<DOC>
[109th Congress House Hearings]
[From the U.S. Government Printing Office via GPO Access]
[DOCID: f:26647.wais]
UNITED STATES V. BOOKER: ONE YEAR LATER--
CHAOS OR STATUS QUO?
=======================================================================
HEARING
BEFORE THE
SUBCOMMITTEE ON CRIME, TERRORISM,
AND HOMELAND SECURITY
OF THE
COMMITTEE ON THE JUDICIARY
HOUSE OF REPRESENTATIVES
ONE HUNDRED NINTH CONGRESS
SECOND SESSION
----------
MARCH 16, 2006
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Serial No. 109-121
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Printed for the use of the Committee on the Judiciary
Available via the World Wide Web: http://judiciary.house.govFOR
SPINE deg.
UNITED STATES V. BOOKER: ONE YEAR LATER--CHAOS OR STATUS QUO?
UNITED STATES V. BOOKER: ONE YEAR LATER--
CHAOS OR STATUS QUO?
=======================================================================
HEARING
BEFORE THE
SUBCOMMITTEE ON CRIME, TERRORISM,
AND HOMELAND SECURITY
OF THE
COMMITTEE ON THE JUDICIARY
HOUSE OF REPRESENTATIVES
ONE HUNDRED NINTH CONGRESS
SECOND SESSION
__________
MARCH 16, 2006
__________
Serial No. 109-121
__________
Printed for the use of the Committee on the Judiciary
Available via the World Wide Web: http://judiciary.house.gov
______
U.S. GOVERNMENT PRINTING OFFICE
26-647 WASHINGTON : 2006
_____________________________________________________________________________
For Sale by the Superintendent of Documents, U.S. Government Printing Office
Internet: bookstore.gpo.gov Phone: toll free (866) 512-1800; (202) 512ÿ091800
Fax: (202) 512ÿ092250 Mail: Stop SSOP, Washington, DC 20402ÿ090001
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 CHRIS VAN HOLLEN, Maryland
MIKE PENCE, Indiana DEBBIE WASSERMAN SCHULTZ, Florida
J. RANDY FORBES, Virginia
STEVE KING, Iowa
TOM FEENEY, Florida
TRENT FRANKS, Arizona
LOUIE GOHMERT, Texas
Philip G. Kiko, General Counsel-Chief of Staff
Perry H. Apelbaum, Minority Chief Counsel
------
Subcommittee on Crime, Terrorism, and Homeland Security
HOWARD COBLE, North Carolina, Chairman
DANIEL E. LUNGREN, California 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
Michael Volkov, Chief Counsel
David Brink, Counsel
Caroline Lynch, Counsel
Jason Cervenak, Full Committee Counsel
Bobby Vassar, Minority Counsel
C O N T E N T S
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MARCH 16, 2006
OPENING STATEMENT
Page
The Honorable Jeff Flake, a Representative in Congress from the
State of Arizona, and acting Chair, 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........................ 1
The Honorable Howard Coble, a Representative in Congress from the
State of North Carolina, and Chairman, Subcommittee on Crime,
Terrorism, and Homeland Security............................... 3
WITNESSES
The Honorable Ricardo H. Hinojosa, U.S. District Judge and
Chairman, U.S. Sentencing Commission
Oral Testimony................................................. 4
Prepared Statement............................................. 7
The Honorable William Mercer, Principal Associate Deputy Attorney
General and U.S. Attorney for the District of Montana, U.S.
Department of Justice
Oral Testimony................................................. 23
Prepared Statement............................................. 26
The Honorable Paul G. Cassell, Judge, U.S. District Court for the
District of Utah
Oral Testimony................................................. 61
Prepared Statement............................................. 63
Mr. James E. Felman, Partner, Kynes, Markman & Felman, P.A.
Oral Testimony................................................. 142
Prepared Statement............................................. 144
APPENDIX
Material Submitted for the Hearing Record
The Honorable Howard Coble, a Representative in Congress from the
State of North Carolina, and Chairman, Subcommittee on Crime,
Terrorism, and Homeland Security............................... 197
The Honorable Robert C. Scott, a Representative in Congress from
the State of Virginia, and Ranking Member, Subcommittee on
Crime, Terrorism, and Homeland Security........................ 198
Prepared Statement of the Honorable Tom Feeney, a Representative
in Congress from the State of Florida.......................... 199
Prepared Statement of the Honorable Sheila Jackson Lee, a
Representative in Congress from the State of Texas............. 200
Supplemental Testimony of James E. Felman, Esq., Kynes, Markman &
Feldman, P.A., Tampa, Florida.................................. 205
Prepared Statement of Carol S. Steiker, Professor of Law, Harvard
Law School, Cambridge, Massachusetts........................... 232
Responses to Questions for the Record from William E. Moschella,
Assistant Attorney General, Office of Legislative Affairs, U.S.
Department of Justice, Washington, DC.......................... 239
Responses to Questions for the Record from Judith W. Sheon, Staff
Director, U.S. Sentencing Commission, Washington, DC........... 262
Letter to the Honorable Howard Coble, Re: Revised Testimony for
the Record from Judith W. Sheon, Staff Director, U.S.
Sentencing Commission, Washington, DC.......................... 286
Supplemental Information for the Record from the Honorable Paul
G. Cassell, Judge, U.S. District Court for the District of Utah 288
Letter to the Honorable Paul G. Cassell and ``Report on Post-
Booker Sentencing in the United States District Court, District
of Massachusetts,'' from the Honorable Mark L. Wolf, Chief
Judge, U.S. District Court for the District of Massachusetts... 296
Revised Testimony of the Honorable Ricardo H. Hinojosa, U.S.
District Judge and Chairman, U.S. Sentencing Commission........ 307
UNITED STATES V. BOOKER: ONE YEAR LATER--CHAOS OR STATUS QUO?
----------
THURSDAY, MARCH 16, 2006
House of Representatives,
Subcommittee on Crime, Terrorism,
and Homeland Security
Committee on the Judiciary,
Washington, DC.
The Subcommittee met, pursuant to notice, at 12:16 p.m., in
Room 2141, Rayburn House Office Building, the Honorable Jeff
Flake (acting Chair of the Subcommittee) presiding.
Mr. Flake [presiding]. This hearing will come to order. I
am filling in for the Chairman, who will be here momentarily,
but we will go ahead and get started.
Thank you for your indulgence. When we have floor votes,
obviously, we've got to be on the floor, but thank you.
I am pleased to be here for this important hearing, the
Subcommittee on Crime, Terrorism, and Homeland Security, to
look at the impact of the Supreme Court decision, United States
v. Booker. A lot of us have been anxious to hear, after all the
hype of what this decision might mean, it will be nice to hear
what it actually has met over the past year. So I look forward
to the testimony of the witnesses. Thank you all for traveling
here and for what you are doing.
Before introducing you, I should mention Chairman Coble has
a statement which will be in the record, so I will not read
that. Then I will turn the time over to Mr. Scott from Virginia
for an opening statement.
Mr. Scott. Thank you, Mr. Chairman. I am pleased to join
you in the hearing on Federal sentencing since the Booker-
Fanfan Supreme Court decisions. The title of this hearing is
``United States v. Booker: One Year Later--Chaos or Status
Quo?'' When we are looking at the question posed by the title,
it is clear from the recent Sentencing Commission Report on
sentencing during this period, that the answer is clearly
status quo. There is nothing to suggest chaos.
Given the fact that the Booker decision eliminated
mandatory application of guidelines and required the courts to
consider a broader array of factors, including the guidelines,
it's amazing that there is not a more pronounced difference in
sentencing when compared to pre-Booker sentencing. Indeed,
expecting sentencing to be the same, despite the changes, would
be--just doesn't make sense.
Yet, with over 69,000 cases in 94 districts during a time
implementing the new sentencing regimen, judges sentenced
within the guidelines 85 percent of the time that did not
involve a governmental motion. With any database this large,
you can find whatever you're looking for. So those looking for
an anecdotal evidence that there are more unjustified downward
departures can point to the fact that the percentage of
prosecutor- and judge-initiated downward departures were
slightly up during this post-Booker period. They can look until
they find a category that happens to show a greater rate of
downward departures, and they, in fact, found one, where in one
small category the downward departures were, percentage-wise,
somewhat large.
Whether it is post-Booker or pre-Booker, you can't look at
sentences based on the name of a crime and expect to come up
with an intelligent analysis of the sentences. A sentence
usually involves, or at least should involve, input and impact
of the Federal prosecutor, the probation officer, defense
attorney, possibly a victim, and a judge, looking at all of the
facts and circumstances in that individual case. The impact is
marginalized and nullified when the data is analyzed simply on
the name of the crime or the code section they're prosecuted
under, and not the details of the crime itself.
While it's good that we have given ourselves at least a
year before we began to evaluate the impact of Booker and
Fanfan on sentencing, given the continuing impact that
practice, experience, feedback and appeals have had on focusing
attention--focusing sentencing decisions, it would be
premature, I believe, to take any action at this time until
we've got more data that's clearly on the way.
The impact of appeals that are pending should be awaited.
There have been several circuit court appeals decided, but they
have not had another Supreme Court decision since the post-
Booker context. There is at least one case that the Supreme
Court has already taken, Cunningham v. United States., which is
due to be decided during the next term, and that would address
some of the post-Booker issues including constitutionality of
certain approaches. So any legislative action taken prior to
that decision would clearly be premature.
Moreover, when we look at the data regarding the circuit
appeals, what we see is that circuits are more prone to affirm
within guidelines and above guideline sentences, than they are
to affirm sentences that are below the guidelines. Of the
appeal decisions issued since Booker, all but one sentence
within the guidelines has been confirmed. Of the 21 appeals of
departures, 15 have been reversed, only 6 have been affirmed.
At the same time, 14 appeals above the guideline sentences have
been affirmed, while only 2 have been reversed. The circuits
all agree that even after Booker, they still lack jurisdiction
to review the court's denial of a motion of downward departure.
So, Mr. Chairman, I think I have spoken long enough for you
to get your statement in before--but, Mr. Chairman, I believe
the sentencing data clearly reflects that there is no chaos in
Federal sentencing that we need to fix at this time. However,
there are some things that existed before Booker that adversely
affect sentencing, and in my view, need to be addressed. Among
them are mandatory minimum sentencing in general, the 101
sentencing disparity between crack and powder cocaines, and the
astounding disparity in substantial assistance treatment given
to offenders in different circuits. We will hear more about the
details of these problems from our witnesses.
So, Mr. Chairman, I look forward to the witnesses, and look
forward to your statement.
Mr. Coble [presiding]. Thank you, Mr. Scott, and to Mr.
Scott, and to Mr. Flake and Mr. Delahunt, and to the panel and
to those in the hearing room, I apologize for my belated
arrival, but this is one of those days if it could go wrong,
believe me, it has gone wrong. So I am hoping here in the calm
of the hearing room, Mr. Scott, things will slow down.
I am going to ask unanimous consent to have my written
statement made a part of the record.
[The prepared statement of Mr. Coble follows in the
Appendix]
Mr. Coble. I will only say this, and I think I maybe told
Mr. Scott this earlier, shortly after Booker, I called the late
Chief Justice Rehnquist, and asked him for counsel and advice.
I said, ``Do you have any advice for me?'' He said, ``I think
the best advice is just to be deliberate and thorough for
several months,'' and that is what we have done. That brings us
to this hearing today.
And I am delighted to welcome you all here, and it's the
practice of the Subcommittee to swear in all witnesses
appearing before it, gentlemen, so if you all would, please,
stand and raise your right hands.
[Witnesses sworn.]
Mr. Coble. Let the record show that each of the witnesses
answered in the affirmative. Let me suspend just a moment.
[Pause.]
Mr. Coble. We have four distinguished witnesses with us
today. Our first witness is the Hon. Judge Ricardo Hinojosa.
Judge Hinojosa was nominated by Ronald Reagan and served as a
United States District Judge for the Southern District of
Texas. In addition, Judge Hinojosa is the Chairman of the
United States Sentencing Commission. He joined the Commission
in 2003 and has been chairman since January 31, 2004.
Previously, the Judge served as a law clerk for the Texas
Supreme Court, as well as working in private practice in
McAllen, Texas. The Judge is a graduate of the University of
Texas, and earned his J.D. at the Harvard University School of
Law.
Our second witness is the Hon. William Mercer, Associate
Deputy Attorney General, and United States Attorney for the
District of Montana. Mr. Mercer has served in this dual
capacity since 2005. Previously he served as Assistant United
States Attorney for Montana. He currently serves on the
Advisory Committee on Appellate Rules for the United States
Court of Appeals for the Ninth Circuit, and has previously
chaired the Attorney General's Advisory Committee Subcommittee
on Sentencing Guidelines. Mr. Mercer was awarded his
undergraduate degree from the University of Montana, his
master's degree from Harvard, and a J.D. from the George Mason
University School of Law.
Our third witness is the Hon. Judge Paul Cassell. Judge
Cassell was nominated by President Bush and currently serves as
a Federal District Court Judge for the District of Utah. He is
also a professor of law at the University of Utah. Previously
he served as an Associate Deputy Attorney General, and as an
Assistant U.S. Attorney in the Eastern District of Virginia.
Judge Cassell clerked for the then-Judge Antonin Scalia of the
United States Court of Appeals for the District of Columbia. He
received an undergraduate and law degree from the Stanford
University.
Our fourth witness is Mr. James Felman, Partner at Kynes,
Markman & Felman. Mr. Felman currently co-chairs the
Practitioners Advisory Group to the United States Sentencing
Commission, and served as President of the Tampa Bay Chapter of
the Federal Bar Association. He is also a member of the
Sentencing Initiative of the Constitution Project. Mr. Felman
is also the author of numerous publications on the issue of
sentencing, including ``How Should the Congress Respond if the
Supreme Court Strikes Down the Sentencing Guidelines?'' He
received his undergraduate degree from Wake Forest University,
and I regret to advise you, Mr. Felman, I think they lost their
initial game last night. I regret that as well. [Laughter.]
And a master's degree of law from Duke University.
Gentleman, we are delighted to have you all with us. We
will, as we have previously reminded you, we would like to
comply with the 5-minute rule. You will not be keel hauled if
you violate it, but when you see the amber light appear on your
panel, that is your warning that you will have a minute
remaining before the 5-minute deadline. When the red light
appears, that is your cue to wrap up. We are on a short leash
today, all of us are. We will have votes on the floor, but I
think we'll have enough time here to resolve the matters before
us.
Judge, let me start with you, if I may.
TESTIMONY OF THE HONORABLE RICARDO H. HINOJOSA, U.S. DISTRICT
JUDGE AND CHAIRMAN, U.S. SENTENCING COMMISSION
Judge Hinojosa. Thank you, Chairman Coble, Ranking Member
Scott and distinguished Members of the Subcommittee. Thank you
for this invitation to testify today on behalf of the United
States sentencing Commission regarding the impact of the
Supreme Court's decision in United States v. Booker on Federal
sentencing.
The Commission has spent the year since Booker collecting
data and monitoring appellate court decisions so that it could
determine what national sentencing trends have emerged since
Booker was decided. Those determinations can be found in our
recently released Booker Report. Because I wish to keep my
remarks brief, I will not discuss in great length during my
opening remarks the over 200 pages of detailed analysis about
sentencing practices over time that are contained in our Booker
Report. Instead, I will give you a brief overview of the
Commission's approach to the Booker Report and a brief
description of our findings.
The Commission looked at four topic areas as it prepared
its Report. First: Has Booker affected the rates of imposition
of sentence within and outside the applicable guideline range,
if so, how has it affected sentence type and length, including
the extent of departure or variance from the guideline range?
Second: Has Booker affected Federal sentencing compared to
sentencing practices occurring prior to the decision? Third: In
what circumstances do judges find sentences outside the
guideline system more appropriate than a guideline sentence? In
other words, for what reasons do judges impose non-guideline
sentences, and have those reasons changed after Booker? Fourth:
The Commission also sought to examine the appellate courts'
responses to Booker, particularly whether they were developing
case law on what constitutes an unreasonable sentence?
The Commission concludes that the Booker decision has had
an impact on Federal sentencing. The magnitude of the impact
depends on which historical period one compares post-Booker
sentencing practices. The Commission data indicate that after
Booker, conformance with the guidelines still occurs in the
majority of cases. The rate of within-guideline range
sentencing is 62.2 percent after Booker, compared with 64
percent in fiscal year 2001, and 65 percent in fiscal year
2002.
For the 7 months between October 1, 2002 and April 30,
2003, the date of enactment of the PROTECT Act, what we refer
to in our report as the pre-PROTECT Act period, the within-
guideline range rate was 68.3 percent. From May 1, 2003 to June
24, 2004, what we call the post-PROTECT Act period in our
report, the within-guideline range rate was 71.7 percent. After
Booker the Commission did detect an increase in below-range
sentences. This increase was present both in the area of
Government-sponsored below-range sentences, and non-Government-
sponsored below-range sentences. Government-sponsored below-
range sentences were imposed after Booker at a rate of 23.7
percent, compared to 22.3 percent in the pre-PROTECT Act
period, and 22.0 percent during the post-PROTECT Act period.
The post-Booker Government-sponsored below-range rate is
similar to rates from fiscal year 2001, which were 24.4
percent, and fiscal year 2002, which were 23.9 percent. Non-
Government-sponsored below-range sentences were imposed after
Booker at a rate of 12.5 percent compared to 8.6 percent in the
pre-PROTECT Act period, and 5.5 percent during the post-PROTECT
Act period. In fiscal year 2001, this rate was 11.1 percent,
and in fiscal year 2002, it was 10.3 percent.
The Commission concluded in its Booker Report, that
although sentencing practices have changed since Booker, the
severity of sentences has not changed. The average sentence
length has slightly increased nationally after Booker to 58
months, from 56 months in the pre-PROTECT Act period, and 57
months in the post-PROTECT Act period. The Commission's Booker
Report also identifies certain areas that may be of concern to
some, including some regional disparities.
After collecting data, monitoring appellate court decisions
and issuing its Booker Report, the Commission believes that it
is time for serious consideration of a legislative response to
Booker. As anticipated by the decision itself, at 543 U.S. page
265, quote, ``Ours, of course, is not the last word. The ball
now lies in Congress's court. The National Legislature is
equipped to devise and install, long-term, the sentencing
system, compatible with the Constitution, that Congress judges
for the Federal system of justice.'' End of quote. That is a
quote from the Booker decision itself.
The Commission strongly believes that any legislation
considered should preserve the core principles of the
bipartisan Sentencing Reform Act of 1984 in a constitutionally
sound fashion. The Commission believes that at the very least,
the legislative response to Booker should include the following
four adjustments, all of which can be made within the
Sentencing Reform Act. First, the legislative response should
include codification of the three-step process for imposing a
sentence as outlined in my written testimony. Second, the
Commission believes that any legislative response to Booker
should address the appellate review process and standard.
Third, as the Commission has noted throughout this testimony,
timely and uniform use of sentencing documentation is
imperative to the Commission's ability to accurately ascertain
and report about national sentencing practices. Any legislative
response should include the continued importance of proper and
uniform sentencing documentation being sent to the Commission.
Fourth, the Commission believes that a legislative response
should clarify that a sentence reduction for cooperation or
substantial assistance is impermissible absent a motion from
the Government.
The Commission stands ready--and I'm just about done,
Chairman Coble--the Commission stands ready to work with
Congress, the judiciary, the executive branch, and all other
interested parties in refining the Federal sentencing system so
that it preserves the core principles of the bipartisan
Sentencing Reform Act in a constitutionally sound manner that
will lessen the possibility of further litigation of the system
itself. Such an approach would be the best for the Federal
criminal justice system.
Thank you very much, and I would be glad to answer any
questions, and thank you so much for not acting like a Federal
Judge and making me stop at the end of the 5 minutes.
[The prepared statement of Judge Hinojosa follows:]
Prepared Statement of the Honorable Ricardo H. Hinojosa
<GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT>
Mr. Coble. Well, Your Honor, thank you for at least
acknowledging the illumination of the red light. [Laughter.]
Judge Hinojosa. Thank you, sir.
Mr. Coble. Mr. Mercer.
TESTIMONY OF THE HONORABLE WILLIAM MERCER, PRINCIPAL ASSOCIATE
DEPUTY ATTORNEY GENERAL AND U.S. ATTORNEY FOR THE DISTRICT OF
MONTANA, U.S. DEPARTMENT OF JUSTICE
Mr. Mercer. Chairman Coble, Congressman Scott, Members of
the Subcommittee, thank you for the opportunity to appear
before you today and for inviting the Department of Justice to
testify about this important issue.
The Attorney General regards today's hearing as an
important step, but certainly not the last step in the serious,
frank, and ongoing dialogue of the Supreme Court's decision
United States v. Booker has generated.
Since the Booker decision, Department of Justice
representatives have been in discussion with interested
parties. We hope and expect that this fruitful exchange will
continue after today's hearing.
In the early 1980's, with crime rates at near record highs,
Members of Congress from both political parties, working
together, reformed Federal sentencing policy to replace a
broken and weak system of indeterminate sentencing with a
strong and honest determinate sentencing system that would more
effectively fight crime and address inequities in sentences.
The Sentencing Reform Act of 1984 brought about comprehensive
reform. It created the United States Sentencing Commission, and
in turn, the Federal Sentencing Guidelines. The fundamental
principles underlying the act and the guidelines were:
consistency, fairness and accountability in sentencing.
Defendants who commit similar crimes and have similar criminal
records are to receive similar sentences.
Today, serious crime is the lowest it's been in more than a
generation. We believe that increased sentencing levels and
more consistent sentencing practices have been responsible for
much of this achievement. Yet, beginning with the Supreme
Court's decision in Blakely v. Washington, the principles and
practice of determinate sentences have been in jeopardy,
putting at risk the progress we have made.
These developments culminated last year when the Supreme
Court, in Booker, held that the Federal Sentencing Guidelines
violated the sixth amendment right to a jury trial. As a
remedy, the Court severed two provisions of the act, thereby
rendering the guidelines advisory only, and weakening the
standard review for Government appeals of sentences below the
applicable guidelines range.
Given the great complexity of this issue, the Attorney
General wanted to make sure that the department did not act
precipitously. In the 14 months since the Booker decision, we
have viewed Federal sentencing decisions with measured concern.
At the same time, we have been careful not to draw premature
conclusions. However, it is becoming increasingly clear that
both anecdotal and statistical evidence demonstrate very
troubling trends, a marked decrease in within-guideline
sentences, and increased inter- and intra-district disparity in
sentences.
Some have suggested that there has been little change in
Federal sentencing practices because the average length of
Federal sentences has remained nearly constant at 56 to 58
months. While this is correct, we do not believe that this is
the beginning and the end of the analysis. The department
remains very concerned about the decline in compliance with the
Federal Sentencing Guidelines because it is evidence of
increasing disparity in Federal sentences. After passage of the
PROTECT Act in 2003, there was an increase in the percentage of
sentences imposed within the ranges set forth by the Federal
Sentencing Guidelines from 65 percent in fiscal year 2002 to
72.2 percent in fiscal year 2004. However, in the year since
Booker was decided, we have seen a 10 percent decline in the
number of sentences within the guideline range.
This is a significant increase in downward departures.
Indeed, nearly 8,200 defendants benefited from downward
departures not endorsed by the Government in the period since
Booker was decided. Moreover, we believe that the rise in
sentences below the range is contrary to what Congress intended
when it passed the PROTECT Act in 2003. The size in the
individual departures is also troubling. The Sentencing
Commission's report on post-Booker sentences indicates that a
third of the defendants, approximately 2,700, who have received
a downward departure not endorsed by the Government had their
sentences reduced by 40 percent or more below the low end of
the applicable guideline range.
Statistics also point to significant disparities between
the circuits and within the circuits as the courts exercise
their new authority. In the Fifth Circuit only 8.6 percent of
defendants received departures not endorsed by the Government,
whereas, in the Second Circuit, 23.1 percent of the defendants
received departures not endorsed by the Government. The risks
to fair and consistent treatment are not simply geographic. The
Sentencing Commission's data just released similarly shows that
Black defendants are now receiving longer sentences than their
White counterparts, a result not observed after passage of the
PROTECT Act. That same data also shows that despite Congress's
repeatedly expressed concerns about sexually related offenses,
Booker has resulted in judges increasingly sentencing
defendants to below guideline sentences for these crimes.
While the data in the aggregate can be very instructive, it
is also useful to look at particular outcomes and particular
cases. My written statement identifies a number of cases, and
there are many others worthy of analysis. The cases demonstrate
two things. First, the new discretion given to district judges
under Booker is undermining our ability to achieve the firmness
and consistency necessary to accomplish Congress's purpose in
establishing sentencing policies. Second, allowing appellate
courts to review below guideline sentences under a reasonable
standard cannot ensure achievement of the statutory purposes of
punishment.
There are hundreds and hundreds of examples of sentences
below the guidelines. As noted in our case examples, these
decisions not only undermine the goal of minimizing unwarranted
disparities in sentencing, but also impair key goals of the
Sentencing Reform Act: deterrence, promoting respect for the
law, and incapacitation.
We know how hard Federal judges work to faithfully execute
their duties every day. It is inevitable, however, that given
broad discretion, well-intentioned judges will come to
inconsistent and competing conclusions about what factors
matter most heavily in sentencing. Ultimately, a system that
produces such results is neither desirable, nor capable of
sustaining long-term public confidence.
We believe there is a clear danger to the gains we have
made in reducing crime, and achieving fair and consistent
sentencing will be significantly compromised if mandatory
sentencing laws are not reinstituted in the Federal criminal
justice system. We believe reinstituting mandatory sentencing
guidelines can be done best by creating a minimum guidelines
sentencing system. Under such a system, the Sentencing
Guidelines minimum would have the force of law, while the
guidelines' maximum sentence would remain advisory. This would
comport with the constitutional requirements of Booker because
defendants, upon conviction, would always be subject to the
maximum statutory penalty set by Congress, rather than being
subject only to the maximum set in the guidelines. The
Sentencing Guidelines would work in the same manner they have
since their inception, with judges identifying aggravating and
mitigating factors in individual cases with carefully measured
judicial discretion, and with results that are certain,
consistent and just.
Interestingly, experts of all political and ideological
stripes predicted before Booker was decided that a purely
advisory system would undoubtedly lead to greater disparity,
and further, that over time this disparity is likely to
increase. We believe that we are beginning to see the results
of that problem.
Thank you again for the opportunity to testify. I look
forward to your questions.
[The prepared statement of Mr. Mercer follows:]
Prepared Statement of the Honorable William W. Mercer
<GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT>
Mr. Coble. Thank you, Mr. Mercer.
Your Honor, Judge Cassell.
TESTIMONY OF THE HONORABLE PAUL G. CASSELL, JUDGE, U.S.
DISTRICT COURT FOR THE DISTRICT OF UTAH
Judge Cassell. Thank you, Mr. Chairman. I am pleased to be
here on behalf----
Mr. Coble. Judge, your mike's not hot.
Judge Cassell. All right. Hopefully, it will be hot.
Mr. Chairman, I am pleased to be here on behalf of the
Judicial Conference, and on behalf of hundreds of men and women
around the country who serve on the Federal Bench and struggle
every day to make the tough calls that are involved in
sentencing decisions. We also appreciate the fact that Congress
has waited before diving into the Booker issue, and by waiting,
you now have the data, as Judge Hinojosa has mentioned, and the
data shows quite clearly that what has happened in the last
year is judges have imposed tough sentences that protect
society, while tailoring some sentences to the unique
individual circumstances of particular cases.
The most salient fact about Booker is shown on the chart
here to the side. This is the bottom line average total of
sentences that have been imposed over the last several years,
and the bottom line is that last year judges imposed average
sentences of 58 months as compared to 57 months in the year
before Booker. This same pattern occurs across the most
significant categories of Federal offense, drug trafficking,
firearms, theft and fraud, all saw increases in average
sentence length last year.
Rather than focusing on the overarching fact that judges
have, in general, been tougher after Booker, what the Justice
Department has done is cherry-pick a few individual statistic
on variances from the guidelines. But the bottom line here is,
again, as Judge Hinojosa mentioned, 93 percent of all the cases
today are being resolved exactly the way they would have come
out before Booker. And what of the roughly 7 percent of the
cases that are coming out a bit different? On average, judges
are going down about 12 months, hardly a significant change in
the grand sweep of things.
Now, judges have exercised their newfound discretion
responsibly in all categories of offenses, including that tiny
sliver of the Federal docket that I know is of interest to
Congressman Feeney and some others, the sex offense area. It
has been said that there has been a fivefold increase in the
cases in which judges have gone down for sexual exploitation of
a minor. What that means in the Nation's Federal courtrooms is
that in 2004, there were 2 such cases, in 2005, there were 11
such cases, hardly a dramatic increase given that the system
prosecutes 65,000 offenders every year.
The reason for these adjustments is not, as some have tried
to suggest, that we have some sort of soft spot in our heart
for sex offenders. The reason is that Federal sex offense cases
are not reflective of the Nation's criminal justice docket.
About a half to two-thirds of these cases involve Native
American defendants, who have committed State law crimes that
end up being prosecuted in the Federal system solely because
the defendants live within Federal jurisdiction. And indeed, if
one looks at the big picture of all sex offenses, one finds
that the overall situation has not changed much since Booker
for criminal sexual abuse, sexual abuse of a minor,
exploitation of a minor, trafficking in child pornography and
possession of child pornography, sentences all went up after
Booker.
Turning to the subject of geographic disparities mentioned
by Mr. Mercer, we believe that the most pernicious contributor
to geographic disparity in Federal sentences today is the
Justice Department's inconsistent approach to filing motions
for substantial assistance reductions for defendants who
cooperate with the Government. We pulled together some data
that has been provided to us by the Sentencing Commission. You
can see, we have adjacent jurisdictions in Pennsylvania, North
Carolina--I will focus on the last two from my neck of the
woods. Idaho, 30 percent of all of their criminal cases are
resolved by a substantial assistance motion. In my State, next
door, Utah, it is only 8 percent. There is no rational
explanation for these kinds of disparities, as the Sentencing
Commission has explained in a comprehensive report on the
subject. Even more troubling is that the Sentencing Commission
found that there were racial disparities in the way that the
Government handles these motions.
While the department has not been able to put its own house
in order, it has been quick to cast stones at particular judges
who had to make some tough calls in post-Booker sentencing. In
its prepared testimony, the department recites six individual
cases that it believes demonstrate the need for reform. Four of
those cases were decided before Booker. One of those cases is
on appeal by the Government, and we don't know whether it's
final. The sixth case, United States v. Montgomery, involved--
although this isn't mentioned in the Government's testimony--a
mentally ill defendant who was given a shorter prison term in a
fraud case so that she could make greater restitution payments
to her crime victim.
I would request the opportunity to provide more details
about these particular cases, but the bottom line is that these
six horror stories hardly are compelling examples of judges
running amuck.
In conclusion, while there is no need for dramatic
legislation in this area, I should mention several specific
areas that would be appropriate for reform, such as restoring
the Sentencing Commission to its traditional membership of at
least three judges, creating standardized procedures for
determining sentences, giving judges greater power to award
appropriate restitution to crime victims, and to prevent
profiteering by notorious criminals. In addition, we should
eliminate inappropriate crack/power sentencing disparities. We
should repeal unjustified mandatory minimums, and that the
Congress should commission a report from the Sentencing
Commission that would take a broad and global look at
sentencing issues.
The Judicial Conference would be happy to work with the
Department of Justice, this Subcommittee, and Members of
Congress, to make sure that Federal judges continue to impose
sentences that are fair and just to all concerned, just as
Federal judges have been doing for the last year under Booker.
Thank you.
[The prepared statement of Judge Cassell follows:]
Prepared Statement of the Honorable Paul G. Cassell
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Mr. Coble. Thank you, Your Honor.
Mr. Felman, you are recognized.
TESTIMONY OF JAMES E. FELMAN, PARTNER, KYNES, MARKMAN & FELMAN,
P.A.
Mr. Felman. Mr. Chairman, Ranking Member Scott and other
distinguished Members of this Subcommittee, I am truly honored
to have the opportunity to address you today on the important
question of whether or not there is a need for immediate
legislation to address the Booker decision. I believe there is
not. I believe the data makes a compelling demonstration that
status quo is an overwhelmingly more reasonable explanation
than chaos. The bottom line statistic in sentencing is what is
the average sentence length? Before Booker it was 56 months.
After Booker it is 58 months. This is not about district judges
going wild and giving everybody breaks. The average sentence
went up.
While there are a modest number of additional downward
variances, we could expect that. This is not the same system we
had before. I am surprised by how modest the change is. And to
talk only about what is the difference in the percentage of
variances before and after Booker can be very misleading,
because a 2-month variance looks the same as a 20-month
variance under that statistic. It is very important to focus on
what is the average extent of a departure. The average extent
of departures relying on Booker authority is identical to the
average extent of departures pre-Booker, and it is only 12
months. It is a rather modest amount, particularly in
comparison to the average substantial assistance departure
which is nearly 2\1/2\ times that, at 28 months. The reason
sentences are outside the range more often is a Government
motion, and the extent of the variance, which is such a
critical factor, is much greater in a Government motion.
While the data does not show a need for legislation, there
is a compelling reason not to make legislation right now, and
that is that we are in a period of considerable constitutional
uncertainty that will impact whatever legislation options you
may wish to consider. The United States Supreme Court, just a
few weeks ago, agreed to hear a case that will determine the
constitutionality of California's presumptive sentencing laws.
It is inevitable that the Court's opinion in that case will
help clarify some of the critical uncertainty regarding the
developing constitutional doctrines under Blakely and Booker.
There are two, as I understand it, legislative options that
have been discussed. Both of them are quite potentially
unconstitutional, and we will know much more about that if we
wait and see what the Court says in the Cunningham v.
California case.
The first of those options that has been discussed by Mr.
Mercer today, they describe that as a minimum guideline system.
I think that would be a little hard. It is suggested there be a
few guidelines or they would not mean much. I would describe it
as a mandatory minimum guideline system. It especially turns--
and I believe the department has acknowledged in their
testimony that the constitutionality of that proposal turns
exclusively on the continuing viability of the Court's
precedent in Harris v. United States. Harris is a 414 plurality
opinion, and we have two new Justices. If both of the Justices
that are being replaced, that have been replaced, voted to
uphold Harris, or if either of the new Justices change the vote
of the Justices they replaced, Harris would fall.
But of particular interest is Justice Breyer's opinion in
Harris. He issued the concurring opinion that resulted in--that
caused that result. Justice Breyer said, ``I cannot agree that
there is any logical difference between using judicial fact-
finding to raise a sentencing maximum,'' which is the rule of
Apprendi, ``and using judicial fact-finding to raise a
guidelines minimum,'' which is what the department proposal
relies upon. For Justice Breyer, he thinks there is no logical
basis for that distinction. However, in Harris he said,
``Because I do not yet accept the rule of Apprendi,'' I am not
prepared--``I am prepared to go along with those who would
permit judicial fact-finding to raise the sentencing floor.''
Since Justice Breyer lost the vote in Apprendi, he has lost
that same vote in Ring v. Arizona. He has lost that vote in
Blakely v. Washington. He has lost that vote in Booker v.
United States. He may very well lose that vote in Cunningham.
What are the odds now that Justice Breyer will still say he
cannot yet accept that? If Justice Breyer decides he must now
accept the rule of Apprendi, Harris falls. It is an incredible
gamble to wager on that vote, because if Harris falls, it is
not just your new mandatory minimum guideline system that
falls, it is every single mandatory minimum sentence in the
Federal Criminal Code. They would all be unconstitutional
because they rely on Harris. It's a heck of a gamble to take.
Before I think you could take a gamble like that, there
would have to be a compelling demonstration of chaos, a
compelling demonstration that we need to act. What is the
reason we should not wait a year and find out whether that is a
gamble worth taking? I think that the only word I can use to
describe the suggestion that we should legislate now on that is
``irresponsible.''
The second proposal that has been suggested is so-called
presumptive guidelines, that is, we could pass a law that would
add additional weight to the guidelines. That pushes the
constitutional envelope. We know that binding guidelines are
unconstitutional. We know that advisory guidelines are not. We
do not know whether presumptive guidelines are constitutional.
I do not think that that approach can be supported by a cost
benefit analysis.
And I see that my time has expired, and so I will stop, but
I will be happy to answer any questions that you have. Thank
you.
[The prepared statement of Mr. Felman follows:]
Prepared Statement of James E. Felman
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Mr. Coble. Thank you, Mr. Felman, and thank each of you for
complying with the time limit. We also impose the 5-minute time
limit against ourselves, so if you all could keep your answers
as tersely as possible.
Mr. Mercer, having reviewed the Sentencing Commission's
statistics, and having discussed or listened to prosecutors in
the field, walk us through very briefly what happened post--
Booker.
Mr. Mercer. As I indicated in my opening statement, we're
seeing significant increases in disparity within judicial
districts, and also on an inter-circuit and intra-circuit
basis. I think numbers here are somewhat helpful. Let me talk
for a minute about the Southern District of New York. In 2003,
the non-substantial assistance downward departure rate was 8.3,
and that was fairly constant after Blakely and pre-Booker in
2004, 8.1 and 8.9 percent. It is now up to 23.6 percent.
In the Western District of Louisiana, pre, in 2003, the
rate was 2.3 percent for non-substantial assistance downward
departures. It was 1.8 and 1.0 percent in 2004, pre-and post-
Blakely. And then it's up to 14.2 percent now. So we have seen
a very significant increase in the number of cases in which
courts are imposing below guideline range sentences.
We also know from the Sentencing Commission data set--and
this comports with what we've seen in the field--that of those
defendants who are getting non-substantial downward departures
and non-governmental-sponsored departures, 40 percent of those,
one-third of that cohort of cases, about 2,700 of them, involve
departures of 40 percent or more. So you've heard a couple
witnesses talk about how that only means 12 months, but if we
play that out in a real case, maybe a fraud case with a loss
of, say, $250,000, where the guideline range is 12 to 18
months. In a case where you've got a downward departure,
typically on a factor that was disfavored or unmentioned in the
guidelines manual, and something that we would not have seen
after the PROTECT Act, relied upon to lower a sentence, so now
we may see a sentence down to zero months with one of those
defendants, the other one getting 18, and a significant
disparity if you've got the same fraud and the same criminal
history for this defendant, and a sentence of zero months for
this defendant. That is the sort of unwanted disparity that the
Sentencing Reform Act was designed to get rid of.
Mr. Coble. Thank you, Mr. Mercer.
Judge Hinojosa, why, if you know, why are judges handing
down more below-range sentences for the crimes of sexual abuse
of a minor, sexual contact of a minor, or trafficking in child
pornography, sexual exploitation of a minor, and furthermore,
the below-range sentences increased for all major drugs, meth,
heroin, marijuana, powder cocaine? Can you explain why?
Judge Hinojosa. Well, it's difficult to explain, Chairman
Coble, but I will say that one thing we have found in the sex
offenses is that it appears to be at the level where there is
no prior criminal history, and that is where you see the
highest percent of post-Booker below-range sentences, and that
seems to be a common factor with regards to those.
Mr. Coble. Your Honor, that probably, and cooperating with
the State or Federal Government in developing a case?
Judge Hinojosa. No. When we say the below-range, that
includes basically judicially-initiated below-range sentences.
The Government-sponsored ranges are kept separate.
Mr. Coble. I got you.
Judge Hinojosa. And so it would not include that. We do not
see that with regards to rape cases. Those have actually, as
far as the below-range sentences, gone down from the post-
PROTECT Act. That is the one area where they have gone down.
That is one of the explanations. Judge Cassell mentioned
others.
With regards to the drug cases, again, basically the same
thing, first-time offenders.
Mr. Coble. Thank you, Your Honor.
Judge Hinojosa. And/or low criminal history categories.
There are some of these drugs that are higher than others with
regard to the below-range sentences.
Mr. Coble. Let me go--thank you, Judge.
Let me to Judge Cassell before my red light illuminates.
Judge, do you expect the rate of below-range sentences to
continue to increase over time?
Judge Cassell. No----
Mr. Coble. Your mike's not hot, Judge.
Judge Cassell. All right. I expect--in my testimony, I've
actually got data on that, and if you look at what's happened
January, February, March of this year, each month there has
been an increase in the number of sentences within the
guideline range, and so I would expect that to increase over
time. We need to remember, Booker came down about a year ago,
and the Courts of Appeals hadn't told us in the District Courts
exactly what to do. They've now told us in a number of circuits
that we should be giving very serious attention to the
Sentencing Guidelines, and so over time, we're seeing that
trend with more and more guideline compliance.
Mr. Coble. Thank you, Your Honor.
The distinguished gentleman from Virginia, Mr. Scott.
Mr. Scott. Thank you, Mr. Chairman.
Mr. Mercer, if you had two people in court pleading guilty
the same day, one's a 19-year-old high school senior having
consensual sex with a 15-year-old, more than 4 years difference
in age, consensual sex, pleads guilty to it. At the same a 50-
year-old pleads guilty to having sex with a 12-year old.
They're prosecuted under the same code section. Should they get
the same sentence?
Mr. Mercer. Well, of course, we'd look at the criminal
history in that case, Your Honor--excuse me--Congressman, but
we--I think you're right in saying that the guideline
calculation would be different in all likelihood, probably be a
coercion enticement case for the 50-year-old. It depends on the
facts. But I think you're right, the sentence would probably be
different in that case, and that would be reflected----
Mr. Scott. If there were a downward departure for the 19-
year-old compared to the 50-year-old, would that be bad?
Mr. Mercer. Well, typically, we would look for that
variance to be within the guideline range.
Mr. Scott. So you would expect both of them to be sentenced
within the guideline?
Mr. Mercer. Absolutely. In fact, the example----
Mr. Scott. The 19-year-old high school student having
consensual sex with a 15-year-old high school student within
the same guideline as a 50-year-old having sex with a 12-year-
old, ought to be sentenced within the same guideline?
Mr. Mercer. Let me--if I may back up just to talk about--we
do a fair number of those cases in my district because of our
jurisdiction in Indian country offenses. And we would look to
whether the State law would even allow us to bring that case,
depending upon the age of the victim and the age of the
offender, but we've got a real----
Mr. Scott. This is Federal law. We passed it. It's illegal
for a 19-year-old to have consensual sex with a 15-year-old.
Should they get the same sentence as the--do you see much
difference? I mean, maybe you don't see a difference. I see a
difference.
Mr. Mercer. I think the thing that we see in the
legislative history is that the Congress is concerned about
protecting the 15 and 14-year-old girl, and so we would expect
that sentence to be within the range, and that's typically what
we see victims wanting.
Mr. Scott. Thank you. You would expect the same guideline
sentences for the two?
Mr. Mercer. Well, there might be an upward departure, Your
Honor, if the court didn't find the range to be adequate for
the older defendant.
Mr. Scott. And if the range is right for the 50-year-old
having sex with the 12-year-old, that it's appropriate for the
19 and 15-year-old to be in the same range?
Mr. Mercer. Well, I think there would be specific offense
characteristics that would change the sentencing calculation.
Mr. Scott. If you have four people in court, one with 490
grams of powder, one with 4.8 grams of crack, one with 5.01
grams of crack, and one sharing one gram of crack with a
friend, but the guy he got it from was dealing 10 pounds, so
he's part of a 10-pound conspiracy, who ought to get the most
time?
Mr. Mercer. I have to admit you lost me in the
hypothetical. What are the----
Mr. Scott. You get 490 grams of powder; he can get
probation. 4.8 grams of crack; he can get probation. 5.01 grams
of crack; he's stuck with a 5-year mandatory minimum. And a
friend sharing a gram of crack with his buddy, but it's part of
a 10-pound conspiracy, is probably locked up for life. Does any
of that make sense?
Mr. Mercer. Well, I think what the Congress has tried to do
in this area is make sure that the punishment reflects the fact
that we're really concerned about what's happening in the
community, and we think that the mandatory minimums in this
area have really helped establish and protect the public, so--
--
Mr. Scott. That would make sense to you?
Mr. Mercer. Well, I think the----
Mr. Scott. If the 4.8 grams of crack walks out on
probation, and the 5.01 grams of crack gets stuck with a 5-year
mandatory minimum, makes sense to you?
Mr. Mercer. We think the system will allow enough--with
those sort of sentencing ranges, we think that we've been able
to induce cooperation in many cases, and by doing so, work up
the chain and make cases that help protect the public, and so
we believe that those sentencing ranges have helped advance the
purposes of punishment.
Mr. Scott. All this disparity that you've been complaining
about, how much of it is due to the prosecutor having the
discretion, as opposed to the judge exercising common sense?
Mr. Mercer. The Government really does take issue with what
Judge Cassell has set forth in terms of substantial assistance.
Let's talk about that for a minute. The Commission, and I think
the Congress, has recognized that the Government needs to be
able to find cooperators, and typically, those are people who
were engaged in criminal activity. And by finding cooperators
that can help us make cases, we're able to better protect the
public and bring people to justice.
So unlike many of the factors that we talk about in our
testimony, substantial assistance is a favored practice. It's
something where we're trying to induce cooperation and make
cases. Things in 5(h) and 5(k) are typically--those departure
factors are typically disfavored or prohibited factors. So
substantial assistance is designed to serve a larger goal, and
therefore, any disparity that's created there is designed to
help protect the public, and we believe that that, in large
part, explains why the Commission allows us to make those
motions to reduce----
Mr. Scott. And you haven't asked us for these draconian
sentences for white-collar crimes, where you can really go in
and get some cooperation. You just say, you know, a little bit
of lightweight fraud, you can get 30 years to serve unless you
cooperate. You haven't----
Mr. Mercer. I think, Congressman Scott, that Mr. Felman
would say that he thinks that the Economic Crime Package in
2001 has created very substantial sentences in the economic
crime area, and that, in fact, we depend very much on the
cooperation in corporate fraud cases in order to identify those
who were able to put those cases together for us----
Mr. Scott. If I could ask one question, kind of follow in
on the same area? On this cooperation, this is based on a
Government motion. Apparently some judges have noticed
cooperation that the prosecutor hasn't made a motion for.
What's wrong with the judge noticing two people equally
cooperation, one got a motion and the other one didn't, being
sentenced the same, if you had the same amount of cooperation?
Mr. Mercer. Well, I think both the historical notes in the
Commission's work in the guidelines, and the--I don't know
about the legislative history, but certainly, the whole concept
here was to say the Government's in the best position to note
who was cooperating. And to the extent that courts are then
making determinations to reduce sentences, even though the
Government says that cooperation either didn't exist or didn't
constitute substantial assistance to what we were doing in that
case or another case, it's going to undercut the Government's
ability to get substantial assistance if defendants think the
court's likely to cut our sentence even in the event the
Government doesn't believe we've rendered cooperative--valuable
cooperation.
Mr. Scott. So it's okay if the judge notices, as a finding
of fact, that the cooperation of two individuals was identical,
but the Government only made a motion in one of them, that they
should get vastly different sentences because in one case you
had a motion, the other case you didn't, although as a finding
of fact, the judge found that they had cooperated equally, they
should get vastly, wildly divergent sentences?
Mr. Mercer. It might have an effect on the within-range
calculation, but the whole point, I think, of the Commission
saying in 5(k)1.1 that the determination of the Government was
central to the motion is because the Government's in the best
position to determine whether its case or another case was
advanced through that cooperation. So, yes, we believe it would
be very problematic if that were to change. I think the
Commission's already addressed that in its proposal.
And, frankly, the fact that we have somewhere between 280
or 290 instances where sentences were reduced below the lower
end of the guideline range when the Government didn't believe
cooperation was rendered, is a real serious issue for us, and
one we've been worried about from the time that the Booker
decision came down. So we're very concerned about that.
Mr. Feeney [presiding]. Thank you, and, Congressman Scott,
unless there's a mad rush by our colleagues to get here and
participate, I think you'll have time for another round. So I
want to thank all the witnesses for being here.
Judge Hinojosa, I wanted to, you know, use--Congressman
Scott's entitled to create his own hypothesis, and I won't
change it for him. I'll leave it to him. But, number one,
isn't--aren't there separate offenses for coercive and--
coercive sex versus consensual sex? Aren't they separate
offenses under the Federal code?
Judge Hinojosa. I know that we break them by guidelines,
and I'm sure they are connected to the Federal code, and we
call them criminal sexual abuse, and under 2(a)3.1 that would
be rape, and we have criminal sexual abuse of a minor, which is
statutory rape, which would be 2(a)3.2. And then we have
abusive sexual conduct, which is inappropriate sexual contact,
which is 2(a)3.4. And then we go to the sexual exploitation.
But I believe because of the age, although I am not totally
sure, that he has used of 19 and 50, I don't think that there
is a separate criminal code section for those because----
Mr. Feeney. Well, the----
Judge Hinojosa [continuing]. This is somebody who is of
majority age with someone who is a minor. Some of the State
statutes--and I'm not--will make a variance based on the
difference in the age as to how they classify it. I'm not sure
that the criminal code----
Mr. Feeney. But within the guidelines----
Judge Hinojosa. I'd be guessing if I said that.
Mr. Feeney. Within the guidelines that the Commission has
established, though, there is a great deal of discretion that
judges have within the guidelines themselves for most offenses.
Is that right?
Judge Hinojosa. Well, that's true. It is also true,
Congressman Feeney, that 60 percent of the cases are sentenced
within the minimum range.
Mr. Feeney. Right.
Judge Hinojosa. Within the minimum----
Mr. Feeney. One of the red herrings in this argument is it
would take----
Judge Hinojosa. Within the minimum amount of the
guidelines.
Mr. Feeney. One of the red----
Judge Hinojosa. There is a wide range within the guideline
that----
Mr. Feeney. Yeah, one of the red herrings in the argument
is that we're taking all discretion away from judges in
sentencing, and, in fact, that's not what the guidelines do.
They allow a great deal of discretion within the guidelines,
and in exceptional circumstances, we allow departures. But they
were designed to be explicitly in the '84 legislation
exceptional circumstances.
Judge Hinojosa. And I----
Mr. Feeney. You know, if----
Judge Hinojosa. This would be my suspicion as a judge. I
think a judge would treat both of those cases differently,
whether it's within the guideline range or through a departure
upward or downward.
Mr. Feeney. Mr. Mercer, one of the things that Mr. Felman
said confused me a little bit. Maybe you could clarify. As I
understood Mr. Felman's testimony, he said that the Supreme
Court has ruled that advisory guidelines are constitutional,
but that the guidelines on mandatory--binding guidelines are
unconstitutional, I think was the language he used. In fact,
seven of the nine Justices in Booker said that the guidelines,
by and large, were very much constitutional, even if binding.
Isn't that right? We had a bifurcated decision in Booker. We
had a couple Justices that said when you add on--after the jury
decision on guilt, when you add on time served with the jury
participating, that denies right to a trial by jury. But the
majority of the Court, a distinct majority, did not declare the
binding guidelines unconstitutional. Is that right?
Mr. Mercer. Well, in the remedial opinion that we are now
working under every day, there are two very significant things
that happened. One, the Court said that the guidelines as
written could no longer function as a mandatory system, and
that's Mr. Felman's point in terms of rendering it as an
advisory system. The second thing that it did in order to
achieve that remedy was to strike the de novo standard of
review, which was, arguably, the most significant component of
the PROTECT Act of 2003. And so----
Mr. Feeney. But there's not a majority on the Court today
that would rule the guidelines themselves unconstitutional.
Mr. Mercer. Well, I think--in fact, I think the opinions--
and this goes back even to what the Court said about Blakely--
talked about the salutary effort and effect of having
Sentencing Guidelines and the fact that they're a very positive
thing in terms of trying to calibrate sentences and advance the
purposes of punishment. But that remedial opinion made the
system advisory as opposed to mandatory, which we view as a
really significant problem and one that needs to be remedied by
the Congress.
Mr. Feeney. One of the points that Judge Cassell makes is
that the average sentencing has gone up, but a couple points
about that I'd like you to address. Number one, we have
increased minimum mandatories in the past few years for a
number of offenses, and that's reflected in the average
statistics. Number two, the average doesn't tell us anything
about uniformity. In trying to treat Black defendants the same
as White defendants, this disparity has been greatly enhanced
by Booker, the geographic disparity and some of the other
differences, for example. So while the average may have gone
up, the uniformity is the problem that Congress was, by and
large, trying to get to.
And then, finally, Judge Cassell says that we've got really
too few cases, if you look at just the sexual offenses, to be
worried about some mass pattern. But, in fact, it's not just
the sexual offense cases, which I have a particular interest
in, but the departure on theft and fraud has increased from 7.3
percent to a post-PROTECT standard of 14.2 percent post-Booker.
Drug trafficking has gone from departures of 6 percent to
almost 13 percent, firearms from about 9 percent to over 15
percent.
So, in fact, almost every major set of Federal offenses has
seen a significant increase in downward departures since the
Booker decision. Do you want to comment on how the average
statistic may be accurate but misleading in terms of what
Congress was trying to accomplish with these guidelines?
Mr. Mercer. Yes, I appreciate that, Congressman Feeney,
because this is a crucial thing and something that the
department's very interested in trying to work with the
Committee on talking about case examples. Judge Cassell has
taken issue with some of our cases. We're happy to show a
number of others because we've taken appeals now in about 122
cases where we think the departures are dramatic and there
shouldn't be any way that they could be viewed as reasonable
sentences.
But I share your concern about the trends and the fact that
there is very significant disparity, no matter how you measure
it. Let's just work some of the numbers.
The First Circuit, Massachusetts right now, their downward
departure rate, non-governmental-sponsored, is 33.6 percent. So
one in three cases, you're going to have a below-the-range
guideline system, even though the Government has not made a
motion. In Maine, it's 5.5 percent. So the chance that someone
is going to get a below-the-guideline range sentence in Maine
is dramatically lower than it is within that same circuit just
up the road in Massachusetts. The same thing with Rhode Island,
a State that before Blakely came down had been at 3.3 and 2.1
percent, is now at 22.9 percent. And if we break that into
categories--and I think Judge Cassell was trying to focus on a
very narrow category. I can't remember if he was talking about
the number of sentences in the sexual abuse of minor category,
but certainly the child pornography category is a growing
category. We had about a thousand convictions in that category
in 2005. And if we look at those numbers, the numbers tell a
very significant story. Before the PROTECT Act, 25 percent of
the cases results in below-guideline-range sentences. After the
PROTECT Act, that was down to 16.9. Now it's up to a number
that exceeds where it was before the PROTECT Act was passed.
It's at 26.3 percent. So more than one in four child
pornography possession cases result in sentences that are below
the guideline range. And, in fact, 6.6 percent of those
defendants aren't going to prison at this point, which I think
is very interesting given what the Congress did in 2003.
Trafficking in child pornography, obviously a guideline
that is much more significant in terms of those purposes of
punishment, the rate is way up. It's up--was it 13.7 before the
PROTECT Act? Now it's at 19.1 percent of the people are getting
sentences below the guideline range based upon this new
Commission data.
So we can go through every category. We can talk about
first offenders. We can talk about career offenders. We can
talk about the economic crimes. Every trend line is in the
wrong direction, and it's going to have a big effect, as I
said, when you take a defendant in Maine and a defendant in
Massachusetts convicted of the same crime, whether it's fraud
or child pornography, the probabilities, given these
statistics, would suggest that they're going to be treated
differently in terms of whether the sentence is within the
range or below the range.
Mr. Feeney. Thank you. My time has expired.
Mr. Delahunt, you are recognized.
Mr. Delahunt. I thank the Chairman, and I happen to come
from Massachusetts.
Mr. Mercer. I know.
Mr. Delahunt. So I have a particular interest in the
statistics that you're using here, Mr. Mercer.
First let me say that I'm very familiar with the
Massachusetts Federal District Court, and I hold each and every
one of those justices in high regard. I've had different
experiences with each of them during 22 years as a prosecutor.
Some of them were former prosecutors. In fact, one of them
worked for me. And I guess let me just conclude by saying I
really have the utmost confidence in their decisions.
I've heard a lot of statistics here today, but I don't
necessarily accept the fact that the statistics that you cite
fairly represent the decisions of these individual justices.
And I'd submit to the Chair that what we should do is have a
judge or two and maybe the United States Attorney from the
Massachusetts district come and let's have a good, hard look at
the reality of what's happening in Massachusetts. I think it
would be important, and I think it would be very revealing. I'm
always proud to point out that Massachusetts is probably one of
the safest States in the country in terms of incidence of
violence, homicides, et cetera.
The 25-percent figure that is utilized by Mr. Mercer I
would suggest relies on a product of--a methodology that
isn't--doesn't really reflect the reality, because when the
district court judges reported their data to the Commission,
the Commission reviewed the data and interpreted the entries.
In most cases, I presume they were doing it without the benefit
of sentencing transcripts or decisions, because those forms had
not been, my understanding is, electronically attached.
I thought what's particular interest to me was that the
statistics from the Commonwealth of Massachusetts Probation
Department are different from the Commission's statistics based
on the exact same form, Judge Hinojosa. And, additionally, from
a very cursory review of the data, I noted a number of
sentences included in the category of judge-initiated that
were, in fact, agreed to by the Government.
So I have some serious concerns about the validity of the
data as it applies to the District of Massachusetts, but I
think this raises a very important question because we sit here
and accept this data, and I'm sure that the data is not
miscalculated intentionally, but I'd like to hear from those
that supplied the data, and I'm going to request the Chair if
you would consider having representatives of the Massachusetts
Federal Court and possibly a representative of the U.S.
Attorney's Office come down so that we can really interact
together and see whether the data would lead to the same
conclusions that Mr. Mercer has. I don't know whether they
would come, but I think we should at least extend that
invitation, because it could very well be, Mr. Chairman, that
as we see in the Commission's number could be reflective of the
U.S. Attorney's practices.
Judge Hinojosa. Do you have a question of the Commission on
that, Congressman?
Mr. Delahunt. No, I don't. No. I'm just up here kind of
letting the pain out there a little bit. But we have some time
left, Judge Hinojosa. I'd be interested in your response.
Judge Hinojosa. I would be glad to say something about it.
Mr. Delahunt. Well, you know, maybe we can do--maybe we can
have you back if the Chair honors my request about having--
let's make it a case study, because conclusions have been
reached relative to Massachusetts that I believe are not valid
in terms of the reality of what's going on on the ground. Now,
we can have stats going up and down, and bars and graphs, and
we can all do it. But I'd really like to hear from those that
participate, you know, the judges that are--as Judge Cassell
knows, I'm sure, the judges that are here and from the U.S.
Attorney to see whether there is this great disparity. Let's
get to what the reality is.
You know, the Commission claims that the Government
sponsors below-range departures nationally at a rate of 24
percent. And yet in Massachusetts it's 12 percent. You know,
are the courts, are the judges trying to, you know, make it up
a little bit because of the practices of the U.S. Attorney? I
don't know, but I'd like to hear before--as Mr. Felman
indicated, before we leap off into the abyss, it's incumbent
upon us to really take all of these stats, take a good look at
them, rip them apart, open them up so that we can educate
ourselves.
And I note my time is out, so I will just turn off my mike,
Mr. Chairman.
Mr. Coble [presiding]. I thank you.
Mr. Delahunt. But I would really genuinely hope that you
would consider my request.
Mr. Coble. We'll certainly discuss that, Mr. Delahunt.
Mr. Delahunt. Thank you.
Mr. Coble. And, gentlemen, I think this issue is
significant enough to warrant a second panel or second line of
questioning, and I believe time will permit that to occur.
I thank the delegate from Massachusetts Mr. Delahunt. Many
of my friends in the rural South believe that Massachusetts is
a hotbed for danger, so I am going to pass it on to them that
it is better than they think it is.
Mr. Delahunt. Mr. Chairman, I will tell you, if we have a
hearing, we ought to come to Boston.
Mr. Coble. Let's go to Cape Cod.
Mr. Delahunt. And we will go to Cape Cod, maybe even
Nantucket. But I can assure you, I think that Massachusetts--I
think Boston, in fact, has the lowest homicide rate of any
major urban center in the country right now.
Mr. Coble. Cape Cod and Nantucket are sounding increasingly
appealing.
Mr. Delahunt. In fact, we could schedule it sometime in
June. You could bring your tennis racket.
Mr. Coble. I am going to cut his mike off in a minute.
[Laughter.]
Only kidding, of course.
Mr. Felman, I did not intend to ignore you last time. Let
me ask you this: I believe you recommend leaving the
reasonableness standard in place, do you not?
Mr. Felman. I do.
Mr. Coble. Are you concerned in any way--and maybe you're
not--that the circuit courts have adopted varying definitions
or standards for reasonableness?
Mr. Felman. I think they're still working that out. There
is not a wide disparity between them, but there is--I mean,
this is a new standard of review for this type of review. There
have always been reviews for reasonableness in terms of extent
of departure, so it's not an unheard of standard of review. But
in terms of reviewing sentences for overall reasonableness,
they are still working that out. And that takes time.
The part that bothered me the most about changing it is
that what was suggested is that we ought to change it to a de
novo standard of appellate review. I got to tell you, you know,
that sends the signal to me that what that means is that in
sentencing, as a matter of policy, the ability to actually see
the human being who is going to be punished, the ability to
actually observe that person is of absolutely no value to our
system of justice. That is what a de novo standard of review
says. It is worthless to be able to look the person in the eye
who is going to be sentenced. I find that view abhorrent, and I
would urge this Congress not to take that view.
Mr. Coble. I thank you for that, sir.
Judge Hinojosa, you appeared that you were anxious to
insert your oars into Mr. Delahunt's waters, and I am going to
give you a chance to do that if you wanted to add to what he--
--
Judge Hinojosa. Well, I will start off by saying that
Massachusetts is the only other State I have ever lived in
besides the State of Texas, and that was when I was in law
school. So I have great respect for the State, loved my time
there, and would love to get back there. And I have great
respect for the judges of the District Court of Massachusetts,
some of whom are my very good friends.
What I wanted to clarify is that the Booker Report itself
indicates that we do caution the reading of some of these
statistics because of the fact of the way the information is
sent to the Commission. The Congress wisely decided in the
Sentencing Reform Act of 1984 that there should be an
independent agency that would collect this information in one
place and put it together as opposed to have 94 district courts
with quite a few divisions having this slotted individually and
then there would be no control about this information.
So our statistics are based on the information that we
receive, and the PROTECT Act required that five documents be
sent to us. There is a high compliance rate with regards to the
sending of the documents. However, with regards to the
statement of reasons, especially post-Booker, there was a
period of time where different forms were being used and sent
to the Commission, and we indicate that in the report. And we
caution with regards to some of these statistics about that. We
have said that in the report, and we say it publicly when we
use these statistics.
In fact, there have been times where we get more than five
different statement of reasons forms, some of which in no way
indicate whether the Government agreed to certain things or
not. And so, therefore, we base this information on the way it
is sent to us, and it is checked and looked at, and we put it
out based on that, but we always indicate what the caveats are.
We commend and thank the Congress for putting into the
PATRIOT Act the requirement that all of the district courts in
the United States use the same statement of reason form so that
we have uniform reporting, a form that will be adopted and
passed by the Judicial Conference and approved by the
Commission. And so, therefore, it's important that we receive
this information uniformly.
Sometimes we do get contacted by courts, and they are
sending information in different ways, which it's hard to
capture. And so, therefore, if anything, what this particular
situation points out is the importance of having these
documents sent in the same fashion from all of the district
courts that we can compare apples and apples and not apples and
oranges, and that it is important to have it come to one
independent agency within the judiciary that then puts out the
information so there can be informed decisions made.
Mr. Coble. Thank you, Your Honor. My time is about to
expire.
The Chair recognizes the distinguished gentleman from
Virginia, Mr. Scott.
Mr. Scott. Thank you, Mr. Chairman.
Judge Hinojosa, did I understand your testimony to be that
if you saw a 19-year-old having sex with a 15-year-old, that
that would--and another case where a 50-year-old was having sex
with a 12-year-old, that common sense would require you to
treat them differently?
Judge Hinojosa. Well, certainly within the guideline range,
I would suspect that I would treat them differently. I've never
had such a case. And you say if I saw it. I don't know that I
would see it personally, but you mean in the courtroom, I am
sure, Congressman Scott. But, yes, I----
Mr. Scott. I mean, are those different--those essentially
are different crimes?
Judge Hinojosa. As we see in the commission of any type of
crime, there are differences with regards to the way
individuals--and I will say there is discretion within a
guideline system, even the mandatory system, within the ranges
and, therefore, also with departures.
Mr. Scott. Judge Cassell, do you see an essential
difference between two criminals, one a 19-year-old having
consensual sex with a 15-year-old and a 50-year-old having sex
with a 12-year-old? I mean, Mr. Mercer didn't notice much
difference.
Judge Cassell. It would seem, having sentenced sexual abuse
cases, those two cases seem to me to be dramatically different.
Mr. Scott. Thank you.
If you were to notice, Judge Cassell, that an aggressive
prosecutor were to overcharge consistently, would you expect
downward departures more in that jurisdiction than in a case
where a prosecutor did not aggressively overcharge?
Judge Cassell. I would. The system tries to bring warranted
uniformity. We've heard a lot about unwarranted disparity, but
there are situations where judges need to make adjustments to
what other actors are doing in the system. And we have heard
from Mr. Mercer that my statistics are unfair. I'm still
wondering why folks in Idaho are so much more willing to
cooperate than folks are in Utah. I think that there are a lot
of people in Utah that would be happy to cooperate with the
Government. Maybe they should just bring down some of the
prosecutors from Idaho, and we can get a little more uniformity
between those two jurisdictions.
Mr. Scott. Thank you.
Mr. Mercer, of the 69,000 sentences issued last year, could
you remind me how many you appealed?
Mr. Mercer. In the post-Booker period, we have taken
appeals in, I think, about 125 Booker----
Mr. Scott. Out of 69,000.
Mr. Mercer. Yes.
Mr. Scott. And the standard is reasonableness?
Mr. Mercer. It is.
Mr. Scott. How many of those 122 out of 69,000 that you
selected as unreasonable were found by the appellate court to,
in fact, be unreasonable?
Mr. Mercer. At this point we don't have a large body of
case law from the circuits on the reasonableness question. I
have not gone back to say--make a determination about how many
of those cases have resulted in published opinions, but I guess
I'd be surprised if it's more than 15 at this point. I talk
about a couple in my full statement. I talk about the
Menyweather case, which is a Ninth Circuit case. It involves a
fraud of around $400,000 where the defendant only served 40
days--the term of the judgment is 40 days on consecutive
weekends in a jail like----
Mr. Scott. Wait a minute. We're talking about trying to fix
a system that some people believe in chaos. You looked at--your
department looked at 69,000 cases, picked out the most
egregious 122 as being unreasonable, and won some and you lost
some on those 122. Is that right?
Mr. Mercer. Well, the point I'm trying to make is we only
have a very small percentage of----
Mr. Scott. Well, how many have you won and how many have
you lost so far?
Mr. Mercer. I can't--I can certainly supply that as
supplemental information to the Committee, but----
Mr. Scott. But it's fair to say that you won some and lost
some.
Mr. Mercer. That's correct.
Mr. Scott. And this is out of--122 out of the worst of the
69,000. I would assume that your 122 would be the worst,
egregious cases of judicial mistake.
Mr. Mercer. Well, the cohort starts with the 8,200 cases in
the post-Booker period where there were sentences below the
guideline range. Obviously, we aren't going to contest
sentences within the guideline range, and we don't have any
basis to challenge those. We believe that a sentence within the
guideline range is presumptively reasonable.
Mr. Scott. Well but----
Mr. Mercer. The problem here--may I just quickly? The
problem here is 8,200 cases, although we certainly are going
to, as we are contesting in the district court whether a
sentence below the guideline range is reasonable, for us to
appeal, say, a thousand of those cases would have a dramatic
effect on our ability to process all the other criminal cases
that we need to do. Unlike defendants who have a constitutional
right to get a lawyer and, if they can't afford it, have the
Government pay for that lawyer, the United States Attorney's
Offices have to figure out a way to prosecute appeals at the
same time as meeting its obligation to prosecute all the other
defendants that need to be prosecuted for subsequent crimes. So
we are trying, in working with the Solicitor General, to take
appeals, but there isn't any way that we can take 8,200
appeals.
Mr. Scott. That's right, and you picked out the worst 122
and couldn't even win a lot of those. The downward departures
are, in fact, part of the process, and some downward departures
are, in fact, looking at all the facts and circumstances
reasonable. And when you get up with a--when you get on the
appellate court with a downward departure and they say, well,
that downward departure, taking everything into consideration,
was reasonable. I mean, it's part of the process. So just
because you have a downward departure does not mean it's
unreasonable, and particularly when you look at a 50-year-old
and a 12-year-old having sex, having a downward departure for
the 19- and 15-year-old, the people on your left and right
might think a difference was reasonable. And if you went up to
the appellate court, I suspect that the court would find a
difference in sentencing those two defendants reasonable.
And so just because you have a downward departure doesn't
mean it's unreasonable, and the fact that out of 69,000 cases,
and you only picked out 122, and you couldn't even win those,
suggests to me that the system is working pretty well.
I yield back.
Mr. Coble. I thank the gentleman.
The Chair recognizes the distinguished gentleman from
Florida, Mr. Feeney.
Mr. Feeney. Well, Mr. Scott can be very persuasive unless
you pick apart his major and minor premises.
Mr. Mercer, one of the reasons that you've only appealed
122 cases is the reasonableness standard is very deferential,
is it not?
Mr. Mercer. Yes. In fact, the Ninth Circuit has equated the
reasonableness review to an abuse-of-discretion review, which
is exactly what the Congress tried to eliminate through the
PROTECT Act, because it's very difficult for the Government to
challenge on an abuse-of-discretion standard departures that
result in sentences that we don't believe advance the purposes
of punishment. And if I may, I'll just quickly talk about----
Mr. Feeney. Well, let me--I think you've made the point.
One of the reasons you're not appealing is because appellate
judges, when asked to review whether a lower-court judge was
reasonable, give a lot of deference. And that's one of the
reasons why a lot of appeals may not be fruitful; whereas, had
the law Congress passed been followed, which is basically to
say what we've all known since 1984, that departures are in
some cases reasonable, as Mr. Scott pointed out, but that they
should be granted only under, in quotes, ``rare
circumstances,'' end of quotes. That's the law. Unfortunately,
we've got some circuits that in some instances are giving
downward departures 33 percent of the time. They look at
Congress's law as a suggestion, and a judge may follow our
suggestion or not as he or she pleases. And that's the problem
we have with uniformity, which leads to disparities in
geography, in--according to race, and according to a number of
other--.
Now, one of the things I was interested in is that Judge
Cassell suggested one of the problems we have with lack of
uniformity is on the prosecutorial end, and he implies or
stated that it would be overcharging by the prosecutor that
would account for a lot of the disparity.
How does a prosecutor obtain a high conviction rate if he
is overcharging for offenses? I mean, if you charge people for
things they're not guilty of, I'd be interested in knowing how
you get a conviction. It's a neat trick if you can do it, I
guess.
Mr. Mercer. I guess I want to talk about the department's
charging policy because we believe we've made very important
steps in this Administration in this area.
Attorney General Ashcroft issued a memo in 2003, known as
``the Ashcroft memo,'' that says, among other things, the
Government must charge the most serious, readily provable
offense. That's the standard.
So if we've got a bank larceny charge that somehow would
minimize the conduct--let me use an example where we could
charge something as a misdemeanor and charge something as a
felony. That policy requires that we charge the case that's
most serious, readily provable, and if that's the felony
charge, then that's the case that we charge. We don't
overcharge. We charge the criminal conduct that we believe is
most serious and readily provable.
So that's the standard. We apply that standard across the
country. When we're evaluated, we're measured on whether we're,
in fact, meeting that standard. So that's been the policy since
2003.
Mr. Feeney. Mr. Felman, maybe I'll ask you, because I think
we have perhaps some, you know, fundamental differences of
philosophy. You know, as old as the rule of law--I mean,
Cicero, when he wrote his great his law books, indicated when
it came to criminal sentencing, he said, ``Let the punishment
suit the offense.'' And I think the implication there is that
similar defendants in similar positions ought to be treated
similarly. And I think a lot of us believe that's part of what
the rule of law means.
I believe that article I establishes Congress's exclusive
right to determine what a Federal crime is. We define what
Federal offenses are. We can add them or subtract them from the
law books. And I think inherent in Congress's sole and
exclusive plenary power, is, if we want, to micromanage what
the sentencing ought to be. If we wanted to establish a fine
down to the penny or a prison sentence down to the last second,
while it may not be wise--and Congress does a lot of unwise
things--I think we've got that implied right under our article
I power to define what a Federal offense is. Do you agree with
that or not?
Mr. Felman. I do, but I think that it's easy to get overly
concerned with making sure that like offenses are treated in a
similar manner. And I think that--I think everyone understands
that it's also very important to make sure that unlike offenses
are treated differently. And I think that's one of the real
problems here.
It's pretty easy to compare statutes and say anybody who
violates this statute should be punished, you know, if you
commit crime X you should receive sentence Y. That's pretty
easy for you guys to do from Washington.
Mr. Feeney. Right.
Mr. Felman. What makes it hard for us is that life is just
so rich in its detail, and the truth is just stranger than
fiction.
Mr. Feeney. Well, you and I agree, not all wisdom resides
in Congress, so trust me. But whether or not we have the power
to do something and whether we're exercising that power wisely
are two different questions. I'm glad that you agree with me
that we've got the inherent and implied power to micromanage
sentencing if we desire, as unwise as that may be.
Finally, Justice Breyer in the Booker decision said that
the ball's in Congress's court. I mean, he believed that there
was some sorting out that had to be done legislatively. If you
don't think we need to take any additional action, why is it
that you disagree with Justice Breyer in the Booker decision?
Mr. Felman. Well, I don't know that I said I disagreed with
his decision. I think when I was referring to Justice Breyer
earlier, I was talking about his concurring opinion in the
Harris case and the fact that I think there's a very real
possibility that he will now be forced to accept the votes of
his colleagues that, when it comes to raising a sentencing
ceiling--or floor--that that may not be done by judicial fact-
finding, that that has to be put to the jury. And that's where
I think it's really quite clear in Booker that there were five
Justices who agree that if you are going to try to raise a
sentencing maximum based on judicial fact-finding, that is
unconstitutional. And I just respectfully would disagree with
your earlier description of the case. I think that's what the
merits majority opinion is about, and there's five Justices who
signed it.
Mr. Feeney. Well, but remember, Booker was a bifurcated
decision, and on the issue of the guidelines themselves--not
the enhanced sentencing, the guidelines themselves--seven of
the nine Justices indicated they thought the guidelines were
constitutional. When they tried to figure out a remedy they
could all agree on, they basically said, well, we've got to
make them advisory and start from scratch. But seven of nine
believed the guidelines are constitutional as of Booker. I've
read the decision. I'll have to go back and read it, but it was
pretty clear to me.
Mr. Felman. We'll just have to agree to disagree on that.
Mr. Coble. The gentleman's time has expired. If the
gentleman--we are going to keep the record open for 7 days so
we can continue the dialogue.
The Chair recognizes the distinguished gentleman from
Maryland--from Massachusetts. I stand corrected.
Mr. Delahunt. It begins with an M, Mr. Chairman.
You know, I heard my friend from Florida quote--I think it
was Cicero, updated by Feeney. [Laughter.]
About let punishment, you know, fit the crime. And,
clearly, I believe that, you know, there has to be a sense of
fairness in terms of the application of a sanction under our
criminal justice system. But I would put forth that that's only
one component in the equation of what our criminal justice
system is about, because fundamentally the criminal justice
system is our effort to secure public safety and public order.
You know, I would just refer to the hypothetical that was
mentioned by Bobby Scott about the victim in a rape case being
14 and her boyfriend being 16 and the stranger, the sexual
predator being 42 with a vicious rape. I mean, you know, to say
that the punishment should be the same in both of those cases
just simply, I would suggest, doesn't make any sense, because a
downward departure, you know, for that 16 or 17-year-old might
be predicated on the fact that we don't want to introduce that
particular defendant to a situation where he will become a real
dangerous threat to society at 20 or 21 or 25. I mean, so it
is, it's very much a system that needs to have the ability to
look in a comprehensive way as to a particular case.
But having said all that, you know, we're talking about
variances in terms of sentences. What I think is interesting as
well is the variance in substantial assistance motions offered
by the Government among circuits. There's a 4 percent in one
circuit and a 36 percent in another circuit. That tells me--and
I think it was Judge Cassell that alluded to this--to try to
lay this all on the courts, the judges, the judiciary, I don't
think really is fair, because the prosecutor here plays a
significant role. You know, in New York, you know, maybe
there's an extraordinary reliance on the use of informants, and
we're talking statistics. But for those that have been
prosecutors, in the--you know, again, in the real world, so to
speak, you're sitting down with, you know, an unsavory
character with an extensive criminal background, and you're
trying to secure cooperation, you know, maybe that's a practice
that exists in one district that doesn't exist in another
district, the reliance on informants.
That's why, when I made the request to take a look at
Massachusetts, I think it's important to implicate the
Department of Justice in this process, not just simply rely on
the data supplied by the Sentencing Commission. And I
understand and I do appreciate the explanation by Judge
Hinojosa, and it does make sense. I think we're working our way
through this.
But while there might be a charging philosophy, is there a
philosophy or a policy in the Department of Justice that is
consistent in terms of substantial assistance motions being
filed? Because, clearly, there is a significant departure, 4
percent and 36 percent.
Now, maybe there is, but it comes out in a way
statistically that when you examine it, you're taken aback. I'm
sure there's a good explanation, but I'm just putting for an
opinion. I'd be interested to hear from Judge Cassell and Mr.
Mercer about how complex this is, and it just isn't simply a
black-and-white and dry formula. There's much more to it.
Mr. Coble. The gentleman's time has expired, but you
gentlemen may respond.
Judge Cassell. Well, the Sentencing Commission investigated
this, Congressman Delahunt, and they found no rhyme or reason
to the geographical disparities in what the Justice Department
was doing. They said, well, let's try to control for this. Is
this the more serious cases or drug cases? They put in controls
for all of that, and they ran a multiple regression equation,
and they couldn't come up with any explanation.
They also found that there were racial differences in the
way that cases were being handled, and this is what disturbs
me. This information was given to the Justice Department 8
years ago, that their practices were having racial disparities,
and they have done nothing to fix it. And yet Monday afternoon,
the Sentencing Commission for the first time says, well, we've
run into some data here that may be suggesting a problem, and
the Justice Department runs over and says something needs to be
done right away.
Why haven't they in 8 years gotten their house in order and
eliminated these kinds of dramatic disparities from district to
district that are done in secret, without any opportunity for
appellate review, without any kind of a transcript or other
record? That's the question that we have in the judiciary.
Mr. Mercer. Well, I guess--I think I want to discuss the
process that is set forth in the department policy because I
think it might be useful, and----
Mr. Coble. Mr. Mercer, as quickly as you can, because
there's going to be a vote imminent.
Mr. Mercer. Okay. Disparity, given what we have said as
part of this testimony, is a significant issue for us, whether
we're talking about a non-substantial assistance departure, as
is the focus of this testimony, or whether we're talking about
any disparity that is introduced through substantial
assistance.
It's important, I think, that the Committee know that when
the Government makes a substantial assistance motion, it can't
grant that motion on its own. It's got to be granted by the
court. The court then makes a determination----
Mr. Delahunt. Let's really be honest here. When the
Government comes before a Federal district court judge and puts
forth a request for substantial assistance and a downward, I
would think in most cases that it's almost an automatic
departure. So I don't think, with all due respect, Mr. Mercer,
you can lay that one on the courts. That's the responsibility
of the Department of Justice.
Mr. Mercer. I am just laying out the way this process
works, because----
Mr. Delahunt. I'm familiar with how the process works.
Mr. Mercer. And it is certainly a concern to us that, to
the extent that that motion results in a departure of, say, 60
percent or 70 percent or 80 percent, there are going to be very
significant disparities introduced into the system, but in
terms of the way those motions are processed, typically offices
have committees where they're making determinations not just on
the line but in terms of whether, in fact, the defendant has
rendered substantial assistance. And I think some of the
differences in the averages in, say, Utah versus Idaho, I'm
going to go back and take a look at that. I think it may have a
lot to do with things like in Utah there's a substantial number
of firearms prosecutions. In firearms prosecutions around the
country, you're going to see a lot fewer substantial assistance
motions than you are in drug cases, typically based upon the
type of conduct we see. So there----
Mr. Delahunt. Okay. And I do respect your response. But the
point is, if we're looking at this simply in a statistical
fashion, as you would have this Committee do in terms of the
judiciary, there is in all likelihood a rational explanation.
And that's why, Mr. Chairman, I think it's important, let's
take the Massachusetts case--okay?--and those statistics and
have a full hearing so that we can explore the reasoning and
the realities behind the stats. Fair enough, Mr. Mercer?
Mr. Mercer. I think--we're interested in analyzing these
statistics in general because disparity is something that this
system is designed to----
Mr. Delahunt. Whether it's the responsibility of the
Government or whether it's the responsibility of the court.
Mr. Mercer. Unwarranted disparity is a problem, and I said
earlier----
Mr. Delahunt. I don't think anybody--anybody--on this panel
or on the panel that you're sitting on--would countenance
unwarranted disparities, but the real question is: Is the
disparity rational and reasonable and does it enhance public
safety in the long term in a holistic, comprehensive way?
Mr. Mercer. And as I noted when this question came up
within Congressman Scott asked it, the distinction between a
substantial assistance motion under 5(k)1.1 and the vast
majority of the provisions in 5(h) or 5(k) of the Sentencing
Guidelines are that most of those provisions in 5(h) and 5(k)
were deemed to be factors that were only going to be used in
exceptional cases or extraordinary circumstances. They're
disfavored factors--things like age, things like whether the
person has made great community service over a number of years.
Those are all factors that are disfavored and only to be
applied in exceptional cases.
Substantial assistance, the Commission has designed a
system in which we have the authority to try to induce that
cooperation in order to make other cases, and so they're on a
different playing field, and that's got to weigh into the
question of whether the disparity is warranted or unwarranted.
Mr. Coble. I thank the gentleman.
We've been joined by the distinguished lady from Texas, Ms.
Jackson Lee, but Mr. Scott wanted to make a comment initially.
Mr. Scott. Thank you, Mr. Chairman.
Mr. Chairman, the gentleman from Florida isn't with us, but
he suggested that departures ought to be rare. My view is I
don't know how often they ought to be, but you ought to have a
departure when it makes common sense. That might be rare; that
might be often. But whenever it makes common sense, you ought
to have a departure. And there's nothing in these statistics
we've seen so far that shows that anything unreasonable is
going on. The department has picked out 122 of the most--
apparently most egregious cases, and many of those have found--
notwithstanding the fact that there are only 122 out of 69,000
have been found still to be reasonable.
Furthermore, if you look--if you're going to have any
consistency in charging--in sentencing, you've got to have
consistency in charging, and when the department has
articulated today that they have a new way of charging, they're
going to charge the highest provable case, not the one that
will produce the most rational outcome, but the highest
sentence for the same action, you would expect more downward
departures, down to things that make common sense.
So, Mr. Chairman, as I indicated, I don't--the suggestion
that we're in chaos I think has just been not--hasn't been
found.
Mr. Coble. I thank the gentleman.
Gentlemen, I realize you all have been with us since 10:30
this morning, but I feel obliged to recognize Ms. Jackson Lee.
And, Ms. Jackson Lee, if you could keep it fairly terse, I know
these folks would appreciate it. But we're delighted to have
you with us.
Ms. Jackson Lee. I will be a little bit colorful, Mr.
Chairman. Let me thank you very much for giving me the
opportunity. I want the gentlemen to know that the importance
of this hearing is such that even with a hobbled foot and in
another hearing two buildings away, I hobbled as fast as I
could in order to be able to query you. So let me thank you for
your patience, but my hobbled foot is hurting trying to get
over here to be able to question you because this is for me an
extremely important issue. And it's particularly important
because I live in a State that, although this is a Federal
jurisdictional question--and I will lead toward my question. I
live in Texas, and so I bear the brunt of extreme decisions,
sentencing decisions statewide, under the State system. And, of
course, as you well know, we have a parole system, probation
system under the State system.
I also live in a State where, many of you may know, the
infamous Tulia case--Tulia case in the State of Texas, and I
pronounce it differently each time. But in any event, that
dealt with the incarceration, innocent incarceration of
individuals who were the victims of a conspiracy by,
unfortunately a law enforcement officer, who then blanketed and
painted the entire town with charges of drug violations and
ultimately these individuals were incarcerated. This case is
well proven. This is not hearsay because ultimately the rogue
officer was found out under oath and indicated that he made up
these stories.
These are the extremes, but they're very real. They break
people's lives. And so let me just probe where we are.
I was going to say--beyond my hobbled foot, I was going to
use the terminology ``Halleluia for Booker,'' because I think
it gives us a moment of pause. And, Mr. Hinojosa, I want to--as
you have taken the lead of this Sentencing Commission that I've
worked with since coming to Congress almost about a decade
ago--and I respect what you do. And, in fact, you were some of
our strongest allies so many years ago to raise the question of
giving more flexibility or giving the Sentencing Commission
back its job.
So let me just try to ask a pointed question, and if you
can not take my role and be expansive, you be concise, is the
idea of the Sentencing Commission, do you feel, broken with
Booker? Are you able to go along with business? And do you feel
that it's given you some parameters in which to operate on to
be as fair as you possibly can be under the very heavy
responsibility that you have?
Judge Hinojosa. Well, actually, being your fellow Texan,
I'm glad that you did manage to hobble here.
Ms. Jackson Lee. For you.
Judge Hinojosa. Thank you very much.
The Commission has been extremely busy post-Booker and has
continued to act in the fashion that it has always acted,
whether it's in promulgating amendments or responding to
congressional directives or responding to emergency amendment
requests. And certainly with regards to data collection, we
have turned it into real time so that we can put out the
information as quickly as possible so that informed decisions
can be made. So from that standpoint, I think the Booker
decision itself predicted that the Commission would continue to
exist and continue to operate in the same legislative statutory
fashion that it had before. And so, therefore, we have.
We have been in a situation where we have to develop more
resources with regards to the post-Booker period and trying to
determine how to proceed, both from training as well as data
collection as well as there was a period of time where we were
affected because post-Blakeley and pre-Booker it was an
uncertain period and we were unable to proceed with too much
amendment with regards to guidelines that needed to be looked
at, including the immigration guidelines, which you would be
familiar with.
Ms. Jackson Lee. Very much so.
Judge Hinojosa. Coming from the State of Texas.
Ms. Jackson Lee. Let me--time is of the essence. Let me
just raise these questions, Mr. Hinojosa, Mr. Mercer, and then
both Mr. Cassell and Mr. Felman--Mr. Cassell--Judge Cassell, in
fact, you are in the midst of, obviously, rendering sentencing.
Mr. Mercer, you said there is a problem in that we have
actually determined that sentencing has gone up. Since I happen
to be the author of the good time early release bill on the
Federal system because I believe we have languishing in the
Nation's prisons individuals, nonviolent, over 45 years old,
and wasting more time than not, that came about--came about
through mandatory sentencing and no parole.
My question to you is: What is the problem when we found
that sentencing has actually gone up? Judge Cassell--let me
just finish. Judge Cassell, we want the courts to have
jurisdiction. Sometimes--not jurisdiction. Discretion.
Sometimes I'm completely in dismay at the decision that may be
made, because I've been character witnesses, my community comes
to me, I'm arguing for leniency, and, of course, the mandatory
comes in. How has Booker impacted you? And if you said it
earlier, I apologize. I missed it. And, Mr. Felman, who deals
with this on a daily basis, your thoughts on how we can make
Booker the guidepost for bringing some rationale to this idea
of mandatory sentencing, which really is not a key component of
rehabilitation which I think we'd like to do with,
particularly, nonviolent crime and make it work as opposed to
now suggesting that we need to pull back either legislatively
and otherwise.
Mr. Mercer, why is it a problem?
Mr. Mercer. It's a problem, Congresswoman, because, first
and foremost, we have seen a real significant increase in
disparity among similarly situated offenders, and----
Ms. Jackson Lee. That's discretion. That's the court's
discretion.
Mr. Mercer. Well----
Ms. Jackson Lee. That's looking at the facts. That's
looking at the individual situation. That's what we have
Federal judges for, well trained in the law. Yes, Mr. Mercer?
Mr. Mercer. And the guidelines, as they were promulgated
back in the late eighties, and as they've been applied, and
certainly applied in the post-PROTECT Act era, the notion of
fairness is to say if a person has committed a crime in
jurisdiction A and another person has committed the same crime
in jurisdiction B--let's use as an example a fraud case of
$250,000. Neither of them have any criminal history whatsoever,
and so maybe the guideline range is 12 to 18 or 15 to 21
months, and there isn't anything remarkable about them other
than maybe they both have been very active members in their
communities. If judge A says, you know, this person really
should deserve less of a sentence, first-time offender, really
done a lot of great things in the community, straight
probation, and if judge B says, you know, I really worry about
fraud crimes because I think it really is corrosive when----
Ms. Jackson Lee. If judge B says, what, you don't--you
don't deserve probation and you get a sentence?
Mr. Mercer. Judge B says I'm putting you at the top end of
the guideline range, 21 months, 15 months, you've got
completely comparable conduct, completely comparable criminal
histories, and you've got very different outcomes, and this----
Ms. Jackson Lee. Well, Mr. Mercer, I like your merciful
approach. You're being merciful. You're concerned about the
fact that the gentleman and lady getting the higher end. Let me
ask Judge Cassell, what about that? What about the individual
given probation and the other judge giving 21 months? How can
we fix that? That's what seems to be Mr. Mercer's problem. He
wants fairness. He wants to make sure they both get probation.
How do we work on that issue? [Laughter.]
Judge Cassell. Well, judges agree with those principles. We
certainly want fairness in sentencing. But let's look at what's
happened since Booker. We heard just a second ago from Mr.
Mercer there's been a, quote, real significant increase in
departures. What the data shows is that 93 percent of the cases
are being resolved the same way today as they were before
Booker. So we're talking about 7 percent of the cases around
the country. What happens in those 7 percent of the cases? Men
and women who work very hard on the Federal bench to reach fair
decisions in these cases have found some unusual factor that is
not accounted for in the guidelines or the departure provisions
that they believe requires some modest adjustment in the
sentence. And I say ``modest''--again, let's talk statistics.
The average adjustment is 12 months in prison, an
adjustment down to reflect the circumstances of the case, and I
should mention that there are some Federal judges that have
gone up a little bit more because they've found cases that are
more aggravated.
I would suggest that what that is causing is not
unwarranted disparity, but it's eliminating unwarranted
uniformity. Under the old rule, we had situations where two
cases, even though they were dramatically different, sometimes
had to be sentenced in the same way, and the new, more
discretionary system has given judges the opportunity to be
judges and to render justice in those cases.
Ms. Jackson Lee. Mr. Felman? Thank you very much, Judge.
Thank you, Mr. Chairman and Ranking Member.
Mr. Felman. No doubt Booker from my perspective is an
improvement to the prior guidelines system. I think there was a
consistent, widespread consensus that the previous guideline
system was simply too rigid. I am honored to be a part of a
bipartisan group that the Constitution Project has put
together. It's chaired by former Attorney General Ed Meese and
former Deputy Attorney General Philip Heymann. It includes
Judge Cassell. Until his appointment to the United States
Supreme Court, it included Samuel Alito.
We reached consensus on the point that the guidelines and
their binding fashion were simply too rigid. Booker represents
a dramatic improvement although albeit a somewhat modest one in
light of the fairly modest changes in departures.
There are still improvements that could be made, and I have
four to recommend----
Ms. Jackson Lee. And we can do this legislatively, are you
suggesting?
Mr. Felman. Yes.
Ms. Jackson Lee. If you can give them quickly, I'd
appreciate it.
Mr. Felman. Number one, fix the crack:powder ratio. It's
wrong.
Number two----
Judge Cassell. We agree with that, by the way.
Ms. Jackson Lee. And I agree with that, absolutely.
Mr. Felman. Number two, there needs to be a look at the
relevant conduct issue where people are sentenced for behavior
they were not charged or convicted for and, indeed, might even
have been acquitted for.
Number three, there is a need for procedural reform in the
system. Not many people understand this, but the Federal Rules
of Criminal Procedure have never been revised to take into
account the ways in which sentencing procedures happen. Pre-
sentence investigation reports drive the facts at sentencing
hearings. They are conducted by each of the parties submitting
ex parte submissions to the court. I am not entitled to receive
the factual information the Government presents to the court
and upon which pre-sentence investigation reports are written.
That's wrong and it could be fixed.
Number four, we believe that the Sentencing Commission
could benefit from the addition of an ex officio member that
represents the interests of the defense bar. Presently, the
Department of Justice has two ex officios: one of them the
chairman of the Parole Commission--Parole has been abolished
for more than 20 years. They don't need that spot anymore, and
the interests of the defense bar should be represented as an ex
officio member of the Sentencing Commission.
Thank you.
Ms. Jackson Lee. Thank you very much to the witnesses.
Mr. Chairman, Mr. Ranking Member, let me thank you very
much. I think our work is before us, and I think we need to
act. I yield back.
Mr. Coble. I say to the distinguished lady from Texas,
you've been plagued by a hobbled foot, Ms. Jackson Lee. I've
been plagued by a hobbled back, so after the March work period,
I hope you and I come back sound of body.
Gentlemen, I thank you all for your--Bobby, anything else?
Mr. Scott. Mr. Chairman, I'd like unanimous consent to
enter in the record a statement from Carol Striker, Professor
at Harvard, in reference to the importance of having judges on
the Sentencing Commission.
Mr. Coble. Without objection, it will be received.
[The prepared statement of Ms. Steiker follows:]
Mr. Coble. And, furthermore, without objection, all
Members' opening statements will be made a part of the record.
[The prepared statement of Ms. Jackson Lee follows in the
Appendix]
Mr. Coble. I thank the witnesses for your durability--I
know you all have been here a long time--and for your
testimony. We very much appreciate your contribution.
In order to ensure a full record and adequate consideration
of this important issue--and it is indeed an important issue--
the record will remain open for additional submissions for 7
days. Also, any written questions that a Member wants to submit
should be submitted within that same 7-day period.
This concludes the oversight hearing on ``United States v.
Booker: One Year Later--Chaos or Status Quo?'' Thank you again.
This Subcommittee stands adjourned.
[Whereupon, at 2:06 p.m., the Subcommittee was adjourned.]
A P P E N D I X
----------
Material Submitted for the Hearing Record
The Honorable Howard Coble, a Representative in Congress from the State
of North Carolina, and Chairman, Subcommittee on Crime, Terrorism, and
Homeland Security
Good morning. I want to welcome everyone to this very important
oversight hearing before the Subcommittee on Crime, Terrorism and
Homeland Security to examine the impact the Supreme Court's decision in
United States v. Booker has had on the federal sentencing system.
I want to commend the United States Sentencing Commission for its
very thorough and comprehensive ``Report on the Impact of United States
v. Booker on Federal Sentencing.'' This report is detailed and
thorough, and raises many significant issues.
There is no question that the Booker decision has had a dramatic
impact on Federal sentencing. Unfortunately, the Supreme Court's
decision to strike down the mandatory guidelines and replace them with
an advisory system has jeopardized the fundamental principles
underlying the Sentencing Reform Act of 1984. It is important to
remember that the Sentencing Reform Act of 1984 was a bi-partisan
measure designed ``to provide certainty and fairness in meeting the
purposes of sentencing, avoiding unwarranted disparities among
defendants with similar records who have been found guilty of similar
criminal conduct.''
The Sentencing Commission Report documents in considerable detail
how federal judges have responded to the Booker decision. The data
speaks for itself and it speaks loud and clear.
Most significantly, the data demonstrates that the judiciary has
undone, or circumvented, the basic sentencing reform measures passed
overwhelmingly by the House and the Senate as part of the PROTECT Act
of 2003. Those reforms were critical and the data shows that they were
working--the incidents of judicial downward departures declined.
Unfortunately, the data shows that once freed from the mandatory
guideline system, judges have now returned to sentencing practices, and
handed out unwarranted and unjustified downward departures for sex
offenders, child pornographers, pedophiles, drug traffickers and career
criminal offenders.
While it is true that there has been no decline in average
sentences, that fact is simply misleading. First, it does not account
for the fact that Congress has passed legislation to increase sentences
in several areas; and it does not account for the fact that the
Sentencing Commission has raised guideline ranges in many crime
categories. Significantly, that fact does not explain why there has
been a dramatic increase in downward departures for sex offenders who
prey on our children, child pornographers, and drug traffickers.
The Sentencing Commission's Report shows that in the last year
there has been a six hundred percent increase in below guideline
sentences for defendants convicted of sexual abuse of a minor, a four
hundred and fifty percent increase in below guidelines sentences for
sexual exploitation of a minor, and a fifty percent increase in below
guidelines sentences for defendants convicted of sexual contact of a
minor, trafficking in child pornography and possession of child
pornography.
The Commission's report also reveals increases in below guidelines
sentences for drug traffickers and repeat offenders, and that district
judges have increasingly awarded substantial assistance departures for
cooperation without the filing of a government motion. The Subcommittee
intends to study these issues carefully and to examine legislative
solutions to the problems identified in the Sentencing Commission's
Report. In order to return to the basic principles of the Sentencing
reform Act of 1984, Congress must address the issue.
We look forward to hearing from our distinguished panel of
witnesses. I am particularly interested in hearing your proposed
solutions to the issues I have outlined today. The Committee will
continue to monitor these issues in the coming months. I now yield to
the ranking Member of this Subcommittee, the gentleman from Virginia,
Mr. Bobby Scott.
__________
The Honorable Robert C. Scott, a Representative in Congress from the
State of Virginia, and Ranking Member, Subcommittee on Crime,
Terrorism, and Homeland Security
Mr. Chairman. I am pleased to join you for this hearing on federal
sentencing since the Booker/Fanfan Supreme Court decision. The title of
the hearing is ``U.S. v. Booker: One Year Later--Chaos or Status Quo?''
When we look at the question posed by the title, it is clear from the
recent Sentencing Commission report on sentencing during this period
that the answer to the question is ``status quo''. There is nothing to
suggest chaos. Given the fact that the Booker decision eliminated the
mandatory application of the guidelines and required the courts to
consider a broad array of factors, including the guidelines, it is
amazing that there is not a much more pronounced difference in
sentencing when compared to pre-Booker sentencing. Indeed, expecting
sentencing to be the same despite the changes required by Booker would
suggest that judges were expected to ignore the decision and go on
applying the guidelines as if they were still mandated. Yet, with over
69,000 cases in 94 districts, during a time of implementing a new
sentencing regimen, judges sentenced within the guidelines range in
over 85% of the sentences that did not involve a government motion.
With any data base this large, you can find whatever you are
looking for. So, those looking for anecdotal evidence that there are
more unjustified downward departures can point to the fact that the
percentage of prosecutor and judge initiated downward departures were
slightly up during this post Booker period. And they can look until
they find a category of cases that happens to show a greater rate of
downward departures and say that is the evidence they were looking for.
But to conclude that such departures are unjustified or unacceptable,
one would have to ignore or minimize the fact that average sentences
increased during the period and that upward departures doubled. Also,
such a conclusion would have to ignore the fact that there were less
than 200 appeals among the 69,000 sentences, a fraction of a percent.
Whether it is post-Booker or pre-Booker, you can't look at
sentences based on the name of the crime and expect to come up with an
intelligent analysis of the sentences. A sentence usually involves the
input and impact of a federal prosecutor, a probation officer, defense
attorney, possibly a victim and a judge. Their impact is marginalized
or nullified when the data is analyzed simply on the basis of the name
of the crime, as some have done since the Commission's report.
While it is good that we have given ourselves at least a year
before we began to evaluate the impact of Booker/Fanfan on sentencing,
given the continuing impact that practice, experience, feedback, and
appeals are having on focusing sentencing decisions, it would still be
premature to take any legislative action based on this first year of
data. The impact of appeals should, especially be awaited. There have
been several circuit court appeals decided, but we have not had another
Supreme Court decision on the post Booker context. There is a case in
which the Supreme Court has accepted cert, Cunningham v. U.S, which is
due to be decided during the next term and would address some of the
post Booker issues, including the constitutionality of certain
approaches. So, any legislative action prior that decision would
clearly be premature.
Moreover, when we look at the data regarding the circuit appeals
what we see is a that the circuits are more prone to affirm within
guideline and above guideline sentences than they are below guideline
sentences. Of the appeal decision issued for cases since Booker, all
but one sentence within the guidelines have been confirmed. And, of 21
appeals of downward departures, 15 have been reversed and only 6
affirmed. At the same time, 14 appeals of above guideline sentences
have been affirmed while only 2 have been reversed. And the circuits
all agree that even after Booker they still lack jurisdiction to review
a court's denial of a motion for downward departure.
So, Mr. Chairman, I believe the sentencing data clearly reflects
that there is no chaos in the federal sentencing that we need to fix at
this time as a result of Booker/Fanfan. However, there are some things
that existed before Booker that adversely affect sentencing, in my
view, and need to be addressed. Among them are mandatory minimum
sentencing, the 100-to-1 sentencing disparity between crack and powder
cocaine and the astounding disparity in substantial assistance
treatment given offenders in the different circuits. We will hear more
about the details of these problems from our witnesses.
So, Mr. Chirman, I look forward to the testimony of our experts on
the issue of sentencing and look forward to working with you to
properly address the problems and advice they bring to our attention.
Thank you.
__________
Prepared Statement of the Honorable Tom Feeney, a Representative in
Congress from the State of Florida
Good Morning. I'd like to start out by welcoming everyone to the
Subcommittee hearing on this vitally important issue. We are here today
to discuss the effects that the Supreme Court's decision in United
States v. Booker has had on the sentencing of federal criminal
defendants. Approximately one year ago, the Supreme Court's decision in
Booker declared that the Sentencing Guidelines promulgated by the
United States Sentencing Commission were no longer mandatory
requirements, but rather advisory in nature.
Though this decision created immediate concerns over equity and
fairness in sentencing, Members of Congress agreed to wait until they
had more information available to thoroughly evaluate the consequences
of Booker. Chairman Coble himself was advised by the late Chief Justice
Rehnquist to hold Congressional action until enough time had passed to
gauge the effects of the ruling. Now that a year has gone by, the
Sentencing Commission has released a report just this week detailing
how Booker has influenced the federal sentencing system.
Before I address the contents of the Sentencing Commission's
report, I would like to praise the Commission for its hard work in this
bipartisan effort to compile data and analysis on the issue. The
Commission's report is very detailed and thorough, and it shows that
the Booker decision has had a dramatic impact on the way that judges
sentence defendants. What troubles me the most is that the Commission's
report indicates that protections for America's children are being
undone by judicial discretion.
On April 30, 2003, I was proud to stand with President Bush in the
Rose Garden as he signed into law the PROTECT Act to help defend our
children from sexual predators while strengthening law enforcement's
ability to keep these criminals off the street. A key component of this
bill was the Feeney Amendment which I authored, to ensure that those
who commit sexual crimes against our nation's children will receive the
full punishment of the law. The Commission's report reveals that that
some judges are working to undermine this tough legislation.
According to the report, in the last year there has been a six-fold
increase in below guideline range sentences for defendants convicted of
sexual abuse of a minor, a five-fold increase in below guideline range
sentences for defendants convicted of sexual exploitation of a child,
and a fifty percent increase in below guideline range sentences for
defendants convicted of sexual contact of a minor, trafficking in child
pornography, and possession of child pornography. The sexual
exploitation of children is one of the most vicious crimes conceivable,
a violation of mankind's most basic duty to protect the innocent. We
can not tolerate the deliberate evasion of public laws by those in our
courtrooms, and American families and our children deserve protection
from predators and abusers.
After Booker, judges are no longer held accountable for ensuring
that defendants convicted of heinous crimes receive the punishments
they deserve. Last year in Vermont, a judge initially sentenced a
defendant who had admitted to sexually abusing a young girl over a four
year period to only sixty days in prison. In the middle district of
Florida, a judge gave a 52% reduction from the guideline sentence to a
defendant who had distributed child pornography, fled when released on
bond, and had an armed standoff with police.
The creation of the Sentencing Commission and the Sentencing
Guidelines was accomplished to prevent the exercise of unreviewable,
arbitrary power in the hands of judges. When the Supreme Court's
decision in Booker granted this kind of authority to judges, the
results speak for themselves. Sentences after Booker have exhibited a
marked tendency to increase downward departures from the Guidelines. In
addition to the erosion of protection for child victims of sexual
abuse, the Commission's report shows that there was an increase in
below range sentences for drug offenses, including those for powder
cocaine, crack cocaine, heroin, marijuana, and methamphetamine. This
failure to shield our children from predators and from drug offenders
is a breakdown in the system that we must find intolerable and
unacceptable.
The findings of the Sentencing Commission indicate that Booker has
endangered the principles of predictability, uniformity, and toughness
in federal sentencing. In the coming months, the Subcommittee plans to
study this issue in depth, and we will consider legislative solutions
to the problems exposed by the Commission's report. I look forward to
hearing from our distinguished panel today.
__________
Prepared Statement of the Honorable Sheila Jackson Lee, a
Representative in Congress from the State of Texas
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__________
Supplemental Testimony of James E. Felman, Esq., Kynes, Markman &
Feldman, P.A., Tampa, Florida
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__________
Prepared Statement of Carol S. Steiker, Professor of Law, Harvard Law
School, Cambridge, Massachusetts
March 14, 2006
The Honorable Howard Coble
Chair
Committee on the Judiciary
Subcommittee on Crime, Terrorism and Homeland Security
US House of Representatives
Washington, D.C. 20515
Dear Chairman and Subcommittee Members:
I submit the attached statement in the hope that it will be of use
in your consideration of appropriate responses to the Supreme Court's
recent decisions regarding the constitutional status of the Federal
Sentencing Guidelines. My statement deals with a discrete but extremely
important feature of the current federal sentencing scheme: the
composition of the Federal Sentencing Commission. Congress' decision
three years ago to amend the Sentencing Reform Act by stripping the
judiciary of mandatory representation on the Sentencing Commission is
extremely problematic, both for prudential and constitutional reasons.
I urge you to reconsider this aspect of the Feeney Amendment for the
reasons that follow in my statement.
My interest and expertise in this matter stems from a twenty-year
legal career focused almost exclusively on issues of criminal justice:
fourteen years as a scholar of the American criminal justice system on
the faculty of Harvard Law School, four years as a staff attorney
representing indigent defendants in the District of Columbia courts,
and two years as a judicial law clerk on the Federal Court of Appeals
for the District of Columbia Circuit and the United States Supreme
Court. I include a copy of my curriculum vitae with my statement.
If there is any further information or assistance that I can
provide, I can be contacted by telephone at (617) 496-5457 or by e-mail
at steiker@law.harvard.edu.
Respectfully submitted,
Carol Steiker
Professor of Law
prepared statement of statement of carol s. steiker, professor of law,
harvard law school, to the subcommittee on crime, terrorism and
homeland security, of the house judiciary committee, regarding march
16, 2006, hearings on appropriate responses to the supreme court's
rulings on the federal sentencing guidelines
Prudential and Constitutional Reasons to Correct the PROTECT Act's
Elimination of Mandatory Judicial Representation on the Federal
Sentencing Commission
I. Requiring Judicial Involvement on the Commission Serves Important
Goals
Title IV of the Prosecutorial Remedies and Other Tools to End the
Exploitation of Children (``PROTECT'') Act, (the ``Feeney Amendment,'')
altered federal sentencing law by changing the composition of United
States Sentencing Commission.\1\ The Feeney Amendment eliminated the
prior mandatory involvement of at minimum three federal judges on the
Commission; on the contrary, the Feeney Amendment required that not
more than three members be judges.\2\ In implementing such a drastic
change, Congress provided no notice, opportunity for discussion, or
solicitation of contrary views.\3\ In doing so, it overlooked the
important benefits of requiring judicial membership on the Commission
and instituted a Commission that violates the separation of powers.
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\1\ See PROTECT Act, Pub. L. No. 108-21 Sec. 401.
\2\ Pub. L. No. 108-21 Sec. 401(n)(1).
\3\ See, e.g. 149 Cong. Rec. S5137-01, 5145 (daily ed. Apr. 10,
2003) (statement by Sen. Leahy) (stating, ``the Feeney amendment. .
.was added to the bill on the House floor after only 20 minutes of
debate.'').
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A. Judges are uniquely qualified to serve on the Sentencing Commission
The United States Sentencing Commission has two purposes: to
``establish sentencing policies and practices for the Federal criminal
system,'' \4\ and to ``develop means of measuring the degree to which
the sentencing, penal, and correctional practices are effective in
meeting the purposes of sentencing. . . .''\5\ In order to accomplish
these goals, it is vital that the Federal Sentencing Commission have
first-hand knowledge of variations in offenders and offenses, the way
in which sentences are applied, and the considerations that go into
sentence determination. Judges - more than any other group - understand
the particulars involved in sentencing. They learn the details of each
crime and each defendant; they hear arguments from both the prosecution
and the defense; they receive input from parole officers and family
members - both of defendants and victims; they see and respond to
changes over time in crime commission and enforcement. Judges have the
everyday, ground level, case-by-case view of sentences in action. In
fact, this first-hand knowledge of the law's interaction with real
parties and facts is why Congress placed the Federal Sentencing
Commission in the Judicial Branch of the government.\6\ In upholding
the constitutionality of the original Sentencing Reform Act in
Mistretta v. United States, the Court stressed that ``judicial
participation on the Commission ensures that judicial experience and
expertise will inform the promulgation of rules for the exercise of the
Judicial Branch's own business - that of passing sentence on every
criminal defendant.''\7\ It would defy the Court's understanding of the
nature of the Commission and defeat the Commission's very purpose to
take away the expertise that Congress initially built into its
structure.
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\4\ 28 U.S.C.A. Sec. 991(b)(1).
\5\ 28 U.S.C.A. Sec. 991(b)(2).
\6\ See Mistretta v. United States, 488 U.S. 361, 396 (1989)
(``Congress placed the Commission in the Judicial Branch precisely
because of the Judiciary's special knowledge and expertise.''). See
also S. Rep. No. 98-225, at 159 (1983) (Senate Report on the Sentencing
Reform Act) (``Placement of the commission in the judicial branch is
based upon the committee's strong feeling that even under this
legislation, sentencing should remain primarily a judicial
function.'').
\7\ Mistretta, 488 U.S. at 407.
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Unlike prosecutors, defense attorneys, or legislators, judges are
also uniquely positioned to provide a long-term view of sentencing. An
appointment to the federal judiciary is for life, and a judge may spend
years on the bench before sitting on the Commission. Prosecutors and
defense attorneys rarely spend as much time in their respective
capacities. This is true of the current Commission membership.\8\
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\8\ The Commission Chair - Judge Ricardo H. Hinojosa - has served
as a federal judge for 23 years. Judge Ruben Castillo has spent 12
years as a federal judge, in addition to four years as an Assistant
United States Attorney. Chief Judge William K. Sessions has served on
the federal bench for 11 years, in addition to 4 years as a public
defender. In contrast, Vice Chair John R. Steer has no direct
experience in the criminal justice system. Commissioners Beryl A.
Howell and Michael E. Horowitz served as Assistant United States
Attorneys for 6 years and 8 years respectively, and neither holds that
position currently.
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Judges are also less susceptible to political pressure and sudden
shifts in popular opinion than are prosecutors.\9\ A sudden rise in
crime will not prompt a Commissioner-judge to take extreme but perhaps
unwise measures in order to satisfy immediate demands for harsher
punishment. Additionally, unlike prosecutors or defense attorneys,
judges do not spend their careers either trying to convict defendants
or trying to acquit them. Rather, they are able to focus on the
criminal justice system as a whole: with the benefit of all relevant
arguments, they are more likely to be able to take a balanced view.\10\
Of course, prosecutors and defense attorneys have experience in the
criminal justice system too, but the nature of the adversary system
demands that they advocate zealously for their perspective, making it
difficult for them to be as open to competing values.
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\9\ See, e.g., a statement by the President of the American Bar
Association: ``By overriding the Sentencing Commission and
legislatively rewriting the Guidelines, the Feeney Amendment threatens
the legitimacy of the Commission. The Commission was created by
Congress to ensure that important decisions about federal sentencing
were made intelligently, dispassionately, and, so far as possible,
uninfluenced by transient political considerations.'' Letter from
Alfred P. Carlton, Jr., President of the American Bar Association to
Senator Orrin G. Hatch, (Apr. 1, 2003), available at http://
www.nacdl.org/departures. See also Paul J. Hofer & Mark H. Allenbaugh,
The Reason behind the Rules: Finding and Using the Philosophy of the
Federal Sentencing Guidelines, 40 Am. Crim. L. Rev. 19, 28 (2003).
``[M]any guideline amendments are not initiated by the Commission based
on research identifying flaws in the existing rules. The Guidelines are
often amended because Congress directs the Commission to increase
sentences for a particular type of crime, often a crime that has
received media attention. For example, in 2000, Congress directed the
Commission to increase penalties for trafficking in the `club drug'
MDMA, commonly known as `ecstasy.' The Commission responded with an
amendment doubling, and in some cases tripling, penalties.''
\10\ See, e.g., Statement of Senator Leahy: ``Judges are extremely
valuable members of the Commission. They bring years of highly relevant
experience, not to mention reasoned judgment, to the table.'' 149 Cong.
Rec. S5137-01, 5146 (daily ed. Apr. 10, 2003) (statement of Sen.
Leahy).
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Moreover, judges will tend to be highly qualified even without
significant experience on the bench. That they have passed the uniquely
rigorous selection process applied to federal judges indicates a
Congressional belief in their qualifications to determine and apply the
law, including appropriate sentences.
Finally, the guidelines promulgated by the Commission are not
applied by prosecutors, defense attorneys, or legislators; they are
applied by judges. Judges thus have the most clear-eyed view of how
adversaries on both sides might seek to exploit ``loopholes'' in the
guidelines. They also have a unique perspective on how judges will
respond to guidelines once promulgated. Judges can most effectively
advise the Commission on how to make their policy goals apply in
practice. That other judges will consider guidelines promulgated with
substantial judicial input more credible further proves the value of
having more, not fewer, judges.
B. Requiring judicial membership on the Commission insulates judicial
members from Executive Branch pressure
Even though the Commission can benefit from judicial members'
expertise whether or not their participation is required, a guarantee
that some members of the Commission will be from the judiciary helps
ensure that judicial members will be insulated from Executive Branch
pressure in their decision-making. Judicial members on the Commission
serve under the awareness that the President is under no obligation to
replace them with other judicial members. They also know that the
Attorney General or his representative, as an ex officio member of the
Commission, will be aware to every last particular of the nature of
their participation on the Commission. Therefore, without a legislative
requirement that judges will be part of the Commission, judicial
members may feel compelled either to comply with or be more
accommodating to the demands or desires of the executive so as to
preserve the possibility that there will be continued judicial
representation on the Commission after their terms have been served.
There is thus always the danger that judicial members on the Commission
will act in response to fear of executive retaliation rather than from
considered judicial expertise, depriving the Commission of the benefits
of judicial participation in the first place. Requiring that judges be
a part of the Commission allows judicial members to provide their
expertise with the reassurance that continued judicial participation
will not be subject to the demands or whims of the chief executive.\11\
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\11\ The Supreme Court has long recognized the constitutional
significance of the chilling effect of fear of retaliation in the First
Amendment context. See, e.g., Buckley v. Valeo, 424 U.S. 1, 68 (1976)
(``It is undoubtedly true that public disclosure of contributions to
candidates and political parties will deter some individuals who
otherwise might contribute. In some instances, disclosure may even
expose contributors to harassment or retaliation.'').
C. Judicial participation is necessary to avoid self-dealing by the
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Executive Branch
Without a requirement of judicial membership on the Commission, the
Executive Branch could potentially have full control of the Commission.
Because the Executive Branch already holds a significant amount of
power in sentencing decisions, a lack of judicial membership
concentrates too much power in that branch and creates a situation
where the only effective discretion in the sentencing process is the
discretion of the executive. The executive would be able to determine,
through the Sentencing Commission, the appropriate level of punishment
for any given offense, enhancing and perhaps even perverting the power
it already holds to prosecute those offenses. Without judicial
involvement, the executive could engage in a form of ``self-dealing''
and use its control of the Sentencing Commission to benefit itself and
make certain kinds of prosecution easier. For example, the Commission
could enhance sentences attached to specific lesser crimes that are
easier to prosecute to provide the executive with larger bargaining
chips in pursuing more serious crimes that are more difficult to
prosecute. The concentration of power in one branch in sentencing
raises serious concerns that could be alleviated by a judicial
``check'' in the form of judicial participation on the Commission.
D. Judicial membership is necessary to avoid the appearance of
unfairness
Even if judicial members of the Commission do not in fact feel
pressure to conform to the desires of the Executive Branch, and even if
a Commission fully controlled by the Executive Branch does not engage
in self-dealing, judicial membership on the Commission is necessary to
avoid the appearance of improper influence and unfairness. Though
judicial members may try to make their decisions free from Executive
Branch influence, they may be perceived by the public as compromised by
the undue influence of the executive through its appointment powers -
decisions, especially unpopular ones, that may have been motivated by
independent concerns will be questioned and potentially undermined by
the fact that judicial membership on the Commission is not guaranteed
and subject to the desires of the executive. Similarly, if the
Executive Branch takes full control of the Commission, it will
potentially undermine public confidence in the justness and fairness of
the sentencing process and the federal criminal justice system. Our
adversary system is premised on the idea of zealous partisanship by
adversaries, presided over neutrally by judges, and ultimately resolved
through sentencing after conviction by those same neutral judges. If
one of the adversary parties in the system, the Executive Branch, is
given complete control over all decisions made by the Commission, it
can create the perception that the executive is both prosecuting and
sentencing at the same time. Regardless of the actual fairness and
justness of prosecutions by the executive, the legitimacy of its
decisions will have been compromised by its complete and potentially
corrupting control of the sentencing process. Thus, a guarantee of
judicial membership on the Commission can help uphold in the eyes of
the public and of defendants both the legitimacy of the Commission's
decisions and of the Executive Branch's powers.\12\
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\12\ The importance of the appearance of the independence of the
judiciary in its adjudicative role is a longstanding concern. See,
e.g., Hobson v. Hansen, 265 F. Supp. 902, 931 (D.D.C. 1967) (``The need
to preserve judicial integrity is more than just a matter of judges
satisfying themselves that the environment in which they work is
sufficiently free of interference to enable them to administer the law
honorably and efficiently. Litigants and our citizenry in general must
also be satisfied.'').
II. Failure to Mandate Judicial Involvement Violates Separation of
---------------------------------------------------------------------------
Powers Doctrine
In addition to raising important prudential concerns about fairness
within the adversarial system, the elimination of required judicial
participation on the Sentencing Commission raises fundamental questions
about the very constitutionality of such an organization. As the
Supreme Court has held, ``the separation of governmental powers into
three coordinate Branches is essential to the preservation of
liberty.''\13\ By vesting sentencing decisions primarily in the
Executive Branch, the Feeney Amendment's change in the necessary
composition of the commission violates the separation of powers
doctrine in two significant ways. It unites the power to prosecute, a
purely executive function, with the power to sentence, a judicial
function; additionally, the allocation of traditionally judicial
responsibilities to the Executive Branch encroaches upon judicial
authority while aggrandizing executive oversight.
---------------------------------------------------------------------------
\13\ Mistretta v. United States, 488 U.S. 361, 380 (1989).
---------------------------------------------------------------------------
A Sentencing Commission with no judicial involvement falls
exclusively within the purview of the Executive Branch as a matter of
functional reality. With no mandated judicial involvement on the
Commission, all sentencing decisions will in some way be connected to
the executive branch.\14\ This degree of executive power mirrors
presidential oversight of ``independent agencies,'' which fall within
the scope of the Executive Branch.\15\ In independent agencies, the
President retains appointment power, at minimum, of the chief
administrator; the agency then formulates rules and performs other
functions.\16\ Likewise, a Sentencing Commission without mandatory
judicial membership will contain only Presidential appointees who may
act devoid of any input from judicial actors, despite their unique
experience and expertise on the issue and the long history of judicial
control of the sentencing rules and processes. As one court has held,
``[t]his concentration of sentencing power in the Executive Branch is
unprecedented.''\17\
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\14\ See United States v. Detwiler, 338 F. Supp.2d 1166, 1174 (D.
Or. 2004).
\15\ Freytag v. Commissioner, 501 U.S. 868 (1991) (Scalia, J.,
concurring in part and concurring in the judgment).
\16\ FMC v. S.C. State Ports Auth., 535 U.S. 743, 773 (2002);
Panama Co. v. Ryan, 293 U.S. 388, 428 (1935).
\17\ Detwiler, 338 F. Supp.2d at 1175.
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By functionally embedding the Sentencing Commission within the
Executive Branch, the Feeney Amendment unconstitutionally united the
prosecutorial and sentencing powers within one governmental sector. In
Mistretta, the Supreme Court upheld the then-required appointment of at
minimum three judges to the Sentencing Commission. Rather than finding
a separation of powers violation due to judicial involvement, the Court
instead speculated that Executive responsibility for ``promulgating
sentencing guidelines'' might ``unconstitutionally. . .unite[] the
power to prosecute and the power to sentence within one Branch.''\18\
Mandated judicial involvement was therefore central to the Court's
upholding of the prior structure of the Sentencing Commission. In
criminal cases, the prosecutor is an executive actor. The judiciary is
prohibited from encroaching on the executive's wide discretion in
bringing charges and trying cases, except in rare cases like overt race
discrimination in jury selection.\19\ Likewise, the Executive Branch
must refrain from infringement on the judiciary's role as the neutral
sentencer. Placing the development of sentencing standards within the
purview of the executive gives this branch both wide discretion in
bringing charges, along with the ability to impact sentencing by
promulgating rules that favor its own prosecutorial interests.\20\ This
is exactly the type of unified action against which the Mistretta court
cautioned. ``To permit the same body to serve as prosecutor, an
advocate for the sovereign, and also determine the penalty for the
offense, is contrary to fundamental notions of liberty and
justice.''\21\
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\18\ Mistretta, 488 U.S. at 391 n.17; see also Detwiler, 388 F.
Supp.2d at 1175.
\19\ See United States v. Robertson, 45 F.3d 1423 (10th Cir. 1995)
(Separation of powers mandates that judicial independence from
executive affairs and executive independence from judicial affairs).
\20\ See Jamie Escuder, Congressional Lack of Discretion: Why the
Feeney Amendment is Unwise (and Perhaps Unconstitutional), 16 Fed.
Sent. R. 276, 276-277 (2004) (``[B]y edging judges out of the
sentencing process, the Feeney Amendment removes a critical check on
the Executive's ability to design a sentencing structure that is biased
in its favor.'').
\21\ Detwiler, 388 F. Supp.2d at 1175.
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Not only does the Separation of Powers doctrine preclude the
unification of sentencing and prosecuting powers within one branch; it
also expressly prohibits any form of ``encroachment or aggrandizement
of one branch at the expense of the other.''\22\ The placement of the
Sentencing Commission entirely within the scope of the executive does
just this. Previously, the Supreme Court has struck down laws that give
one branch powers appropriately diffused among three branches, laws
that undermine the authority and independence of another branch of law,
and laws that reassign power vested in one branch to another
branch.\23\ Though some blending of the branches' functions is
appropriate, this is true only when the overlap poses ``no danger to
either aggrandizement or encroachment.''\24\ However, when this
blending prevents one branch from exercising its constitutionally
assigned tasks, the Founders' fear of the ``hydraulic pressure inherent
within each of the separate Branches to exceed the outer limits of its
power'' is realized.\25\ In identifying unacceptable infringement, the
Court looks to the ``practical consequences'' of a challenged plan
within the context of traditional Article III principles.\26\
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\22\ Buckley v. Valeo, 424 U.S. 1, 122 (1983); INS v. Chadha, 462
U.S. 919, 951 (1983).
\23\ See Mistretta, 488 U.S. at 382; see e.g., Bowsher v. Synar,
478 U.S. 714 (1986) (Congress cannot control enactment of legislation
by retaining the removal power); Chadha, 462 U.S. at 951 (Congress
cannot control the mechanism in which laws are executed).
\24\ Mistretta, 488 U.S. at 382; Morrison v. Olson, 487 U.S. 654
(1988) (judicial appointment of independent counsel does not aggrandize
its functions); Commodity Futures Trading Comm'n v. Schor, 478 U.S. 833
(1986) (the executive agency may exercise jurisdiction over state-law
counterclaims).
\25\ Chadha, 462 U.S. at 951; see also Nixon v. Administrator of
General Services, 433 U.S. 425, 443 (1977).
\26\ Commodity Futures Trading Comm'n, 478 U.S. at 857.
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Sentencing has long been designated as a ``primarily judicial
function.''\27\ By effectively relocating the Sentencing Commission
within the Executive Branch, the Feeney Amendment both interferes with
the judiciary's traditional sentencing role and allows the executive to
assume a function that has long been entrusted to the judiciary. The
Sentencing Commission determines the appropriate range of punishments
for particular offenses. Without the required application of judicial
expertise to this decision-making process, the executive will have
increased its ability to determine sentences, particularly when
combined with its plea bargaining power and its ability to decide what
charges to bring. It will simultaneously have limited or eliminated the
judiciary's ability to individually tailor sentences. Such a merging of
responsibilities impermissibly concentrates what has long been a
diffused sentencing power among the three branches and unquestionably
aggrandizes the executive's power. The ``practical consequence'' of not
mandating judicial involvement on the Sentencing Commission is to
aggrandize the executive's power and to encroach upon the judiciary's
function as the neutral arbiter.\28\
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\27\ Mistretta, 488 U.S. at 382 (``For more than a century, federal
judges have enjoyed wide discretion to determine the appropriate
sentence in individual cases.''); Detwiler, 388 F. Supp.2d at 1170 (the
judiciary has historically determined ``what sentence is appropriate to
what criminal conduct under what circumstances.'').
\28\ Mistretta, 488 U.S. at 392.
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Likewise, by not mandating judicial involvement on the Commission,
the Feeney Amendment risks intimidating any judicial members who are
lucky enough to secure an appointment to the commission, chilling their
promotion of independent ideas. With no judicial positions guaranteed,
a judge may be subject to removal by the executive and replaced by a
non-judicial member. Under such circumstances, any judicial members who
are appointed to the Commission may feel pressure to act in adherence
to executive policy desires, as a failure to adhere may imperil
judicial representation on the Commission in the future. This potential
for intimidation undermines the necessary elicitation of judicial
expertise in the Commission's deliberations and encroaches on the
independence of the judiciary branch.\29\ In creating the original
Sentencing Commission, Congress clearly recognized that ``any
suggestion that the Executive Branch should be responsible for
promulgating the guidelines would present troubling constitutional
problems. . .'' and would ``fundamentally alter the relationship of
Congress to the Judiciary with respect to sentencing policy and its
implementation.''\30\ By not mandating judicial involvement with the
Sentencing Commission, those prescient congressional fears will be
realized.
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\29\ See Bowsher v. Synar, 478 U.S. 714, 725 (1986) (``The
fundamental necessity of maintaining each of the three general
departments of government entirely free from the control or coercive
influence, direct or indirect, of either of the others, has often been
stressed is hardly open to serious question.'').
\30\ H.R. REP. 98-1017, at 94-95 (Sept. 13, 1984).
__________
Responses to Questions for the Record from William E. Moschella,
Assistant Attorney General, Office of Legislative Affairs, U.S.
Department of Justice, Washington, DC
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__________
Responses to Questions for the Record from Judith W. Sheon, Staff
Director, U.S. Sentencing Commission, Washington, DC
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Letter to the Honorable Howard Coble, Re: Revised Testimony for the
Record from Judith W. Sheon, Staff Director, U.S. Sentencing
Commission, Washington, DC
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__________
Supplemental Information for the Record from the Honorable Paul G.
Cassell, Judge, U.S. District Court for the District of Utah
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__________
Letter to the Honorable Paul G. Cassell and ``Report on Post-Booker
Sentencing in the United States District Court, District of
Massachusetts,'' from the Honorable Mark L. Wolf, Chief Judge, U.S.
District Court for the District of Massachusetts
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Revised Testimony of the Honorable Ricardo H. Hinojosa, U.S. District
Judge and Chairman, U.S. Sentencing Commission
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<all>