thank you all for your cooperation. The
Subcommittee stands adjourned.
[Whereupon, at 12:05 p.m., the Subcommittee was adjourned.]
A P P E N D I X
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Material Submitted for the Hearing Record
Prepared Statement of the Honorable Howard Coble, a Representative in
Congress from the State of North Carolina, and Chairman, Subcommittee
on Crime, Terrorism, and Homeland Security
Good morning. I want to welcome everyone to this very important
oversight hearing before the Subcommittee on Crime, Terrorism and
Homeland Security to examine the implications of two recent Supreme
Court decisions, in United States v. Booker, and United States v.
Fanfan, to the federal Sentencing Guidelines.
The Supreme Court's rulings eviscerated two critical aspects of the
federal Sentencing Guidelines: first, the Court ruled the Sentencing
Guidelines are no longer mandatory but are ``advisory;'' second, the
Court eliminated the de novo appellate review standard for downward
departures, which was passed by Congress as part of the PROTECT Act in
the 108th Congress, and replaced it with a vague and unspecific
``reasonableness'' standard for appellate review.
It is an understatement to say that the Supreme Court's decisions
have had a dramatic impact on the federal criminal justice system. Some
have characterized the impact as resulting in complete disarray, and
even others characterize the decisions as posing a direct and
significant threat to public safety, thereby jeopardizing dramatic
reductions in the crime rate in our country.
As this Committee examines this issue, we must be mindful of the
fact that the Sentencing Reform Act of 1984, which created the
mandatory federal Sentencing Guideline system was a bi-partisan measure
designed ``to provide certainty and fairness in meeting the purposes of
sentencing, avoiding unwarranted disparities among defendants with
similar records who have been found guilty of similar criminal
conduct.''
In the short time since the Supreme Court issued its rulings in the
Booker/Fanfan decisions, there already have been reported instances of
judges deviating from the guideline sentencing ranges, relying on
varying rationales for such departures. It is Congress' role to ensure
that the original purposes of the Sentencing Reform Act of 1984 are
adhered to by the federal judiciary--we all can agree that disparities
among similarly situated defendants are unfair and undermine the
federal criminal justice system.
Justice Breyer in his majority opinion in Booker made it clear as
to our institutional responsibility when he wrote of the Court's
decision, ``Ours, of course, is not the last word: The ball now lies in
Congress' court.''
In order to fulfill our Constitutional responsibility, today's
hearing is the first step to ensuring that the federal sentencing
system continues to promote fairness, eliminate disparities, and
protect the public safety--so that law-abiding citizens can live in
freedom without fear of crime, and defendants receive fair and equal
treatment in the federal judicial system.
I am anxious to hear from our distinguished panel of witnesses and
now yield to the ranking Member of this Subcommittee, the gentleman
from Virginia, Mr. Bobby Scott.
__________
Prepared Statement of the Honorable Robert C. Scott, a Representative
in Congress from the State of Virginia, and Ranking Member,
Subcommittee on Crime, Terrorism, and Homeland Security
Thank you, Mr. Chairman. I am pleased to join you in convening this
hearing on the implications of the U.S. Supreme Court's Booker/Fanfan
decision on the federal sentencing guidelines. Since the Blakely v.
Washington decision last June, the viability of the federal, and many
state, sentencing systems have been in jeopardy. That decision made it
clear that sentences based on facts found by the court after the trial,
that were not admitted by the defendant or established during the
trial, deprived the defendant of the constitutional right to a jury
trial. We contemplated a range of options or approaches after the
decision. They ranged from do nothing to enacting an entire system of
statutory minimums and maximums. However, we wisely, I believe,
listened to the counsel of sentencing experts, and others, suggesting
that we give the courts a chance to further clarify the impact of the
decision on the federal system.
That further clarification came in a decision by a strangely
divided Court in January through the Booker/Fanfan decision. That
decision clarified that Blakely, indeed was applicable to the federal
sentencing guidelines system, and found the system unconstitutional as
applied. However, the court delineated the aspects of the system that
caused it to be unconstitutional, thereby excising the applicability of
those factors, leaving the remainder of the system intact. Yet, the
Court, as it properly tends to do, only answered the questions it
considered to be properly before it at the time. Therefore, we are left
with the issue of how the remaining system can operate consistent with
its aims and purposes and the Court's decisions. And, again, sentencing
experts and others are advising that we await further clarification
from the courts on the impact of Booker/Fanfan.
The early indications in this post Blakely/Booker/Fanfan context is
that the sky is not falling; that criminal defendants are being
prosecuted and sentenced and that the sentencing guidelines system is
directing those sentences to essentially the same extent as it was
before. So, for those who found the sentencing guidelines system
acceptable as applied before Blakely and Booker/Fanfan should find it
acceptable now. There were quirks and imperfections before the recent
upheavals that required appellant court correction or clarification,
and that's the situation today.
For others of us, including myself, the federal sentencing
guidelines system as applied was not satisfactory. I am very concerned
about the growing minority percentage of a rapidly increasing federal
prison population serving excessively long sentences for minor roles in
non-violent crimes, due in large part to unfair applications of
mandatory minimum sentences and prosecutorial concentrations. These
problems are detailed in these 2 recent reports from the Sentencing
Project entitled ``Racial Disparity in Sentencing: A Review of the
Literature,'' ``The Federal Prison Population: A Statistical
Analysis,'' and the recently completed 15-year study report by the U.S.
Sentencing Commission, of which I have the executive summary here.
All the credible data shows that minorities are less likely than
whites to use illegal drugs of virtually all types, including crack
cocaine. Yet, a grossly disproportionate percentage of the enforcement
war against drugs falls upon minorities, many of whom are bit players
at the end stage of the drug trade whose involvement is based more on
addiction than profit. For example over 80% of the crack prosecutions
are against African American offenders while drug use data reflects
that 60% of the use of crack is by Whites.
And all the research and all the demonstrations show that drug
treatment, and other alternatives to incarceration are much more
effective and much cheaper than incarceration. Yet, we continue to
greatly increase our resources to lock up more and more of these bit
players for longer and longer periods while making no consideration to
effective and less costly alternatives and only minimally increasing
drug treatment as compared to the increases in enforcement. Report
after report, including these by the Sentencing Commission and others,
have pointed to these gross disparities in application of our drug
enforcement and sentencing policies against minorities. It was high
time that we addressed these atrocities before Blakely and Booker/
Fanfan, and it is certainly time to do so now.
So, Mr. Chairman, as we carefully contemplate what needs to be
fixed in the federal sentencing guidelines system, I would invite
consideration to this longstanding and shameful problem in our federal
law enforcement and sentencing applications. I look forward to the
testimony of our witnesses for any guidance they give us as we
contemplate these and other challenges in our criminal justice system,
and to working with you to meet the challenges. Thank you.
__________
Prepared Statement of the Honorable Sheila Jackson Lee, a
Representative in Congress from the State of Texas
Chairman Coble and Ranking Member Scott, thank you for the
opportunity that this body will have today to exercise oversight in
such an important area of the criminal justice system that has so many
stakeholders. The holding of the high court in U.S. v. Booker v. Fanfan
\1\ has given the Federal Sentencing Guidelines advisory weight rather
than mandatory.
---------------------------------------------------------------------------
\1\ 125 S. Ct. 738, 73 USLW 4056 (2005).
---------------------------------------------------------------------------
Mr. Chairman, I agree with many of my colleagues as well as a good
number of federal trial court judges that the guidelines are an
instrument created by the United States Sentencing Commission to reduce
negative trends and disparities in sentencing--on their face.
However, my experience as Ranking Democrat of the Subcommittee on
Immigration, Border Security, and Claims has shown me that strict
application of the guidelines on a mandatory basis can preclude judges
from exercising discretion as to whether or not to consider ``history
and characteristics of the defendant'' under 18 U.S.C. 3553, the
Federal Sentencing Act. The Booker case that was decided on January 12
has the force and effect of severing the Federal Sentencing Act to
excise the provision that makes the Sentencing Guidelines mandatory.
While I am a proponent of making federal sentencing more uniform
and consistent, I am not yet convinced that the Guidelines achieve this
end. To date, certain serious crimes have led to minor sentences while
more minor crimes have led to numerous years in prison. We must
carefully balance the need to instill order, uniformity, and judicial
efficiency into the criminal justice system while preserving judicial
discretion.
Application of the Guidelines in strict form has contributed to the
exponential growth of the federal prison and justice systems. Since
1980, the number of federal prisoners has increased nearly seven-fold,
rising from 24,000 in 1980 to 106,000 in 1996 and to over 170,000 in
2003.
Because of this rise in incarcerations, we have seen a rise in the
number of federal nonviolent offenders who may have been victims of
excessive sentencing under the Guidelines.
This was the impetus for my introduction of the Federal Prison
Bureau Nonviolent Offender Relief Act of 2005 which calls for the early
release of nonviolent offenders under certain circumstances.
Mr. Chairman, this body must explore this matter thoroughly and
follow the path that has been made by the jurisprudence of Booker.
__________
Prepared Statement of the Honorable John Conyers, Jr., a Representative
in Congress from the State of Michigan, and Ranking Member, Committee
on the Judiciary
Let me begin by thanking Chairman Coble and Ranking Member Scott
for convening this timely hearing on the Booker/FanFan decisions and
their impact on the federal sentencing guidelines.
With more than 2.1 million Americans currently in jail or prison--
roughly quadruple the number of individuals incarcerated in 1985--it's
hard to deny that our criminal justice is facing a real crisis.
Today, this country incarcerates its citizens at a rate 14 times
that of Japan, 8 times the rate of France and 6 times the rate of
Canada.
We spend an estimated $40 billion a year to imprison criminal
offenders, we choose to build prisons over schools and we fail to
provide inmates released from prison with the necessary tools and
assistance for a successful re-entry into society.
In short, we have turned a nation of peace-loving people who have
come to this country in search of nothing more than freedom and
equality into a nation of convicts.
Admittedly, the federal sentencing guidelines were not originally
enacted to address many of these problems. In fact, their primary
purpose was to simply make sentencing more certain and predictable.
Regrettably, two decades later, it's sad to say that the only thing
more ``certain and predictable'' is that the current system targets and
punishes racial minorities in a disproportionately harsher manner.
For instance, while the majority of federal offenders in the pre-
guidelines era were White (60%), minorities dominate the federal
criminal docket today. Moreover, while the gap in average sentences
between White and Black offenders was relatively small in the
preguidelines era, Blacks now receive sentences that are approximately
70% longer than Whites.
On average, Blacks now serve virtually as much time in prison for a
drug offense (57.2 months) as Whites do for a violent offense (58.8
months).
The current system may be certainly predictable, but it is
undeniably unfair.
Several reasons serve as the source of blame for our current state
of affairs. However, the greatest responsibility lies with those who
stubbornly rely on mandatory minimums and congressional directives to
enact misguided and ineffective policies all in the name of appearing
tough on crime.
For example, there currently exists a 1 to 100 disparity in the
ratio in sentencing powder versus crack cocaine, even though all
experts agree that the harms associated with the use of crack cocaine
do not justify substantially harsher treatment. So, why the disparity?
Our look today at the federal sentencing guidelines provides us
with a unique opportunity to consider some of these issues and debate
ways to bring about meaningful reform.
Such reform has already taken place at the state level. For
example, over the past couple of years, more than 25 states have passed
laws eliminating some of their lengthy mandatory minimum sentences and
have begun to divert non-violent drug offenders to treatment programs
instead of incarceration. The day has come for us to follow their lead.
Again, I would like to thank the Chairman and Ranking Member for
convening this important hearing. And, I look forward to hearing the
testimony of the witnesses.
__________
Prepared Statement of the Honorable Adam B. Schiff, a Representative in
Congress from the State of California
I would like to thank the distinguished Chairman, Mr. Coble and
Ranking Member Scott for holding this important hearing on the
implications of the recent Supreme Court decision in Booker/Fanfan on
the Federal Sentencing Guidelines.
The Booker/Fanfan decision brought about a far-reaching, if poorly
reasoned result. The sentencing guidelines are no longer mandatory, but
advisory, and yet they are still subject to a test of reasonableness.
Justice Breyer noted that the ball now lies in Congress' court. This is
an understatement.
Although the merits of the Court's opinions are subject to
legitimate criticism, Congress should use the opportunity to carefully
consider the strengths and weaknesses of the sentencing guidelines and
determine the best method of ensuring a sentencing regime that is
tough, fair, and promotes public safety.
As a former federal prosecutor, I had the opportunity to work in
the criminal justice system both before and after the sentencing
guidelines originally went into effect. The guidelines, although
certainly imperfect, did have the laudable effect of eliminating some
of the greatest disparities in sentencing. At the same time, they
eliminated judicial discretion to an unprecedented degree.
The challenge for the Congress is to revise the sentencing regime
consistent with the Court's opinion, establish a completely new
process, or allow time to evaluate the effects of the advisory system
and reasonableness standard.
I look forward to working with Chairman Sensenbrenner and Chairman
Coble and our other Judiciary Committee colleagues, the Department of
Justice, federal judges, defense attorneys, the Sentencing Commission,
and other experts and practitioners as we face this challenge.
Material submitted for the record by Rep. Scott
Letter from the Association of Corporate Counsel (formerly the American
Corporate Counsel Association), the Business Civil Liberties, Inc., the
Business Roundtable, the National Association of Manufacturers, and the
U.S. Chamber of Commerce
Letter from Keith Darcy, Acting Executive Director,
Ethics Officer Association (EOA)
Letter from Robert Evans, Director, Governmental Affairs Office,
the American Bar Association (ABA), dated February 9, 2005
Letter from Robert Evans, Director, Governmental Affairs Office,
the American Bar Association (ABA), dated February 17, 2005
Letter from Edwin Meese, III, and Philip Heymann, Co-Chairs, Sentencing
Initiatives, The Constitution Project
Prepared Statement of Lawrence Piersol, President, the Federal Judges
Association, and Chief Judge of the District of South Dakota
Letter from Kent Scheidegger, Legal Director and General Counsel,
Criminal Justice Legal Foundation
Letter from Robert L. Wilkins, and Karl A. Racine, Partners, Veneable
LLP