[Senate Hearing 106-1047]
[From the U.S. Government Publishing Office]
S. Hrg. 106-1047
OVERSIGHT OF THE UNITED STATES SENTENCING COMMISSION: ARE THE
GUIDELINES BEING
FOLLOWED?
=======================================================================
HEARING
before the
SUBCOMMITTEE ON CRIMINAL JUSTICE OVERSIGHT
of the
COMMITTEE ON THE JUDICIARY
UNITED STATES SENATE
ONE HUNDRED SIXTH CONGRESS
SECOND SESSION
__________
OCTOBER 13, 2000
__________
Serial No. J-106-112
__________
Printed for the use of the Committee on the Judiciary
U.S. GOVERNMENT PRINTING OFFICE
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For Sale by the Superintendent of Documents, U.S. Government Printing Office
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COMMITTEE ON THE JUDICIARY
ORRIN G. HATCH, Utah, Chairman
STROM THURMOND, South Carolina PATRICK J. LEAHY, Vermont
CHARLES E. GRASSLEY, Iowa EDWARD M. KENNEDY, Massachusetts
ARLEN SPECTER, Pennsylvania JOSEPH R. BIDEN, Jr., Delaware
JON KYL, Arizona HERBERT KOHL, Wisconsin
MIKE DeWINE, Ohio DIANNE FEINSTEIN, California
JOHN ASHCROFT, Missouri RUSSELL D. FEINGOLD, Wisconsin
SPENCER ABRAHAM, Michigan ROBERT G. TORRICELLI, New Jersey
JEFF SESSIONS, Alabama CHARLES E. SCHUMER, New York
BOB SMITH, New Hampshire
Manus Cooney, Chief Counsel and Staff Director
Bruce A. Cohen, Minority Chief Counsel
------
Subcommittee on Criminal Justice Oversight
STROM THURMOND, South Carolina, Chairman
MIKE DeWINE, Ohio CHARLES E. SCHUMER, New York
JOHN ASHCROFT, Missouri JOSEPH R. BIDEN, Jr., Delaware
SPENCER ABRAHAM, Michigan ROBERT G. TORRICELLI, New Jersey
JEFF SESSIONS, Alabama PATRICK J. LEAHY, Vermont
Garry Malphrus, Chief Counsel
Glen Shor, Legislative Assistant
C O N T E N T S
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STATEMENTS OF COMMITTEE MEMBERS
Page
Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont,
prepared statement............................................. 74
Sessions, Hon. Jeff, a U.S. Senator from the State of Alabama.... 2
Thurmond, Hon. Strom, a U.S. Senator from the State of South
Carolina....................................................... 1
WITNESSES
Hernandez, Carmen D., National Association of Criminal Defense
Lawyers, Washington, DC........................................ 56
Kirkpatrick, Laird, Attorney General Designee to the U.S.
Sentencing Commission, and Counsel to the Assistant Attorney
General, Criminal Division, U.S. Department of Justice,
Washington, DC; accompanied by Denise O'Donnell, U.S. Attorney,
Western District of New York................................... 44
Murphy, Diana E., Chair, U.S. Sentencing Commission, Washington,
DC............................................................. 4
Otis, William G., Former Assistant U.S. Attorney, Eastern
District of Virginia, Falls Church, VA......................... 65
Steer, John R., Vice Chair, U.S. Sentencing Commission,
Washington, DC................................................. 14
APPENDIX
Questions and Answers
Responses of Diana Murphy to Questions from Senator Leahy........ 79
Responses of John R. Steer to Questions from Senator Thurmond.... 81
Response of John R. Steer to Questions from Senator Leahy........ 82
Responses of Laird Kirkpatrick to Questions from Senator Thurmond 83
Responses of Laird Kirkpatrick to Questions from Senator Leahy... 87
Responses of Carmen Hernandez to Questions from Senator Leahy.... 90
Responses of William G. Otis to Questions from Senator Thurmond.. 96
Additional Submissions for the Record
Appeals on Departure Issues, tables.............................. 128
Committee on Criminal Law of the Judicial Conference of the
United States, Greenville, SC, letter.......................... 107
Criminals Sentenced Below Guidelines Range, graph................ 125
Departure Rates Excluding Southwest Border Districts, exhibits... 126
Otis, William G., essay.......................................... 113
San Antonio Express, October 14, 2000, ``U.S. sentencing
debated'', article............................................. 124
The State, Columbia, SC, October 15, 2000, ``Judges under
scrutiny for ignoring federal sentencing guidelines'', article. 122
U.S. Sentencing Commission, ``Federal Sentencing Guidelines'',
overview....................................................... 109
Washington Times, November 19, 2000, ``Sentencing lapses'',
article by Senator Thurmond.................................... 123
OVERSIGHT OF THE UNITED STATES SENTENCING COMMISSION: ARE THE
GUIDELINES BEING FOLLOWED?
----------
FRIDAY, OCTOBER 13, 2000
U.S. Senate,
Subcommittee on Criminal Justice Oversight,
Committee on the Judiciary,
Washington, DC.
The subcommittee met, pursuant to notice, at 10:12 a.m., in
room SD-226, Dirksen Senate Office Building, Hon. Strom
Thurmond (chairman of the subcommittee) presiding.
Also present: Senator Sessions.
OPENING STATEMENT OF HON. STROM THURMOND, A U.S. SENATOR FROM
THE STATE OF SOUTH CAROLINA
Senator Thurmond. The subcommittee will come to order.
I am pleased today to hold this oversight hearing on the
Sentencing Commission. When I chaired this committee in the
1980's, one of our most important objectives in the crime area
was to reform sentencing. At the time, there was no consistency
in the length of time Federal criminals received or how long
they actually served in prison.
Through the Sentencing Reform Act of 1984, we created the
Guidelines System, which established ranges within which the
offender could be sentenced based on his conduct and
characteristics. The fundamental purpose was to provide similar
punishment for similarly situated defendants. Contrary to many
people's expectations at the time, the Guidelines have
succeeded for over a decade in making sentencing fairer and
more equitable for criminals and victims alike.
Today, the purpose of the Guidelines is being threatened by
the increasing trend of sentencing criminals below the range
established in the Guidelines. Sentences lower than the
Guidelines provide, called downward departures, should be rare
because they are permitted only for factors not adequately
considered by the Commission.
Although we would expect these cases to be more rare as the
Commission has reformed the Guidelines, just the opposite is
occurring. Just in the past 8 years, the number of downward
departures has increased steadily from 20 percent to about 35
percent of cases, which is more than 1 out of 3. If the trend
continues much longer, we will see more criminals being
sentenced below the Guidelines than within them.
Downward departures are rising most severely in illegal
immigration cases. However, the trend is much broader. These
departures are rising annually for drug trafficking and even
firearms violations.
The Clinton Justice Department apparently has shown little
concern about this trend toward reduced and more inconsistent
punishment.
It would seem that as judges grant departures for more and
more creative reasons, the number of appeals should increase.
In fact, the number of Guidelines cases the Government appeals
have actually declined since 1993. Of the over 8,000 downward
departures last year, the Government appealed only 19. Of
course, if the Government does not appeal a judge's wayward
sentence in a criminal's favor, it will never be corrected, no
matter how egregious.
Also, there is a great disparity in how U.S. attorneys
apply the Guidelines. Prosecutors can ask the court to reduce a
sentence based on a defendant's substantial assistance in their
efforts to solve crimes. However, U.S. attorneys vary
drastically in how often they seek departures for substantial
assistance, and apparently even in how they define what
constitutes cooperation with the Government. The Department of
Justice should be concerned about great disparities because
this also undermines the consistency the Guidelines were
intended to create.
The Sentencing Commission and the Department of Justice
must address these problems. They cannot be ignored. Criminals
are getting a break as fairness in sentencing is becoming more
elusive every year. The Commission has worked hard since it was
reconstituted late last year to effectively address directives
from the Congress and other issues. It needs to consider
important matters in the coming year.
I look forward to the testimony as we review the status of
the Commission and whether the Guidelines are being adequately
followed.
Senator Sessions.
STATEMENT OF HON. JEFF SESSIONS, A U.S. SENATOR FROM THE STATE
OF ALABAMA
Senator Sessions. Thank you, Mr. Chairman. I appreciate
very much the opportunity to be with you. This will be a most
interesting discussion for me. I was a Federal prosecutor when
you led the effort to pass the Sentencing Guidelines. There is
no doubt in my mind that the Sentencing Guidelines were the
most historic change in law enforcement ever rendered in this
century, the last century, or whatever century we are in.
The fact was that in the late 1970's and into the 1980's,
we had a lot of judges who just didn't believe in sentencing.
But they were appointed with lifetime appointments. You could
try a case and prove a person guilty of the most serious crime
and go into the sentencing phase and a judge would simply give
them probation or a light sentence, and there was nothing that
could be done about that. There was no way to appeal. There was
no consistency.
I remember as an assistant U.S. attorney and as a U.S.
attorney having criminal defense lawyers going before one judge
and citing that a similar defendant down the hall they had
represented 6 months before got probation, whereas this judge
may have been considering 10 or 15 years in jail. It was a
system out of control and without consistency. It raised
suspicions that some people were being sentenced heavier than
others because of their background, their lack of wealth, their
lack of articulateness, attractiveness, or whatever came about.
And it was a very frustrating time.
This Senate acted with historic--it was a historic act when
you created these Guidelines. I don't think a single State had
anything like it. If they did, it was only very few that had
such a procedure to sentence. Since then, a number of States
have followed similar guideline practices.
I believe the conduct of the Sentencing Guidelines is a
matter of integrity and discipline on the part of the
Department of Justice and the judiciary and that if it is not
worked at on a daily basis with determination and consistency,
the integrity of the Guidelines can be undermined and we could
be in a worst position than we were before we started. So I
salute you.
I also want to commend the Sentencing Commission for
accomplishing a substantial amount of work in the short time
the commissioners have been appointed last year. The amendments
to the Guidelines and the resolution of the circuit conflicts
have shown that the new complement of commissioners is serious
about their business. They are fulfilling their duty.
I am also impressed by the Commission's fulfillment of
another part of its duty, public integrity. It would be very
easy for the Commission to avoid publishing data concerning
whether the Guidelines are being adhered to. It would be
politically expedient to shy away from criticism of the
Department of Justice or what might be considered criticism of
judges who may be too lenient in seeking and approving an
excess amount of downward departures.
A downward departure is a circumstance in which the
Guidelines call for, let's say, a minimum sentence of 5 years
and a judge gives 3 years or 2 years. They depart downward from
the approved Sentencing Commission standard. Of course, the
prosecutor, if they didn't recommend it themselves, could
appeal that, though as Senator Thurmond noted, there have been
only 19 appeals out of some 8,000 cases. So we were not having
many appeals here.
As long as the critical data that we are having and finding
is being produced by the Commission is constructive--and I
believe the data we have been reviewing is constructive--I
think it is the duty of the Commission to produce that data.
While it may make some uncomfortable, being a sentencing
commissioner is a big job. It requires a strong leader to
fulfill the duty of that office, for only if that duty is
fulfilled with integrity will we have an effective criminal
justice system that delivers equal justice under law.
So I commend the Commission for dealing with these issues
and publishing this data that raises, I think, some serious
questions about the Department of Justice's sentencing policy
and to some degree the attitudes of certain Federal judges. I
look forward to working with the Commission and the Department
of Justice to ensure that the growth of downward departures is
curbed because, like you, Senator Thurmond, I don't want to get
to the point where half the cases are being sentenced below the
Sentencing Guidelines.
So at bottom we are talking about a question of integrity
and discipline and attention to detail that is required of
every assistant U.S. attorney, every U.S. attorney, the
Attorney General of the United States and his or her staff, as
well as the judiciary who handle these cases, and probation
officers who can help judges.
I have been in these situations, and I know Federal judges
who would not approve an improper plea. I know judges who look
the other way; I have heard of judges who look the other way in
the face of improper pleas. I opposed a judge for the ninth
circuit in the John Huang case who I believed did not follow
the Sentencing Guidelines. He did not have any enhancement for
a position of trust. He didn't have an enhancement for
international activities.
And I don't think that is good, even though it may have
made some people happy that John Huang got probation. I don't
think he should have gotten probation and I didn't think under
the Guidelines he was entitled to probation. So it is a
dangerous thing if judges and prosecutors get in cahoots and
just sort of look the other way and ignore facts and don't
proceed in a proper way.
Mr. Chairman, again, let me express on behalf of the
thousands of Federal prosecutors throughout this country my
great appreciation for your historic leadership in creating the
Sentencing Guidelines system that has worked exceedingly well.
If it is time for us to improve it and to fix it in some way, I
am open to that, but I believe in it and I think it was indeed
a historical act that you helped make a reality.
Thank you very much.
Senator Thurmond. Thank you very much.
Our first witness is the Chair of the Sentencing
Commission, Judge Diana Murphy. Judge Murphy is also a judge on
the U.S. Court of Appeals for the Eighth Circuit and has served
on the Federal bench since 1980.
Our second witness is Mr. John Steer, vice chair of the
Sentencing Commission. Mr. Steer has had extensive experience
with the Guidelines from their inception. He served as general
counsel of the Commission from 1987 until he was confirmed as
vice chair of the Commission last year.
I also welcome other commissioners who are present.
I ask that each of you please limit your opening statements
to 5 minutes, and we will place your written statements in the
record, without objection. We will start with Judge Murphy.
Judge Murphy.
PANEL CONSISTING OF HON. DIANA E. MURPHY, CHAIR, U.S.
SENTENCING COMMISSION, WASHINGTON, DC; AND JOHN R. STEER, VICE
CHAIR, U.S. SENTENCING COMMISSION, WASHINGTON, DC
STATEMENT OF HON. DIANA E. MURPHY
Judge Murphy. Thank you, Mr. Chairman. I am happy to be
here to tell the story of this hard-working Commission that the
President and the U.S. Senate put into being in the middle of
last November. I have been asked to talk about what we have
been up to since we were appointed, and Vice Chair Steer has
been asked to comment on some of the data on downward
departures.
We also have other members of our Commission here. We
happen to be having an economic crimes symposium at George
Mason University Law School today, so we are all in town. And I
would like to call attention to Vice Chair Reuben Castillo,
Vice Chair William Sessions, and Commissioner Joe Kendall. We
have got some of our ex officio members here. One of them is
going to be on the second panel, I understand, Laird
Kirkpatrick, from the Department of Justice, and then Michael
Gaines from the U.S. Parole Commission. And the remaining
commissioners, Sterling Johnson and Michael O'Neill, are
presiding at the economic crimes symposium across the river
this morning.
There is a lot to say about what we have done and it is in
the written statement that will be in the record, so I will try
to use the time in the best way.
Both Chairman Thurmond and Senator Sessions have referred
to the fact that one of the responsibilities of the Sentencing
Commission is to keep data on all of the sentences that are
given. And that is a very important function that we have, and
we furnish information about that data when we are asked to.
And you have expressed some interest recently in data
relating to downward departures and the Commission itself has
not yet had an opportunity to study that data and to discuss
it. So my colleague, Mr. Steer, is going to be talking about
some of his thinking on first look at this data today, but it
is his own view and the whole of us haven't had a chance to
talk about it with each other yet.
We really have two main goals. One is to maintain and
strengthen the Federal Guidelines System. Obviously, we all
believe in it or we wouldn't have come in to work at the
Commission. We also want to strengthen our working relationship
with the Congress and with the other groups that are important
to the sentencing system.
When we came into office in the middle of November, there
really had been a vacuum of time in which there wasn't a
Commission and we had an awful lot of work waiting for us--all
the legislative directives that had been built up and new
statutes without sentencing guidelines.
We met in Washington immediately only 2 days after our
appointments, and since that time we have met once, or many
times twice a month in Washington to work. And we also have met
with the Criminal Law Committee. We have participated in the
National Sentencing Institute. We have participated in national
training for probationers and practitioners in correct
guideline application. We have gone out and spoken with judges
and other groups.
I can say that this is a group of very hard-working people
that listen to each other and that listen to all of the people
that are trying to talk to us about the Guidelines and about
proposed options that we have under study.
We have some charts here that show the various things that
we did in this cycle--No Electronic Theft Act, telemarketing
fraud, identity theft, wireless telephone cloning, sexual
predators, methamphetamine, firearms.
Senator Sessions. In other words, those are new laws which
were passed by Congress for which no guidelines had been
approved by the Commission?
Judge Murphy. In many cases, or in some cases there was a
concern in Congress that the Guidelines weren't strong enough
or there was some need to reexamine them, and so we worked in
all of these areas.
And just to take the No Electronic Theft Act, of course,
you all are very familiar with it, but there were great
complexities there because the copyright industry and the
trademark industry had very different ideas about it. At any
rate, I won't go into the detail of it, but we did accomplish
what seems to have worked out pretty well.
We also did a number of circuit conflicts, and those take a
lot of time. And I would say that is where we have gotten the
most feedback at this point on it, and maybe that is not
surprising. We have learned that we need to set up new means of
communication. The judges have complained that they don't
really know what we are studying. And we said, well, we publish
in the Federal Register to the whole world. Well, that wasn't
accessible enough for them.
So we have investigated a way to let judges know more about
what we are up to, so that if they want to express their views,
they can, by publishing all of our notices on the J-NET. And we
also have in our written testimony the very many things that we
have underway for our coming cycle ready for promulgating
amendments for May 1. And it covers a lot of areas, but this
whole economic crimes, money laundering, counterfeiting area
works somewhat together and that is why we are having the
symposium to help us study appropriate measures to deter crime
and to sentence appropriately.
We are hoping that as you reach the conclusion of this very
busy year that we are going to get our full budget request
because we get a lot of requests from Congress and from other
people for data, as exemplified by what your interest is today.
And we see the new laws that Congress is coming up with and
some of them have emergency amendment authority with a 60-day
time line for us to respond. We are down in our staff by 20
percent. We really need to get the staff back up and we hope we
will receive our full budget request.
Just finally I would say that I will, of course, be happy
to answer any questions. Something new is coming up all the
time. It is not just from the Hill, but the Supreme Court
creates new work. With the Apprendi decision in June, that is
going to be more work for Congress; it is going to be more work
for the Sentencing Commission, and we appreciate your support.
Again, Mr. Chairman, I want to thank you for coming to our
investiture in January and speaking at it. It was very
important to us. Thank you for your support.
[The prepared statement of Judge Murphy follows:]
Prepared Statement of Diana E. Murphy
Mr. Chairman, members of the Subcommittee, I am Diana Murphy, Chair
of the United States Sentencing Commission (the ``Commission'') and a
judge on the United States Court of Appeals for the Eighth Circuit. I
appreciate the opportunity to testify today about the ongoing work of
the Commission, and we thank you for your continued support of the
agency.
As you know, on November 15, 1999, a full complement of seven
voting commissioners was appointed to the Commission, and I am proud to
serve as Chair of this important agency. Our appointment ended an
extended and unprecedented hiatus of more than a year during which the
Commission was without any voting commissioners. We take our new
responsibilities so seriously that we convened the day after our
appointment in Washington, D.C. for two days of meetings and adopted a
very ambitious policy agenda for the abbreviated guideline amendment
cycle that ended May 1, 2000. I am particularly proud of how quickly
and thoughtfully the new Commission has acted in less than a year to
address many of the policy issues we found on our plate upon our
appointment.
As a group, we bring extensive and varied experience to our new
jobs. Among the seven voting and two non-voting members of the
Commission, five are federal judges, three have prosecutorial
experience, two have criminal defense experience, two formerly were
police officers, and several have had prior experience working as
congressional staff. We all have two goals in common: (1) to strengthen
the Commission's good working relationship with Congress and others in
the federal criminal justice community, and (2) to maintain and improve
the federal sentencing guideline system.
In order to achieve those goals, the new Commission has made it a
priority to reach out to all who have an interest in the federal
criminal justice system and to listen to their views about the
sentencing guidelines and related issues and to engage in an open
dialogue. This oversight hearing is one opportunity for us to conduct
that dialogue, and it is in fact the second congressional hearing at
which we have been invited to testify. We have also met with a number
of members of Congress throughout the past year, as well as key staff.
In turn we have instructed members of our staff to keep Congress fully
informed of our work.
The new Commission has also met regularly with the Criminal Law
Committee of the Judicial Conference, the Probation Officers' Advisory
Group, the Practitioners' Advisory Group, and the Federal Public
Defenders to gain their insights on the matters before us. We have
worked closely with the Department of Justice through its ex officio
member, and have obtained informal feedback when appropriate from
representatives of concerned industry groups and relevant federal
agencies. Throughout the amendment process, we held regular public
meetings, published in the Federal Register for comment all of our
proposed amendments, and conducted a public hearing in March so that
concerned constituents could testify about proposed amendments.
In order to obtain input in a more informal way, Commissioners have
attended and spoken at numerous seminars on sentencing issues around
the country so that we can hear what users of the guidelines have to
say about them. Just last week, all seven commissioners attended the
National Sentencing Policy Institute in Phoenix, Arizona, where we were
able to interact with many of the federal judges who use the guidelines
every day. Because of this interest in our work, we are about to begin
posting all of our official notices on the J-NET so that those judges
who have an interest will be better informed about our ongoing work. We
are committed to taking a very inclusive approach to our decision
making process.
With that brief introduction, I would like to focus my testimony
today on three areas. First, I would like to report on the work we
accomplished during the last guideline amendment cycle that ended May
1, 2000. Second, I would like to provide an overview of the policy
development work we are planning for the current guideline amendment
cycle, including the beginning of an extensive new research endeavor.
Finally, I would like to address the Commission's critical budget
situation and its need for the full $10.6 million that it requested for
fiscal year 2001.
newly appointed commissioners address critical backlog of legislation
With no voting commissioners for 13 months, from October 1998
through mid November 1999, the Commission could not fulfill its most
important ongoing statutory responsibility under the Sentencing Reform
Act--to update and promulgate amendments to the sentencing guidelines
for federal criminal offenders. Even before the earlier Commission went
out of business, it found it difficult to promulgate amendments in 1997
and 1998 because it operated with only four voting members for much of
that time, requiring a unanimous vote. See 28 U.S.C. Sec. 994(a).
As a result of these chronic commissioner vacancies, important
sentencing policy issues had gone unaddressed over several years. Those
issues arose in a number of contexts. Crime legislation enacted by the
105th Congress specifically directed the Commission to make changes to
the sentencing guidelines for a number of criminal offenses, most
notably in the areas of intellectual property infringement,
telemarketing fraud, fraudulent cloning of wireless telephones,
unlawful identity theft, and criminal sexual offenses against children.
Other recently enacted crime legislation did not contain express
instructions to the Commission but did make changes in the substantive
criminal law, such as in the areas of firearms and methamphetamine
offenses. In addition to these legislative items, a large number of
conflicts among the United States Circuit Courts of Appeal regarding
interpretation of the guidelines accrued during the absence of voting
commissioners. As you are aware, the United States Supreme Court
declared in Braxton v. United States, 500 U.S. 344 (1991), that the
Commission has the initial and primary responsibility to eliminate
conflicts among the circuit courts with respect to guideline
interpretation.
We were confronted with a very abbreviated time frame in which to
begin addressing them because of our mid-November appointments. The
Sentencing Reform Act requires the Commission to submit amendments to
the sentencing guidelines to Congress by May 1 in any given year for a
180 day review period. The May 1 submission to Congress is the
culmination of a careful deliberative process that typically starts in
June or July of the previous year.\1\ So you can see the challenge we
faced by being appointed in mid November, well into that cycle.
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\1\ See generally 18 U.S.C. Sec. 994; 5 U.S.C. Sec. 553; USSC Rules
of Practice and Procedure.
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As I mentioned at the outset, we met immediately after our
appointment and began to address the outstanding policy issues and to
select those which were especially urgent that could be dealt with in
the shortened amendment cycle. Although we recognized that there were
many important sentencing policy issues facing the federal criminal
justice system, we unanimously agreed to focus our efforts during our
initial amendment cycle on the two areas of most pressing concern: (1)
addressing the significant backlog of crime and sentencing related
legislation enacted by the 105th Congress that required implementation
by the Commission and (2) resolving a limited number of circuit
conflicts on the application of the guidelines.
The outreach to our varied constituents, preparation by staff, and
our own careful deliberations served us well for the many decision
making votes we made throughout the amendment cycle. As a result we
made great progress in clearing the backlog of crime legislation. On
May 1, 2000, we submitted to Congress fifteen amendments to the
guidelines that cover a wide range of criminal conduct that has been of
great concern to Congress and other members of the federal judicial
system. These amendments are scheduled to become effective November 1,
2000 (with the exception of the amendments implementing the NET Act and
the Telemarketing Fraud Prevention Act of 1998, which are already in
effect).
Although I cannot go into great detail on each of the amendments
here, I would like to highlight some of the amendments:
Intellectual Property Offenses.--The No Electronic Theft (NET) Act
of 1997, Pub. L. 105-147, expanded the scope of the criminal copyright
infringement provisions to include infringement that occurs through
electronic means, regardless of whether the defendant benefited
financially or commercially from the crime. In addition, Congress
directed the Commission to ensure that the guideline penalties for all
intellectual property offenses generally provide sufficient deterrence
and specifically provide for consideration of the retail value and
quantity of infringed items. In response to the Act, the Commission
promulgated an amendment to USSG Sec. 2B5.3 (Criminal Infringement of
Copyright or Trademark), that modifies the sentencing enhancement in
Sec. 2B5.3(b)(1) to use the retail value of the infringed item, rather
than the retail value of the infringing item, as a means for
approximating pecuniary harm in most cases. Among other things, the
amendment also increased the base offense level and added a sentencing
enhancement of two levels (which represents an approximate 25 percent
increase in sentence), and a minimum offense level of level 12, if the
offense involved the manufacture, importation, or uploading of
infringing items. The Commission believes that these changes will
result in significantly more severe sentences for those offenders
specifically targeted by the Act: offenders who upload infringing
material, such as counterfeit software, to illegal Internet sites,
thereby making them readily available for others to download illegally
at no cost.
Telemarketing Fraud.--In The Telemarketing Fraud Prevention Act of
1998. Pub. L. 106-160, Congress strengthened criminal statutes relating
to fraud against consumers, particularly the elderly. In addition to
providing enhanced penalties for conspiracies to commit fraud offenses
that involve telemarketing, the Act directed the Commission to provide
substantially increased penalties for persons convicted of
telemarketing offenses. The previous Commission promulgated temporary
amendments to the guidelines that provide for three separate sentencing
enhancements for fraud offenses that involve mass marketing, a large
number of vulnerable victims, and the use of sophisticated means to
carry out the offense. The Commission repromulgated this emergency
amendment as permanent so that it would not expire by November 2000.
Identity Theft.--The Identity Theft and Assumption Deterrence Act
of 1998, Pub. L. 105-318, criminalized the use or transfer of an
individual's social security number, date of birth, credit cards, and
any other identification means (including unique biometric data),
without that individual's authorization to do so, in order to commit
any federal or state felony. In addition, the Congress directed the
Commission to review and, if appropriate, amend the guidelines to
provide an appropriate penalty for each offense under 18 U.S.C.
Sec. 1028, relating to fraud in connection with identification means.
In response to the Act, the Commission promulgated an amendment to the
fraud guideline, USSG Sec. 2F1.1 (Fraud and Deceit), that, among other
things, provides a sentencing enhancement and minimum offense level of
level 12 for offenses involving (1) the possession or use of equipment
that is used to manufacture access devises, (2) the production of, or
trafficking in, unauthorized and counterfeit access devises, such as
stolen credit cards, or (3) affirmative identity theft (i.e.,
unlawfully producing from any means of identification any other means
of identification). The Commission believes that this amendment will
address Congress's primary concern that penalties be significantly
increased for offenses involving the illegal use of an individual
victim's means of identification, even if no economic loss accrues to a
financial or credit institution.
Telephone Cloning.--The same amendment that implemented the
Identity Theft Act also addressed the Wireless Telephone Protection Act
of 1998, Pub. L. 105-172. That Act, among other things, eliminated the
intent to defraud element for defendants who knowingly use, produce, or
traffic in certain equipment used to clone cellular telephones, and it
clarified the statutory penalty provisions for cellular telephone
cloning offenses. Congress also directed the Commission to review and,
if appropriate, amend the guidelines to provide an appropriate penalty
for offenses involving the fraudulent cloning of wireless telephones.
In response to the Act, the Commission added sentencing enhancements to
the fraud guideline that recognized that offenders who manufacture or
distribute are more culpable than offenders who only possess them.
Sexual Offenses Against Children.--The Protection of Children from
Sexual Predators Act of 1998, Pub. L. 105-314, created two new crimes:
(1) the transmittal of information identifying minors for criminal
sexual purposes; and (2) the distribution of obscene materials to
minors. The Act also provided increased statutory penalties for
existing crimes that address sexual activity with minors and child
pornography and expressed Congress's zero tolerance for the sexual
abuse and exploitation of children. In addition, the Act contained six
directives to the Commission, many of which directly respond to
recommendations the Commission made a few years ago in a report to
Congress on sexual abuse and exploitation. In response, the Commission
has undertaken a comprehensive reassessment of the guidelines
pertaining to sexual offenses involving minors and passed a multi-part
amendment to the guidelines for sexual abuse, child pornography, and
obscenity distribution offenses that implements many of the directives
in the Act. The amendment provides sentencing enhancements in six
guidelines if the offense involved (1) the use of a computer or other
Internet-access devise and/or (2) the misrepresentation of a
participant's identity. These separate enhancements--each representing
about a 25 percent increase in guideline punishment levels--reflect the
concern of Congress and the Commission over the increased access to
children provided by computers and the Internet, and the anonymous
nature of on-line relationships, which allows some offenders to
misrepresent their identities to the victim. In addition to adding
these enhancements to the statutory rape guideline, the amendment also
increased by three levels the base offense level in USSG Sec. 2A3.2
(Criminal Sexual Abuse of a Minor (Statutory Rape)) if the offense
involved a violation of chapter 117 of title 18, United States Code
(relating to transportation of minors for illegal sexual activity)
(this latter change represents about a 40 percent increase in guideline
punishment level).
Methamphetamine Trafficking.--The Methamphetamine Trafficking
Penalty Enhancement Act of 1998, Pub. L. 105-277, increased the
penalties for manufacturing, importing, or trafficking in
methamphetamine by reducing by one half the quantity of pure substance
and methamphetamine mixture required to trigger the separate five and
ten year mandatory minimum sentences in the drug statutes. Although the
Act contains no directives to the Commission, the Commission
promulgated an amendment that conforms methamphetamine (actual)
penalties to the more stringent mandatory minimums established by the
Act. In taking this action, the Commission followed the approach set
forth in the original guidelines for the other principal controlled
substances for which mandatory minimum penalties have been established
by Congress. (No change was made in the guideline penalties for
methamphetamine mixture offenses because those penalties already
corresponded to the mandatory minimum penalties as amended by the Act.)
Firearms Offenses.--Congress addressed certain serious firearms
offenses in Public Law 105-386, which amended 18 U.S.C. Sec. 924(c) to
create a tiered system of sentencing enhancement ranges. Each range has
a mandatory minimum and presumed life maximum for cases in which a
firearm is involved in a crime of violence or drug trafficking offense.
The pertinent minimum sentence in that tiered system is dependent on
whether the firearm was possessed, brandished, or discharged. The Act
also changed the mandatory minimum for second or subsequent convictions
under section 924(c) from 20 to 25 years, and it broadly defined the
term ``brandish.'' Although the Act did not contain any directives to
the Commission, the legislation required the Commission to promulgate
amendments to the guidelines to incorporate the tiered statutory
sentencing scheme into the guideline pertaining to section 924(c).
The Commission also resolved five circuit court conflicts by
promulgating amendments to the guidelines that (i) clarify that the
enhanced penalties in USSG Sec. 2D1.2 (Drug Offenses Occurring Near
Protected Locations or Involving Underage or Pregnant Individuals)
apply only when the defendant is convicted of an offense referenced in
that guideline; (ii) clarify that the enhancement in the fraud
guideline for ``violation of a judicial or administrative order,
injunction, decree, or process'' applies to false statements made
during a bankruptcy proceeding; (iii) prohibit post-sentencing
rehabilitation as a basis for downward departure at any resentencing;
(iv) clarify that a court can base an upward departure on conduct that
was dismissed or uncharged as part of a plea agreement, and (v) define
the parameters of conduct that may warrant a downward departure in an
extraordinary case based on aberrant behavior, as well as delineating
types of cases for which a downward departure based on aberrant
behavior is prohibited. In addition, the amendments in response to the
Sexual Predators Act and the firearms legislation described above
addressed two other circuit conflicts; thus, in total we resolved seven
such issues.
As you can see by the shear volume of amendments, we had a very
busy and productive first amendment cycle. But what you cannot see from
a written list is how well this group of commissioners is working
together. Each commissioner approached the guidelines discussions in a
manner that was open minded and respectful of differing views. The
commissioners listened to each other and to all interested parties.
They were always well prepared and committed to improving the
guidelines. Indeed, I am pleased to report that every vote we have
taken to date--whether it be a vote to publish a proposal or to
actually promulgate an amendment--has been unanimous except in two
instances when it was six to one. Thus, Congress can be assured that
the Commission is speaking with a unified voice with the amendments we
submitted for your review on May 1.
PRIORITIES FOR THE CURRENT AMENDMENT CYCLE
Shortly after our congressional submission, the commissioners held
a retreat so that we could reflect on the work we had just completed.
We reviewed both our work product as well as the processes we used to
reach our decisions and we were overall quite satisfied. We also took
that opportunity to start planning our priorities for the coming
amendment cycle and to begin thinking about the longer term.
After publishing in the Federal Register a tentative list of policy
priorities and receiving public comment from a variety of constituents,
once again we have set a very ambitious policy agenda.
Economic Crime Guidelines.--This year, the Commission hopes to
complete a comprehensive reassessment of the economic crimes
guidelines. Economic offenses account for more than a quarter of all
the cases sentenced in the United States federal district courts. The
Commission has received comment from the Federal Judiciary, the
Department of Justice testimony and survey results that indicated that
the sentences for these offenses were inadequate to punish
appropriately defendants in cases in which the monetary loss was
substantial. After approximately one year of data collection, analyses,
public comment, and public hearings, a comprehensive ``economic crimes
package'' was developed to revise the loss tables for fraud, theft, and
tax offenses in order to impose higher sentences for offenses involving
moderate and large monetary losses. Related amendments would
consolidate the theft, fraud, and property destruction guidelines and
clarify the definition of loss for selected economic crimes. Working in
conjunction with the Criminal Law Committee of the Judicial Conference,
a field test of the proposed loss definition by surveying federal
judges and probation officers and applying the new definition to actual
cases was conducted. Among the findings of the field test, more than 80
percent of the judges stated that the proposed loss definition produced
results that were more appropriate than the current definition.
The Commission has planned a Symposium on economic crimes,
``Federal Sentencing Policy for Economic Crimes and New Technology
Offenses'' for October 12-13, 2000. The Criminal Law Committee, the
American Bar Association White Collar Crime Committee, and the National
White Collar Crime Center have agreed to be co-sponsors. The symposium
is designed to (1) discuss current sentencing issues pertaining to
economic crimes; (2) identify how new technologies are being used to
further ``traditional'' criminal activity, e.g., fraud, and the novel
forms for criminal activity new technologies have created, e.g., denial
of service attacks, cyberterrorism, and the misuse of data encryption;
and (3) identify how new technologies impact law enforcement, and the
sentencing policy implications of these offenses. With the advent of
the Internet and increasing prevalence of computers in our daily lives,
the Commission recognizes that technology is changing how traditional
crimes are committed, making new types of crimes possible, and
generally lowering barriers to criminal activity. All of this creates
unique challenges to law enforcement and sentencing policy makers.
The symposium will be held at the George Mason University School of
Law, with approximately 175 invited guests from the federal legal
community (federal judges, prosecutors, defense attorneys, and
probation officers), academia, and technology companies such as AOL,
Microsoft, and Yahoo. Deputy Attorney General Eric Holder and FBI
Director Louis Freeh are scheduled to speak. Of course, we hope that
you or a member of your staff can attend the symposium.
Money Laundering.--This year the Commission also expects to address
money laundering offenses. As you know, in the past a prior Commission
passed an amendment to the money laundering guideline in 1995 that was
subsequently disapproved by Congress. We expect to start anew, and are
working closely with the Department of Justice and others on a new
approach. We hope to develop a guideline structure that ties money
laundering penalties more closely to the underlying offense conduct
which generated the laundered proceeds. Penalties for money laundering
offenses involving proceeds generated by drug trafficking, crimes of
violence, terrorism, and sexual offenses might also be more severe than
penalties for other money laundering offenses. I assure you that we are
taking a careful and thoughtful approach to this.
Counterfeiting.--The Commission also is working on another economic
crime this year--counterfeiting bearer obligations of the United
States. The Commission has received comment from the Department of
Treasury and Secret Service that the current guideline, USSG Sec. 2B5.1
(Counterfeiting), does not sufficiently deter or punish counterfeiting
offenses in light of recent technologies changes. Historically,
counterfeiting was accomplished using offset printing, which requires
expensive equipment, a large indoor space to house the equipment, and
persons with printing expertise. Now, increased availability and
affordability of personal computers, ink jet printers, and other
digital technology make it possible for great numbers of people to
engage in counterfeiting. While counterfeiters previously made large
``runs'' of counterfeit currency and typically maintained a sizeable
``inventory,'' they now typically only print counterfeit currency on an
``as needed'' basis.
The Department of Treasury proposed specific modifications to the
guidelines to address this changing technology. Commission staff also
has recently completed a report on the impact of technology on
counterfeiting sentences. We are in the process of reviewing Treasury's
proposals as well as our staff's report and expect that we may be able
to promulgate amendments to the guideline this amendment cycle.
Sexual Offenses Against Children.--Because of the limited time
available between our appointments on November 15, 1999, and the
statutorily required May 1 date for submitting guideline amendments to
Congress, we were unable to complete our response to the Sexual
Predators Act directive requiring that the guidelines ``provide for an
appropriate enhancement in any case in which the defendant engaged in a
pattern of activity of sexual abuse and exploitation of a minor.'' The
Commission is aware that a variety of legislation is pending in both
the Senate and the House that, if enacted, would significantly impact
our work in this area. This is an area of critical importance and a
complicated one. You can be assured that the Commission shares
Congress's concern about these particularly heinous offenses, and we
fully expect to implement this remaining directive, as well as complete
a proportionality review of the relevant guidelines, during this
amendment cycle.
Firearms.--During the last amendment cycle the Commission made a
number of changes to the guidelines pertaining to firearms offenses in
order to conform with recently enacted legislation. One item that we
did not have time to address, however, was whether the current
sentencing enhancement for offenses involving multiple firearms should
be increased. The Bureau of Alcohol, Tobacco, and Firearms has
requested that the Commission consider expanding the enhancement for
multiple firearms in USSG Sec. 2K2.1 (Unlawful Receipt, Possession, or
Transportation of Firearms) to differentiate among offenses with more
than 50 firearms. The Commission is considering this proposal, as well
as other possible modifications to the firearms guidelines.
Nuclear, Biological, and Chemical Weapons.--Within the past few
years there has been a growing interest by Congress, and the public
generally, about the threat posed by criminal behavior that involves
nuclear, biological and chemical weapons, materials, and technologies.
Some congressional action in this area specifically relates to
sentencing policy. For example, in section 1423 of the National Defense
Authorization Act of Fiscal Year 1997, Congress expressed the sense
that the sentencing guidelines were inadequate for certain offenses
involving the importation and exportation of such material. Congress
also recently created several new offenses in this area. Section 511 of
the Antiterrorism and Effective Death Penalty Act of 1996 incorporated
attempt and conspiracy into 18 U.S.C. Sec. 175, which prohibits the
production, stockpiling, transferring, acquiring, retaining or
possession of biological material. Section 201 of the Chemical Weapons
Convention Implementation Act of 1998 also created a new offense at 18
U.S.C. Sec. 229, which makes it unlawful for a person unknowingly to
develop, produce, or otherwise acquire, transfer, receive, stockpile,
retain, own, possess, use, or threaten to use any chemical weapon, to
assist or induce any person to do so, or to conspire to do so. In light
of these legislative developments, the Commission has formed a policy
development team to examine the relevant guidelines and hopes to make
any necessary modifications to the guidelines this amendment cycle.
Criminal History.--The Commission has identified a number of
circuit conflicts relating to Chapter Four of the guidelines, which the
court uses to determine an offender's criminal history category. This
suggests that certain provisions relating to criminal history are
unclear and require clarification. In addition, we have received public
comment requesting that the Commission examine the criminal history
guidelines. As a result, the Commission has formed a policy development
team to begin a review of the guidelines relating to criminal history.
Although we do not expect to complete this work this amendment cycle,
we hope to make significant progress in developing amendments that
would resolve these circuit conflicts.
Safety Valve.--The area of mandatory minimum sentences,
particularly for drug offenses, has received a great deal of attention
of late. For instance, in May 2000, the House Government Reform
Subcommittee on Criminal Justice, Drug Policy and Human Resources asked
me to testify about drug sentencing trends, mandatory minimum
penalties, and how these statutory penalties interact with the federal
sentencing guidelines. Because of short notice and a scheduling
conflict, I asked Vice Chair John Steer to testify on my behalf. He did
so, both orally and in writing. The Criminal Law Committee of the
Judicial Conference suggested that the Commission update its August
1991 report to Congress, Mandatory Minimum Penalties in the Federal
Criminal Justice System, and a variety of other constituents, including
members of Congress, have suggested that the Commission further study
these matters.
During this amendment cycle the Commission plans to begin analyzing
the operation of the ``safety valve'' guidelines, USSG Sec. 5C1.2
(Limitation on Applicability of Statutory Minimum Sentences in Certain
Cases). We have been told a recidivism study conducted by the Bureau of
Prisons will soon be available which could help inform our
deliberations. We hope to work closely with Congress, the Department of
Justice, the Bureau of Prisons, and others as we explore whether any
adjustments to the safety valve would be advisable.
Circuit Conflicts.--As I mentioned earlier, the Commission resolved
five circuit conflicts during the last amendment cycle. Commission
staff has identified approximately 40 remaining circuit conflicts. Such
conflicts threaten the uniform application of the guidelines throughout
the nation, and elimination of unwarranted sentencing disparity is a
cornerstone of the Sentencing Reform Act. Although the Commission
cannot reasonably expect to resolve all of these conflicts in one year,
we have identified eleven circuit conflicts which we will address
during this cycle.
New Legislation.--The Commission also has been following closely
the legislative developments of the 106th Congress and is prepared to
implement any crime legislation as appropriate. For instance, Public
Law No. 106-172 provided for the emergency scheduling of Gamma
Hydroxybutyric Acid (GHB) as a Schedule I or Schedule II drug, and the
addition of Gamma Butyrolactone as a List I chemical. The Commission
also is mindful of and shares concerns over the increased use of
ecstasy and other so called ``club drugs.'' The Commission has formed a
policy development team to study whether the guideline penalties for
these particular drugs are sufficiently severe and, if not, to develop
appropriate amendments to the guidelines.
NEW RESEARCH INITIATIVE
The Sentencing Reform Act requires the Commission to do much more
than promulgate amendments to the guidelines. It requires the
Commission to serve as an expert agency on sentencing policy. The
Commission acts as a clearinghouse and information center for
information on federal sentencing practices and is statutorily
responsible for monitoring how well sentences imposed under the
guidelines are achieving the purposes of sentencing as set forth under
18 U.S.C. Sec. 3553(a). See 28 U.S.C. 995(a)(12), (a)(15).
November 2002 will mark the 15 year anniversary of the guidelines.
Since their implementation in November 1987, the guidelines have been
used to sentence over 400,000 defendants. Soon we will experience the
15 year anniversary and 500,000 defendants sentenced under the
guidelines, and the Commission believes it prudent to step back and
examine the operation of the guidelines over these years. We are
undertaking an analysis that we hope will culminate with a published
report sometime around November 2002. Questions that we hope to address
include how well the guidelines are accomplishing the statutory
purposes of sentencing, including crime control, as set forth at 18
U.S.C. Sec. 3553(a)(2).
The Commission believes that the federal sentencing guidelines have
advanced the goals of Congress as expressed in the Sentencing Reform
Act by providing certain, fair, and markedly more uniform punishment
for similar offenders. This has strengthened the ability of the
criminal justice system to combat crime. We hope that our empirical
research will confirm our belief.
COMMISSION FACES DIRE BUDGET CONSTRAINTS
I discussed at the outset that the new Commission faced a
substantial backlog when we arrived, and we have experienced renewed
interest in many areas of the guidelines and in their impact.
Unfortunately, we have been forced to tackle an unusually heavy
workload at a time when the staff has been severely diminished because
of the severe reductions in the Commission budget while there were no
voting commissioners. As a result, we are busier than ever with far
fewer resources, and we cannot accomplish what we have before us
without receiving our full budget request to Congress.
The Commission cannot meet all of its statutory obligations in a
timely and thorough manner unless it receives the full $10.6 million
that it requested for fiscal year 2001. In addition to the
extraordinary heavy workload this year in terms of both policy
development and research that I have outlined, the Commission must
continue to perform its many other important statutory obligations.
Because I am sure you are well aware of the numerous requirements
imposed on the Commission by the Sentencing Reform Act, I will
highlight just a few of them.
In order to comply with the statutory requirement to collect and
disseminate information concerning sentences, in fiscal year 1999, the
Commission received court documents for more than 55,000 cases
sentenced between October 1, 1998, and September 30, 1999. For each
case, the Commission extracts and enters into its comprehensive
database more than 260 pieces of information, including case
identifiers, sentence imposed, demographic information, statutory
information, the complete range of court guideline application
decisions, and departure information. In 1999, as required by statute,
Commission staff provided training on the sentencing guidelines to more
than 2,200 individuals at 47 training programs across the country,
including programs sponsored by the Commission, the Federal Justice
Center, the Department of Justice, the American Bar Association, and
other criminal justice agencies.
The $10.6 million requested by the Commission for fiscal year 2001
is the bare minimum necessary to restore staffing levels to that of
fiscal year 1998, the last time the agency had a fully functional
Commission in place. We appreciate the efforts that many members of
this Subcommittee, and of the Full Judiciary Committee, have made on
our behalf to increase funding for the Commission. However, your
continued assistance is urgently needed. The $9.9 million mark approved
by the Senate Appropriations Committee is not sufficient to get the
Commission fully up and running.
CONCLUSION
In closing, I assure you that this Commission is committed to
working thoughtfully to accomplish as much as we reasonably can, not
only during this amendment cycle but throughout our terms of
appointment. I think we demonstrated our commitment last amendment
cycle by working very hard in a very short time--less than six months--
to clear the significant backlog of crime and sentencing legislation
that awaited our implementation. Every week brings new issues that
require our careful attention. For example just days ago at the
National Sentencing Institute, several federal judges raised serious
questions about the impact of the recent Supreme Court decision in
Apprendi v. United States, 120 S.Ct. 2348 (2000), on the
constitutionality of current practices and certain mandatory minimums
and guidelines for firearms and drug trafficking offenses. This is just
one example of how new matters regularly occur to create unexpected
work areas.
We welcome this opportunity to report to the Subcommittee and value
highly a good working relationship with Congress and others interested
in federal sentencing. We thank the Subcommittee, and in particular
Chairman Thurmond, for providing us the opportunity to share with you
our accomplishments from the last amendment cycle and our goals for the
current cycle.
Senator Thurmond. Mr. Steer, do you have any opening
comments?
STATEMENT OF JOHN R. STEER
Mr. Steer. Yes, Senator, I do have some brief opening
comments. I want to join with Judge Murphy, our distinguished
chair, in thanking you for having this oversight hearing and to
express on behalf of all commissioners our profound respect and
gratitude for the leadership that you have shown over the years
on sentencing and crime control issues generally.
Senator Sessions, we appreciate your support of the
Sentencing Commission and its work, and your interest in these
issues as well.
The focus of my remarks, as Judge Murphy indicated, is to
present some data from the Sentencing Commission's research on
trends in departures, and to offer some observations which are
my personal observations at this point on some of the factors
that may be underlying these trends. Before I get into the
data, I just would like to briefly review for the committee the
basic legal structure that governs departures from the
Sentencing Commission.
There is, first of all, the statute that this committee
framed and Congress wrote as part of the Sentencing Reform Act
and it basically says that a court must sentence within the
Sentencing Commission unless there exists an aggravating or a
mitigating circumstance of a kind or to a degree not adequately
considered by the Commission in formulating the Guidelines that
should result in a different sentence.
In addition to that basic law, the Commission has added its
own pronouncements with regard to departure circumstances
throughout the guidelines manual in the form of policy
statements and commentary. And then, of course, over the years
the courts have added a vast and growing gloss, you might say,
of departure decisions that provide the law in the respective
circuits with respect to these issues.
The Supreme Court itself has spoken directly to departure
issues on two occasions, first in 1992 in the Williams case,
which among other things basically stands for the proposition
that courts must respect and generally follow Commission policy
statements regarding circumstances that might warrant, or not,
sentencing outside the guideline range.
The second case, and probably no doubt the more important
one, the Koon case in 1996, generally established a more
deferential abuse of discretion review overall of departure
decisions by the lower courts when those decisions are
appealed.
With that background, I would like to turn to the data. The
first exhibit that we have here on the left basically just
provides a change in the picture of cases, the kinds of cases
that have been sentenced under the Guidelines over an 11-year
period starting in the first full year of guideline application
after the Guidelines' constitutionality was upheld in Mistretta
in 1989, through fiscal year 1999, the last year for which we
have complete data. Basically, the story of these pie charts is
that over the years, relatively speaking, we have had somewhat
less drug cases and more immigration and more fraud cases.
The second chart on the right here shows the picture today,
or in fiscal year 1999, of the way that the sentences fall out
with respect to sentences within the range, upward and downward
departures. As the data indicate, in fiscal year 1999 about 65
percent of the cases were sentenced within the guideline range
found by the court. Less than 1 percent were upward departures.
About 19 percent were sentenced below the guideline range based
on the defendant's cooperation and the motion of the Government
finding substantial assistance by the defendant. And then this
latter category, 15.8 percent, were sentenced below the
guideline range for other departure reasons found by the court.
I mentioned the Koon case. There has been a great deal of
comment about what has been the effect of Koon on the rate of
downward departures. This is one way of looking at the data.
And basically in this chart we have, in the blue, going across
the chart, the changing monthly rate of downward departures
before and after the Koon case. The Koon case came down in June
1996, and basically that dividing line is shown here.
As you can see from this data, prior to the Koon decision
downward departures were already on an increasing track and
were growing at a rate of about 3 per month, if you look at the
regression line track that our excellent statistician, Dr.
Maxfield, has prepared here. After Koon, the rate of increase
has changed dramatically and increased to about 9.5 per month.
This chart also indicates that the rate of growth in overall
cases has not been as fast as the rate of growth in downward
departures from the Sentencing Guidelines.
Mr. Chairman, as you mentioned in your statement, the
trends in downward departures go across offense types. As you
can see from this chart, there has been a growth in downward
departure rates, an increase in downward departure rates in all
of the major offense types--robbery, firearms, drug
trafficking, fraud, and especially in immigration, which
reflects the pressures that occur in the border States with the
greatly increased volume of cases that have occurred there
recently.
Just to follow up on the immigration issues briefly, we
have two charts here sequentially that will show a little bit
more information about the growth of downward departures and
the caseload growth in the immigration area.
Immigration cases are basically of two types. Alien
smuggling cases are shown in this first chart. The blue line
plotted across here shows the increase in case volume. And as
you can see, from 1992, the case volume sentenced increased
from about 580 cases almost triple to about 1,500 cases
sentenced for alien smuggling. The green bars indicate a
declining rate of within-guideline sentencing, while the red
bars show the increased rate of downward departures for reasons
other than substantial assistance.
Senator Sessions. Now, that is smuggling. That is not just
an alien individual who crosses the border illegally. Those are
smugglers who bring others with them?
Mr. Steer. That is correct, Senator Sessions.
This next chart deals with the other major category, the
unlawful entry cases. Again, the volume of cases of this type
has increased even more dramatically, about an eight-fold
increase over that same time period.
The combination of the green bars and the green-checked
bars shows the within-guideline sentencing rate, and again
there has been a decline there. The red bars show an increase
in the downward departure rate in this type of cases.
The green-checked area is a bit of a complicated picture
here, but what we are trying to present here is to show that in
these types of cases, in many instances the defendants are
sentenced below what the Guidelines would have called for, but
their sentence is capped by the statutory maximum.
This is a result of a special procedure that has been
initiated in a number of districts to limit the exposure of the
defendant through a charge arrangement that basically caps the
sentence. The current arrangement is at 30 months, and without
that charge procedure the Guidelines would in these cases
typically call for a much higher sentence.
Senator Sessions. Well, that would be in violation of the
traditional Department of Justice rule that the plea would be
to the most serious offense, would it not?
Mr. Steer. Well, I think that the Department will be
prepared to comment on that. I think that what it reflects is
arrangements that are made in districts because of the
tremendous case volume.
This next chart presents very quickly that there are
varying rates of departure among the circuit courts of appeals.
Generally speaking, the ninth circuit has the highest downward
departure rate for other than substantial assistance. The third
circuit has the highest rate of substantial assistance downward
departures.
Focusing specifically on the caseload growth in the border
courts and the border districts and some of the other
districts, these percentages indicate some of the States where
you have had the highest percentage growth in cases sentenced
under the Guidelines. You can see all the border courts are
represented; also, others where there has been a tremendous
increase either in immigration cases or drug cases. In many
cases, the drug cases are methamphetamine.
Here is a picture of the changes in departure rates over
time, comparing the national data to the five border court
districts. And you will see the effects of the heavy caseload
volume there and the arrangements that have been made with
respect to handling that volume, Arizona with a very high
downward departure rate, and Southern California also in that
area. Texas-South and Texas-West at least nominally appear to
be similar to the national picture.
Now, in my written statement I do make some observations
about possible contributing factors. I will just briefly list
them here, and perhaps either I or the Department of Justice
can comment on them further in response to any questions you
have.
A number of those factors might be the Commission policies
themselves over the years and things that the Commission has
done or has not done; of course, the increase in volume in the
border districts; policies and practices of the prosecutors on
the front line; the appellate review practices of U.S.
Attorneys and the Department of Justice; the effect of the Koon
decision; and perhaps any number of other factors.
Let me just say in conclusion that as I look at these data
today, my personal observation is that this should not set off
any alarm bells. The guideline system is still fundamentally
sound, in my view, and is working. But what it indicates is it
raises some questions and some areas of concern that the
Commission and the Department of Justice need to explore
together. It indicates areas where we need to work together
over the coming months to address these issues of possible
concern.
Thank you, Mr. Chairman.
[The prepared statement of Mr. Steer follows:]
Prepared Statement of John R. Steer
Mr. Chairman and Distinguished Members of the Committee, I
appreciate this opportunity to join my esteemed Chair of the U.S.
Sentencing Commission, Judge Diana Murphy, in apprising the
Subcommittee of the recent actions and plans of the Commission, and in
sharing some observations about the operation of the sentencing
guidelines within the federal criminal justice system. I would like, at
the outset, to note for the record that the views I am about to express
are my own and should not necessarily be attributed to my fellow
Commissioners. While I have no doubt that the Commission as a whole
will stand behind its data and excellent research staff, whose
assistance in preparing this testimony I gratefully acknowledge,
individual Commissioner conclusions from the data may well differ.
Mr. Chairman, I commend you and the members of the Subcommittee for
having this oversight hearing. I believe this is only the third such
hearing by the Senate Judiciary Committee since the initial set of
guidelines were submitted for congressional review in April 1987. Yet,
although formal oversight hearings of the Commission and the guideline
system by this Committee have been infrequent, over the years we have
benefitted from, and are deeply appreciative of, a close working
relationship with you, Chairman Thurmond, and with other members of the
Committee on both sides of the political aisle. The legislation that
authorized the Sentencing Commission and the ensuing system of federal
sentencing guidelines--the Sentencing Reform Act of 1984 (``SRA'')--
stems directly and primarily from the bipartisan, collaborative efforts
of this Committee. That legislation was enacted under the leadership of
Senator Thurmond during his tenure as Judiciary Committee Chair and
enjoyed the strong co-sponsorship of Senator Kennedy, who had
introduced the first sentencing reform bill some years before in 1975,
Senator Hatch, Senator Biden, and others.
The initial set of sentencing guidelines was delivered to Congress
on schedule in April 1987 and took effect on November 1, 1987. After a
turbulent period of constitutional challenges, the U.S. Supreme Court
upheld the legality of the guidelines and the Commission in January
1989 Mistretta v. United States, 488 U.S. 361. The guidelines have been
applied nationwide since that time; accordingly, by the end of this
fiscal year, more than 500,000 defendants will have been sentenced
under them.
Like my colleague, Judge Murphy, my experience as a member of the
Sentencing Commission has been relatively brief, beginning with our
appointments in November of last year. However, the views and
perspectives on guideline operation that I share with you today are
also grounded in my more extended, prior experience as the Commission's
chief legal officer, dating almost to our agency's inception. Much has
happened over that period of time, and it has been my privilege to have
been a part of the guidelines' historical development and evolution.
Today, I hold steadfast in my belief that the grand sentencing
experiment Congress and the first Sentencing Commissioners crafted was
and remains a fundamentally sound concept. It is a system that has
helped to bring about appropriately tough and more uniform punishment,
thereby contributing positively and substantially to the fight against
crime.
Of course, as with any dramatic change, it has taken time for the
various players in the federal criminal justice system to adjust to
this new way of doing business, but on the whole, judges, probation
officers, and attorneys have made a successful transition to guideline
sentencing. This said, I believe the information that we are prepared
to share with the Committee this afternoon shows that the guideline
system demands continued, vigilant attention by the Commission, the
Department of Justice, and the other institutional contributors within
the federal criminal justice arena, in order for it to fully achieve
the goals Congress intended.
I understand that the Committee is particularly interested today in
reviewing the degree to which the guidelines are being followed, or
expressed a bit differently, whether the frequency of ``departures''
from the guideline range should be of concern. This issue, of course,
relates directly to the question of whether the guidelines are
effectively achieving one of the basic statutory goals Congress
envisioned--``avoiding unwarranted disparities among defendants with
similar records who have been found guilty of similar criminal conduct
* * *''. 28 U.S.C. Sec. 991(b)(1)(B). See also 28 U.S.C.
Sec. 994(f).\1\ As Judge Murphy indicated in her testimony, the
Commission is in the early stages of a major research endeavor that we
hope will comprehensively assess the effectiveness of the guidelines in
meeting each of the statutory objectives enumerated by Congress. The
information that I present today might appropriately be viewed as a
preliminary and partial response to some of the research questions that
we hope to examine more fully in this comprehensive assessment. Our
data analysis and research efforts at the Commission are aided by a
wealth of sentencing data sent to us by the courts on each case
sentenced under the guidelines. This rich database of sentencing
information is an invaluable resource, both for the Commission and the
Congress, in considering proposed changes in sentencing policy, be they
changes in the guidelines or in statutory criminal penalties.
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\1\ Granted, whether the guidelines are adequately addressing
unwarranted disparity is a broader and more complicated matter than the
more limited issue of departure frequency. However, I believe most
would agree that an excessive or geographically very uneven rate of
guideline departures is likely to be at odds with the overarching goal
of alleviating unwarranted sentencing disparity.
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In my forthcoming data presentation, I will be discussing
information from a series of exhibits attached to my testimony. I will
begin by briefly discussing two pie-chart ``snapshots'' that, taken
together, show changes in the types of offenses sentenced under the
guidelines between FY 1989, the first year of nationwide application,
and FY 1999, the last year for which we have complete statistical data.
As the data in Exhibit 1 show, the federal caseload sentenced under the
guidelines has grown dramatically,\2\ and there has been a relative
shift among offense types over the course of this eleven-year period.
Over these years, the caseload has changed toward proportionally fewer
drug cases and proportionally more immigration cases. This reflects,
among other developments, the increased law enforcement efforts in the
southwest border districts aimed at illegal reentry and alien smuggling
offenses.
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\2\ The guidelines apply to crimes committed on or after November
1, 1987. In FY 1989, more than half of federal district court
sentencings were guideline cases. The total number of guideline and
pre-guideline cases sentenced in that year was about 38,000.
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The next series of exhibits relate directly to a principal topic of
today's hearing--whether the guidelines are being followed. I would
like to introduce this empirical material by briefly reviewing the
basic legal framework for application of the guidelines and the
Commission's posture toward sentencing outside the prescribed guideline
range. First, it is important to note that Congress expressly provided
that courts must sentence within the applicable guideline range, with
an important caveat. As stated in 18 U.S.C. Sec. 3553(b), the important
caveat is that a court may impose a reasonable sentence above or below
the applicable range (commonly know as a departure) upon finding ``an
aggravating or mitigating circumstance of a kind, or to a degree, not
adequately considered in formulating the guidelines that should result
in a sentence different from that described.'' The court must give
specific reason(s) justifying any departure sentence. 19 U.S.C.
Sec. 3553(c). In formulating and amending the guidelines, the
Commission has provided policy statement and commentary guidance
regarding its basic approach to departures (see USSG Ch. 1, Pt. A4(b),
Ch. 5, Pt. H, Intro Comment., Sec. 5K2.0), and also has given guidance
regarding factors that may or may not be appropriate bases for
departure in a particular case (see, e.g., USSG Sec. Sec. 5H1.1-5H1.12;
5K2.1-5K2.18; Sec. 2F1.1, comment, n.11 (the latter suggesting
circumstances that may warrant departure in a fraud case)).
Over the years, the courts have added a vast and growing case law
``gloss'' to these basic statutory and guideline pronouncements on
departures. The U.S. Supreme Court has directly addressed departure
issues on two occasions, first in Williams v. United States, U.S.
193(1992) and, more recently, in Koon v. United States, 518 U.S.
81(1996). In Williams, the Court established an important proposition
that the courts are bound by Sentencing Commission policy statements
forbidding departures on specific grounds, and the failure to follow
such policy guidance may constitute an ``incorrect application of the
guidelines,'' reversible under the sentence appellate review statute,
18 U.S.C. Sec. 3742.
The Koon case has come to be viewed as a landmark decision in
guideline departure jurisprudence. In that case, the Court held that
lower court departure decisions must be reviewed by the courts of
appeal under a generally more deferential, ``abuse of discretion''
standard, out of respect for district court judges' ``institutional
advantage'' in assessing whether a particular case is exceptional and,
therefore, warrants a departure sentence. 518 U.S. at 90, 97. The Court
went on to classify potential departure factors into four categories--
forbidden, encouraged, discouraged, or unmentioned--according to how
the factors are characterized and treated in the Guidelines Manual.
Under the Koon terminology, a factor may be ``forbidden'' as a
basis for departure, in which case the court may not depart for that
reason. A factor may be an ``encouraged'' basis for departure, in which
case departure would be authorized unless the factor was adequately
taken into account in the guideline calculus. A factor may be
``discouraged'' as a basis for departure, in which case the court may
depart only if the factor was present in an exceptional form or degree,
thereby making the case sufficiently atypical to warrant departure.
Finally, a factor may be ``unmentioned'' in the guidelines, in which
case the court, bearing in mind the Commission's expectation that
departures on unmentioned grounds will be ``highly infrequent,'' must
consider the ``structure and theory'' of the guidelines to decide
whether the factor was sufficient to take the case ``out of the
Guideline's heartland'' and warrant departure. Id. at 95, 96.
As these legal sources show, departures are an integral part of
sentencing under the guideline system. A sentence outside the guideline
range may be the legally appropriate sentence in situations where the
guidelines do not adequately account for one or more important
aggravating or mitigating factors that justify a different sentence.
Clearly, then, as we examine today the question of whether courts and
prosecutors are adequately following the guidelines, we should begin by
acknowledging that ``departure'' is not inherently a ``dirty word.''
Nor should there by any hostility to departures per se. Like so many
policy issues, the question is one of degree.
In its development of the Sentencing Reform Act, Congress did not
express concrete expectations about an appropriate rate of departures.
However, the Senate Judiciary Committee Report did state that ``the
bill seeks to assure that most cases will result in sentences within
the guideline range and that sentences outside the guidelines will be
imposed only in appropriate cases'' (emphasis added). S. Rep. No. 225,
98th Cong., 1st Sess. 52 (1983).\3\
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\3\ In a footnote, the Report went on to ``anticipate'' that judges
would depart from the sentencing guidelines ``at about the same rate or
possibly at a somewhat lower rate'' than the U.S. Parole Commission
customarily set parole release dates outside its guidelines, which then
was about 20% (12% above and 8% below). S. Rep. No. 225, supra, at 52,
n. 71. A direct comparison between the two systems is difficult,
however, for several reasons, including the advent of substantial
assistance as a formally recognized, statutory departure under the
sentencing guideline system (whereas the parole guidelines actually
incorporate into the range determination a more limited form of
cooperation), and the generally greater severity of the sentencing
guidelines.
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In constructing the initial set of guidelines, the first
Commissioners also did not quantify specifically an expected rate of
departures. That Commission did say, however, that it expected judges
would not depart ``very often,'' despite their ``legal freedom'' to do
so under the statute and the guidelines. USSG Ch. 1, Pt. A(4)(b). That
expectation was based on several considerations, including (1) the fact
that the Commission had made each guideline range as broad as the
statute allowed, (2) the Commission's attempt to build into the
guidelines those factors that pre-guideline sentencing data indicated
had made a significant difference in sentencing, and (3) the intention
that the guidelines would be amended in the future to add other factors
that actual sentencing practice suggested were important. Id. With
respect to this third consideration, the Commission in fact has added a
number of factors to various guidelines over the years, often at the
suggestion or direction of Congress, thereby accomplishing greater
proportionality and individualization of guideline punishment levels.
Granted, however, most of these additions have involved aggravating
factors that added to sentence severity in applicable cases. Thus, the
net effect of these amendments may have been to actually increase
downward departures.
DEPARTURE TRENDS OVER TIME
Turning now to the departure data that our research staff has
assembled, the pie-chart in Exhibit 2 summarizes the distribution of
sentences imposed in FY 1999, with reference to the applicable
guideline ranges. As the exhibit indicates, in FY 1999, judges
sentenced slightly less than \2/3\ (64.9%) of defendants within the
guideline range found by the court. Slightly less than \1/5\ (18.7%)
received a below-guideline sentence based upon the Government's motion
certifying the defendant's substantial assistance in the investigation
or prosecution of other criminals, 15.8% received a downward departure
for other mitigating reasons recognized by the court, and .6% received
a sentence above the guideline range based upon an aggravating factor
found by the court.
Exhibit 3 shows how these departure rates have changed over a 12-
year period, from FY 1988, the earliest year for which we have data, to
FY 1999. The green bars show an almost steady decline in the rate of
within-guideline sentencing. The red striped bars show that the rate of
substantial assistance downward departures grew rapidly in the early
years, but has been relatively flat since 1994, falling back a bit last
year. As indicated by the solid red bars, there has been a virtually
steady increase across the 12-year time period in the rate of other
downward departures granted by courts, whereas the rate of upward
departures has progressively decreased to the current .6% rate.
Debate continues about the effects of the U.S. Supreme Court's 1996
Koon decision on the rate of downward departures by the district
courts. For example, the Commission recently participated in a
Sentencing Institute in Phoenix at which departures and the impact of
Koon were among the topics discussed. A judicial panelist there noted
that the rate of downward departures has gone up less than 4% in three
years, from 12% in FY 1997 (the first full year after Koon), to less
than 16% in FY 1999. Granted, this is one way of looking at the data,
while another might be to note that the aggregate 4% change also
represents a proportional increase of about 33%. Still another way of
examining the correlation of Koon with other downward departure rates
is shown in Exhibit 4. This graph does not answer definitively the
question of Koon's impact, but the data clearly show a distinct and
sharp change in departure rates after Koon. Before that momentous case,
downward departures already were increasing at a growth rate of 3 per
month; in contrast, after Koon the average rate of increase was 9.5 per
month. This figure also shows that the growth rate in downward
departures post-Koon has exceeded the growth rate in the total number
of cases sentenced.
Looking at the growth in downward departure rates among offense
types, Exhibit 5 shows that the greatest changes since 1992 have
occurred in immigration and drug trafficking offenses. As was pointed
out in Exhibit I, these two categories have the greatest number of
cases sentenced under the guidelines; thus, the relative contribution
of these two offense categories to the total number of downward
departures is very substantial.
Our next three exhibits focus more precisely on changes over time
in downward departures rates for three major types of offenses
sentenced under their respective sentencing guidelines--drug
trafficking, alien smuggling, and alien unlawful entry. In each of
these exhibits, we have excluded the substantial assistance downward
departure cases (under Sec. 5K1.1 of the guidelines) in order to
simplify the presentation. In Exhibit 6, the blue line shows that the
number of defendants sentenced under the drug trafficking guideline
grew by about 40% from 10,811 in FY 1992 to 14,605 in FY 1999. At the
same time, the rate of within-guideline sentencings dropped from 90% at
the beginning of this period to 77% at the end, while the rate of other
downward departures grew from 9.1% to 22.4% over the same time frame.
Exhibit 7 presents similar data for alien smuggling and harboring
offenses: (1) the aggregate number of cases sentencing almost tripled,
from 580 to 1,499; (2) the percent of within-guideline sentencings
dropped from 89% to 62%; and (3) the downward departure rate
accelerated from 2% to 37%. In examining these trends, it is important
to know that, effective May 1, 1997, the Commission dramatically
increased the guideline penalties for these offenses in response to
specific directives from Congress in the Illegal Immigration Reform and
Immigration Responsibility Act of 1996, Pub. L. 104-208, 110 Stat.
3009-569. The ensuing, dramatic increase in downward departure rates in
FY 1998 and FY 1999 correlates with the expected phase-in of these
heightened penalty levels, suggesting (but not proving) that judges and
prosecutors thought the upward revisions too severe in a substantial
number of cases.
The third graph in this series, Exhibit 8, depicts a somewhat
complicated story of guideline sentencing patterns for alien unlawful
entry cases. First, the number of such cases grew phenomenally across
the eight-year period, from 652 in FY 1992 to 5,249 in FY 1999. This,
of course, correlates with the increased law enforcement emphasis,
particularly along the southwestern border, with respect to these
offenses. The combined solid green plus green-checkered bars illustrate
a decline over the same time period in within-guideline rates from 92%
to 64%, while the red bars show a concomitant growth in downward
departure rates from 5.4% to 35.8%. With the checkered portion of the
green bars, we attempt to illustrate the effects of a prosecutorial
initiative labeled in the graph as a ``Statutory Trump.'' This label
corresponds to a case disposition procedure popularly known in the
districts where it has been employed (primarily the Southern District
of California but also several others) as a ``Fast Track'' procedure.
Under this quid pro quo procedure, defendants arrested for illegal re-
entry agree to waive their rights to indictment, trial, appeal of
sentence, and post-conviction appeal, and agree to not contest their
deportation. In return, the Government agrees to charge the offense in
a novel way so that the aggregate statutory maximum penalty caps the
guideline sentence at 30 months (24 months under an earlier
formulation). Without this ``statutory trump,'' the applicable
guideline sentence would be substantially higher (typically within a
range of 57-71 months for aliens re-entering after conviction and
deportation for an aggravated felony). This procedure represents one of
multiple accommodations, initiated by prosecutors and largely
concurred-in by courts, in the southwest border districts, a matter
about which I will subsequently elaborate.
GEOGRAPHIC VARIATIONS IN DEPARTURE RATES
Just as departure rates have changed over time, so also do they
vary considerably among sentencing jurisdictions. Exhibit 9 presents
within-guideline and departure sentencing rates for each judicial
circuit for FY 1999. Three circuits, the Second, Third, and Ninth, have
within-guideline rates of less than 60%, and jurisdictions within the
Ninth Circuit as a whole sentence only slightly more than half of their
cases within the guideline range. The Third, Sixth, and Eighth Circuits
have the highest rates of substantial assistance downward departures,
while the Ninth, Second, and Tenth have the highest rates of other
downward departures.
Attached to my testimony (but not presented in our enlarged graphs
today) are two tables, Exhibits 10 and 11, showing the individual
districts with the highest and lowest extremes, the within-guideline
and departure rates for most districts tend to cluster fairly closely
around the national averages. See U.S. Sentencing Commission, 1999
Sourcebook of Federal Sentencing Statistics, Table 26, at 53.
Looking further at the southwest border situation, one can see from
Exhibit 12 that each of the states along the Mexican border has
experienced phenomenal increases in its sentenced caseloads within the
last eight years, and most of this growth has occurred with regard to
immigration offenses. Several other states in the west and midwest have
experienced very high increases in volume of either immigration
offenses, drug trafficking (particularly methamphetamine) offenses, or
both. Exhibit 13 charts the changes over time in within-guideline and
departure rates for each of the five southwest border districts in
comparison to the national averages. The two Texas border districts are
at least superficially similar to the national trends, although there
are some indications that accommodations in guideline applications are
occurring in those districts in response to huge caseload volume. The
other three border districts show substantially higher downward
departure rates than the national average.
While participating in the Sentencing Institute in Phoenix about
two weeks ago, we Commissioners had an opportunity to visit with the
Arizona federal district court judges and learn about their difficult
problems in coping with a greatly increased volume of immigration-
related offenders. We heard, for example, that each of the district
court judges in Tucson is faced with over 1000 criminal cases per year.
We also had occasion to interact during the Institute with several
judges from other border districts, as well as with a number of
prosecutors, defense attorneys, and probation officers from these
districts. During these various conversations, we received considerable
feedback that the sentencing guideline for unlawful entry cases needs
to be adjusted to provide penalties more proportionate to the
seriousness of these cases.
Clearly, the southwest border districts face exigencies that help
explain the very high guideline downward departure rates and other
accommodations--typically initiated by the several U.S. Attorneys and
concurred in by the judges--that are occurring in those areas. One can
have concern about the manner of guideline application and sentencing
practice in some of these areas while also understanding the need for
increased judicial and other system resources in order to handle the
greatly increased caseloads.
OBSERVATIONS AND SUGGESTED IMPROVEMENTS
The data heretofore presented suggest a number of factors that are
contributing to the increase in downward departure rates and my
experience at the Commission suggests several others. I would like to
briefly discuss some of these factors for the Committee. My focus
herein is on the so-called ``other downward departures,'' i.e., those
granted for reasons other than a defendant's substantial assistance.
1. Koon and its Progeny.--The impact of the U.S. Supreme Court's
Koon decision on departure determinations and their appellate review
has been momentous, in my opinion. Koon has had the effect, as the
Supreme Court no doubt intended, of loosening appellate scrutiny of
front-line, district court departure decisions. The resultant, more
flexible appellate scrutiny probably has encouraged more district court
departure decisions and made it marginally more difficult for the
Department of Justice to successfully appeal downward departure
decisions that prosecutors may believe unwarranted.
Despite Koon's probable impact on departure trends, neither the
empirical departure data nor the subsequent appellate decisions
suggest, in my judgment, that the Koon decision is substantially
problematic in meeting Sentencing Reform Act goals. At the same time
that Koon has decreased the role of the appellate courts in policing
district court downward departure decisions, it has shifted greater
responsibility in this area to the Department of Justice and,
especially, the Sentencing Commission. Advised by the Department of
Justice, the Commission must monitor and act where necessary to counter
excessive or otherwise unwarranted departure actions. Consequently, the
policy effects of Koon, at least at this point in time, point mainly to
the need for greater vigilance by the Department of Justice and the
Commission.
2. Prosecutorial Charging and Plea Bargaining Initiatives.--While
Koon probably has been an important contributor to the recent growth in
downward departure rates, the overall biggest set of influences, in my
judgment, has been an array of prosecutorial charging and plea
bargaining initiatives. For the most part, these widely varying
practices have sprung from different U.S. Attorneys and line
prosecutors acting with little or no guidance, centralized tracking, or
oversight management by the Department of Justice. To help illustrate
the importance of these prosecutorial practices, I have one final
exhibit that I would like to share with the Committee. Exhibit 14
portrays changes over time in the most frequently cited reasons for
non-substantial assistance downward departures, as gleaned from
district court sentencing orders. Judges often give more than one
reason for their departure decisions, but the data summarized in this
graph indicate that the two largest categories of reasons are
agreements to deportation involving unlawful aliens (including various
``Fast Track'' plea arrangements) and plea agreements generally, both
of which stem from prosecutorial initiatives of acquiescence. Whether
motivated by caseload volume or other factors, the actions of
prosecutors have greatly influenced the growth in downward departure
rates.
The Sentencing Reform Act's legislative history suggests that this
Committee, at least to some extent, considered the potential for plea
practices to undermine or hinder guideline goals. The legislation
directed the Commission to write policy statements to guide courts in
evaluating the accepting plea agreements, which the Commission has
done. See USSG Ch. 6, Pt. B. The Committee Report indicates an
expectation that, guided by these policy statements, courts would use
their authority to review and reject, if necessary, plea agreements
that result in ``undue leniency or unwarranted sentencing
disparities.'' S. Rep. No. 225, supra, at 167. In practice, however,
courts rarely have exercised their authority to reject plea agreements
and plea recommendations, no doubt for a variety of reasons. Judges
rely on attorneys in today's more adversarial system of sentencing
practice to generally achieve mutually acceptable results through the
plea process; they often face substantial case processing pressures;
they themselves may prefer a more lenient result; and they are
inherently disadvantaged in calling witnesses and finding facts that
might support a greater sentence when the prosecutor already has agreed
to a lower sentence, perhaps including a sentence below what the
guidelines prescribe. For these and other reasons, the plea agreement
review process does not appear to be functioning as well as may have
been hoped.
3. Government Appellate Review Practices.--Another factor possibly
contributing to downward departure increases over time may be the lack
of vigorous appeal practices by prosecutors in the field and at the
Department of Justice. Under the statute governing appellate review of
sentences, the Government may appeal a sentence adverse to its
interests only upon the approval of the Attorney General, the Solicitor
General, or a designated deputy solicitor general 18 U.S.C.
Sec. 3742(b). Consistent with this policy, the Department of Justice
has established procedures which line prosecutors and their supervisors
must follow in securing the requisite, highest-level approval for
Government appeal initiatives. Of course, under these policies, the
initial decision to pursue an appeal begins with the line prosecutor.
The Commission has no data on how often Assistant United States
Attorneys seek, or decline to seek, the Department's approval to appeal
sentences, including downward departures. However, as part of our
monitoring of the appellate review processes, we do collect data on the
frequency with which the Government actually exercises its legal right
to appeal. These data show that since 1993, the Government has tended
to appeal downward departures less and less often, despite their
relative success rate (generally 50% or higher). Specifically, of the
total number of cases involving sentencing issues resolved by federal
courts of appeals in FY 1999 (4068), the Government had appealed a
downward departure in only about 20 such cases, down from a high of
over 40 such appeals out of 4,327 appellate decisions in FY 1995.
Understandably, the Government wants to pick its fights carefully,
and as indicated supra, Koon probably has had the effect of making
those fights somewhat more difficult. Nevertheless, the low, and
generally declining, frequency with which downward departure appeals
are being pursued suggests that the Department of Justice and
prosecutors generally are not as aggressive as perhaps they could be in
carrying out their appellate review responsibilities under the SRA.
4. Sentencing Commission Training and Guideline Amendment
Initiatives.--Under the SRA, Congress gave the Sentencing Commission
important responsibilities to train judges, probation officers, and
attorneys in how to apply the guidelines. Over the years, the
Commission has endeavored to diligently carry out this responsibility.
One judicial panelist at the recent Phoenix Sentencing Institute
observed that, in the early 1990s when Commission training staff
introduced him as a newly appointed judge to guideline sentencing
practices, staff emphasized guideline application but said virtually
nothing about how to depart. The judge was no doubt accurate in his
observations of Commission training program content in the early 1990s,
but much has changed since that time. At least since the mid-1990s,
Commission staff have presented information--in a neutral, non-advocacy
fashion--about departure authority, procedures, and jurisprudence, in
addition to the correct mechanics of guideline application. Over the
years, individual Commissioners also have given greater emphasis to the
subject of departures in their various remarks to judges and other
audiences. These various training initiatives no doubt have had an
effect, in the overall scheme of things, on departure practices.
The Commission's policymaking function of amending the guidelines
in response to departure decisions of the courts also has evolved over
the years. Relatively early in the history of guideline application,
the Commission responded aggressively to several appellate court
departure decisions that Commissioners believed would undermine the
goal of reducing unwarranted disparity.\4\ Some commentators criticized
these actions as premature and/or unwarranted. Subsequently, after the
appointment of successor Commissioners in the mid-1990s and the Koon
Supreme Court decision, the Commission affirmatively embraced that
decision as the ``law of the land'' \5\ and took several other
amendment actions that encouraged departures.\6\
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\4\ See, e.g., USSG Appendix C, Amend. 386 (stating that a
defendant's youth, in and of itself, was not ordinarily relevant as a
basis for downward departure; also that a defendant's physical
appearance or physique was not ordinarily relevant as a basis for
downward departure); and 466 (forbidding downward departure based on a
defendant's lack of guidance as a youth and similar circumstances).
\5\ See, e.g., USSG Appendix C, Amend. 585 (citing Koon with
approval).
\6\ See, e.g., USSG Appendix C, Amend. 583 (broadening the grounds
for downward departure based on diminished capacity), and 562 (inviting
downward departure in certain alien unlawful entry cases).
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The point is that the Sentencing Commission, in a number of ways,
has been a contributing player in the mix of factors that may have
affected departure rates. How one views these various changes in
Commission action and attitude depends, of course, on where one sits.
While still relatively new in our respective terms, the current
Commission has already faced several discrete departure issues in our
first guideline amendment cycle. For example, we proposed a compromise
on departures based on a defendant's aberrant behavior that should
curtail downward departures in several circuits but may increase them
slightly in others; we foreclosed courts' ability to depart in their
initial choice of the applicable guideline before determining the
applicable guideline range; and we encouraged upward departures in a
number of case circumstances. I expect that this group of Commissioners
will continue to wrestle with a wide variety of departure issues as
they are brought to our attention by others and by our own ongoing
monitoring of the case law and data.
No doubt there are other factors affecting downward departure
growth rates that could be postulated. For example, the advent of the
``safety valve'' for low level drug defendants, various Commission
amendments that have increased guideline penalties (e.g., in the alien
smuggling offenses--see infra), and variety of other causes may have
played a role. I have mentioned four factors that the data and my own
experiences suggest may have been contributors, to a greater or lesser
degree, along the way.
The question then arises: What should be made of all of this? No
doubt some would react to the data and other information I have
presented by fully applauding the trends, both with respect to the
increase in downward departures generally and the various geographic
variations. Others may survey the same scene, particularly the regional
variations, and see a guideline system that already is broken beyond
repair. Still others might react to the data by seeing some reason for
concern, particularly if the trends continue unabated, while also
seeing a guideline sentencing scheme that remains fundamentally sound.
While our current Commissioners have not had an opportunity as a group
to carefully evaluate and discuss these data, I believe most would
associate themselves with this latter view.
The Sentencing Commission clearly has a continuing responsibility
under the SRA to carefully monitor court sentencing practices and to
take appropriate actions, through the guideline amendment process or
through other avenues, when these practices substantially vary from SRA
goals. The Department of Justice and U.S. Attorneys, in my view, need
to pay closer attention to these same goals when carrying out
prosecutorial functions and institute concerted actions to ensure their
attainment. Both the Commission and the Department need to
cooperatively share sentencing data, discuss the implications, and act
to ensure that the guideline sentencing system is as just and effective
as possible.
Mr. Chairman and Members of the Committee, recognizing that
periodic oversight by an interested Congress is also a very important
part of this process, I wish to thank you again for holding this
hearing and inviting us to participate in it. I will be glad to join
with Judge Murphy in answering any questions you may have.
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Senator Thurmond. Senator Sessions, before we begin
questions, do you have any comments?
Senator Sessions. I thought it was very interesting that we
are looking at, and I think it is important to consider the
immigration matters, but also important to look at the numbers
on nonimmigration cases, too. It looks like you have a 40-
percent, 50-percent increase across the board on issues such as
robbery, firearms, and other cases where the departures have
been downward.
Mr. Chairman, you do your questions now, if you would like,
and I will follow you.
Senator Thurmond. Thank you.
Judge Murphy, are you concerned about the increasing number
of downward departures from the Guidelines, and do you view
this trend as a problem?
Judge Murphy. Well, Senator, as I say, the Commission
hasn't been able to study these data. You know, we have
certainly looked at them briefly. We haven't talked about it.
As Mr. Steer has pointed out, departures are an inherent part
of the guideline structure, but we need to monitor them because
one of the main goals of your statute, the Sentencing Reform
Act, is to prevent disparity in sentencing, and so obviously
that is something that the Commission has to be looking at.
We hope by the fall of 2002 for the 15th year of the
operation of the Guidelines to have conducted a review to see
how well the Guidelines are doing in terms of the goals of the
Sentencing Reform Act. So this is an area that, of course, we
will be looking at.
If you take out the substantial assistance, our data show
that 82 percent of the offenders are being sentenced within the
guideline range. And looking at our data, it shows that the
most serious offenders are getting very serious sentences. Some
of the lesser ones are getting lesser sentences.
The Southwest border problems have been brought to
congressional attention. They have also been brought to our
attention, and we have seen the great rise in disparity there
which accounts for an awful lot of it, although I notice that
of those States that Mr. Steer had on his chart, three of them
are within the eighth circuit and that is not the Southwest
border where there has been such a great increase in drug
trafficking. These courts are really hard-pressed to handle it
all, and that accounts for part of the disparity there. So this
is something that we will be looking at. We do have data on the
reasons that judges give for departing, and this isn't part of
what you have looked at yet. We will be looking at all of this.
Senator Thurmond. I have a question for Judge Murphy and
Mr. Steer, both. Has the Justice Department expressed concern
to the Commission in the past few years about the increasing
trend in downward departures?
Judge Murphy. Well, the Justice Department has been working
with us mainly through, of course, the ex officio member that
is under the statute part of our Commission working on the
issues that come up. And I would say that in my experience on
the Commission since November, the Justice Department has
expressed concerns about departures, expressed concerns about
possible guidelines that would not accomplish something that
would be a deterrence for crime. So I haven't seen any
softening, if that is what the concern is.
Senator Thurmond. Mr. Steer, do you want to answer that
same question?
Mr. Steer. Mr. Chairman, under the statute the Department
of Justice is required to report annually to the Commission on
areas of concern and the issues that they want us to address.
As Judge Murphy indicated, they do that regularly through the
ex officio designee of the Attorney General.
I don't recall a letter that expresses a generalized
concern about departure trends, but certainly there have been,
as Judge Murphy indicated, a number of specific issues that the
Department has brought to the Commission and on which we have
worked together.
Senator Thurmond. Mr. Steer, does the Department of Justice
need to maintain oversight over the U.S. attorneys' offices
regarding sentencing cases that need to be appealed to make
certain that the Guidelines are not undermined by unwarranted
downward departures?
Mr. Steer. Mr. Chairman, I think the answer is clearly,
yes, that they do need to do that. You mentioned in your
opening statement some of the data that we presented from our
appeals databank that indicate the rate at which appeals are
being taken from downward departure cases, and generally that
rate has been declining and is very low overall relative to the
total number of downward departure decisions that are rendered.
Senator Thurmond. Mr. Steer, do you believe the Department
of Justice should encourage U.S. attorneys to be more
consistent in how they apply substantial assistance and how
they define what it means?
Mr. Steer. Yes, Mr. Chairman, I do. I think it should be
recognized that the Department has undertaken a number of
initiatives in the substantial assistance area. Arguably, more
could be done. Substantial assistance, without a doubt, in my
view, is a critically important law enforcement tool.
Congress made the decision that the downward departure for
substantial assistance would be made only upon motion of the
Government. In my view, that was the correct decision, and the
Commission has followed suit and I think that was the correct
course of action.
What that means, though, because it is so important in the
scheme things, is it, I think, warrants very close and
continued monitoring from the Department of Justice down
through the U.S. attorneys to the field to ensure that these
departures are made in appropriate cases where they do further
the goals that Congress had in mind, and at the same time
substantial assistance downward departures are not used in
cases where that kind of assistance has not been rendered as
another way of achieving a lower sentence.
Senator Thurmond. Mr. Steer, it seems that downward
departures are being given for more and more creative reasons.
For example, one of the top reasons for downward departures is
for a defendant's mitigating role in the offense, but he can
already get the benefit of this under a straightforward
application of the Guidelines. Is this a problem?
Mr. Steer. Well, it may be. I think that the data that we
capture on the synopsis of the judge's reasons that the court
indicates as reasons for downward departure--the shorthand in
many instances may not indicate the full story. There may have
been other factors that the court had in mind when it
downwardly departed. But certainly the basic premise that you
present is that when the Guidelines take a factor into account
fully, then the court is not supposed to downwardly depart for
that particular reason.
Senator Thurmond. Senator Sessions.
Senator Sessions. Thank you, Mr. Chairman.
We are talking about an important issue. I believe the
Department of Justice needs to be considering this and studying
it to make sure they are consistent. And I think the judges
need to watch it when we have a steady trend toward more
departures for reasons outside of cooperation which should be
properly utilized. So I am concerned about that.
Judge Murphy, in general, we have many judges that come to
the bench that have had no criminal experience. They have civil
backgrounds, which is fine, but don't you think that the
Guidelines help give them guidelines and help give them some
comfort when they first walk into that courtroom and have to
start sentencing people that are before them?
Judge Murphy. Well, Senator Sessions, I am a convert to the
Guidelines because I was appointed in 1980 under the old
system. And like human nature, I guess, you know, you work in a
system and you like it and you are suspicious of something new
that comes along. But I am a big fan of the Guidelines and I
think that they provide objective standards that are so useful.
When I compare sentencing under the Guidelines to the prior
difficulties that a judge would have in trying to make sure
that you were dealing fairly with similar cases, it is vastly
superior. And I think that the judges who have come on since
the Guidelines have been in place accept them, and even those
who were there before have used them.
I know that you mentioned a case that I am not familiar
with in the ninth circuit, and as an appellate judge I see
cases sometimes where we reverse the judges because they
haven't followed the Guidelines. But overall I think the
judiciary has accepted them and see the value of them.
Senator Sessions. I agree, I agree. Overall, the system
accepted them, the appellate courts insisted that they be
followed, and the Guidelines have been followed fundamentally.
What we are seeing--and I think it is a bit troubling as a
trend if it continues--could lead us to a point that we have a
real concern. If you allow too many loopholes and you have
8,000 cases and only 19 appeals and an awful lot of departures
for novel reasons, then we could undermine that. I just think
it is important that we do it.
You mentioned your economic crimes conference. Are you
reviewing economic crimes and considering changes in the
Guidelines--I am just curious--for those kinds of cases?
Judge Murphy. Yes; there has been a lot of concern about
some of the Guidelines not punishing especially the higher-end
economic crimes severely enough. There have been criticisms
from a lot of judges about the loss tables, and I know that
there was a package that was presented at an earlier time,
money laundering, and so on, that didn't fare too well in
Congress.
Our staff has gone back and studied what the problems were
there. We are working with the Department of Justice and other
interested parties to come up with something that we hope will
fly and that will be acceptable to Congress.
On almost all of our votes this year, they were 7 to 0, and
that wasn't because it is a lock-step group at all. It is seven
independent individuals, but we spend a lot of time considering
various options and talking them out, listening to people, and
that was how we were able to come up with those votes.
Senator Sessions. I think that is wise to consider that. My
observation is we have muddled criminal law a lot. We have
criminalized what would have been civil fraud in a lot of
instances, perhaps, and maybe the defendant does not need a
huge sentence, even though the large amount of money is
significant, because the degree of criminality was not great.
But there are a lot of crooks out there, really serious con
men who, as soon as they are out of jail, will go right back to
it again. I hope that you can continue to improve that area. I
think in many instances it has been too light. This idea that
only violent criminals need to go to jail is wrong. A lot of
repeat economic criminals need to be in jail, too.
Mr. Steer, I wanted to run through a few questions with
you. You mentioned the Koon decision. There has been a shift.
It also shifted some responsibility, or more, to the Department
of Justice under Koon. Would you agree with that?
Mr. Steer. In answer to your question, Senator, I think
that Koon clearly, because it has necessarily meant that the
courts of appeals were to be more deferential and more hands-
off in their reviewing of departure decisions, puts a greater
responsibility both on the Department and the Commission to
serve as a check through the policymaking process when there is
found to be an excessive or unwarranted rate of departure or
departures for circumstances that are inappropriate.
Senator Sessions. We have seen a steady increase in
departures. Let me ask you, do you think that at this point in
time based on these trends that the Department of Justice needs
to take seriously and try to address them, and that the
Sentencing Commission needs to take seriously, and has the
Sentencing Commission discussed it overall and does it have any
plans to deal with the increase?
Mr. Steer. Yes, it should be taken seriously by the
Department and by the Commission. No, the Commission has not
had an opportunity to discuss these issues overall. The data
that we have presented today--as we indicated, the press of
business has been so great since our initial appointment and it
is not letting up. Nevertheless, I do think and hope, and I am
sure the Commission will be considering these issues in
conjunction with the Department of Justice in the future.
Senator Sessions. Well, you mentioned in your statement,
the written portion, that one of the problems involves the
Department of Justice and the prosecutor, their lack of
centralized tracking, oversight, and management of plea
bargains around the country.
And these numbers you have provided are pretty stunning.
For example, the States with the lowest departure rates for
other factors are Virginia-Eastern, 1.8; Alabama-Northern, 1.9.
The ones with the highest departures are Arizona, 57;
California-Southern, 49; Washington-Eastern, 40. Those are
factors up to 20 times. Some may be driven by immigration,
others are not. So I think your suggestion that we may be not
having the uniformity of sentencing that we desired as a result
of departures is a real and legitimate concern.
Let me ask you, to your knowledge, is there someone in the
Department of Justice who, to your knowledge, has
responsibility for monitoring these kinds of issues, or was it
only you that raised them and dug up these numbers?
Mr. Steer. Well, the numbers were suggested by our data. I
didn't have to dig. These are straight out of our annual
report, redacted for the purpose of the hearing. I am not
knowledgeable of the internal processes of the Department. To
the best of my knowledge, there is not that single person, but
certainly that question should be posed to the Department's
witness.
Senator Sessions. Thank you, Mr. Chairman.
Senator Thurmond. Thank you.
Senator Sessions. I thank both of you for your fine work on
this issue. Justice needs to be even and fair. It should not be
based on factors other than legitimate sentencing issues. I
think the Guidelines have done a good job of identifying the
most prominent sentencing issues, and most people today are
sentenced according to that. We just need to maintain constant
discipline and oversight, or I think these things can slip away
from us.
Thank you.
Senator Thurmond. I wish to thank both of you for
testifying today.
Mr. Steer. Thank you, Mr. Chairman.
Judge Murphy. Thank you.
Senator Thurmond. Representing the Department of Justice is
Mr. Laird Kirkpatrick. He is the Attorney General's designee to
the Sentencing Commission and is counsel to the Assistant
Attorney General for the Criminal Division. He is accompanied
by Ms. Denise O'Donnell, the U.S. attorney for the Western
District of New York.
Mr. Kirkpatrick, please limit your remarks to no more than
5 minutes. Your written statement will be included in the
record, without objection. You may proceed.
STATEMENT OF LAIRD KIRKPATRICK, ATTORNEY GENERAL DESIGNEE TO
THE U.S. SENTENCING COMMISSION, AND COUNSEL TO THE ASSISTANT
ATTORNEY GENERAL, CRIMINAL DIVISION, U.S. DEPARTMENT OF
JUSTICE, WASHINGTON, DC; ACCOMPANIED BY DENISE O'DONNELL, U.S.
ATTORNEY, WESTERN DISTRICT OF NEW YORK
STATEMENT OF LAIRD KIRKPATRICK
Mr. Kirkpatrick. Thank you, Mr. Chairman. We appreciate the
opportunity to appear before you today at this hearing
concerning the U.S. Sentencing Commission and Federal
sentencing policy.
We at the Department of Justice believe strongly that the
U.S. Sentencing Commission and the Federal Sentencing
Guidelines promulgated by the Commission play critical roles in
the Federal effort to control crime. We are pleased to provide
our views on current Federal sentencing policy, the important
work being done by the Sentencing Commission, and the issues
faced by the Commission in the coming years.
Mr. Chairman, today's Federal sentencing system brought
about by the Sentencing Reform Act of 1984 is very different
from the inconsistent and uncertain system in place before the
Act. It is a highly structured system that has brought greater
uniformity and greater predictability to Federal sentencing.
We think it is important to first express our overarching
view that structured sentencing policy such as that under the
Federal Sentencing Guidelines is far superior to the
unstructured sentencing scheme that it replaced. And we would
like to applaud you, Mr. Chairman, for your key role in passing
the Sentencing Reform Act of 1984 which led to the creation of
the Commission and the Sentencing Guidelines.
Although the Sentencing Reform Act and the Federal
Sentencing Guidelines have now been in place for well over a
decade, we think there remains a critical role for the U.S.
Sentencing Commission. The Sentencing Reform Act lays out many
ongoing responsibilities for the Commission, responsibilities
we think are vital to keeping the Federal Criminal Justice
System working well.
They include promulgation of new guidelines in response to
new criminal legislation, monitoring the operation of the
Federal Sentencing System, making adjustments to the Sentencing
Guidelines as directed by Congress and as experience and
research show to be necessary, and to serve as an important
resource both to the Congress and the executive branch with
respect to sentencing policy.
We are particularly pleased that the Commission was
reconstituted last year after an extended hiatus. We are
exceedingly impressed with the ability and the dedication of
the seven new voting members that are serving on the
Commission. Speaking from a personal point of view, it is
privilege to serve with these seven individuals.
I think the Commission under Judge Murphy's strong
leadership has accomplished a prodigious amount of work during
its first amendment cycle, and the Commission only had 4 or 5
months to do that work. The Department had urged the Commission
to respond to the numerous congressional directives to enact
new guidelines in response to new criminal legislation. We
expected the Commission perhaps to deal with four or five of
those directives. Instead, the Commission was able to amend 15
guidelines in its first amendment cycle.
We also urged the Commission to respond and attempt to
resolve the numerous circuit conflicts in interpreting the
Guidelines that were creating inconsistencies and disparities
throughout the country. We thought the Commission might be able
to deal with two or three during its first amendment cycle. It
was able to resolve five of them.
The Commission has now turned its attention to an ambitious
new agenda of issues for the second amendment cycle, and the
Department has put forth its issues which are accepted by the
Commission as priorities to be considered during this amendment
cycle. And we very much look forward to working with the
Commission during the cycle to make the upcoming year an
equally productive one.
We believe that there are a number of areas where
amendments are needed. I will just emphasize three in my
testimony here today. The first is a very high priority for the
Department of Justice, economic crimes. Economic crimes
constitute nearly one out of four cases prosecuted in the
Federal System, and serious questions have been raised as to
whether the Guidelines for these offenses are appropriate in
their current form or whether they need to be amended. We think
it is vitally important that this area of law be
comprehensively examined, and we commend the Commission for
convening the 2-day conference that is now being held at George
Mason Law School to explore these issues.
Second, we think it is important that the Commission
address the guidelines for money laundering offenses. This has
been a source of contention and concern for almost 10 years.
Congress has urged the Commission and the Department to work
together, and we are doing so with the Commission and hope to
be able to have guidelines in this area by the end of this
amendment cycle.
Third, we urge the Commission to continue its work
implementing the Sexual Predators Act. Last year, the
Commission made great strides in addressing the very serious
problem of child exploitation and child sex crimes, including
crimes facilitated by the Internet and involving interstate
travel. As with economic crimes, the Internet and other
technologies are changing the way sex crimes against children
are being committed. We believe that it is critical that our
laws keep current and that this devastating crime problem be
forcefully addressed.
Thank you, Mr. Chairman, for the opportunity to appear
before you today, and I would be pleased to answer any
questions that the committee may have.
Senator Thurmond. Mr. Kirkpatrick, is the Attorney General
aware that more and more criminals are receiving sentences
below the Guidelines every year, and does she view this trend
as a problem?
Mr. Kirkpatrick. We are certainly aware of the statistics,
Mr. Chairman. We have the same data that the Sentencing
Commission does and we do monitor this and track it. We are
concerned and are reviewing the situation. We do feel that a
major part of the Department's resources in sentencing matters
are to defend the Guidelines, to keep the sentences within the
range.
Apart from substantial assistance which we view as a law
enforcement tool, and we will talk about that separately if you
would like, the guideline sentences are within 84 percent of
the cases nationwide. If you exclude the Southwest border, the
sentencing within the Guidelines is even higher. And it is the
Department on a case-by-case basis that is resisting efforts by
defendants to have downward departures.
So in a very high percentage of the cases, the Department
is playing an active role to urge the court not to grant a
sentence outside the Guidelines range. And we feel there is
other data that should perhaps be put before this committee
about the number of cases where it is the defendant that is
seeking to have the sentence outside the Guidelines range and
the Department is resisting.
Last year, there were 4,000 cases that reached appeal
alone. There were many more cases than that that were resolved
at the trial level, but there were 4,000 cases where the
defendants were trying to have a sentence outside the
Guidelines range where the Department was responding to the
defendant's appeal and urging that that sentence be confined to
the Guidelines range and we won 80 percent of those cases. So I
think the Department is playing a very key role in monitoring
the Guidelines and trying to keep the sentencing within the
appropriate Guidelines range.
Senator Thurmond. Mr. Kirkpatrick, you state in your
prepared testimony that the Commission should examine the trend
in downward departures and determine whether there is cause for
concern. Does the Department of Justice also have a duty to do
its part to uphold the Guidelines?
Mr. Kirkpatrick. We certainly do have a duty, Mr. Chairman,
and we try to do that in every case where we feel a departure
outside the Guidelines is inappropriate to represent the
Government's view on that issue.
I think what we are finding and what I was referring to in
my testimony is a particular concern in the Southwest border
States where that is what is playing the most significant role
in driving the upward departure range. And we have discussed
that issue with the Commission, put some of the Southwest
border issues on the agenda of the Commission to see if there
is a way to deal with the exigencies that are causing
sentencing outside the Guidelines in that area. And we look
forward to working with the Commission in this amendment cycle
to deal with those issues.
Senator Thurmond. Mr. Kirkpatrick, it appears that only a
little over 60 percent of Federal defendants are sentenced
within the Guidelines today. If the downward departure trends
continue, does there reach a point where the Guidelines system
is undermined?
Mr. Kirkpatrick. We certainly would be concerned if it
reached a higher point, Mr. Chairman, and that is why with
substantial assistance we are monitoring that. And as your
chart indicates, the substantial assistance departures are
actually declining in recent years, a slight downward trend. We
do monitor those, although we view those as an extremely
important law enforcement tool that must be considered
separately from the issue of departures on other grounds.
The way we largely deal with departures on other grounds,
in addition to litigating attempts by defendants to depart
downward, is to try to treat these cases that involve new areas
of law as a test case and try to persuade the courts that a
certain type of downward departure is inappropriate.
We have litigated, for example, the issue of whether post-
conviction rehabilitation should be a ground for downward
departure. We won in some circuits, we lost in others. But we
were ultimately successful by taking that issue to the
Sentencing Commission last year and the Sentencing Commission
agreed that that should not be an appropriate ground of
downward departure and added it as a prohibited factor, and
that amendment will become effective November 1.
We also took two other issues to the Commission where we
felt downward departures were inappropriate. One involved
aberrant behavior, where we asked the Commission to adopt a
guideline narrowing the definition of aberrant behavior as a
basis for downward departure. Some circuits have given a very
broad definition of that term. And the Commission did adopt a
version that is narrower than many circuits were applying.
The third issue that we took to the Commission last year
had to do with a case from the third circuit, the Smith case,
United States v. Smith, where the third circuit had taken a
money laundering conviction and decided it really was more of a
fraud conviction and sent it down to be sentenced under the
fraud guidelines. That, in our opinion, very much undermines
the guidelines structure if courts can pick and choose and
sentence on a different guideline than the guideline of
conviction.
So we proposed to the Sentencing Commission that the rule
be amended, the guideline be amended, and require judges to use
the guidelines from the sentencing guideline index that is
applicable to the crime of conviction. The Commission agreed
with us. They changed the guideline, and that is now the law
and that will prevent us having to litigate that Smith case
issue throughout the country.
Senator Thurmond. Mr. Kirkpatrick, as more defendants are
sentenced below the Guidelines, it would seem that the
Department would appeal more Guidelines cases. However, just
the opposite has occurred. Should the Department place more
attention on appealing sentencing decisions as a way to uphold
the Guidelines?
Mr. Kirkpatrick. We do, Mr. Chairman, attempt to take those
cases up where we feel it can have a significant impact. The
problem we are having is after the Koon case, the standard for
appellate review of a sentencing judge's decision is now abuse
of discretion, and it is very difficult to win those cases on
appeal.
In fact, of the cases that we are taking up, according to
the Sentencing Commission data--it has it right in the green
book that is being used as a basis for these charts--we are
losing over 50 percent of those appeals. It is hard to persuade
the appellate courts to reverse on an abuse of discretion
standard.
We are also finding that even if we win, it doesn't have a
lot of precedential value. One court was reversed for abusing
its discretion. That doesn't necessarily affect another court.
So we find it more effective to litigate the legal issue--is
this a permissible basis for downward departure--or to take
that issue to the Commission. But we certainly urge the U.S.
attorneys to bring cases to us where they feel an appeal has a
possibility of success and we do take up a number of those
cases.
Senator Thurmond. Senator Sessions.
Senator Sessions. Well, I am troubled by that philosophy. I
think, first of all, you concede the case at hand if you don't
appeal. Isn't that correct, the injustice that may have
occurred?
Mr. Kirkpatrick. I am sorry, Senator.
Senator Sessions. On the appeals question, deciding to go
to the Commission will not reverse the injustice that occurred
in the trial court. It just may potentially help in the future
those kinds of cases from occurring.
Mr. Kirkpatrick. Well, usually, Senator, we have tried to
litigate that issue beforehand, like post-conviction
rehabilitation. We litigated that. We won that in some
circuits, we lost it in others.
Senator Sessions. You are talking about in general, but I
am talking about real life. Real life is everybody knows what
the Guidelines are. The judge doesn't like the Guidelines and
he departs downward, for some reason. You have got 19 appeals
out of 8,304 in 1999. If you don't appeal more than that,
judges, in my experience, will get the message that they can do
what they want to and nobody is going to appeal. Isn't that a
problem?
Mr. Kirkpatrick. Well, we are looking at that issue and we
are willing to have further discussions with the Sentencing
Commission about that issue. I think the statistics show there
were 35 appeals back in 1993. I don't think there has been that
dramatic a drop. So far this year, we have got about 20 and we
may be back up to 35.
But I think our view is that that is an effective tool. It
is something we want to do. We want to appeal cases where we
feel judges have really gone beyond their scope of discretion
under the Guidelines. But given the resources we have, we find
we are having more impact by litigating a legal issue or
getting it simply resolved that that is an improper ground of
departure.
Senator Sessions. Well, one of the factors in gaining
control of a system that may be slipping out of control is to
use the appeal process. Wouldn't you agree?
Mr. Kirkpatrick. I agree, Senator.
Senator Sessions. And would you not agree that with regard
to other reasons for other downward departure reasons that in
1992, when I left office as U.S. attorney, there were 6.1
percent downward departures for other reasons and now it is
15.8 in 1999, which is a 150-percent increase in that area?
I think all of us are concerned that that other reason can
become the door through which too much can occur. So, that
concerns me. Have you all discussed that in the Department of
Justice that we have got a 150-percent increase in other
departures?
Mr. Kirkpatrick. We have, Senator, and we are monitoring
that and the biggest source of those statistics is the
Southwest border area. We are concerned about that.
Senator Sessions. I think that is true, although I am not
sure what to do about it, but that is true.
If somebody would put up chart number C-3.
If you look at the chart that has been produced there, on
robbery you have got a 50-percent increase, or more. Look at
firearms. This administration is beating up all of us on
Congress on a regular basis; we don't do enough to pass more
laws about firearms. But since this administration took office
in 1992, you have got almost a doubling of downward departures
in firearms cases.
You do show the huge increase there in immigration, but the
trend is up in every area, more than a 30-percent increase, I
suppose, in economic fraud cases. But those are trends across
the board, and I guess what I am asking you is do you think
that there is a responsibility on behalf of the Department of
Justice and the Attorney General to examine these numbers, to
study what is happening, and to ensure that U.S. attorneys are
watching these matters in their districts and attempting to
have some uniformity here?
Mr. Kirkpatrick. I agree totally, Senator. I think we do
have that responsibility. I do feel that the Department is
defending the sentencing system, though. We did not have a
chance actually to review this document at a formal Sentencing
Commission meeting and would like to supplement it with the
cases where the Department was successful in resisting other
downward departures.
I mean, there are numerous motions for downward departure
that we have been successful on. To some extent, this trend
that you are seeing, going from 9 percent to 11 percent in a
particular crime, are cases where we were unsuccessful in
resisting the downward departure, and we remain concerned about
that. We usually are opposed at the trial level.
I do think the Koon case, as Commissioner Steer
acknowledged, has created a very difficult problem for us. It
has changed the standards that the appellate courts apply in
reviewing our appeals and it has made it much more difficult
for us to take those cases and be successful at the appellate
level.
And I think just institutionally the Department of Justice
is concerned about its credibility. If we get down to a point
of winning only 20 percent of the cases, we kind of lose our
institutional credibility. I think we like to take cases up
where we think we can win and we can persuade the appellate
court that the case should be reversed.
Senator Sessions. Well, let's take a case like John Huang,
in California. I don't believe that the guidelines were
followed. The U.S. attorney just knuckled under or agreed to a
factor so that John Huang could be given probation and not
serve a day in jail. So they were in cahoots, in my view, the
judge and the U.S. attorney. Both knew, or should have known
that in that high-profile case probation wasn't justified. But
no appeal was taken, no complaint was rendered.
All I'm saying to you is if the leadership is not strong
from the Department on even high-profile cases, then the word
is going to get out to assistants who maybe don't want to
prepare for trial next week and spend all weekend getting ready
for trial to just take this plea and let it go away.
Your trials are down for the Department, are they not,
throughout the country?
Mr. Kirkpatrick. I don't have the statistics in front of me
for that, Senator, but we would be happy to get them for you.
Senator Sessions. Well, your budget has doubled since 1992.
You have got a 19-percent increase in assistant U.S. attorneys.
The number of cases tried to completion has declined by 40
percent. So, that suggests to me that there has been an
increased emphasis on pleas. Pleas are important. You can't try
every case. Plea bargains have got to be done, but the trends
are troubling to me, is all I am saying to you.
And I hope that you will listen to the concerns here and
realize that sometimes the Attorney General has got to send a
signal that you have got to be more disciplined. The U.S.
attorneys have got to supervise their assistants and look at
these districts that have widely differing sentencing rates
between districts and ask some of the most aberrational
districts why they are so far out of shape.
Mr. Kirkpatrick. We do share your concern, Senator, and we
do hear your concerns and we share them. And we will continue
to monitor the enforcement of the Guidelines.
Senator Sessions. I will just ask you, has any U.S.
attorney been called on the carpet to discuss these issues?
Mr. Kirkpatrick. I would not be the one to do that, so I
guess I can't answer the question whether somebody in the
Department has. I do have with me Denise O'Donnell, from the
Attorney General's advisory committee who is representing the
U.S. attorneys nationwide, and perhaps she would want to
respond to some of these issues herself.
Senator Sessions. I am sorry to take the chairman's time. I
am taking too much time. This is an issue of interest to me.
Briefly, I would be delighted to hear from you, Ms. O'Donnell.
Ms. O'Donnell. Well, thank you very much, Senator. I too
would like to thank Senator Thurmond for the leadership that
you have shown in this area, Senator, with the Sentencing
Guidelines. Like Judge Murphy, I am a big fan of the Sentencing
Guidelines.
I can tell you, Senator Sessions, that the U.S. attorneys
community is very grateful that we have someone sitting in the
U.S. Senate who has been an assistant U.S. attorney, as well as
a U.S. attorney.
Senator Sessions. Assistant was the best job.
Ms. O'Donnell. I agree with that.
I have been in the Department of Justice for 15 years,
Senators, and I can tell you that the U.S. attorneys today are
as committed as they ever were during the last 15 years to the
goal of uniformity in sentencing. We share your concerns.
I believe that the factors that we have discussed here--the
Koon decision and the particular situation on the Southwest
border--are responsible for the great majority of the
departures that we are seeing, and I think this hearing is
demonstrating that today.
I would like to talk for a minute about the Southwest
border because the U.S. attorney in Arizona, Jose Rivera, has
told me that last year, in 1999, there were over 550,000 Border
Patrol apprehensions of illegal aliens in Arizona alone. Those
individuals could be prosecuted if we had the resources to do
that. We don't, but we are doing the best job that we can on
the Southwest border issues.
Congress has provided for a substantial increase in Border
Patrol resources on the Southwest border, but we don't have the
same kind of resources in the U.S. Attorneys' Offices and in
the courts to address that kind of a workload and it has
created an emergency crisis in terms of law enforcement on the
Southwest border.
And the response has been a troubling one in terms of
uniformity in sentencing throughout the country, and I think
that is a profound challenge for all of us to figure out how we
can maintain uniformity in sentencing in those districts and at
the same time meet this huge law enforcement challenge. And we
have found so far that we can't unless we devise plea policies
that will result in substantial departures for the individuals
that we are prosecuting in those cases.
In more direct response to your question, I don't know if
we could call it calling people in on the carpet. Our problems
in our districts are very different. I think you know, Senator
Sessions, that the reason we have 93 U.S. attorneys is we have
very, very different situations within our districts. We have
different crime problems, we have different resources, we have
different priorities, we have different partnerships with our
State and local partners that determine the kinds of cases that
we prosecute within our different districts.
And that provides for on the investigation side and the
prosecution side a great deal of difference between our various
districts. Yes, because of that, we still have to find a way to
wrestle with those problems and still result in a substantial
uniform way of sentencing under the Sentencing Guidelines. And
we are working very, very hard to do that within our districts.
We on the Attorney General's advisory committee do discuss
these issues. We haven't had an opportunity to share this
particular data yet with the Attorney General or with the U.S.
attorneys on the advisory committee. We have discussed the
situation on tahe Southwest border. We have discussed the Koon
situation, the extent to which our circuits vary with the kinds
of departures that they are allowing and permitting judges to
make, and these issues are issues of great concern.
But I just want to really assure you that this is a very
important issue to us and that we are committed to the goals
that you have discussed here and brought up at these hearings.
Thank you.
Senator Thurmond. Ms. O'Donnell, I recognize that some
districts must handle an ever-increasing number of aliens
crossing the Southwest border. However, it appears that today
almost half of those who are caught smuggling aliens across the
border are being sentenced below the Guidelines, many with
Government approval, even though Congress expressly ordered
harsher penalties for alien smugglers in 1996.
Should fast-track policies benefit alien smugglers?
Ms. O'Donnell. Well, Senator, I don't think that I can
answer the question quite in that form. I think we are not
trying to benefit alien smugglers. What we are trying to do is
enforce the Federal law which is in alarming proportions of
cases in those districts.
I think the real question to us is do we prosecute these
cases in the best way that we can with the resources that we
have, or do we have to back away from the challenge that it
presents, or can we get more resources from Congress in order
to do the job the way that we need to do it. Given the choices,
which is either right now to do the cases under a fast-track
system or not to do the cases in the record number in which we
are trying to address the cases, it presents a very difficult
situation for us.
Senator Thurmond. Mr. Kirkpatrick, in some districts
defendants get the benefit of a substantial assistance
departure about 50 percent of the time, while in others they
only get it 5 percent of the time. What specific action has the
Attorney General taken during her tenure to encourage U.S.
attorneys to have some consistency on how they define and seek
to grant substantial assistance for cooperating with the
Government?
Mr. Kirkpatrick. Senator, we are concerned about having
consistency with respect to substantial assistance motions. In
the U.S. Attorneys Manual, it is required that within each
district a supervising attorney or even a review committee has
to approve substantial assistance departures. So, that is a way
of ensuring consistency within each district.
The U.S. Attorneys Manual goes on to say that the co-
defendants in a similar case--if you recommend a certain level
of downward departure for one defendant, you have to make that
proportionate to another defendant in that case. The issue you
raise is disparities among the different districts. That does
concern us. We are looking at that data.
One thing we have found from that data is that sometimes it
makes it look as though the disparity is greater than it is
because the data only picks up substantial assistance
departures made under 5(k)(1). It does not pick up substantial
assistance under rule 35. Some districts that look like they
don't have any substantial assistance departures compared to a
district next door actually have the same level of departures,
but they are simply doing it by rule 35.
So we have found that the disparities are not quite as
great as the data makes it appear. We have also found that
sometimes the sentence length, despite differences in
substantial assistance, is very close between districts. But we
are concerned about this issue and are monitoring it and, in
fact, have drafts of guidelines we are thinking to possibly
promulgate to the U.S. attorneys.
We are working with the Attorney General's Advisory
Committee on Sentencing Guidelines, circulating possible draft
criteria to define substantial assistance to further create
uniformity among districts throughout the country.
Senator Thurmond. Mr. Kirkpatrick, should an offender be
able to get the benefit of a downward departure for substantial
assistance when he only provides the prosecutor information the
Government already knew?
Mr. Kirkpatrick. Generally, that would not qualify, but
there is some discrepancy, some disparity among districts on
that issue. It is perhaps an issue that should be addressed by
the Sentencing Commission and given further definition. We
would be happy to work with the Commission on that.
I don't know if Ms. O'Donnell has anything to add.
Ms. O'Donnell. Well, the only thing I would add is if the
individual is testifying, for instance, the Government may have
known the information. But we require defendants to actually
provide substantial assistance against another individual in
order to qualify for a 5(k)(1.1) departure.
I think the other point is that these departures are
reviewed very carefully by the court. We are required to file
memoranda under seal with the court explicitly describing the
nature of the cooperation, the cases and the results of the
cooperation, whether in our district or other districts, to
provide a full record to the court before the court actually
sentences the defendant and determines the amount of the
departure.
Senator Thurmond. Senator Sessions.
Senator Sessions. Thank you, Mr. Chairman.
That was a very interesting question. I am somewhat of the
belief that two witnesses may be more valuable than one. Just
because one has given the testimony first doesn't mean you
might not want three witnesses testifying against the main
culprit if you are moving along wisely. So, that is a difficult
question. I am inclined to think that more than one person can
get a benefit from a downward departure in a certain case, but
you have to use good judgment in that.
Thank you, Mr. Chairman.
Senator Thurmond. I wish to thank both of you for being
here today and you are now both excused.
Mr. Kirkpatrick. Thank you.
Ms. O'Donnell. Thank you very much.
[The prepared statement of Mr. Kirkpatrick follows:]
Prepared Statement of Laird Kirkpatrick
INTRODUCTION
Mr. Chairman, members of the Subcommittee: My name is Laird
Kirkpatrick, and I serve as Counsel to the Assistant Attorney General
for the Criminal Division of the Department of Justice and also as
Commissioner ex-officio on the Sentencing Commission representing the
Attorney General. With me is Denise O'Donnell, United States Attorney
for the Western District of New York, and Daniel French, United States
Attorney for the Northern District of New York. We very much appreciate
the opportunity to appear before you today at this hearing concerning
the United States Sentencing Commission and federal sentencing policy.
We at the Department of Justice believe strongly that the United States
Sentencing Commission and the federal sentencing guidelines promulgated
by the Commission play critical roles in the federal effort to control
crime, and that Congress is to be commended for establishing the
Commission and the procedures under which is operates. We are very
pleased to be here today to provide our views on current federal
sentencing policy, the important work being done by the Sentencing
Commission an the Commission staff, and some important issues facing
the Commission in the coming years.
CURRENT SENTENCING POLICY IS A SIGNIFICANT IMPROVEMENT OVER THAT WHICH
EXISTED BEFORE THE SENTENCING REFORM ACT OF 1984
We believe it is government's first responsibility to protect the
well-being of its citizens. For more than three decades now, this
country has been struggling with the profound problem of crime. As you
know Mr. Chairman, crime rates began to rise dramatically from historic
norms in the early 1970s. And while the national violent crime rate has
fallen significantly in each of the last seven years, crime continues
to occur at an unacceptably high level. Just as importantly, as
technological and social change has accelerated, new criminal threats
continue to emerge. At the same time, new opportunities arise--as a
result of technology and otherwise--to fight crime through innovative
policies and strategies. Federal, state, and local governments have
been working hard to develop and implement successful policies to
combat crime. And it has become increasingly clear that an effective
sentencing policy is one crucial element of any effective crime
fighting policy.
The federal sentencing system in place before the Sentencing Reform
Act of 1984--the Act that created the Sentencing Commission--was almost
entirely discretionary. Choosing a sentence for those convicted of
federal offenses was left almost entirely to the unfettered discretion
of federal judges and essentially was ungoverned by law. Beyond a
statutory direction limiting the maximum sentence, individual judges
had the choice to decide what factors in a case were relevant to
sentencing and how such factors should be weighted. Not surprisingly,
sentencing outcomes under this system were inconsistent from judge to
judge and from district to district.
In 1984, Congress found this discretionary system too often
resulted in unacceptable outcomes and that inconsistent sentences were
not compatible with effective crime fighting, equity or fundamental
fairness. Mr. Chairman, today's federal sentencing system--brought
about by the Sentencing Reform Act, as implemented by the Commission,
federal judges, prosecutors, probation officers, and defense
attorneys--is very different from the inconsistent and uncertain system
in place before the Act. It is a highly structured system that has
brought greater uniformity and greater predictability to federal
sentencing. It is a system not without significant flaws, some of which
I will touch on in a few minutes. But we think it is most important to
first express our overarching view that structured sentencing policy--
such as that under the federal sentencing guidelines--is far superior
to unstructured sentencing policy. And we believe sentencing guidelines
are a key component of an effective structured sentencing policy.
THE ROLE OF THE SENTENCING COMMISSION AND THE NEWLY RECONSTITUTED
SENTENCING COMMISSION
Although the Sentencing Reform Act and the federal sentencing
guidelines have not been in place for well over a decade, we think
there remains a critically important role for the United States
Sentencing Commission to play now and in the years to come. The
Sentencing Reform Act lays out many ongoing responsibilities for the
commission--responsibilities we think are vital to keeping the federal
criminal justice system working well. These include monitoring the
operation of the federal sentencing system, making adjustments to the
sentencing guidelines as directed by Congress and as experience and
research show necessary, and serving as an important resource that,
together with Congress and the Executive Branch, can ensure that the
country has effective crime control and sentencing policies.
Guidelines amendments ensure that federal sentencing policy is up
to date and as Congress and the Commission intend by resolving
interpretive conflicts among the courts, responding to changing
criminal justice priorities, and making the guidelines as workable as
possible for real practitioners. The commission's extensive monitoring
and research capabilities track the federal criminal justice system and
specifically the way of the guidelines are applied within the federal
criminal justice system. These capabilities are invaluable tools to
track the cases flowing through the federal criminal justice system and
the effectiveness of various crime and sentencing policies. And the
Commission's training programs help to educate practitioners--judges,
probation officers, prosecutors, and defense counsel--on the mechanics
of guideline application. All in all, the commission and its staff help
to ensure that federal sentencing policy is as effective and efficient
as possible.
We are especially pleased that the Commission was reconstituted
last year after an extended hiatus and that it is working hard to
address the significant backlog of congressional directives and
important pending sentencing issues. Under Judge Murphy's strong
leadership, the Commission has quickly found its footing, and in about
six months after being confirmed by the Senate in late 1999, it has
already sent to Congress important sentencing guideline amendments
addressing issues like child sex offenses and methamphetamine
trafficking. The Commission has now turned its attention to examining a
new agenda of issues, and we look forward to working with the
Commission to make this upcoming fiscal year a productive one.
SENTENCING ISSUES OF CONCERN
As the Commission moves into the new fiscal year, there are many
serious sentencing policy issues of concern to us, to other federal
criminal justice practitioners, and to the nation at large. Some of
these issues deal with individual sentencing guidelines and particular
classes of crime; others with the guidelines as a whole; and still
others with national and macro trends in sentencing and corrections. We
believe the commission is in a unique position to address all of these
types of issues, and we believe it must make time for all of them. Let
me address each briefly.
1. Individual guidelines and crime types
As I stated earlier, one of the Commission's important
responsibilities is to amend the guidelines as needed to bring about
the most effective, efficient, and just sentencing policy. We believe
there are many individual guidelines and specific crime types that call
out now for guideline amendments. I will mention just three here,
although there are many. First, the Commission has been studying for
several years sentencing policy for economic crimes. These crimes
constitute nearly one out of every four cases prosecuted in the federal
system, and serious questions have been raised as to whether the
guidelines for these offenses are appropriate in their current form or
whether they need to be amended. We think it is vitally important that
this area of the law be comprehensively examined, and we commend the
Commission for convening a two-day conference, to be held next month,
to explore the many issues surrounding sentencing policy for economic
crimes. We also commend the Commission for seeking to develop guideline
amendment proposals to address many of the issues that have already
been raised surrounding sentencing policy for economic crime and for
striving to vote on such proposals in this amendment year.
Second, we think it is important that the Commission address the
guidelines for money laundering offenses. Significant concern has been
raised around these guidelines--from Congress and otherwise--and we
have begun working with the Commission to develop proposals that
address the areas of concern.
Third, we urge the Commission to continue and finish its work
implementing the Sexual Predators Act. Last year, the Commission made
great strides in addressing the very serious problem of child
exploitation and child sex crimes, including sex crimes facilitated by
the Internet and those involving interstate travel. As with economic
crimes, the Internet and other technologies are changing the way sex
crimes against children are being committed. We believe it is critical
that our laws keep current and that this devastating crime problem be
forcefully addressed.
2. The guidelines as a whole
As I said, in addition to crime- or guideline-specific issues
facing the Commission, we believe there are a number of issues
impacting the guidelines as a whole that need thorough examination.
Again, let me mention just a few here. First, over the last five to ten
years, fewer and fewer cases are being sentenced within the sentencing
range dictated by the guidelines. In 1990, well over 80 percent of all
federal criminal cases resulted in sentences within the guideline
sentencing range. That number has steadily declined over the last ten
years. In fiscal year 1999, only 65 percent of cases were sentenced
within the guideline range. We think the Commission ought to seriously
examine this trend and determine whether there is cause for concern
and/or some reform.
Second, over the past several years, the number of federal criminal
cases arising from the southwest border states has increased
significantly. This has been a result of increased resources requested
by the President and provided by Congress going back five or more
years. Unfortunately, this increased enforcement has not been
accompanied by commensurate increases in judges, defense attorneys,
probation officers, or prosecutors. This has resulted in a number of
districts, including the Southern District of California, the District
of Arizona, the District of New Mexico, and some of the districts in
Texas, where court personnel face caseloads that cannot be processed
through the very labor intensive sentencing procedures mandated by the
guidelines for most cases. Different border districts have confirmed
and addressed these caseload issues with different strategies, each of
which raises policy matters concerning the concerning the guidelines,
uniformity in sentencing, and crime control. We at the Department of
Justice have been examining some of these issues recently, and we
believe that further discussion if needed.
3. National and macro sentencing issues
Finally, we believe that the Sentencing Commission ought to
seriously examine a number of national, macro trends in sentencing and
corrections policy. While the Commission has seen the guidelines as its
primary responsibility, we believe that some of these broader areas are
certainly also within the Commission's mandate, and we hope Judge
Murphy and the other commissioners will make time to address them. Let
me again mention just two.
First, as most people here are now well aware, at this moment,
there are somewhere around two million people in our nation's prisons
and jails. While there is nothing scientifically significant about this
number, it is nonetheless a startling number and should cause us to
being to serious examine our national sentencing and corrections
policies. Of equal or greater concern for those working in the federal
criminal justice system, in a time of decreasing crime rates, the
growth in the federal prison system is actually accelerating. These
facts, together with realization that tens of thousands of prisoners
are being released from federal prisons into our communities each
year--and over 600,000 prisoners nationwide are being released into the
community--are cause for out attention. We think the United States
Sentencing Commission ought to be leading the examination of these
matters, and we look forward to the chance to work with the Commission
on them in the near future.
Second, as we have seen all around us and as I have referred to
already, technology is changing our society. Emerging technology
present vast new opportunities for increased productivity. Successful
private sector companies are using technology to deliver better
products and services less expensively. Criminals of all stripes are
using technology to prey on victims--using the Internet to lure
children from state to state to commit sex offenses; committing
securities and other types of frauds using advanced telecommunications;
or laundering drug proceeds using the international banking system
facilitated by technology. We believe that in the public sector we must
also use technology to find new ways of addressing crime and of making
our criminal justice system more productive.
At the Department of Justice, we are already utilizing new
technologies to root out and prosecute crime and in the operations of
the Federal Bureau of Prisons. However, in the coming years, as new
technological development accelerates, we believe that sentencing and
corrections will be fundamentally transformed. In addition to the
development of technologies we cannot now even imagine, existing
technologies such as tracking and location systems, treatment regimens,
and risk assessment vehicles will all continue to develop and present
vast new opportunities to make sentencing and corrections much more
effective in controlling crime and to result in better outcomes for
victims, offenders, and society as a whole. We again urge the
Commission to be at the forefront of these technologies changes and
help lead up to these new opportunities.
Mr. Chairman, I thank you again for giving me the opportunity to be
here. I would be happy to respond to any questions the Subcommittee
might have.
Senator Thurmond. Our next witness is Ms. Carmen Hernandez,
who serves on the board of directors of the National
Association of Criminal Defense Lawyers. She has been a
criminal defense attorney for nearly 2 decades.
Our final witness is Mr. Bill Otis. In 1974, Mr. Otis
joined the Criminal Division of the Justice Department and
later moved to the U.S. Attorney's Office for the Eastern
District of Virginia, where he was chief of appeals from 1993
to 1999.
We ask that each of you speak for no more than 5 minutes,
and we will place your written statements in the record,
without objection. We will start with Ms. Hernandez.
PANEL CONSISTING OF CARMEN D. HERNANDEZ, NATIONAL ASSOCIATION
OF CRIMINAL DEFENSE LAWYERS, WASHINGTON, DC; AND WILLIAM G.
OTIS, FORMER ASSISTANT U.S. ATTORNEY, EASTERN DISTRICT OF
VIRGINIA, FALLS CHURCH, VA
STATEMENT OF CARMEN D. HERNANDEZ
Ms. Hernandez. Good morning, Mr. Thurmond. Good morning,
Mr. Sessions. Thank you very much for inviting me.
The Sentencing Guidelines were born of a very noble concept
to provide fairness in sentencing, to eliminate unwarranted
disparity, and to bring the sentencing process into the open,
to bring it out of the dark room of the Parole Commission into
the open.
Very wisely, I think, you retained the discretion of
Federal judges to depart, and that is what has provided the
fairness in the Guidelines. That is the theory. I am here to
tell you that in practice the Guidelines have created a
problem, although the testimony before me doesn't seem to have
brought it out. In fact, sentences on defendants are very harsh
these days, I mean, make no mistake about it.
Almost 90 percent of Federal defendants who are convicted--
and that is all types of crimes, from class A misdemeanors to
the most serious offenses--go to jail. The mean sentences for
crack offenders, for example, are 10 years, even though drug
offenders, almost 90 percent of them, do not involve guns or
violence and almost 50 percent of them are first-time
offenders.
The flaw, I believe, at the core of the Guidelines is that
it has transferred authority and discretion from Federal
judges, who are constitutional officers, article III judges who
are appointed by the President and confirmed by you, to
prosecutors over whom there is absolutely no authority in
Congress or the President really to hire. They may be good,
they may be bad.
And the decisions made by prosecutors are made in the
darkness of their offices, just like the decisions made by the
Parole Commission. A Federal judge who departs has to,
according to the Guidelines, give reasons, make a statement.
His decision is appealable, his decision can be reversed by a
Federal court. The decisions of Federal prosecutors for the
most part are unreviewable. So I want to suggest to you that,
if anything, you should make changes to give Federal judges
more discretion, not less discretion.
The second bad thing in practice that has coincided with
the Sentencing Guidelines is that there is an increased
disparity in the racial and ethnic makeup of the Federal prison
population. Almost 39 percent of Federal prisoners are now
Hispanic. Much of that is due to our immigration laws, but it
is an issue.
Almost 27 percent of Federal prisoners are black. That is a
disparate impact which I suggest to Congress you should review.
It is inconsistent with the primary purpose of the Guidelines
to bring fairness and to take away unwarranted disparity, and
much of that disparity can be attributed to the crack statute
and to the immigration policies. And I truly commend to the
Congress that you take a look at these issues.
I understand that your greatest concern today is to discuss
departures, and so I will tell you that departures are probably
the only thing in the Guidelines from my perspective that is
working properly and according to the way Congress intended.
I will tell you that, in fact, in most districts, with the
exception of a handful of them that involve either the border
States or districts that have a lot of immigration cases, the
departure rate, excluding substantial assistance, is less than
10 percent. Congress intended that departures be around 20
percent. And we all know the statistics, if you don't really
look at what is underlying the statistics, can lie, and I think
this is that situation.
You shouldn't be concerned about substantial assistance
departures. For every substantial assistance departure, you
have convicted, in essence, another person. It means that you
got cooperation to convict another person. So you should not be
concerned about substantial assistance departures. I think that
there aren't enough, in fact, departures of the other kind.
I am really happy to answer any questions you have about
what happens in the border districts because what is happening
in the border districts is that they have become almost
municipal courts. Sixty immigration defendants who are looking
at jail time are brought into a courtroom, pled, and sentenced.
The type of thing that you see in traffic courts in America is
what is happening in the border districts. If you are going to
have those kinds of policies, you ought to provide more funds.
De novo review would be a very bad thing, in general, for
sentencing issues. It would, in fact, make courts of appeals
who are not adept at that the sentencing court. That just
doesn't make any sense. They don't have the institutional
knowledge. They have to write an opinion every time they would
sentence. They can't make fact-finding.
Nevertheless, after Koon, courts of appeals are still
applying a de novo standard to the extent that they review
application of the guideline. If a departure ground is one that
is prohibited by the Guidelines, the court of appeals is still
looking at it as a de novo issue. Is it a violation of the
guidelines? Is it a violation of law?
Another issue that has been raised here is in terms of
post-offense rehabilitation departures. I must tell you that
only 194 cases out of 55,000 cases involved post-offense
rehabilitation. It is not something that defense attorneys can
generate because the presumption in drug cases is that
defendants are detained. We cannot have them do any kind of
funny rehabilitation when they are in jail. Immigration
defendants are detained.
Just to bring some focus----
Senator Thurmond. You have exceeded your time, so wind up
as soon as you can.
Ms. Hernandez. Yes, sir. Thank you very much.
The first appellate court in the Nation to uphold the post-
offense rehabilitation ground was the fourth circuit in an
opinion written by Judge Wilkins reversing the district court.
I just want you to understand that it is a perfectly legitimate
and integral part of the Sentencing Guidelines.
I really have a lot of answers for a number of the
questions you have asked and I would be prepared to respond to
them.
[The prepared statement of Ms. Hernandez follows:]
Prepared Statement of Carmen D. Hernandez
Mr. Chairman and Distinguished Members of the Subcommittee, the
Sentencing Reform Act and the Sentencing Guidelines were born of a
noble concept that federal sentencing should be fair and certain and
honest. You set up a system that in theory at least was designed to
avoid unwarranted disparity among persons convicted of similar crimes.
At the same time you wisely built into the system through the departure
mechanism the flexibility to permit individualized sentencing--a
venerable tradition in the federal system--so that a United States
District Court Judge when he or she imposes a sentence can account for
factors that the Sentencing Commission had not considered, and indeed
no commission sitting in Washington, D.C. could ever consider, those
factors that Justice Kennedy so eloquently referred to as ``the human
failings that sometimes mitigate, sometimes magnify, the crime and the
punishment to ensure.'' \1\
As in so many things, theory and reality diverge.
I. TRANSFER OF DISCRETION FROM ARTICLE III JUDGES LEAVES UNFETTERED
DISCRETION IN FEDERAL PROSECUTORS
The reality of the Sentencing Guidelines is that they are flawed at
their very core. The Guidelines have transferred discretion and
authority and responsibility from constitutional officers, the men and
women who have been appointed by the President and confirmed by you to
serve as judges of the lower federal courts to persons who have no
express constitutional role, the prosecutors, who are hired without the
careful scrutiny given to federal judges. And history has taught us
time and again, and continues to teach us--and the founding fathers
knew this well when they set up our system of checks and balances--that
you cannot leave such power unchecked in the hands of anyone, least of
all in the hands of men and women whose decisions are made in the
privacy of their offices, who are caught up in an adversarial role, and
whose public function often serves as a stepping stone to higher
political or judicial office.
Indeed, although Congress intended to take sentencing decisions
away from the darkness of the Parole Commission into the openness of
the courtroom, sentencing decisions are now mostly resolved in the
darkness of the prosecutors' office and the probation department rather
than in a public courtroom at the time that the person convicted of a
crime appears for sentencing by a federal judge.
Very recently for example, you held hearings in the case of Wen Ho
Lee to determine whether federal prosecutors were doing the right
thing. These hearings were no doubt held because of the case's
notoriety, the issues involved and because the ultimate resolution--a
guilty plea to a single count with an agreement to time served of some
10 months--seemed completely out of proportion to the charges which
involved a multi-count indictment with potential life sentences. The
judge in the Lee case was without authority to hold such a hearing.
In the run-of-the-mill drug case where the process runs its course
without the light of media scrutiny, a defendant is much less
fortunate. Defendants are left at the mercy of the prosecutor's good
will in most cases because of the operation of the Guidelines. The
burden at sentencing requires merely proof by a preponderance of the
evidence. Judges must consider drug quantities not proved at trial,
quantities not charged, and even quantities that are not part of the
same offense but merely part of a similar scheme as the offense of
conviction. The information presented at sentencing is often based upon
the stories of other defendants who seek to have their own sentences
reduced in return for offering ``substantial assistance'' in the
prosecution of others.\2\ Furthermore, these procedural rules worsen
the problem because the guideline system for scoring drug, fraud and
other offenses focuses on the amount of drugs almost to the exclusion
of all other factors relating to culpability. This has resulted in the
imposition of disproportionately harsh sentences on those who are
merely peripheral agents of the drug kingpins and middlemen whom
Congress sought to punish harshly with mandatory minimum sentences.
Thus, a person, who quite often is young, poor, undereducated or
addicted to drugs, and increasingly female, and is paid $200 by a drug
trafficker for transporting 50 grams of crack from one city to another
is subject to the same mandatory minimum 10-year sentence as the
trafficker who controls the drug organization and will receive the bulk
of the profit.\3\
Congress cannot hold hearings in every one of the 55,408 federal
convictions obtained last year. Yet by transferring so much sentencing
power to federal prosecutors, the Sentencing Guidelines prevent federal
judges from asserting any check on the almost unfettered discretion
that prosecutors hold over the life and liberty of persons accused of
crimes in this country. In so doing, the Sentencing Guidelines have
also limited our ability as citizens to defend ourselves from
unwarranted charges that result from unscrupulous, or vindictive or
ill-founded prosecutions.
A. The racial disparity of the federal prison population has increased
since the Guidelines went into effect
At the same time, the Sentencing Guidelines are not accomplishing
the ideals of uniformity and fairness. Since 1987 when the Guidelines
went into effect, there has been an increase in the racial disparity of
the federal prison population. That is what the Sentencing Commission
found and stated in its 1995 Annual Report.\4\ This is the exact
opposite of the uniformity and fairness that Congress set out to obtain
under the Sentencing Reform Act of 1984. It is wrong and needs to be
corrected.
1. Mandatory minimum penalties are being disproportionately
applied
One of the causes of this racial disparity again seems to lie at
the transfer of power to federal prosecutors that allows them to
control departures below mandatory minimum sentences, a power which
Senior Circuit Judge (and former Senator from New York) James Buckley
has referred to as an ``extraordinary power.'' \5\ In a 1991 Report to
Congress, the Sentencing Commission found that mandatory minimum
penalties were being applied disproportionally to Blacks and Hispanics.
The Commission found that substantial assistance departures that allow
judges to sentence below the mandatory minimum were more likely to be
granted to Whites than to Blacks or Hispanics. This disparity could not
be accounted for by considerations related to the nature of the offense
and the prior criminal record of the defendant.\6\ In fact, the
Sentencing Commission was unable to identify any relevant factors--such
as the severity of the offense or the extent of the cooperation--that
would explain the disparity. These findings were confirmed in a
subsequent study conducted in 1998 by staff at the Sentencing
Commission.
Again, the lack of any check on the prosecutor's discretion in this
area is problematic. Federal prosecutors have chosen to exercise this
extraordinary power in a very secretive and effectively unreviewable
manner. In plea agreements, federal prosecutors reserve onto themselves
the absolute power to determine whether the defendant has provided
substantial assistance. At the same time, federal prosecutors refuse to
spell out in writing the magical quantum of assistance which will
satisfy them that a defendant has sufficiently cooperated and is to be
rewarded with the departure motion. In some districts, the decision is
further insulated from review and disclosure because it is made by
Departure Committees made up of prosecutors whose names are not
disclosed and whose deliberations are kept secret. A defendant can only
challenge the decision if he can prove that it was made with
unconstitutional motive or in bad faith. Such claims are nearly
impossible to prove in any case but are particularly difficult to prove
where the decision is made behind closed doors. Once again, it is
difficult to reconcile this reality with Congress' intent to make
sentencing fair and uniform and open.
2. Recent sentencing policies increase disparity
Congress must address the growing racial and ethnic disparity in
the federal prison population. During the past decade Congress has
continued to increase penalties for certain crimes in the face of the
indisputable evidence that the majority of persons convicted of these
crimes are Blacks and Hispanics. As in the criminal law, it is no
defense that Congress had deliberately ignored the problem.
The enhanced penalties for the crack form of cocaine continue to be
one of the primary reasons for the disparate increase in the number of
Blacks imprisoned in federal institutions. Last year, 84.7% of persons
convicted of these offenses were Black.\7\ These numbers are
particularly stark because federal statistics reflect that more than
40% of crack users are white. In 1995, at Congress' direction, the
Sentencing Commission published a book detailing the problem, including
the fact that this form of cocaine is the only drug where the penalties
are inverted so that bulk importers and distributors of the powder form
of cocaine, the basic ingredient for making crack cocaine, receive more
lenient sentences than the street dealer. Congress has yet to act on
the recommendations made by the Commission.
Penalties for immigration offenses have become so harsh that in
many cases they exceed the penalties for violent offenses. Congress
continues to increase the penalties for immigration offenses. The
Sentencing Commission, at the express direction of Congress and in the
exercise of its own discretion, has also increased the offense levels
and other enhancements for immigration offenses. This is a major cause
for the disparate increase in the number of Hispanics in the federal
prison population.
As with addiction in drug offenses, it is clear that at the core of
many immigration offenses are issues of poverty and persecution in the
home country of these persons that are not present in other criminal
offenses. Persons who act of such desperate circumstances are not as
likely to be deterred and are not as deserving of harsh punishment as
others whose criminal conduct is motivated by more mundane reasons.
Equally important, this seems to be an expensive exercise in futility.
Enhanced penalties do not seem to be reducing the violation of our
immigration laws.
It has been clear for some time that these enhanced penalties are
merely filling our jails and costing us greatly without reducing the
conduct which we seek to prevent.\8\
Congress and the Sentencing Commission need to look at this problem
and act to correct the racial and ethnic disparity in the federal
prison population which is being created.
II. FEDERAL SENTENCES CONTINUE TO BE RATCHETED UP TO REQUIRE PRISON
TERMS IN AN INCREASING NUMBER OF CASES AND LONGER SENTENCES OF
IMPRISONMENT
The Sentencing Commission has amended the Guidelines approximately
600 times since 1987. Fewer than a dozen of those amendments has
involved reductions in (1) the term of the prison sentence to be
imposed for a given offense, (2) the enhancement value of a given fact
or circumstance, or (3) the likelihood of imprisonment for any given
offense. Indeed when it comes to federal sentencing, Congress and the
Commission seem to have a single tool--a ratchet that permits sentences
to be increased but never reduced.
The ``upward ratcheting'' of federal sentences may explain why the
United States recently reached the 2 million mark in the number of
persons in prison. Our rate of incarceration is greater than the rate
of incarceration in South Africa at the height of apartheid. We have
the highest per capita rate of incarceration of any industrialized
nation in the world. It should be clear, therefore, that the Sentencing
Commission has been no slouch when it comes to requiring the
imprisonment of persons convicted of federal criminal offenses.
III. DEPARTURES PRESERVE SOME MEASURE OF FAIRNESS IN THE GUIDELINES
Departures are the one area of the Sentencing Guidelines where
Congress granted federal judges discretion to adjust sentences to take
into account individual aspects of the crime and the person committing
it that the Commission did not. The discretion is not unlimited. It is
cabined by a number of restrictions imposed by the Commission. For
example, the Commission has established that a person's diminished
capacity may warrant a departure unless ``the defendant's criminal
history * * * indicate[s] a need for incarceration to protect the
public.'' U.S.S.G. Sec. 5K2.13.
Without the discretionary authority to depart, all crimes
regardless of the circumstances would have to be sentenced exactly the
same. The secretary who aids her boss in processing the fraudulent
claim for fear of losing her job must receive the same sentence as the
boss who profited and devised the fraudulent scheme because she is
responsible for the same amount of loss as he is. The Guidelines permit
district courts in such a case to depart downward in recognition of the
fact that the amount of loss in her case overrepresents the severity of
her offense. Without the authority to depart, one size must fit all,
predetermined by the body of experts sitting in Washington, D.C.
The national downward departure rate of 15.8% is well within the
level envisioned by Congress when it first enacted the Sentencing
Reform Act. It is misleading, moreover, to include departures for
substantial assistance in the general departure rates. Substantial
assistance departures are within the sole discretion of prosecutors and
were enacted by Congress as a tool for prosecutors. One must also be
careful in comparing departure rates across states or circuits because
of the unique mix of cases and circumstances. A case in point is the
departure rate in immigration cases in some of the border states. The
increased departure rate reflects the overwhelming number of cases in
those districts. Such overwhelming case load increases have required
district courts and prosecutors to fashion a remedy to keep the system
afloat. For example, approximately half the cases in the District of
Arizona involved immigration cases. In the District of Arizona with
1,483 immigration cases, district courts granted departures at a rate
greater than the norm for other districts.
But one cannot ignore the impact of immigration cases on those
statistics both in terms of caseload and in terms of the unique
circumstances that were not likely to be considered by the Commission
in formulating the guidelines. For example, the number of immigration
cases in that one district exceeds the number of all cases in the
entire First Circuit (1,337 total cases in 1999). The immigration cases
in Arizona also exceed the number of all federal cases in the combined
two districts in the state of Virginia (1,305 total cases in 1999). I
am told that in some of the border districts, federal sentencing of
immigration offenses resembles the procedures that are used in
municipal courts to deal with traffic offenses in state courts
throughout the United States. Sixty immigrant defendants are brought
into a courtroom and mass sentencings are conducted. To compare
departure rates in Viriginia's districts or the First Circuit with
those in the District of Arizona is to compare apples and oranges.
Moreover, the number of immigration cases in Arizona almost tripled
since 1997 (608 cases in 1997). Knowing the pace at which new federal
judges are appointed, I am quite certain that judicial resources did
not keep pace with the exploding case load.
Lastly, departures are the one area of the Guidelines where the
Commission can see if its sentencing policies are working or whether an
adjustment needs to be made. The high departure rate in immigration
cases generally and in Arizona in particular reflects a problem with
the most commonly applied immigration guideline. The guideline for
cases involving reentry after deportation (U.S.S.G. Sec. 2L1.2)
includes a 16-level bump if the defendant was previously deported based
on an aggravated assault. This is such a gross measure that it
encourages departures. The 16-level bump--the most severe in the
Guidelines--does not differentiate between a prior number conviction,
for example, or a $20 sale of a small amount of marijuana. Moreover,
when Congress broadened the definition of an ``aggravated felony'' in
the immigration code (in its attempt to address immigration policy), it
tacitly changed the scope of the enhancement in the Sec. 2L1.3
guideline. Yet that enhancement has not been modified by the Sentencing
Commission to address unintended consequences of the immigration
amendment. In light of the statutory mandate in 18 U.S.C. Sec. 3553(b)
to depart where circumstances are not adequately considered by the
guidelines, a district court would be derelict if it did not depart in
such cases.
The drug cases in Arizona also tend to involve circumstances unique
to such border states, such as a higher percentage of defendants who
merely served as ``mules.'' A combination of the application of the
relevant conduct guidelines and the particular circumstances of these
circumstances tend to generate more downward departures.
For these reasons, the high departure rates in the few districts
such as Arizona provide the Commission with the type of information
that Congress intended the Commission to amass and use to adjust the
guidelines. These departure rates do not reflect an avoidance of the
law by federal judges but rather their conscientious compliance with
the Congressional mandate to impose a guideline sentence unless the
court finds a circumstance not adequately considered by the Commission
that warrants departures.
ENDNOTES
1. Koon v. United States, 518 U.S. 81, 116 S. Ct. 2035, 2053
(1996).
2. Somewhere in a federal prison sits a man serving a sentence of
life for his involvement in a marijuana conspiracy. Under the federal
system, that means he will not be released from jail until he dies.
There is no reduction in sentence for doing ``good time,'' nor early
parole, nor is a motion to reduce the sentence available to him. At
trial the government introduced evidence that the man sold 10 ounces of
marijuana. The jury had so much difficulty with the evidence that
twice, the judge had to deliver to the jury an Allen charge, a
statement which tells the jury, after it has informed the court that it
is having difficulty reaching a verdict, to try harder to reach a
verdict. Only after the second Allen charge did the jury convict and
then it convicted of a single count of conspiracy and acquitted of all
the remaining charges. At sentencing, the government claimed that the
conspiracy involved 1000 kilograms of marijuana--despite having only
proved 10 ounces at trial--and that the defendant was therefore subject
to a mandatory life sentence of life based on his two prior
convictions. In dissent from the 7th Circuit's decision that it would
not review the case en banc, Chief Justice Posner eloquently stated
what should be obvious:
[T]he difference between the standard of proof by a
preponderance of the evidence, a standard that in this case
permitted the judge to send the defendant away for life if
he thought the odds 51-49 in favor of the defendant's
having sold the 1,000 kilograms, and proof beyond a
reasonable doubt, is so large that there is room for an
intermediate standard that can be practically, not merely
conceptually, distinguished from the extremes.
* * * * * * *
Conceivably the intermediate standard of proof would
reduce the number of errors both in favor of and against
defendants, for it would induce the government to conduct a
more thorough investigation in preparation for the
sentencing hearing, thus putting before the judge a more
complete and accurate picture of the facts. More thorough
investigation implies, I acknowledge, a cost to the
government, a cost that might in turn reduce the
government's ability to prosecute the guilty or obtain
adequate sentences in every case. Few benefits come without
a cost. But to imprison for life a person who sells 10
ounces of marijuana is a miscarriage of justice of
sufficient magnitude to warrant some expenditure of
resources to prevent.
United States v. Rodriquez, 73 F.3d 161, 163 (7th Cir. 1996).
3. The emphasis of quantity to determine the mandatory minimum
penalties flows from the statutory scheme established in 21 U.S.C.
Sec. 841. The Sentencing Guidelines follow this scheme without
sufficient reducing the sentence of those persons who are much less
culpable.
4. ``Traced over time, the relative proportion of Whites in the
defendant population has steadily declined since 1990, while increasing
considerably for Hispanics, and to a lesser degree for Blacks.'' U.S.s.
Annual Report 46 (1995). See also U.S.S.C. Annual Report 33 (1996).
That trend continues into today:
----------------------------------------------------------------------------------------------------------------
Whites Blacks Hispanics
(percent) (percent) (percent)
----------------------------------------------------------------------------------------------------------------
1995............................................................ 39.2 29.2 27.3
1996............................................................ 35.9 28.4 31.0
1997............................................................ 34.7 27.1 33.7
1998............................................................ 32.0 26.5 37.0
1999............................................................ 30.8 26.2 39.0
----------------------------------------------------------------------------------------------------------------
5. United States v. Jones, 58 F.3d 688, 691-91 (D.C. Cir.), cert
denied, 116 S.Ct. 430 (1995) (Buckley, J.)
6. United States Sentencing Commission, Special Report to the
Congress: Mandatory Minimum Penalties in the Federal Criminal Justice
System ii, 82, 89 (1991).
7. United States Sentencing Commission, Annual Report 69 (1999).
Seventy percent of these offenses did not involve a gun possession, id.
at 74, and thirty-one percent of these offenders were in the lowest
criminal history category. Id. at 72.
8. Jonathan P. Caulkins et al., Mandatory Minimum Drug Sentences:
Throwing Away the Key or the Taxpayers' Money? (RAND 1997).
CARMEN D. HERNANDEZ
Ms. Hernandez is a member of the Board of Directors of the National
Association of Criminal Defense Lawyers (``NACDL'') and chairs its
Post-Conviction and Sentencing Committee. She is also a member of the
United States Sentencing Commission's Practitioners Advisory Group. Ms.
Hernandez has been a criminal defense attorney for nearly two decades.
During much of that time, she has repesented indigent defendants in
federal court. Following law school, she served as a law clerk to the
Honorable Herbert F. Murray, United States District Judge for the
District of Maryland. She received a J.D. with honors in 1982 from the
University of Maryland School of Law and a B.A. from New York
University in 1975. Ms. Hernandez has taught as a adjunct professor at
the University of Maryland School of Law and at the Columbus School of
Law, and Catholic University of America. She also lectures nationally
on federal sentencing and criminal defense trial issues. She is the co-
author of the chapter on departures in Practice Under the Federal
Sentencing Guidelines (P. Bamberger & D. Gottlieb, eds., 2000).
[GRAPHIC] [TIFF OMITTED] T4414A.015
Senator Thurmond. Mr. Otis.
STATEMENT OF WILLIAM G. OTIS
Mr. Otis. Mr. Chairman and Senator Sessions, I am grateful
for your invitation to appear here today and speak about
improving the implementation of the Federal Sentencing
Guidelines.
Although some of the things I will have to say will be
critical of the Commission and the Department of Justice, I
want to make it clear from the outset that I have great respect
and affection for many of my former colleagues in the
Department of Justice and I think the country is well served by
them over the long haul, and also for my friends on the
Sentencing Commission and its staff.
The question posed in this hearing is whether the
Guidelines are being followed. Increasingly, they are not.
Indeed, they are on the brink of being effectively nullified by
rampant downward departures. That trend must be reversed.
Mr. Chairman, under your leadership, but with strong
bipartisan support, Congress took a giant step for the rule of
law by adopting the Sentencing Reform Act. Among the Act's
principal purposes were to reduce unwarranted disparity in
sentencing so that the length of the sentence would no longer
so much depend on the draw of the judge, and to require more
serious sentences for particularly dangerous kinds of crimes.
To achieve those objectives, Congress intentionally cabined
the previously sprawling discretion of district judges to
impose sentence almost entirely without recourse to established
standards. At the same time, Congress realized that there would
be the occasional rare case featuring some factor the
Sentencing Commission had not adequately considered. In such a
rare case, but only then, it allowed the judge to depart from
the Guidelines.
In the late 1980's and early 1990's, the Federal Criminal
Justice System implemented this new approach with great
success, despite significant resistance from some judges and
many members of the criminal defense bar. By and large, rules-
based sentencing prevailed.
In recent years, we have seen how that approach has paid
great dividends to the substantial benefit of our citizens.
Hundreds of the most dangerous criminals are now serving
substantial prison terms with no parole. And not surprisingly,
the crime rate has been headed down. One part of this
accomplishment was keeping unwarranted downward departures in
check. The Sentencing Commission, the Federal judges, and the
Department of Justice all played a key role in doing that.
First, the original Sentencing Commission, under the
leadership of Judge Wilkins, understood the peril that free-
floating downward departures posed to the central purposes of a
determinant sentencing system. It wrote the Guidelines and
their commentary to steer judges away from departing, except in
rare and clear-cut cases.
Second, with some notable exception, district judges
accepted these new limits on their discretion. Admittedly with
an occasional nudge from the courts of appeals, they came to
understand that the Guidelines preserve a reasonable place for
discretion in sentencing even as they shift the balance more
toward consistency and accountability. They came to realize, in
other words, that the rule of law is better than the luck of
the draw.
Finally, the Justice Department demonstrated its
determination to meet the resistance it knew that the new
regime would face from practitioners who had become used to
practicing the old way. The Department recognized, as Judge
Wilkins once said, that the battle cry of the defense bar would
be depart, depart, depart, and that the Department's response
to excessive departures should be appeal, appeal, appeal. For
that reason, through the early 1990's, the Department and the
U.S. Attorneys' Offices were aggressive and largely successful
in taking appeals of excessively lenient sentences.
But trouble is brewing. The Guidelines are being
increasingly swallowed by downward departures. These
departures, both in absolute numbers and as a percentage of all
sentences, have increased every year from 1992 through 1999. At
the beginning of the 1990's, sentences were imposed within the
Guidelines range about four-fifths of the time. Last year, it
was less than two-thirds.
The current Guidelines compliance rate, therefore, is a
little over 60 percent. That means that, as we speak, we are
perilously close to sliding back to the subjective,
idiosyncratic, and gratuitously lenient sentencing of the past,
but less honest than the past system because the public has
been led to believe that now we have rules, when increasingly
as a practical matter we don't.
This slide has not been uniform, however. In my own former
jurisdiction, the Eastern District of Virginia, it is nowhere
in evidence. While the national Guidelines compliance rate
hovers at about 60 percent, in Eastern Virginia it is above 90
percent. And while nationally downward departures not linked to
a defendant's cooperation are given in about 16 percent of the
cases, in Eastern Virginia they are given in fewer than 2
percent.
Now, what are the reasons for this slide in the Nation? It
began when the Sentencing Commission, whose term recently
ended, replaced clear guidance about the limited role of
departures with more ambivalent language, creating increased
wiggle room for judges who wanted to take it, and in many
jurisdictions they did.
Fuzzy language in the Guidelines expanded into gigantic new
loopholes, and downward departures sprang up for novel reasons
that range from questionable to ridiculous. In one case I
litigated, for example, the judge allowed a downward departure
because the defendant was overweight. Meanwhile, the Justice
Department showed no serious determination to combat these
trends by taking the necessary appeals.
Despite the lack of leadership from the Sentencing
Commission and the Department, Eastern Virginia has avoided
this ominous trend, for two principal reasons. First, our court
of appeals has demonstrated a clear willingness to correct
unwarranted departures. Chief Judge Wilkinson, together with
other leaders on the court such as Judges Wilkins, Williams,
Luttig, Traxler, and until his recent death the great Judge
Donald Russell, have been uncompromising in requiring district
courts to abide by the Guidelines in letter and in spirit.
And, second, our outstanding U.S. Attorney Helen Fahey has
maintained the commitment of her predecessors to public safety,
the rule of law, and to full implementation of the Guidelines
that serves both. Our 90-percent Guidelines compliance rate is
largely a result of those two factors.
Now, I know I am over my time so I will try and finish up
quickly.
What is needed is a more resolute commitment to appealing,
with the circuit courts generally ready to stand behind the
rule of law in sentencing and elsewhere. It is particularly
curious and unfortunate the Department of Justice is taking
fewer and fewer appeals of departures just as the need to
appeal has become greater and greater.
As you have pointed out, Mr. Chairman, in fiscal 1999, the
number of downward departures have ballooned to more than three
times to the number 6 years earlier. Yet, the number of
Government appeals have dropped by almost half. The figures
speak for themselves. Out of more than 8,000 downward
departures that year not owing to a defendant's substantial
assistance, the Government appealed 19 times, or less than one-
quarter of 1 percent.
Senator Thurmond. Your time is about up. Could you put the
rest in the record?
Mr. Otis. Yes, I certainly will, Mr. Chairman. I will be
happy to answer your questions.
[The prepared statement of Mr. Otis follows:]
Prepared Statement of William G. Otis
Mr. Chairman and distinguished Members of the Committee, I am
grateful for your invitation to speak today about improving
implementation of the Federal Sentencing Guidelines. The question posed
in this hearing is whether the guidelines are being followed.
Increasingly they are not. Indeed they are on the brink of being
effectively nullified by rampant downward departures. That trend must
be reversed.
Mr. Chairman, under your leadership, but with strong bi-partisan
support, Congress took a giant step for the rule of law by adopting the
Sentencing Reform Act. Among the Act's principal purposes were to
promote more uniformity in sentencing, so that the length of the
sentence would no longer so much depend on the draw of the judge, and
to require more serious sentences for particularly dangerous crimes.
To achieve those objectives, the Guidelines intentionally cabined
the previously sprawling authority of judges to impose sentences almost
entirely without established standards. At the same time, Congress
realize that there would be the occasional rare case featuring some
factor the Sentencing Commission had not adequately considered. In such
a rare case, but only then, it allowed the judge to depart from the
guidelines.
In the late 1980's and the early 90's, the federal criminal justice
system implemented this new approach with great success, despite
significant resistance from some judges and many members of the
criminal defense bar. By and large, rules-based sentencing prevailed.
In recent years we have seen how that approach has paid dividends, to
the great benefit of our citizens. Hundreds of the most dangerous
criminals are now serving substantial prison terms with no parole--and
not surprisingly the crime rate has been heading down.
One key part of this accomplishment was keeping unwarranted
downward departures in check. The Sentencing Commission, the federal
judiciary, and the Justice Department all played critical roles in
doing so.
First, the original Sentencing Commission, under the leadership of
Judge Wilkins, understood the peril that free-floating departures posed
to the central purposes of a determinate sentencing system. It wrote
the Guidelines and their Commentary to steer district judges away from
departing except in rare and clear-cut cases.
Second, with some notable exceptions, district judges accepted
these new limits on their discretion. Admittedly with an occasional
nudge from the courts of appeals, they came to recognize that the
Guidelines preserve a place for reasonable discretion in sentencing
even as they shift the balance toward more consistency and
accountability. They came to realize, in other words, that the rule of
law was better than the luck of the draw.
And finally, the Justice Department demonstrated its determination
to meet the resistance it knew the new regime would face from
practitioners who had grown used to operating the old way. The
Department recognized, as Judge Wilkins once noted, that the battle cry
of the criminal defense bar would be, ``depart, depart, depart,'' and
that its response to excessive departures should be ``appeal, appeal,
appeal.'' For this reason, through the early 1990's, the Department and
the U.S. Attorneys offices were aggressive, and largely successful, in
taking appeals of excessively lenient sentences.
But trouble is brewing. The Guidelines are being increasingly
swallowed by downward departures. These departures, both in absolute
numbers and as a percentage of all sentences, have increased every year
from 1992 through 1999. At the beginning of the 1990's, sentences were
imposed within the guidelines range in about four-fifths of the cases;
by last year, it was less than two-thirds. The current guidelines
compliance rate is, in other words, a little above 60%. That means
that, as we speak, we are perilously close to sliding back to the
subjective, idiosyncratic and gratuitously lenient sentencing of the
old system--but less honest than the old system, because the public has
been led to believe that now we have rules, when increasingly, as a
practical matter, we don't.
This slide, however, has not been uniform. In my own jurisdiction,
the Eastern District of Virginia, it is nowhere in evidence. While the
national Guidelines compliance rate hovers above 60%, in the ED of VA
it is above 90%. And while nationally, downward departures not linked
to a defendant's cooperation are given in about 16% of the cases, in
the ED of VA they are given in fewer than 2%.
What are the reasons for the national slide, and why has the
Eastern District of Virginia escaped it? The slide began when the
Commission whose term recently ended replaced clear guidance about the
limited role of departures with more ambivalent language, creating
increased wiggle room for judges who wanted to take it. In many
jurisdictions they did. Fuzzy language in the Guidelines expanded it
into gigantic new loopholes, and downward departures sprang up for
novel reasons that ranged from the questionable to the absurd (in one
case I litigated, for example, the court departed downward because the
defendant was overweight). Meanwhile, the Justice Department showed no
serious determination to combat these trends by taking the necessary
appeals.
Despite the lack of leadership from the Sentencing Commission and
the Department, the Eastern District of Virginia has avoided this quiet
but ominous trend. This is so for two principal reasons. First, our
Court of Appeals has demonstrated a clear willingness to correct
unwarranted departures. Chief Judge Wilkinson, together with other
leaders on the Court such as Judges Wilkins, Williams, Luttig and
Traxler--and until his recent death, the great Judge Donald Russel--
have been uncompromising in requiring district courts to apply the
guidelines in letter and in spirit. And second, our outstanding U.S.
Attorney, Helen Fahey, has maintained the commitment of her
predecessors Henry Hudson and Richard Cullen to public safety, the rule
of law, and in particular to the implementation of the Guidelines which
serves both. Our 90% guideline-compliance rate is largely the result of
these two factors.
If it chooses, the new Sentencing Commission can play a significant
role in controlling the epidemic of downward departures. What the
experience of the Eastern District of Virginia suggests, however, is
that even if the Commission neglects these matters, the Justice
Department can do much on its own by a more resolute commitment to
appealing. With the circuit courts generally ready to stand behind the
rule of law, in sentencing and elsewhere, it is particularly curious
that the Department is taking fewer and fewer appeals of departures
just as the need to appeal has become greater and greater/ In fiscal
1999, the number of downward departures had ballooned to more than
three times the number six years earlier, yet the number of government
appeals dropped by almost half. The figures speak for themselves: out
of more than 8,300 downward departures that year not owing to the
defendant's assistance, the government appealed 19 times, or less than
one quarter of one percent. Since the Administration came to power,
there have been more than 32,000 such unappealed downward departures.
This is an alarming number. Every downward departure means another
criminal back on the street before he would have been had the
Guidelines been followed--back on the street to rob your bank, hijack
your car, or sell drugs to your child. Yet, over the last seven years,
the Department's efforts to constrain these departures have all but
vanished.
Mr. Chairman, even the best of laws is no more effective than its
enforcement. The Sentencing Reform Act is in my view--a view formed
through more than 20 years as a federal prosecutor--among the best of
laws, because of the fairness, consistency and visibility it has
brought to sentencing, and perhaps even more because of what it has
done to depress the crime rate and secure for our citizens their right
to live in peace and safety. Congress has done its job; it's time for
the Sentencing Commission and the Department of Justice to do theirs as
well.
I shall be pleased to take your questions.
APPENDIX: ADDITIONAL SPECIFIC RECOMMENDATIONS
There are a number of specific changes that would be helpful in
putting the Sentencing Guidelines back on the right track.
--The courts of appeals should have a stronger hand in reviewing
departures. Specifically, they ought to be enabled to undertake de novo
review, rather than the more deferential review required under the
abuse of discretion standard. Implementing this change would require
legislative correction of the holding in Koon v. United States, 518
U.S. 81 (1996). In that case, the Court held that the Sentencing Reform
Act, and particularly language in 18 U.S.C. 3742, indicated that
Congress intended the Act to preserve broad discretion in the district
courts. While broad discretion may well be appropriate in many areas,
experience has shown that the courts of appeals are more vigilant in
safeguarding the determinate sentencing system whose creation was
Congress' principal goal in adopting the Act.
Since Koon was based on the Court's perception of congressional
intent, Congress is free to change the result in that case. In doing
so, moreover, it will support the Administration's view, which, as its
brief in the Supreme Court demonstrates, likewise would have preserved
the relatively stronger hand of the appellate courts.
--Specific kinds of departures should be more closely regulated. In
recent years, the criminal defense bar has sought to make increasing
use of downward departures for ``post-offense rehabilitation.'' While
genuine rehabilitation ought to be encouraged and rewarded, this sort
of departure is subject to manipulation, and should be applied with far
greater caution than it is now.
As things stand, when a client appears in his attorney's office,
indictment in hand, the wise attorney knows then and there that it is
time to start preparing for sentencing. Increasingly, part of the
preparation is to have the client visit persons called ``mental health
professionals'' or other sorts of ``counselors'' who will produce
reports at the right moment attesting to the client's new-found
understanding that his previous ways of living were wrong. In addition,
the attorney is likely to sign up the client to participate, or at
least to say he is participating, in some sort of charitable endeavor.
This too is designed to produce a letter to be put on display at
sentencing as evidence of the defendant's new and improved behavior.
To a judge who dislikes the guidelines sentence, or who for some
reason views the defendant as sympathetic, the ``post-offense
rehabilitation'' file, duly compiled by counsel but not necessarily
attesting to anything like authentic rehabilitation, provides a nearly
fool-proof method of circumventing the guidelines.
Sentencing SHOULD reward real rehabilitation. It should not reward,
however, what is far too often simply an attempt to game the system.
Accordingly, the Commission should adopt the following rule: (1) When a
defendant takes substantial steps to rehabilitate himself before he has
reason to believe that the authorities have learned or are about to
learn of his involvement in the offense of conviction, a downward
departure may be appropriate; (2) When a defendant takes substantial
steps to rehabilitate himself after that time, but before he is
indicted, arrested or otherwise formally charged with the offense, a
downward departure is ordinarily inappropriate, and may be allowed only
on clear and convincing evidence that his efforts at rehabilitation
were undertaken for the purpose of producing a genuine change in his
criminal behavior and not for purposes of litigation; and (3) When a
defendant takes steps toward rehabilitation only after he has been
indicted, arrested or otherwise formally charged with the offense, a
downward departure for rehabilitation is impermissible.
--Current language in the Guidelines permitting a departure based
on a ``combination of factors'' should be revised to prevent abuse.
Some years ago, the Commission added Commentary to the effect that,
even if no single ground for departing would be adequate to justify a
below-the-guidelines sentence, in an unusual case, a ``combination of
factors'' could be adequate grounds to depart.
This language permits guidelines circumvention. It all but invites
a judge who still tacitly (or sometimes not to tacitly) supports luck-
of-the-draw sentencing to grant a downward departure based on a laundry
list of misfortune, or what will be portrayed as misfortune, even
though no single factor would warrant more lenient treatment than some
other, similarly situated defendant would get in the courtroom down the
hall. This is exactly the kind of disparity the Sentencing Reform Act
was written to stop.
There may be some extremely unusual case in which a ``combination
of factors'' legitimately warrants a departure even where no single
factor would. But the current Guidelines language goes too far. As the
Fourth Circuit noted in United States, v. Withers, 100 F.3d 1142, 1148
(4th Cir. 1996), allowing departures on this sort of basis effectively
`` `resurrect[s] the pre-guidelines regime of discretionary
sentencing.' (quoting United States v. Pullen, 89 F.3d 368, 371 (7th
Cir. 1996)). To set such a low threshold * * * would create incentives
for defendants to comb their personal circumstances in order to find
evidence of hardship and misfortune. This search, we suspect, would
almost always be fruitful given that adversity in its infinite variety
comes with the journey of life.''
Even more than others, persons convicted of criminal behavior
need--for their own good and ours--to turn away from the culture of
grievance-building and excuse-making and join the culture of personal
responsibility. The ``combination of factors'' theory of departures
looks in exactly the wrong direction. The Commission should study this
problem, or be directed to study it if needed, and devise more
disciplined language that will end this loophole.
The Commission should publish a Crime Impact Statement with each
proposed revision of the Guidelines sent to Congress.
When courts have employed their discretion to depart, the results
have not been even-handed. Downward departures outnumber upward
departures by the astonishing ratio of 57 to 1. Even excluding
substantial assistance departures, downward departures outnumber upward
departures 26 to 1.
There is a lesson in these numbers. More ``discretion'' means lower
sentences. Proposals for still more discretion, although ostensibly
neutral, are thus all but certain to result in across-the-board lower
sentences and thus the earlier release of criminals. We know in advance
that some of those criminals, on being released, are going to commit
more crime. In the aggregate, a reasonable ``ballpark'' estimate of how
much more should be possible. Accordingly, any proposed amendment to
the Guidelines should be accompanied by a statement revealing (1)
through case examples, its probable effect on actual sentences; and (2)
its probable effect in the aggregate--i.e., how many criminals will
benefit from the proposed amendment, and an estimate of how much
additional crime they will commit when they are back in the community,
rather than continuing to serve the prison sentence at the length it
would have been absent the amendment.
The public is owed this information. Indeed, Crime Impact
Statements would be directly analogous to the cost impact estimates we
wee now, detailing how much additional prison funding is likely to be
needed if the Commission (or,sometimes, Congress) creates longer
sentences. If longer sentences will mean more costs in bedspace and
security, shorter sentences will mean more costs in recidivism. The
public is entitled to know both sides of the story.
--Establish a Crime Victims Advisory Group. For several years, the
Commission has recognized and solicited the views of a Practitioners
Advisory Group, which consists of many of the most energetic and
dedicated criminal defense lawyers in the country. But it would seem
self-evident that crime victims deserve at least the same independent
voice at the table that criminal defendants have now through their
counsel. I believe that a number of our new Commissioners stated at
their confirmation hearings that they would support the formation of
such a group. Now is not too soon to put that pledge into action.
Senator Thurmond. Mr. Otis, based on your experience as a
former career prosecutor and former member of the Attorney
General's Advisory Subcommittee on the Guidelines, do you
believe that this administration has been less dedicated to
upholding the Guidelines than previous administrations?
Mr. Otis. I am afraid to say that it has. The reason that
you see this consistent line starting in 1992 and ending last
year, a consistent line upward in criminal sentences below the
Guidelines range, which of course would also mean a consistent
line downward in compliance with the law and compliance with
the Guidelines, is directly linked to the Department of
Justice's determination, or increasing lack of determination,
to see that the Guidelines are backed up.
As Senator Sessions was pointing out in some of his
questions earlier today, if district judges come to know that
downward departures are just going to be left sitting on the
table by the U.S. Attorney's Office, then of course there is an
incentive to grant more and more downward departures, and that
is what has happened. We can't leave them on the table. We need
to have the same strong commitment to appealing that we used to
have.
Now, both Mr. Kirkpatrick and Commissioner Steer pointed
out that the Government success rate in taking appeals from
downward departures was about 50 percent, or a little less than
50 percent. Of course, that is an extraordinarily high
percentage of success for an appellant. Most appellants lose in
the court of appeals. Ninety-five percent of appellants lose in
the court of appeals. If you are winning anything close to half
of your cases, you have got a great track record, and it is a
track record of which district judges will be aware.
If the district judges know that your U.S. Attorney's
Office is serious about appealing and that questionable
downward departures are going to be reviewed by the higher
court, there are going to be fewer questionable departures.
Senator Thurmond. Senator Sessions.
Senator Sessions. I agree with that, Mr. Otis. Let me ask
you as a former prosecutor for some time, if a mentality gets
afoot that suggests that we are really not too serious about
that and we really don't want to appeal to many of these cases,
does that not undermine the morale and the courage and
discipline of those prosecutors out there who are having to
make the tough calls day after day after day?
Mr. Otis. That is an excellent question, Senator Sessions,
and you make quite a good point. U.S. Attorneys' Offices, like
any organization, have some who are there to spend the time and
draw a paycheck, but many more who are there because of their
dedication to the rule of law, because they want to see
improvements in public safety for all our people.
That latter group, which is by far the greater group, is of
course disheartened to see when the Guidelines which in their
cases they fight for--they fight for compliance, they fight for
the serious sentences and the fair sentences that the
guidelines produce. And when they see that in other districts
that fight isn't being waged and the Department has nothing to
say about it, that is very disheartening.
And I think among the better group of assistant U.S.
attorneys, which again is by far the larger number of them, to
understand that during the years of this administration, from
1992 to the present, to see that there have been a total of
32,000 unappealed downward departures not related to a
defendant's substantial assistance, to understand that every
one of those 32,000 cases involves a criminal who is not
serving the sentence that he would have served had the
Guidelines been followed and who therefore is out early to ply
his trade to hijack your car, to rob your bank, to sell drugs
to your child----
Senator Thurmond. I don't want to interrupt you, but we
have got to move on. Make your answers shorter.
Mr. Otis. Thirty-two thousand times is way too many and it
ought to be brought to a halt.
Senator Sessions. Ms. Hernandez, you raised a question
about the discipline and integrity of assistant U.S. attorneys
and the prosecutors.
Ms. Hernandez. Well, I----
Senator Sessions. Well, you did, in my view. I am not
criticizing you. I think it is a matter we ought to discuss. If
a prosecutor does not charge the primary lead offense, the most
serious offense available as part of a plea bargain process, do
you agree, being the good adversary you are, that they have not
been the advocate they are supposed to be for the system?
Ms. Hernandez. For the most part, I don't know why they
charge what they charge or what evidence they have. Sometimes,
it is because they can't prove what they believe the defendant
committed. That often happens. The proof is just not there.
But let me just say that my challenge is more to the
institutional manner in which the system is set up. We
shouldn't have to rely on the integrity of an individual. We
have systems, is the way our system of justice works best, a
system of checks and balances. And we are in trouble if the
only way our freedoms are safeguarded for all of us is if we
have to rely on the integrity of an individual. We would rather
rely on the integrity of the system of checks and balances, the
ability of the Senate to confirm a judge rather than someone
who is hired, who may be of very high integrity or may not.
Senator Sessions. Well, the prosecutors are advocates and
they normally push for the most serious legitimate charge that
they can. I do think there are occasions, for whatever reasons,
that the judge may even want them to dismiss the more serious
offense and let this case go for a lesser offense, and they are
in a difficult position. I just feel like you will never remove
all of that, but I do think U.S. attorneys and the Department
of Justice do need to monitor it.
I will just mention this. I think on the statistics that
show up, some problems don't show up. My concern that I
discovered by almost inadvertence in the John Huang case where
he didn't plead guilty to a $300,000 contribution to the
Democratic National Committee that helped President Clinton,
but pled guilty to a contribution to a city race--and even for
that, they didn't follow the Guidelines that would have had him
go to jail.
That won't show up, will it, Mr. Otis, as a departure?
Mr. Otis. No, it will not.
Senator Sessions. On the statistics, it does not show as a
departure.
Mr. Otis. It won't show up as a departure.
Senator Sessions. So, to me, from the Attorney General and
the Sentencing Commission and each judge in each district, they
have got to make clear that they expect everybody in the system
to operate with integrity and to do their role in the system,
you to defend them as aggressively as you can, seek every
departure that is legitimate or quasi-legitimate, and the
prosecutor to seek the most serious offense, or else the system
doesn't work. That is how we operate in this country.
Ms. Hernandez. May I put in a plug for the defense attorney
for Mr. Huang, whom I happen to know?
Senator Sessions. Well, he did a good job.
Ms. Hernandez. Ty Cobb, a former very distinguished
assistant U.S. attorney in Baltimore. That may have a part in
the reason for the good results, I may say, if anybody knows Ty
Cobb, a die-hard Republican, by the way.
Senator Sessions. Well, I will just say this. Any lawyer,
Republican or Democrat, is going to get the lowest guideline he
can when he is defending somebody going before a court. But I
don't believe it was justifiable. I read it and it shouldn't
have happened. I just say that to say that we need to maintain
discipline. It wasn't his fault. It was the prosecutor in the
Department of Justice's fault.
Mr. Chairman, I am sure you have questions. I have talked
too much.
Senator Thurmond. Ms. Hernandez, if current trends
continue, we may see more defendants sentenced outside the
Guidelines than within the Guidelines in a few years. Do you
believe that the number of downward departure cases could reach
a level that would undermine the consistency that the
Guidelines were designed to create?
Ms. Hernandez. Mr. Thurmond, as I look at the statistics,
less than 10 percent of cases in most districts, in like 90
percent of the districts, are getting downward departures. And
I would say to you that you built that into the system, and the
Senate report at the time the Guidelines were instituted
indicated that you thought that a departure rate of about 20
percent or more would be adequate.
So at this point, we are not seeing sentences that are too
lenient. We are getting a lot of district courts rejecting
departures out of hand, and a lot of reversals, sir.
Senator Thurmond. Mr. Otis, judges have the discretion to
depart either upward or downward from the Guidelines in certain
circumstances. How often do judges apply their discretion in
favor of the offender?
Mr. Otis. Mr. Chairman, downward departures outnumber
upward departures 57 to 1. Not counting substantial assistance,
putting that entirely to one side, downward departures
outnumber upward departures 26 to 1. As a practical matter,
there is no such thing as upward departures, and to promote
more discretion among judges, more discretion than they already
have, is to my way of thinking simply a code word for promoting
across-the-board lower sentences because that is what the
discretion we see now does.
Senator Thurmond. Mr. Otis, we have discussed today how the
Guidelines may be circumvented by the increasing number of
cases in which defendants receive downward departures. Do
downward departures tell the whole story about how the
Guidelines are being circumvented?
Mr. Otis. No, Mr. Chairman, unfortunately they do not. As
Senator Sessions has pointed out in some of his remarks, judges
already have considerable discretion to lower sentences without
ever getting to anything that either is or would be called a
downward departure. And this is one of the big misconceptions
about the Sentencing Guidelines system that it is a
straightjacket for judges. It is no such thing. It preserves,
as it was intended to preserve, a considerable although cabined
discretion within judges.
For example, the Guidelines do not designate a particular
sentence; they designate a sentencing range that differs by 25
percent from bottom to top. The judge has unfettered discretion
to allow a substantial downward adjustment within the
Guidelines for acceptance of responsibility, another 25
percent, or in serious cases up to 33 percent off the sentence.
And, of course, the judge has the ability to make factual
determinations, for example, about the amount of drugs with
which a defendant has been involved that substantially affects
the sentence.
So, in fact, the judge under the present system and without
even getting to departures has an enormous ability to get the
sentence to be pretty low if that is what he wants to do. To go
beyond that with departures is, in my way of thinking, to put
the Sentencing Reform Act and the determinant sentencing system
very much at risk.
Senator Thurmond. We will place a statement from Senator
Leahy in the record.
[The prepared statement of Senator Leahy follows:]
Prepared Statement of Senator Patrick J. Leahy
Today, the Judiciary Committee's Subcommittee on Criminal Justice
Oversight will conduct a hearing on the United States Sentencing
Commission which will focus on the work of the Commission generally and
the frequency with which sentencing judges grant downward departures
from the range of punishment applicable under the Sentencing
Guidelines. Some believe that we need to change the law because
sentencing judges are granting too many downward departures and are
thereby undermining the effectiveness of the Sentencing Guidelines. I
disagree. While it is appropriate that we monitor and understand
sentencing trends and modify existing law when necessary, our federal
sentencing scheme is fundamentally sound and in my view is part of the
reason why the rate of crime around the United States is declining and,
in some places, plummeting. This is no time to sound an alarm for
change. We can best assure the proper implementation of existing
sentencing laws if we support and fully fund the indispensable work of
the Sentencing Commission.
We can only address and understand sentencing trends if we support
the Sentencing Commission and appropriate to it sufficient funds so it
can do its work. It is the Commission, after all, which has the
responsibility to maintain and analyze 260 pieces of information from
each of over 50,000 sentencings under the Guidelines every year. It is
regrettable that the Commission struggled without any voting
commissioners for over a year in 1998 and 1999. It would be equally
regrettable if Congress does not grant the President's request for
$10.6 million to fund the Commission in FY 2001. The House of
Representatives has voted to appropriate $9.6 million to the
Commission. The Senate Appropriations Committee has appropriated $9.9
million. Last year, I successfully offered an amendment to add $5
million to fully fund the Sentencing Commission's budget and I again
urge the full Senate and the Congress to appropriate the full $10.6
million requested by the President. Our discussion today about downward
departures and future discussions about implementation of the
guidelines will be largely irrelevant unless we support the people we
have asked to monitor and implement our sentencing laws.
Though the Commission has my unwavering support, I question the
timing of and need for today's hearing for two independent reasons.
First, while there may be reason to believe that the rate of downward
departures has increased, the statistics appear to show that the lion's
share of the increase is attributable to immigration and border-related
issues. Excluding downward departures based on cooperation, the largest
percentage increase in downward departures is in immigration cases.
According to Commissioner Steer's testimony, immigration-related
prosecutions have increased from 6.5% of the federal caseload sentenced
under the guidelines in FY 1989 to 17.5% in FY 1999; deportation of
aliens is the reason most often given by judges for downward
departures; and the rate of departures based on deportations has grown
from less than 1% of departures in FY 1992 to about 20% in FY 1999.
Indeed, the three districts which by far lead the nation in rate of
downward departures are the District of Arizona and the Southern
District of California, two districts which border Mexico, and the
Eastern District of Washington, which borders Canada.
Of course, the nation's districts that routinely deal with
immigration issues have borne the brunt of our increased law
enforcement efforts aimed at illegal immigration and face special
circumstances. Some districts have experimented with special policies
to deal with immigration-related issues. For example, Arizona and the
Southern District of California are among districts which have offered
departures as an incentive for defendants charged with border-related
crime to dispose of their cases quickly and with a minimum of
litigation. These districts have implemented these policies because of
the overwhelming increase in border-related arrests and prosecutions
which was not matched in a commensurate increase in prosecutorial and
judicial resources. The Justice department wisely decided that
subjecting more border-related offenders to federal prosecution would
help deter border-related crime even at the minimal expense of
subjecting these offenders to marginally less jail time. I believe that
the Justice Department's policy in this area has been a resounding
success. One question we need to have answered is whether the current
rate of downward departures overall would represent a significant
increase from rates of prior years if we eliminated border states from
our calculations. I believe that we may need more information about the
sentencing policies and practices of such districts before we hold a
hearing and sound the alarm that there is a nationwide sentencing
problem that needs fixing. It appears to be that policies and practices
in a few districts disproportionately affected by increased emphasis on
deportable aliens accounts for the increased rate of downward
departures.
Second, I question why we are rushing to conduct this hearing on
one of the last days of this session when we do not have any specific
information from the border districts that would substantially assist
our understanding of the issue. My fear is that this hearing has been
scheduled to provide a soapbox for partisan criticism of the Justice
Department and the Administration as we approach a national election.
Any effort to trot out the old standby campaign theme that Democrats
tolerate lenient sentences would be nonsense. According to the Bureau
of prisons (BOP), the population of our federal prisons has almost
doubled over the last eight years. The total population of prisoners in
BOP facilities in 1992 was about 67,768 inmates. By contrast, the
population as of July 2000 was 124,667. Those numbers do not even
include federal inmates now lodged in facilities under contract with
BOP. Meanwhile, we have never seen as dramatic a drop in the crime rate
as we have seen since over the last eight years. The need of some
jurisdictions to address unique issues, such as border-related crimes,
is one reason why I believe that our system properly tolerates some
degree of disparity in sentencing, as Congress intended by providing
for both downward and upward departures. We confirm our federal judges
after an arduous process because we trust their judgment to fashion an
appropriate sentence within the bounds of the law. Indeed, the Supreme
Court in a case title Koon v. United States, 518 U.S. 81 (1996), said
that the sentencing judge is in the best position to assess whether the
particular circumstances of a case justify a downward departure, and
that such departures are entitled to the deference of the appellate
court reviewing the sentence, subject to modification on appeal only
under very limited circumstances. In so holding, the Supreme Court
ruled that Congress intended appellate courts to show deference to the
wisdom of sentencing judges rather than require appellate courts to
review sentences de novo, that is, review sentences as if the appellate
courts were imposing sentence for the first time. The Supreme Court
correctly recognized that the sentencing judge, before whom the parties
personally appear during the entire pendency of a case and who has the
discretion to conduct any appropriate inquiry at sentencing, has a far
better sense of the defendant and all the relevant circumstances than
appellate judges whose entire knowledge of a case is limited to a cold
review of transcripts and typically about twenty minutes of legal
argument by the lawyers, if any oral argument is granted.
Some have suggested that the interest in sentence uniformity
requires Congress to pass legislation that would effectively overrule
Koon and require appellate courts to review every sentence de novo. To
do so, in my view, would unwisely and necessarily transfer the ultimate
responsibility for sentencing away from the federal judge, who is in
the best position to evaluate whether an upward or downward departure
is appropriate. Some blame the Justice Department for not taking enough
appeals from downward departures to assure sentence uniformity. But
such criticism cannot be intelligently levied until we first understand
the deportation-related issues that seem to account for the lion's
share of downward departures. Moreover, it has never been the Justice
Department's role to appeal every adverse ruling on sentencing or any
other issue. The Justice Department needs to pick its fights wisely
when it seeks to appeal a district court's ruling. There is no basis of
which I am aware on which to conclude that the Justice Department has
failed to exercise its right to appeal in appropriate cases.
Downward departures, like upward departures, are an integral and
necessary part of our sentencing scheme. The provision for downward
departures which we discuss today was incorporated into the guidelines
so that federal judges can make appropriate adjustments where there are
circumstances of a kind or degree not adequately taken into
consideration by the Sentencing Commission in formulating the
guidelines. While I support steps that Congress and the Sentencing
Commission have taken to lessen sentence disparity and assure that the
punishment fits the crime, the provision for downward departures
recognizes that Congress and the Sentencing Commission cannot possibly
anticipate and enact a guideline that accounts for every conceivable
set of facts. Even in as comprehensive a framework as the sentencing
guidelines, our judges need room for flexibility. Quite simply, fixing
a precise sentence that fairly reflects the unique mix of a particular
defendant's circumstances does not always lend itself to a mechanical
formula that produces a pre-determined sentence.
Those who believe that we should ratchet the existing Sentencing
Guidelines to achieve a goal of 100% sentence uniformity fail to
appreciate that a certain degree of disparity is inevitable and
acceptable in our system. Two different prosecutors from different
parts of the country may review the same case and reach different
conclusions, both consonant with Justice Department guidelines, about
what charge is justified by the facts and to what charge a defendant
should be allowed to plead guilty under the particular circumstances of
a case. Sometimes Congress plays a role in treating similar offenders
unevenly by focusing attention on a particular type of crime which is
in the public spotlight for one reason or another but not addressing
other similar crimes not in the spotlight. These types of disparities
are inevitable in as disparate a county as ours, and we should not put
our sentencing laws in a vice and try to squeeze away every drop of
disparity as if it were poison. We should not lightly tinker with a
system that appears to be working.
Notwithstanding my concerns about this hearing, I strongly support
the Sentencing Commission and its mission. The Sentencing Commission
plays an essential role in the administration of justice in our federal
courts. The Commission establishes and maintains sentencing guidelines
for over 50,000 criminal cases sentenced in the federal courts each
year. The Commission's most critical responsibility today is to adjust
the guidelines to implement the important crime legislation we enact
every year. Let me emphasize this point: when we enact legislation that
calls for increased criminal penalties, it is the Commission's job to
make sure that convicted defendants suffer the impact. These directives
appear in virtually every piece of new crime legislation we enact. For
example, Congress drafted legislation this session aimed at the
production and trafficking of methamphetamine. The bill directs the
Commission to ensure that the sentencing guidelines for methamphetamine
reflect the threat to public safety posed by that drug and are
comparable to similar drugs. Similarly, Congress drafted legislation
enhancing the penalties for crimes that target computer systems. That
bills directs the Commission to ensure that the guidelines reflect the
loss caused by a crime and a level of sophistication in planning the
crime, among other relevant factors, as a way of deterring the growing
incidence of computer crimes.
Because we went over a year without Commissioners, the new
Commissioners appointed in November 1999 were required to address an
alarming backlog of directives on legislation such as the No Electronic
Theft Act of 1997, the Wireless Telephone Protection Act of 1998, the
Identity Theft and Assumption Deterrence Act of 1998 and the Protection
of Children from Sexual Predators Act of 1998. The new Commissioners
have worked hard to catch up and eliminate the backlog. They have my
thanks for successfully addressing a problem that was created by
Congressional inaction.
The importance of the Commission's other statutory obligations show
why the Commission must have strong support for Congress. For example,
the Commission has the initial and primary responsibility to resolve
conflicts on guidelines interpretation among the circuit courts. While
today's hearing examines whether too many downward departures threaten
the sentencing uniformity for which the guidelines were enacted, our
new Commissioners long ago began working diligently to achieve that
goal, identifying numerous circuit conflicts, resolving some of those
conflicts and now addressing others.
The Commission also has an ongoing statutory obligation to serve as
the lead instrumentality for training newly appointed judges and
probation officers regarding application of the sentencing guidelines
and related sentencing issues. Similarly, the Commission has an ongoing
responsibility to provide needed continuing education for all those who
use the sentencing guidelines to ensure that they are sufficiently
informed of recent amendments to the guidelines and significant court
decisions. According to Judge Murphy's testimony, the Commission's
staff trained more than 2,200 people at 47 training programs around the
country in 1999 alone.
The Commission also has an ongoing statutory obligation to serve as
a clearing house of information on sentencing-related topics and to
stay current on advancements in the knowledge of human behavior and the
degree to which the guidelines are achieving the purposes of sentencing
such as deterrence and rehabilitation. If we are going to have
guidelines and require federal judges to impose guidelines sentences,
the Sentencing Commission must be empowered to do its work. That means
we need to appropriate sufficient funding to enable the Commission to
fulfill its critical role in the federal criminal justice system.
Perhaps a better focus of this hearing would be how the Congress does
its job of sustaining and respecting the work of the Sentencing
Commission.
Senator Thurmond. Senator Sessions.
Senator Sessions. Thank you, Mr. Chairman.
Ms. Hernandez, you raised the crack cocaine sentences. They
are tough, and it may be appropriate for us to look at those
sometime and I am open to that. There are some other areas that
may be tougher than we need in the Guidelines, and I respect
the concerns that are expressed there.
In the long run, we will all be better off and justice will
be better served if we utilize the factors that Senator
Thurmond and the Commission created to allow departures upward
and downward within that system. And if it is not quite
perfect, maybe we ought to strengthen the economic crime
penalties. Maybe we can review some of the drug penalties that
are there and help maintain a fair system. But at the same
time, the critical component to justice under the Guidelines is
making sure that we conduct them with integrity, and that is
what I think we are right to do.
Mr. Chairman, you helped create this system and you have
seen now departures for other reasons, the most dangerous area
of departures increase 150 percent since 1992. And so I think
you rightly have every legitimate reason to have this hearing
to inquire about it and make sure we are not letting something
slip away from us that has served us very well for some time.
I thank you for your leadership. I thank the members of
this panel. I think they all did an excellent job, and I hope
the Department of Justice particularly will realize that you
have got to exert some leadership from the top, send a clear
message that they expect these Guidelines to be followed, that
assistant U.S. attorneys out there in the field--nobody may
know precisely the decisions they are making and wrestling
with. But if they know you expect them to do right, to follow
the Guidelines and not to give away their cases, more often
than not they will. If they think people really don't care and
that nobody is going to appeal, they will be more likely to
give in under pressure and let a case go for less than it is
worth.
Thank you, Mr. Chairman.
Senator Thurmond. We will leave the record open for 1 week
for follow-up questions and additional materials.
If there is nothing else to come up, we stand adjourned.
[Whereupon, at 12:10 p.m., the subcommittee was adjourned.]
A P P E N D I X
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Questions and Answers
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Responses of Diana Murphy to Questions From Senator Patrick J. Leahy
Question 1. According to Commissioner Steer's testimony,
deportation of aliens is the reason most often given by judges for
downward departures. His testimony shows that the districts that lead
the nation in rate of downward departures are Arizona and San Diego.
The caseloads of those districts and others that border Mexico have
dramatically increased over the past eight years due to the Clinton
Administration's resoundingly successful efforts to patrol our borders
more effectively and bring more border-related prosecutions in federal
court to deter illegal immigration and drug smuggling at the border.
This extraordinary increase in caseload has not been matched by an
equal increase in prosecutorial and judicial resources. Thus, border
districts have implemented so-called ``fast-track'' programs by which
departures are granted as an incentive for defendants who commit
border-related crimes to resolve their cases quickly and with a minimum
of resource-consuming litigation.
Question a. Contrary to patently partisan accusations that there is
a nationwide trend among our federal judges and that Justice Department
to ignore or defeat the guidelines, do these facts suggest that the
spike in the rate of increase of departures is due to districts trying
to develop strategies to address increased emphasis on border-related
law enforcement?
Question b. Commissioner Steer's statistics show that the Eastern
and Western Districts of Washington, districts which border Canada, are
among the districts that lead the nation in rate of downward
departures. Is the high rate of downward departures in those districts
attributable to border-related issues as it is in the southwestern
districts?
Question c. What would the rate of sentencings within the
applicable guideline range be since 1990 if border districts were
eliminated from the calculation?
Answer a. It appears that judges are overwhelmingly sentencing
cases within the guideline range if substantial assistance departures
are disregarded. Judges impose sentences within the guideline range
82.1 percent of the time. This percentage has decreased only very
slightly for 84.0 percent in fiscal year 1997. The figures for the
southwest border districts tend to skew the total percentages, and more
departures have resulted because of the exigencies created by the huge
number of cases and too few resources. If we omit both cases receiving
substantial assistance departures and the southwest border districts
from our analysis, we find that 86.8 percent of cases sentenced
throughout the country are sentenced within the range prescribed by the
guidelines.
Answer b. The high rate of departure in the districts of Washington
also appear to be affected by border-related issues. Immigration
offenses comprise 33.8 percent of the caseload in the Eastern District
of Washington, and courts in that district depart from the guidelines
in 84.4 percent of their immigration offense cases. Downward departures
for immigration offenses thus account for 69.8 percent of all of these
departures. The district departure rate excluding immigration offenses
is 18.6 percent.
The Western District of Washington has a smaller immigration
caseload, 14.7 percent of its cases, but the effect of these cases on
its departure rate is similar. Courts in the Western District of
Washington depart from the guidelines in 78.8 percent of their
immigration offense cases, which accounts for 44.0 percent of all of
their departures. The departure rate for the district excluding
immigration offenses is 17.2 percent.
Answer c. See Exhibit 1 and Exhibit 2, attached. Exhibit 1 shows
the national downward and upward departure rates from fiscal year 1991
through fiscal year 1999, excluding the southwest border districts and
excluding cases from the remaining districts in which the defendant
received a substantial assistance departure. Exhibit 2 shows the
national downward and upward departure rates for the same time period,
excluding the southwest border districts only.
Question 2. As United States Attorney Denise O'Donnell testified at
the hearing, the nation is divided into 93 geographic federal districts
each headed by its own United States Attorney. The districts are not
identical. The types of crimes that predominate in one district may be
very different from another district. Each district has its own law
enforcement priorities and a unique relationship with state and local
law enforcement. while the Sentencing Guidelines serve the goal of
sentence uniformity, the provision for downward and upward departures
in Guideline Section 5K2.0 recognizes that some flexibility is
necessary so that the sentencing judge in an appropriate case can
account for compelling and otherwise unaccounted-for circumstances. Is
some degree of disparity inevitable and acceptable in a nation as
disparate as ours, and does Section 5K2.0 reflect the wisdom that room
for some flexibility is an essential ingredient in a fair sentencing
scheme in which the American people can have confidence?
Answer 2. Congress recognized in the Sentencing Reform Act that
some flexibility is necessary in the sentencing guideline scheme. One
of the fundamental responsibilities of the Commission, as set forth in
28 U.S.C. Sec. 991(b)(B), is to establish sentencing policies and
practices for the Federal criminal justice system that ``maintain[]
sufficient flexibility to permit individualized sentences when
warranted by mitigating or aggravating factors not taken into account
in the establishment of general sentencing practices,'' this portion of
the Sentencing Reform Act is reproduced in USSG 5K2.0. The purpose of
the guidelines is not to eliminate disparity, but to avoid
``unwarranted sentencing disparities among defendants with similar
records who have been found guilty of similar conduct.'' Id.
Question 3. The claim has been made by some that the number of
appeals taken by the Justice Department has not increased
commensurately with the increase in the rate of downward departures.
That claim ignores that the increase in downward departures is largely
due to policies and practices in border states to deal with caseloads
resulting from increased emphasis on border-related crime. That claim
also ignores United States v. Koon, 518 U.S. 81 (1996), in which the
United States Supreme Court made it more difficult to appeal a downward
departure by holding that appellate courts should only overturn a
departure where the sentencing judge makes a mistake of law or abuses
discretion. Mr. Kirkpatrick testified at the hearing that there are
ways of assuring compliance with the Sentencing Guidelines other than
taking appeals in particular cases, such as working with the Commission
to resolve conflicts among the circuit courts of appeal about
interpretation of the guidelines.
Question a. If border-issues and Koon are considered, has there in
fact been any significant change in the rate with which the Justice
Department takes appeal from downward departures?
Question b. What are the ways in which the Justice Department
endeavors to assure the effectiveness of the Guidelines other than
taking appeals from downward departures?
Question c. Should the Justice Department's policy be to pursue an
appeal of every downward departure no matter the circumstances? What
factors does the Justice Department consider in determining whether or
not to pursue an appeal from a downward departure?
Answer a. These factors appear to account for much of the
difference. As an appellate judge I am aware that an appellant is more
effective overall by focusing on the most significant cases.
Answer b. By actively participating in the ongoing work of the
Commission through its ex officio member and by providing expert
commentary and testimony throughout amendment cycles.
Answer c. These are issues more appropriately addressed by the
Department of Justice itself.
Question 4. Ms. Hernandez expressed concern about relentless
attempts by some to ratchet up the Guidelines and create unduly harsh
sentences with an intended disparate impact. Mr. Kirkpatrick in his
written testimony expressed concern that our federal prison population
continues to grow even as the crime rate decreases. Indeed, the
population in our federal prisons has almost doubled in the last five
years, and there are now about two million people in our nation's
federal, state and local jails.
Question a. Is there reason for concern that our sentencing laws
have become too harsh and retributive?
Question b. Is the Sentencing Commission as sensitive to unduly
harsh sentences as it is to inappropriately lenient ones?
Question c. If application of the Guidelines creates an unintended
racially disparate impact, what steps should Congress take to address
that impact?
Answer a. and b. Some say that the guidelines are too severe, but
others say that certain guidelines are too lenient. Feedback from
southwest border judges that the illegal reentry guideline is
disproportionately severe, has caused us to examine that guideline this
amendment cycle. On the other hand, the Commission has received public
comment for many years that the economic crimes guidelines are too
lenient. As a result, we hope to complete a comprehensive review of the
economic crimes guidelines this year. The Commission must also respond
to congressional directives to increase penalties in certain areas. For
example, in the past few weeks Congress has passed legislation
directing the Commission to increase penalties to certain
methamphetamine, amphetamine and ecstasy offenses, as well as human
trafficking offenses.
Answer c. It is our responsibility always to keep in mind the goals
of the Sentencing Reform Act, and this Commission is sensitive to the
issue of disparate racial impact. We expect to study that issue as part
of our 15 year review, and we will of course share any resulting data
or recommendations with Congress.
Question 5. The Supreme Court in Koon held that the sentencing
judge is in the best position to evaluate whether a departure is
warranted, and any downward departure should be reversed on appeal only
under very limited circumstances here, for example, the judge abused
discretion or made a mistake of law. Some say that Koon is good for the
system because it supports the authority of judges to fashion an
appropriate sentence where there are unforeseen or compelling
circumstances. Others have suggested that the Congress should pass
legislation that would effectively overrule Koon. What factors should
the Congress consider in evaluating the wisdom of a legislative effort
to statutorily overrule Koon including, for example, the increase in
federal appellate ligitation?
Answer 5. Response. in my opinion the Koon decision has helped win
over many judges to embrace the guidelines system and sentence within
it because they know that under Koon they are also able to react to
unique or extraordinary circumstances not foreseen by the system. The
guideline system is well developed and sound, but it cannot possibly
anticipate all circumstances that will arise. Today there is generally
a high rate of compliance with the guidelines.
________
Responses of John R. Steer to Questions From Senator Strom Thurmond
Question 1. Mr. Steer, do you believe that the trend in sentencing
below the Guidelines is extensive and extends far beyond the illegal
immigration context? Please explain.
Answer 1. There ia a general increase in the rate of sentencing
below the Guidelines for reasons other than substantial assistance
(i.e., ``other downward departures''), across all major offense types.
The high rate of downward departures for immigration offenses has
substantially added to, but does not fully account for, this overall
trend. The Commission plans to carefully study this trend as part of
the 15-year study described by Chair Murphy.
Question 2. Mr. Steer, is the trend toward downward departures more
extensive in certain judicial circuits, such as the Ninth Circuit, that
others? Please explain.
Answer 2. Yes. Exhibit 9 attached to my written testimony shows
that, in FY1999, the rate of other downward departures exceeded 15
percent in three circuits, as follows: Ninth Circuit--36.4 percent;
Second Circuit--19.5 percent; and Tenth Circuit--17.4 percent. In
contrast, the rate of other downward departures was lowest in the
Fourth (4.6 percent), Eleventh (6.5 percent), and the Sixth (6.7
percent) Circuits.
With regard to substantial assistance downward departures at
sentencing, the Third (32.2 percent), Eighth (26.0 percent), and Sixth
(25.6 percent) Circuits each exceeded 25 percent in FY1999, while the
Ninth (10.4 percent) and Tenth (12.8 percent) Circuits had
significantly lower rates of substantial assistance downward departures
at sentencing than the other circuits.
Question 3. Mr. Steer, it was suggested at the hearing that
sentences are too harsh in the federal system. However, it appears that
statistics from the Commission show that for drug offenses, and indeed
for all offenses combined, the average length of sentences in federal
court has been declining in recent years. Do you agree that this trend
is toward lower sentences?
Answer 3. Imprisonment sentences imposed under the federal
sentencing guidelines are significantly longer than pre-guideline
sentence for most types of offenses; however, the length of
imprisonment sentences imposed under the guidelines for all offenses
combined has trended downward in recent years. It appears that this
overall downward trend is influenced heavily by the downward trend in
sentence length for drug trafficking cases. For a number of other types
of offenses, average sentence length has stayed about the same or
increased in recent years.
Question 4. Mr. Steer, to what extend do downward departures exceed
upward departures, and in general has the disparity between these two
types of departures been increasing in the offender's favor over the
years?
Answer 4. In FY1999, the rate of all downward departures exceeded
the rate of upward departures by 57.5 to 1; the rate of other downward
departures exceeded the rate of upward departures by 26.3 to 1. These
ratios have widened over the years as the rate of other downward
departures has grown, while the rate of upward departures has declined.
For example, in fiscal year 1989, the rate of all downward departures
exceeded the rate of upward departures by only 2.1 to 1. Five years
later, in fiscal year 1994, that ratio was 22.6 to 1. These differences
appear to be rather large in part because the rate of upward departures
has been relatively low throughout the history of the guidelines (less
than 2.0 percent in every year since 1991).
Question 5. Mr. Steer, it was argued during the hearing that the
Congress expected a 20 percent departure rate from the Guidelines
excluding substantial assistance departures. Do you agree?
Answer 5. Footnote 3 in my written testimony briefly alluded to
this ``congressional expectation.'' As I noted there, the 1983 report
of the Senate Judiciary Committee (S. Rep. No. 225, 98th Cong. 1st
Sess.) described an expectation that the rate of departures--up and
down--from the contemplated sentencing guidelines would be about the
same or less than the prevailing rate at which the U.S. Parole
Commission set release dates above or below their parole guidelines.
That ``departure rate'' was about 20 percent at the time, consisting of
aboue 12 percent above and 8 percent below. Moreover, the approximate 8
percent of parole guideline ``downward departures'' included cases in
which release dates were set below the parole guidelines to reward
inmates' assistance to the government in the investigation and
prosecution of other crimes (although the concept of substantial
assistance was not formally recognized and codified by Congress until
1986). Thus in my judgment, it is off the mark to claim, as some have,
that today's 15.8 percent other downward departure rate is less than
Congress expected. If anything, it apparently is substantially greater.
Question 6. Mr. Steer, it appears that the Commission could help
control the number of sentences below the Guidelines. For example, it
could establish more forbidden or discouraged factors for departures,
which was an issue that the Supreme Court discussed in Koon. Do you
think the Commission should create more forbidden or discouraged
factors to help prevent unwarranted downward departures?
Answer 6. Chair Murphy has answered this same question for the
Commission. I simply add by way of emphasis a point I make at the
hearing: By curtailing (but not eliminating) the role of the appellate
certain in policing departure decisions by district court judges, Koon
necessarily has had the effect of placing greater responsibility on the
Sentencing Commission, working in consultation with the Justice
Department, to regulate departures through the Commission's powers to
promulgate or amend guidelines, policy statements, and commentary.
These amendment powers include actions characterizing particular
departure factors as ``forbidden'' or ``discouraged'' where
appropriate.
Question 7. Mr. Steer, the Guidelines currently permit a departure
for a ``combination of factors.'' Does the Commission plan to review
this ground for departure to determine whether the current language
permitting this departure may be too broad?
Answer 7. Chair Murphy has answered this question for the
Commission.
______
Responses of John R. Steer to Questions From Senator Patrick J. Leahy
Answer 1-5. Chair Murphy has answered these same questions for the
Commission, and I have passed along my thoughts for her consideration.
__________
Responses of Laird Kirkpatrick to Questions From Senator Strom Thurmond
Question 1. Mr. Kirkpatrick, there is only about a 65 percent
compliance rate with the Guidelines today. If the downward departure
trends continue, does there reach a point when the Guidelines system
breaks down, and if so, what do you view as an essential minimum
compliance rate for the system to operate appropriately?
Answer 1. A clear distinction must be drawn between substantial
assistance departures under Sec. 5K1 and judicial departures on other
grounds under Sec. 5K2. Substantial assistance departures are an
important law enforcement tool. It would be difficult to prosecute many
types of organized criminal activity, including racketeering and drug
distribution, if prosecutors did not have the ability to grant
substantial assistance departures to defendants who aid in the
apprehension and prosecution of other members of the criminal
enterprise. Such defendants deserve a different sentencing range than
defendants who refuse to provide any assistance to the government in
prosecuting others involved in the crime. Since long before the
adoption of the sentencing guidelines, sentencing concessions have been
a well-established way to reward cooperating defendants, and
substantial assistance departures were specifically recognized by
Congress as an appropriate law enforcement tool in the Sentencing
Reform Act of 1984. The current substantial assistance departure rate
of approximately 18%--a rate that has been relatively consistent over
the past several years--seems well within the range contemplated by
Congress. It has enabled the number of drug prosecutions to increase
from 15,000 a year to over 23,000 a year between 1995 and 1999. If
substantial assistance departures were not available and defendants
stopped cooperating with the government, there would undoubtedly be a
significant reduction in the number of criminal cases that the
government could successfully prosecute.
Judicial departures on other grounds under Sec. 5K2 are also
specifically authorized by the Sentencing Reform Act. It was understood
by Congress that the Guidelines could not apply uniformity to all
defendants and that in some cases upward or downward departures would
be necessary and appropriate. In Commissioner Steer's written testimony
(at footnote 3), he quotes a statement from the Senate Judiciary
Committee Report anticipating that judges would depart from the
sentencing guidelines ``at about the same rate or possibly at a
somewhat lower rate'' than the U.S. Parole Commission customarily set
parole release dates outside its guidelines, which then was about 20%.
However, the Department has not endorsed this statement or taken a
position on what an acceptable Sec. 5K2 departure rate would be. The
Department is continuing to monitor current trends and to challenge
downward departures that it believes to be illegal or inappropriate,
both before the courts and the Commission, Judicial departure rates in
certain districts, particularly those along the Southwest Border, have
raised concerns within the Department of Justice, and we look forward
to exploring these concerns and determining what actions, if any, are
appropriate. We also believe it is important for Congress to allocate
more prosecutorial and judicial resources to the Southwest Border
districts to help them respond to the overwhelming caseloads they are
currently facing.
Question 2. Mr. Kirkpatrick, you testified at the hearing that
taking appeals has become more difficult in the years after the Koon
decision, because that case instructed appellate courts to give greater
deference to the district court. The Department's position in Koon was
that the Supreme Court should continue to give the courts of appeals
the power of de novo review of sentencing decisions, based on Congress'
intent in providing for review of sentences under the Sentencing Reform
Act. In light of the difficulties Koon poses for successful government
appeals as you emphasized in your testimony, should the Congress
correct Koon to provide by statute the understanding of the Sentencing
Reform Act which was advocated by the Solicitor General in that case?
Answer 2. We think it is premature for Congress to consider
legislation overruling the Supreme Court's decision in Koon on the
standard of review federal appellate courts must use in reviewing most
departure decisions by district courts. As we have indicated, we
believe the Sentencing Commission and the Department of Justice should
continue to monitor the extent of departures--as well as specifically
how the district and appellate courts are applying current departure
law--to determine whether the purposes of sentencing reform are being
substantially achieved by current law. In addition, we believe that if
significant concerns are identified, the first remedy for such concerns
ought to be with the Commission and with its authority to amend the
sentencing guidelines and to issue policy statements. Only if such
efforts fail do we believe that legislation ought to be considered.
Question 3. Mr. Kirkpatrick, is the Department considering taking
any specific action to appeal more Guidelines cases as a way to uphold
the Guidelines?
Answer 3. The Department of Justice examines each case individually
to assess whether it is a good candidate for appeal. Our decisions are
not influenced by a statistical count of the number of appeals taken in
any year. We consider many factors, including whether a weak appeal
will lead to an adverse decision that may harm our future efforts to
enforce the sentencing guidelines. It may do so in several ways. First,
an affirmance of a downward departure sends a clear signal to the
district judge that his or her action was appropriate, and it may
embolden that judge to depart in future cases. Second, when a court of
appeals gives its imprimatur to a departure, it encourages other judges
within the circuit to depart in similar circumstances. Finally, the
adverse precedent of the order of the court of appeals' affirmance will
preclude us from appealing future departures that rest upon the same
ground. In short, there is a ``ripple effect'' to every loss that
cannot be ignored.
Districts courts have been given broad discretion to depart--
downward and upward--from the guideline range as long as they do not
rely on a factor that is prohibited by the guidelines. The Department
of Justice has in the past and will continue to appeal downward
departures that, in our view, rest on an impermissible ground. If,
however, the ground is a permissible one, our options are limited. In
that instance, we will usually appeal only where the degree of the
departure is excessive or where there is no factual support for the
departure.
Question 4. Mr. Kirkpatrick, I understand that internal Justice
policies require U.S. Attorneys to file a written report concerning any
adverse decision in district court. It appears that to better enable
the Department to monitor cases and determine those that should be
appealed, these reports should include adverse sentencing decisions,
such as downward departures that the prosecutor did not support. Do you
agree?
Answer 4. At this time, we see no advantage to a reporting
requirement for downward departures that the United States Attorney
does not wish to appeal. The policy of not reporting these sentencing
decisions was first instituted in 1987 by the Solicitor General serving
during the final years of the Reagan Administration. It was endorsed by
then Assistant Attorney General William Weld of the Criminal Division
in a guidance pamphlet that was provided all United States Attorneys.
Until now, the policy, which has remained in force during the Bush and
Clinton Administrations, has generated no controversy and no
disagreement. Moreover, the administrative burden and costs of
reporting all ``no appeal'' recommendations from the United States
Attorneys would, in our view, not be justified.
Question 5. Mr. Kirkpatrick, it seems that the question of what
constitutes substantial assistance to warrant a defendant getting a
reduced sentence for cooperating with the government is defined
differently from one district to another. Do you know how all U.S.
Attorneys define what constitutes substantial assistance?
Answer 5. What constitutes ``substantial assistance'' depends very
much on the facts and circumstances of each case. There is no uniform
definition of the term that can apply to all types of cases. For
example, in some prosecutions, it is necessary for a defendant to
testify against another charged person in order to provide substantial
assistance to the government. The prosecution simply could not be
successful without such testimony. However, in other cases, the
defendant will have provided such crucial information (e.g., supplying
the location of drugs or other contraband, wearing of a body wire,
etc.) that the defendant's testimony at trial is not necessary for a
conviction. While the term substantial assistance does not lend itself
to a rigid definition, the federal prosecutor in charge of an
investigation is in the best position to determine whether a
defendant's assistance in a given case has truly been ``substantial.''
Consistency within each district is encouraged by the requirement of
the U.S. Attorney's Manual that a supervising attorney must make the
final decision on whether to allow a substantial assistance motion.
Many larger offices have established a committee to review substantial
assistance motions and resolve them by applying consistent standards.
Question 6. Mr. Kirkpatrick, you noted at the hearing that the
Department had been working to provide more uniformity in how U.S.
Attorneys define and apply substantial assistance. Do you have a time
line for developing policies for U.S. Attorneys as to what constitutes
substantial assistance, and do you intend to consult with the
Commission regarding this policy?
Answer 6. Within the Department of Justice, we have considered
internal guidelines to encourage greater consistency in the use of
substantial assistance departures. We continue to discuss the matter
among the Criminal Division, the AGAC, and others within the Department
of Justice and would be happy to hear from the Commission on the issue.
Question 7. Mr. Kirkpatrick, do you think it would be beneficial
for the Sentencing Commission to establish a Crime Victims Advisory
Group similar to the Practitioners Advisory Group?
Answer 7. It is highly beneficial to the Commission to receive
views from a wide range of groups. The Commission already receives
input from victims' groups through its public hearings and public
comment process, but the establishment of a more formal Crime Victims
Advisory Group could also be helpful to the Commission.
Question 8. Mr. Kirkpatrick, what is the legal basis pursuant to 18
U.S.C. Sec. 3553(b) and the Sentencing Guidelines for the Department to
adopt the fast track policies that it has instituted for immigration
deportation cases?
Answer 8. The legal basis pursuant to 18 U.S.C. Sec. 3553(b) for
the fast track policies providing for departure from the applicable
sentencing guideline range is that the statutory provision in question
permits departures where the court finds that there is an aggravating
or mitigating circumstance not adequately taken into account by the
Sentencing Commission in formulating the guidelines that should result
in a sentence different from that described. The circumstances that may
justify downward departure in the fast track context for immigration
deportation cases are the pressures placed on available resources in
the districts that rely on these departures, the defendant's
willingness to expedite the criminal proceeding by indicating an early
intent to plead guilty and by waiving other rights which if exercised
could delay the proceeding, and the defendant's willingness to
stipulate to deportation. The defendant's concessions contribute to the
smooth and expeditious implementation of both the criminal prosecution
and the deportation proceeding and thereby save much-needed
prosecutorial and judicial resources.
The justification for such fast track proceedings under the
sentencing guidelines is based on several sections. First, section
5K2.0 is a general provision on departure and specifies that departure
decisions rest with the court on a case-specific basis. This section
also provides that circumstances that warrant departure cannot be
comprehensively listed and analyzed by the Sentencing Commission in
advance. Thus, the absence of a provision in the sentencing guidelines
specifically applicable to fast track programs is not an impediment to
departure. Of course, the sentencing guidelines provide a reduction for
acceptance of responsibility, Sec. 3E1.1, which specifically recognizes
early notification of an intent to plead guilty. However, this
provision does not take into account the combination of circumstance
described above. Downward departures for fast track defendants are
premised not only on early notification of an intent to plead guilty
but also on a stipulation to deportation and, depending upon the
district, the waiver of indictment or other rights, such as the right
to appeal the sentence. These actions have permitted the United States
Attorneys' offices expeditiously to process a significant number of
alien-related prosecutions over the past few years. It is noteworthy
that the sentencing guidelines do not prohibit fast track departure--a
fact that results in significant leeway to the courts under Koon v.
United States, 518 U.S. 81 (1996).
Question 9. Mr. Kirkpatrick, as you know, the fast track policies
in the Southwest Border districts have significantly impacted
compliance with the Guidelines in immigration deportation cases. Did
the Department consult with and get input from the Sentencing
Commission before establishing these fast track policies?
Answer 9. The fast track policies employee by certain districts
grew out of the burdens of a significantly increased caseload in recent
years involving alien defendants. Largely as a result of increased
enforcement along the Southwest Border, the total number of federal
drug prosecutions in the five border districts nearly doubled between
1994 and 1998 (from 4,070 to 7,841), and felony immigration
prosecutions increased by a factor of six (from 1,044 to 6,422). The
increase in Border Patrol agents without a concomitant increase in
prosecutors, defense attorneys, court interpreters, judges, deputy
marshals, pretrial and probation officers, and pretrial detention space
has caused a crisis for the federal criminal justice system that
requires innovative and aggressive solutions. Fast tract programs,
which expedite prosecutions through the use of concessions that
encourage guilty pleas at the earliest possible stage and thereby
minimize the burdens on prosecutors, the courts, and the United States
Marshals, have enabled the border districts to cope with the flood of
alien prosecutions. The development of fast track programs was a
response to this flood of cases. The alternatives were not consistent
with the public interest. One alternative, to prosecute fewer
immigration cases, would have resulted in failure to prosecute many
previously deported aliens with prior aggravated felony convictions who
were in the United States unlawfully. This would increase, not
decrease, the disparity of treatment of criminal aliens apprehended
after their illegal entry into the U.S. These immigration violations
are uniquely federal offenses and cannot be turned over to the State
for prosecution. Another alternative was to shift resources away from
drugs, money laundering, violent crimes, fraud, and other high-priority
cases. This, too, would have had a negative impact on the affected
districts.
The Department did not consult with or get input from the
Sentencing Commission before these programs were put into practice, but
we do not ordinarily consult with the Commission or seek its input
before implementing new prosecutorial practices. We have, however, had
discussions with the Commission staff since fast track programs came
into existence, including consultation regarding amendment of the
sentencing guidelines with the aim of reducing sentencing disparity in
alien cases. While we recognize the different circumstances out of
which fast track programs have arisen, we have, nevertheless, been
concerned about their effect on sentencing disparity and would like to
explore ways to reduce unwarranted disparity while maintaining the
necessary caseload over time.
Question 10. Mr. Kirkpatrick, as you know, border districts take
widely different approaches to the increasing caseloads there. Some do
not even have fast track policies, while the ones that do are not
consistent. Has the Department undertaken any efforts to measure which
approach is more effective in stopping the tide of illegal immigration?
Answer 10. The Department has looked at the various fast track
programs in place, as well as the absence of them in certain districts
that also prosecute alien defendants, to understand the approaches
being taken and the reasons underlying them. There are many factors
affecting the use of these programs, including factors outside of the
Department's control, such as judicial resources. To determine the
effect of fast track programs, or their absence, on the tide of illegal
immigration would be an extremely difficult, if not impossible, task
because of the variety of factors that may influence an individual's
decision to enter the United States unlawfully. We have not undertaken
such a study.
Question 11. Mr. Kirkpatrick, it seems that similarly-situated
aliens in border districts can see their cases being disposed of very
differently according to the district in which they are apprehended. Is
the Department taking any specific action to develop consistency among
the border districts in how they apply fast track policies for
immigration deportation cases?
Answer 11. The Department has considered ways of developing
consistency among the border districts with respect to their use of
fast track programs but has been unable to arrive at a solution. The
practices in each district are subject not only to the actions of
prosecutors but also to those of the defense bar and the courts. Each
district has particular needs, partly as a result of the practices that
have developed over time involving all components of the criminal
justice system in that district. These needs also reflect the law
enforcement challenges and priorities which differ substantially from
district to district depending on the size, the population density of
each district, existence of Indian reservations and military
installations within a district, crime patterns existing within the
district, state and local law enforcement activity, and a host of other
factors. However, we believe that greater consistency among the border
districts is a very desirable goal and one toward which we would like
to renew our efforts.
Question 12. Mr. Kirkpatrick, in some districts, fast track
policies permit defendants to receive sentences that are not even close
to the sentence they should receive under the current Guidelines. As
you know, some of the penalties were increased in response to orders
from the Congress as part of the Immigration Reform Act of 1996.
Assuming there is a need for some type of fast track policies, is the
extent of the reduction sentence that many aliens are receiving
necessary based on the caseloads, or could the districts probably get
similar cooperation if the departures from the Guidelines were less
severe?
Answer 12. Whether the districts could obtain cooperation similar
to what they have received if the extent of downward departures from
the applicable sentencing guideline range were less than presently
granted is unknown. The Department has considered whether such an
approach may be workable, but certain districts fear that defense
efforts aimed at thwarting the imposition of increased sentences may
significantly impair their ability to prosecute alien cases at current
rates.
Question 13. Mr. Kirkpatrick, are there other ways to handle
immigration deportation cases in the border states today other than
through downward departures?
Answer 13. To deal effectively with the flood of alien cases in the
border states, additional resources are needed for many components of
the criminal justice system. At present, there seems to be a
disequilibrium in the allocation of resources, with a great deal
directed toward apprehending offenders along the border but not enough
directed toward the later stages of criminal prosecution. Additional
resources are necessary to prosecute offenders, to house them pending
trial, to try them, and to incarcerate them following conviction.
Sufficient resources to address these needs would decrease the pressure
currently on prosecutors to enter into plea agreements aimed at
expediting prosecutorial and judicial efforts and would allow the
sentencing guidelines to operate as intended. In addition, revision of
the guidelines, for example, to encourage defendants to indicate an
early intent to plead guilty, may be another way to reduce the number
of downward departures.
Question 14. Mr. Kirkpatrick, is the Department concerned about the
recent decision of the Supreme Court in Apprendi v. New Jersey, and do
you think it will have a significant impact on the Guidelines?
Answer 14. The Department of Justice is indeed concerned about the
impact of the Supreme Court's decision in Apprendi v. New Jersey. The
biggest impact of Apprendi to date has been the deluge of litigation
that has resulted from the decision. While we anticipate that only
hundreds of defendants will actually have their sentences directly
affected by Apprendi, many thousands of defendants will likely file
meritless claims. As to the impact on the guidelines, in courts around
the country, the Justice Department is defending the sentencing
guidelines against Apprendi attacks. We do not believe that the
guidelines are impacted by Apprendi, because the guidelines do not
affect the maximum penalty for any offense.
Question 15. Mr. Kirkpatrick, does the Congress need to consider
statutory changes in response to the Apprendi decision, such as
possibly increasing the maximum sentence for certain serious crimes?
Answer 15. At this time, we do not believe that Congress ought to
consider statutory changes in response to the Apprendi decision.
Prosecutors have adjusted charging and trial practices in light of
Apprendi and now charge, for example, drug type and threshold drug
quantities in appropriate cases. To date--and we should emphasize that
our assessment is very preliminary--these changes have caused few
disruptions in our ability to prosecute successfully drug or other
crimes. We will not hesitate to ask Congress to make changes to federal
criminal statutes if the need arises. However, at the present time--and
again bear in mind that our assessment is preliminary--we do not see an
immediate need to change federal law in response to Apprendi. The
federal courts of appeal--and in all likelihood the U.S. Supreme
Court--will render decisions interpreting Apprendi for some time in
response to the deluge of litigation facing the courts. We will, of
course, monitor these decisions and bring information to Congress,
including legislative proposals--as appropriate.
______
Responses of Laird Kirkpatrick to Questions From Senator Patrick J.
Leahy
Question 1. According to Commissioner Steer's testimony,
deportation of aliens is the reason most often given by judges for
downward departures. His testimony shows that the districts that lead
the nation in rate of downward departures are Arizona and San Diego.
The caseloads of those districts and others that border Mexico have
dramatically increased over the past eight years due to the Clinton
Administration's resoundingly successful efforts to patrol our borders
more effectively and bring more border-related prosecutions in federal
court to deter illegal immigration and drug smuggling at the border.
This extraordinary increase in caseload has not been matched by an
equal increase in prosecutorial and judicial resources. Thus, border
districts have implemented so-called ``fast-track'' programs by which
departures are granted as an incentive for defendants who commit
border-related crimes to resolve their cases quickly and with a minimum
of resource-consuming litigation.
Question a. Contrary to patently partisan accusations that there is
a nationwide trend among our federal judges and the Justice Department
to ignore or defeat the guidelines, do these facts suggest that the
spike in the rate of increase of departures is due to districts trying
to develop strategies to address increased emphasis on border-related
law enforcement?
Answer 1a. The Sentencing Commission's data show that the increase
in downward departures over the last several years has been due
primarily to border district strategies addressing increased emphasis
on border-related crime. These districts have experienced exploding
caseloads without commensurate increases in the number of judges,
probation officers, defense attorneys, and prosecutors.
Question 1b. Commissioner Steer's statistics show that the Eastern
and Western Districts of Washington, districts which border Canada, are
among the districts that lead the nation in rate of downward
departures. Is the high rate of downward departures in those districts
attributable to border-related issues as it is in the southwestern
districts?
Answer 1b. According to data provided by the Sentencing Commission,
the high rate of departures in the Eastern and Western districts of
Washington appear to be attributable to border-related issues. Downward
departures for immigration offenses account for about 70 percent of all
downward departures in Eastern District of Washington and for 44
percent of all departures in the Western District of Washington.
Excluding these departures, the departure rate for these two district
would be between 17 and 19 percent.
Question 1c. What would the rate of sentencings within the
applicable guideline range be since 1990 if border districts were
eliminated from the calculation?
Answer 1c. According to data provided by the Sentencing Commission,
if border districts were eliminated from consideration, the rate of
sentencing within the guideline range would have been the following:
1991--92.9%; 1992--92.5%; 1993--91.9%; 1994--90.6%; 1995--90.4%; 1996--
89.9%; 1997--88.3%; 1998--87.3%; 1999--86.8%.
Question 2. As United States Attorney Denise O'Donnell testified at
the hearing, the nation is divided inton93 geographic federal districts
each headed by its own United States Attorney. The districts are not
identical. The types of crimes that predominate in one district may be
very different from another district. Each district has its own law
enforcement priorities and a unique relationship with state and local
law enforcement. While the Sentencing Guidelines serve the goal of
sentence uniformity, the provision for downward and upward departures
in Guideline Section 5K2.0 recognizes that some flexibility is
necessary so that the sentencing judge in an appropriate case can
account for compelling and otherwise unaccounted-for circumstances. Is
some degree of disparity inevitable and acceptable in a nation as
disparate as ours, and does Section 5K2.0 reflect the wisdom that room
for some flexibility is an essential ingredient in a fair sentencing
scheme in which the American people can have confidence?
Answer 2. To the best of our knowledge, it was never contemplated
that the Sentencing Reform Act would eliminate all disparity from
federal sentencing. We believe Congress, the Sentencing Commission, and
the Department of Justice have all long recognized the need for
flexibility in the way the sentencing guidelines direct the exercise of
sentencing authority. We believe the departure is an essential element
of the federal guideline system, made so by the fact that no
centralized rulemaking authority--Congress, the Sentencing Commission,
or otherwise--can adequately consider all of the case-specific factors
that properly are a part of the sentencing process.
Question 3. The claim has been made by some that the number of
appeals taken by the Justice Department has not increased
commensurately with the increase in the rate of downward departures.
That claim ignores that the increase in downward departures is largely
due to policies and practices in border states to deal with caseloads
resulting from increased emphasis on border-related crime. That claim
also ignores United States v. Koon, 519 U.S. 81 (1996), in which the
United States Supreme Court made it more difficult to appeal a downward
departure by holding that appellate courts should only overturn a
departure where the sentencing judge makes a mistake of law or abuses
discretion. Mr. Kirkpatrick testified at the hearing that there are
ways of assuring compliance with the Sentencing Guidelines other than
taking appeals in particular cases, such as working with the Commission
to resolve conflicts among the circuit courts of appeal about
interpretation of the guidelines.
Question 3a. If border-related issues and Koon are considered, has
there in fact been any significant change in the rate with which the
Justice Department takes appeals from downward departures?
Answer 3a. If border-related issues and the decision in Koon are
considered, we do not believe there has been any significant change in
the rate with which the Justice Department takes appeals from downward
departures.
Question 3b. What are the ways in which the Justice Department
endeavors to assure the effectiveness of the Guidelines other than
taking appeals from downward departures?
Answer 3b. The Justice Department endeavors to assure the
effectiveness of the guidelines in many ways other than taking appeals
from downward departures. Let me name just three. First, in federal
district and appellate courts from coast to coast, Department of
Justice prosecutors defend against meritless claims--claims that are
advanced by the tens of thousands--by convicted defendants for downward
departures and for inappropriate application of the sentencing
guidelines generally. According to the Sentencing Commission, in the
appellate courts alone, defendants appealed approximately 4,000 cases,
claiming that there sentences were inappropriately severe. In about 80
percent of those cases, the decision of the lower court was affirmed
with the support of the Department of Justice. Second, as we indicated
in an answer to one of Senator Thurmond's questions, the Department of
Justice is actively defending the sentencing guidelines against
Apprendi attacks. Just as we initially defended the guidelines from
constitutional and other attacks, so we are today doing in relation to
the Apprendi decision. Third, we actively participate as an ex-officio
member of the Sentencing Commission. Our work with the Commission
includes seeking limits on departure grounds from time-to-time, seeking
adjustments to penalty levels as appropriate, and reviewing research
developed by the Commission staff. Our guiding principle in this work
is--as we stated in our testimony--that structured sentencing is far
superior to unstructured sentencing and that through the work of the
Commission, we strive to develop fair and effective sentencing policy.
Question 3c. Should the Justice Department's policy be to pursue an
appeal of every downward departure no matter the circumstances? What
factors does the Justice Department consider in determining whether or
not to pursue an appeal from a downward departure?
Answer 3c. The Justice Department's policy has never been--and
ought not be--to pursue an appeal of every downward departure no matter
the circumstances. In deciding whether to appeal, we consider, among
other factors:
1. Did the departure rest on a ground prohibited by the guidelines?
2. If the factor was not specifically prohibited, should it
nevertheless be prohibited for some other policy reason, i.e., it
applies to so many people that it is not outside the heartland, or
decreasing a sentence on this basis would be contrary to public policy?
3. Is the departure de minimus? For example, if a defendant should
have been sentenced to 20 years, and the district court instead imposed
a sentence of 19 years, we are not likely to ask the court of appeals
to review the sentence. On the other hand, if the reduction is
significant, or, if the judge replaces a prison term with home
confinement, we will often challenge the departure.
4. Has the district court justified the degree of the departure? In
some circuits, the district court must explain how it selected the
sentence. If the record is devoid of any analytical framework for the
sentence, we will often appeal.
5. Is there support in the record for the factual findings of the
district court? If there is evidence in the record to support the
findings, we cannot challenge them even if we disagree with those
findings. Factual findings are reviewed for clear error, and
credibility choices are left to the court. Thus, no matter how strongly
we disagree with the court's assessment of the facts, we have no
recourse as long as there is some evidence in the record to support the
court's findings.
What is the likelihood that we will win? There are substantial
costs to an unsuccessful appeal. Each affirmance of a downward
departure opens the door to future downward departures. An affirmance
will embolden the judge who departed and encourage him to continue to
depart in the future. An affirmance will also signal other judges
within the circuit that downward departures are countenanced. Moreover,
the precedent created by the affirmance will preclude us from appealing
future departures that are ``controlled'' by the precedent. Because we
carry the heavy burden on appeal of establishing an abuse of discretion
or clear error, we must select our cases carefully. In this regard, if
we expand the number of cases that we appeal by lowering our standards,
i.e., by appealing weaker cases, our winning percentage will decrease.
There is not rational basis for predicting that our win-loss percentage
will remain fixed if we begin to challenge factual findings, etc.
Question 4. Ms. Hernandez expressed concern about relentless
attempts by some to ratchet up the Guidelines and create unduly harsh
sentences with an unintended racially disparate impact. Mr. Kirkpatrick
in his written testimony expressed concern that our federal prison
population continues to grow even as the crime rate decreases. Indeed,
the population in our federal prisons has almost doubled in the last
five years, and there are now about two million people in our nation's
federal, state and local jails.
Question 4a. Is there reason for concern that our sentencing laws
have become too harsh and retributive?
Question 4b. Is the Sentencing Commission as sensitive to unduly
harsh sentences as it is to inappropriately lenient ones?
Answer 4a and b. The Sentencing Reform Act mandates that the
Sentencing Commission develop sentencing policy that meets the goals of
sentencing and that courts shall impose a sentence ``sufficient, but
not greater than necessary'' to achieve those goals. We believe the
Sentencing Commission has a statutory responsibility to be equally
concerned with sentencing policy that is excessively harsh as it is
with sentencing policy that is excessively lenient. It is also the
Commission's responsibility, in promulgating its guidelines, to ``take
into account the nature and capacity of the penal, correctional, and
other facilities and services available.'' We believe there is reason
for concern that some of our sentencing laws are unnecessarily harsh
and that others are unnecessarily lenient, and we believe the
Commission ought to be equally sensitive to both. We have and will
continue to bring such matters to the attention of the Commission, when
appropriate.
Question 4c. If application of the Guidelines creates an unintended
racially disparate impact, what steps should Congress take to address
that impact?
Answer 4c. We believe that when the guidelines have a racially
disparate impact, the Sentencing Commission ought to thoroughly--and
using the most rigorous research protocols--examine the impact to
determine its cause. The Commission may find that the disparate impact
is unintended and the result of appropriate and reasonable law
enforcement and sentencing policies--taking into consideration all
alternative policies. On the other hand, the Commission may find that
the impact is unwarranted for one reason or another. In either case, we
think the Commission ought to report its finding--after consultation
with appropriate interested parties and after rigorous scholarly
review--providing Congress, the Executive Branch, and others with
recommendations, if appropriate. If, however, the Commission fails to
undertake this type of rigorous review in the face of available data,
we think it is appropriate for the Congress to direct the Commission to
do so, and then if necessary, to seek reviews elsewhere.
Question 5. The Supreme Court in Koon held that the sentencing
judge is in the best position to evaluate whether a departure is
warranted, and any departure should be reversed on appeal only under
very limited circumstances where, for example, the judge abused
discretion or made a mistake of law. Some say that Koon is good for the
system because it supports the authority of judges to fashion on
appropriate sentence where there are unforeseen or compelling
circumstances. Others have suggested that the Congress should pass
legislation that would effectively overrule Koon. What factors should
the Congress consider in evaluating the wisdom of a legislative effort
to statutorily overrule Koon, including, for example, the increase in
federal appellate litigation?
Answer 5. As we indicated in an answer to a question from Senator
Thurmond, we think it is premature for Congress to consider legislation
overruling the Supreme Court's decision in Koon on the standard of
review federal appellate courts must use in reviewing most departure
decisions by district courts. We believe the Sentencing Commission and
the Department of Justice should continue to monitor the extent of
departures--as well as specifically how the district and appellate
courts are applying current departure law--to determine whether the
purposes of sentencing reform are being substantially achieved by
current law. We think a variety of factors ought to be considered,
including the number of departures, the reasons for the departures, law
enforcement priorities, and available resources. In addition, we
believe that if significant concerns are identified, the first remedy
for such concerns ought to be with the Commission and with its
authority to adjust the guidelines. Only if such efforts fail do we
believe that legislation ought to be considered.
__________
Responses of Carmen Hernandez to Questions From Senator Patrick J.
Leahy
Question 1. According to Commissioner Steer's testimony,
deportation of aliens is the reason most often given by judges for
downward departures. His testimony shows that the districts that lead
the nation in rate of downward departures are Arizona and San Diego.
The caseloads of those districts and others that border Mexico have
dramatically increased over the past eight years due to the Clinton
Administration's resoundingly successful efforts to patrol our borders
more effectively and bring more border-related prosecutions in federal
court to deter illegal immigration and drug smuggling at the border.
This extraordinary increase in caseload has not been matched by an
equal increase in prosecutorial and judicial resources. Thus, border
districts have implemented so-called ``fast-track'' programs by which
departures are granted as an incentive for defendants who commit
border-related crimes to resolve their cases quickly and with a minimum
of resource-consuming litigation.
a. Contrary to patently partisan accusations that there is a
nationwide trend among our federal judges and the Justice Department to
ignore or defeat the guidelines, do these facts suggest that the spike
in the rate of increases of departures is due to districts trying to
develop strategies to address increased emphasis on border-related law
enforcement?
Answer 1a. The most significant fact to note about downward
departure rates is that overall federal judges continue to grant
downward departures at a rate below that contemplated by Congress when
it enacted the Sentencing Reform Act. The national downward departure
rate is a mere 15.8 percent, below the 20 percent rate expressly noted
in the Senate report filed contemporaneously with the passage of the
Sentencing Reform Act in 1984. The majority of federal defendants--85
percent--are sentenced within the guideline range.
Included in the 15 percent of cases that do receive downward
departures are the departures granted in those handful of districts
like Arizona and San Diego whose rates have dramatically increased in
recent years as the courts and the prosecution have tried to deal with
the dramatically increased number of border-related prosecutions. While
there has been a slight incremental increase in the overall downward
departure rate over the last six years, that is a reflection, as the
Senator has noted, of the successful prosecution of immigration offense
by the Clinton administration.
Vigorous border-related law enforcement has swelled federal
criminal dockets in border states. In fact, there was a record number
of apprehensions on the southwest border in FY 2000, , and
immigrants are the fastest growing segment of the country's prison
population.
To ease case backlogs caused by the overwhelming increase in
immigration cases, some districts have implemented a ``fast track''
program whereby criminal alien defendants are allowed to plead guilty
to offenses carrying reduced statutory maximums or are granted downward
departures as an incentive to plead guilty within a week or two after
apprehension. NACDL believes that unless Congress is prepared to fund
adequately the courts and the defense function,this caseload management
tool is essential to handle the potentially paralyzing volume of
immigration cases in some border states. As it is, persons convicted of
these immigration offenses are being processed in a fashion that we
reserve for minor traffic offense in other courts across America--when
in fact they stand convicted of felonies which carry serious prison
terms and other consequences.
Aside from the caseload management benefits, there are equitable
reasons for downward departures in immigration cases. Federal prisoners
with INS holds are automatically designated to higher security
facilities, where living conditions are more oppressive, and are
ineligible for many prison programming benefits. The prisoners serve
their entire sentences at the prison facilities, as they are
disqualified from the transitional 6-month placement in halfway house,
and then continue their confinement at INS detention facilities. These
INS facilities have come under the scrutiny of public interest groups
and the Department of Justice for their abusive and overcrowded
conditions. Chris Hodges, Policy to Protect Jailed Immigrants is
Adopted by U.S., N.Y. Times, Jan. 2, 2001.
Question 1b. Commissioner Steer's statistics show that the Eastern
and Western Districts of Washington, districts which border Canada, are
among the districts that lead the nation in rate of downward
departures. Is the high rate of downward departures in those districts
attributable to border-related issues as it is in the southwestern
districts?
Answer 1b. In the Eastern District of Washington, immigration
offenses outnumber all other categories of offenses. United States
Sentencing Commission, 1999 Sourcebook of Federal Sentencing
Statistics, App. B. In the Western District of Washington, immigration
cases do not predominate but still exceed the national average; thus,
in cases involving prison, immigration offenses are second only to drug
offenses. Id. We refer the Committee to the Sentencing Commission's
response for more detailed data concerning the impact of border-related
issues on the downward departure rates in these districts.
Question 1c. What would the rate of sentencings within the
applicable guidelines range be since 1990 if border districts were
eliminated from the calculation?
Answer 1c. It appears that the rate of downward departures is just
around 10 percent when the handful of border districts are excluded
from the calculations, but we refer the Committee to the Sentencing
Commission's response for a more detailed analysis of these statistics.
Question 2. As United States Attorney Denise O'Donnell testified at
the hearing, the nation is divided into 93 geographic federal districts
each headed by its own United States Attorney. The districts are not
identical. The types of crimes that predominate in one district may be
very different from another district. Each district has it own law
enforcement priorities and a unique relationship with state and local
law enforcement. While the Sentencing Guidelines serve the goal of
sentence uniformity, the provision for downward and upward departures
in Guideline Section 5K2.0 recognizes that some flexibility is
necessary so that the sentencing judge in an appropriate case can
account for compelling and otherwise unaccounted-for circumstances. Is
some degree of disparity inevitable and acceptable in a nation as
disparate as ours, and does Section 5K2.0 reflect the wisdom that room
for some flexibility is an essential ingredient in a fair sentencing
scheme in which the American people can have confidence?
Answer 2. Downward and upward departures do not create unwarranted
disparity--they are the hallmark of a just system of punishment.
Departures account for offense and offender differences that if
disregarded, would create disparity. The departure authority that
Congress built into the Sentencing Reform Act, 18 U.S.C. Sec. 3553(b),
requires district courts to smooth out the disparities that otherwise
would be generated by application of the guidelines.
As Congress and the Sentencing Guidelines' drafters understood, a
guidelines system that encompasses every relevant sentencing factor is
neither possible nor desirable:
The larger the number of subcategories of offense and
offender characteristics included in the guidelines, the
greater the complexity and the less workable the system.
Moreover, complex combinations of offense and offender
characteristics would apply and interact in unforeseen ways to
unforeseen situations, thus failing to cure the unfairness of a
simple, broad category system. Finally, and perhaps most
importantly, probation officers and courts, in applying a
complex system having numerous subcategories, would be required
to make a host of decisions regarding whether the underlying
facts were sufficient to bring the case within a particular
subcategory. The greater the number of decisions required and
the greater their complexity, the greater the risk that
different courts would apply the guidelines differently to
situations that, in fact, are similar, thereby reintroducing
the very disparity that the guidelines were designed to reduce
departures should and should not be permitted.
USSG Ch. 1, Pt. A, intro. comment. Although the Sentencing Guidelines
include what are arguably the most prominent offense and offender
characteristics, they are by necessity a relatively blunt instrument;
without Section 5K2.0, they would frequently fail to take account of
ethically relevant differences between offenders. In our view, the
problem of excessive uniformity, particularly in the area of drug
sentencing, warrants greater attention by the Commission and this
Committee than certain justifiable pockets of regional disparity. See
Kyle O'Dowd, The Need to Re-assess Quantity-based Drug Sentences, 12
Fed. Sent. R. 116 (1999); Stephen J. Schulhofer, Excessive Uniformity--
and How to Fix It, Fed. Sent. R. 169 (1992).
Question 3. The claim has been made by some that the number of
appeals taken by the Justice Department has not increased
commensurately with the increase in the rate of downward departures.
That claim ignores that the increase in downward departures is largely
due to policies and practices in border states to deal with caseloads
resulting from increased emphasis on border-related crime. That claim
also ignores United States v. Koon, 518 U.S. 81 (1996), in which the
United States Supreme Court made it more difficult to appeal a downward
departure by holding that appellate courts should only overturn a
departure where the sentencing judge makes a mistake of law or abuses
discretion. Mr. Kirkpatrick testified at the hearing that there are
ways of assuring compliance with the Sentencing Guidelines other than
taking appeals in particular cases, such as working with the Commission
to resolve conflicts among circuit courts of appeal about
interpretation of the guidelines.
Question a. If border-related issues and Koon are considered, has
there in fact been any significant change in the rate with which the
Justice Department takes appeals from downward departures?
Answer 3a. NACDL has no knowledge whether the Justice Department's
rate of appeals has or has not significantly changed. More significant
than the rate of appeals is the nation's rate of imprisonment, which is
the highest of any industrialized nation, and the overly harsh federal
penalties for nonviolent drug offenses.
Almost 90 percent of drug offenders serving prison terms are non-
violent offenders. More than half are first-time offenders or persons
with very minor prior wrongful conduct. Persons convicted for crack
cocaine offenses are sentenced on average to more than ten years in
prison, longer than the average sentence for a violent offense. If the
rate of appeals taken by the Department of Justice has decreased, it
may reflect the fact that the sentences being imposed, even after
downward departures, satisfy the statutory purposes of sentencing and
the requirements of the law.
Question 3b. What are the ways in which the Justice Department
endeavors to assure the effectiveness of the Guidelines other than
taking appeals from downward departures?
Answer 3b. The Department of Justice is in the best position to
provide a full answer to this question. We merely note that the
government's interest in the Guidelines' effectiveness does not support
its use of sentencing issue waivers and appeal waivers. Prosecutors
frequently require, as an express plea agreement condition, that
defendants waive their right to request a downward departure or other
sentencing adjustment as well as their right to appeal the sentence
imposed. Indeed, the government's increased requirement that defendants
waive all manner of claims of error including wrongful conduct--such as
ineffective assistance of counsel claims and failure to disclose
exculpatory evidence by the government--contributes to the problem of
innocent persons being convicted which has become so commonplace. NACDL
believes these waivers contravene congressional intent that guideline
sentences be appealable and disrupt the Sentencing Commission's mandate
to continually refine and improve the guidelines in light of developing
case law.
Question 3c. Should the Justice Department's policy be to pursue an
appeal of every downward departure no matter the circumstances? What
factors does the Justice Department consider in determining whether or
not to pursue an appeal from a downward departure?
Answer 3c. Downward departures, which are an integral part of the
sentencing reform which Congress enacted in 1984, are legal and should
not be appealed in every instance. Even when the Department of Justice
believes that a departure arguably exceeds the sentencing discretion
that the Guidelines repose in federal judges, the Justice Department
must responsibly allocate its resources like any other agency and
should not reflexively appeal downward departures that do not
jeopardize public safety or the integrity of the guidelines.
Question 4. Ms. Hernandez expressed concern about relentless
attempts by some to ratchet up the Guidelines and create unduly harsh
sentences with an unintended racially disparate impact. Mr. Kirkpatrick
in his written testimony expressed concern that our federal prison
population continues to grow even as the crime rate decreases. Indeed,
the population in our federal prisons has almost doubled in the last
five years, and there are now about two million people in our nation's
federal, state and local jails.
Question 4a. Is there reason for concern that our sentencing laws
have become too harsh and retributive?
Answer 4a. Mandatory minimums and sentencing guidelines for drug
offenses account for a major share of the individual injustices that
plague federal sentencing. The average crack cocaine sentence, 120
months, is greater than: the 103-month average sentence for robbery;
the 76-month average sentence for arson; the 64-month average sentence
for sexual abuse; and the 31-month average sentence for manslaughter.
The excessive severity of drug sentences is also reflected in the
composition of the prison population. Drug offenders account for 57
percent of the federal prison population (compared to 42 percent of all
federal sentencings). The drug offender population, which exceeds
63,000, has more than doubled in the last ten years.
A growing number of conservatives and firm law-and-order advocates
have questioned current sentencing policies:
--``And I think a lot of people are coming to the realization that
maybe long minimum sentences for the first-time users may not be the
best way to occupy jail space and/or heal people from their disease.
And I'm willing to look at that. * * * [The crack-powder disparity]
ought to be addressed by making sure the powder-cocaine and the crack-
cocaine penalties are the same. I don't believe we ought to be
discriminatory.'' Statement of President George W. Bush, CNN Inside
Politics (CNN television broadcast, Jan. 18, 2001) (transcript on file
with NACDL).
--``There is a conservative crime-control case to be made for
repealing mandatory-minimum drug laws now. That's a conservative crime-
control case, as in a case for promoting public safety, respecting
community mores, and reinstating the traditional sentencing
prerogatives of criminal-court judges.'' John J. DiIulio, Jr., Against
Mandatory Minimums, National Review, May 17, 1999, at 46.
--``I believe it is time for us to look at the drug guidelines and
the penalties we are imposing. * * * Judges think this minimum
mandatory [for crack cocaine] which has the effect of driving up all of
the sentencing guidelines is too tough.'' Cong. Rec. S14452 (Nov. 10,
1999) (statement of Senator Sessions).
--``[T]he narcotics sentences generated by the Guidelines and the
various minimum mandatory statutory sentencing provisions are often, if
not always, too high. I say this as a former prosecutor of some
fourteen years experience, seven of them as an Assistant U.S. Attorney
in Miami, who helped send a fair number of folks to prison for
narcotics offenses.'' Frank O. Bowman, III, Fear of Law: Thoughts on
Fear of Judging and the State of the Federal Sentencing Guidelines, 44
St. Louis U. L.J. 299, 337 (2000).
--``Far from saving the inner cities, our barbaric crack penalties
are only adding to the decimation of inner-city youth.'' Stuart Taylor
Jr., Courage, Cowardice on Drug Sentencing, Legal Times, April 24,
1995, at 27.
--``I think mandatory minimum sentences for drug offenders ought to
be reviewed. We have to see who has been incarcerated and what has come
from it.'' Statement of Edwin Meese III, in Timothy Egan, Less Crime,
More Criminals, N.Y., Times, Mar. 7, 1999.
--``Too many lives are unfairly ruined by Draconian sentences that
do not achieve the law-enforcement objectives--primarily deterrance--
supposedly promoted by them. * * * The way to mitigate the unfairness
of the crack-cocaine standards is not to toughen the powder-cocaine
sentencing rules; it is to take the more courageous step of
ameliorating the crack-sentencing scheme.'' Michael Bromwich (former
inspector general of the Justice Department), Put A Stop to Savage
Sentencing, Wash. Post, Nov. 22, 1999, at A23.
--``Too often, our drug laws result in the long-term imprisonment
of minor dealers or persons only marginally involved in the drug
trade.'' John R. Dunne (former assistant attorney general under
President George Bush), Paying For Failed Drug Laws, Wash. Post, Aug.
12, 1999.
Consistent with the above statements, Congress should refrain from
increasing penalties and from directing the Sentencing Commission to
increase penalties for drug offenses based on anecdotal media reports
without sufficient verifiable scientific and empirical evidence. In
addition, the Sentencing Guidelines, whatever its flaws, are an
integrated system. In recent year, Congress directed the Sentencing
Commission to increase penalities for particularized factors, and these
directives have often duplicated guideline provisions that already
punish such factors. This micro-management of the guidelines by
Congress also contributes to the ratcheting up of sentences and
undermines the uniformity and fairness that Congress sought to bring
into federal sentencing.
Question 4b. Is the Sentencing Commission as sensitive to unduly
harsh sentences as it is to inappropriately lenient ones?
Answer 4b. The Sentencing Commission does not seem to be as
sensitive to unduly harsh sentences as it is to lenient ones. The fact
is that of the more than 600 amendments promulgated by the Sentencing
Commission less than a handful have served to reduce sentences. Thus,
as with statutory sentences, sentences prescribed by the guidelines
continue to escalate. A civilized society must find alternatives to
imprisonment to deal with conduct which it wishes to prevent,
particularly in the case of nonviolent offenses.
Nevertheless, one must acknowledge that, despite what the
Sentencing Commission might want to do, it is constrained by mandatory
minimums and congressional reaction to attempts to lower the drug
guidelines. According to many observers, the phrase ``once bitten and
twice shy'' aptly describes the Commission's fear of Congress and
resulting failure to review the Guidelines with an eye towards
fairness. The Commission's 1995 attempt to equalize the crack cocaine
and cocaine powder penalties drew not only sharp criticism from members
of Congress and the Attorney General but an unprecedented congressional
rejection. Since that humbling episode, the Commission has been
relatively silent with respect to the severity of the drug guidelines--
ignoring the din of outside criticism. Although drug cases account for
the largest percentage of the sentencing caseload and are responsible
for much of the criticism lodged at the regime, guidelines that are
perceived as being too lenient--the fraud guideline, for example--have
received considerably more attention from the Commission.
Question 4c. If application of the Guidelines creates an unintended
racially disparate impact, what steps should Congress take to address
that impact?
Answer 4c. Congress must eradicate laws and guidelines which
disparately impact on racial and ethnic minorities. Congress should
also satisfy itself, after public hearings, that racial disparity is
not the result of disparate application of neutral laws. As then
Congressman George Bush said in introducing legislation to repeal
federal mandatory minimums for drug offenses, ``Philosophical
differences aside, practicality requires a sentence structure which is
generally acceptable to the courts, to prosecutors, and to the
public.'' 116 Cong. Rec. H33314, Sept. 23, 1970. Sentencing policies
and law enforcement practices which operate in a racially disparate
manner erode public confidence in our criminal justice system,
particularly in minority communities.
The Sentencing Commission first reported increasing racial
disparities in August 1991:
The difference found across race appears to have increased
since 1984. This difference develops between 1986 and 1988,
after implementation of mandatory minimum drug provisions, and
remains constant thereafter.
United States Sentencing Commission, Special Report to Congress:
Mandatory Minimum Penalties in the Federal Criminal Justice System 82
(1991).
Racial and ethnic disparities continue into today and are seen at
all stages of the criminal justice process. For example, currently
Latinos comprise approximately 40 percent of the federal prison
population although they only account for approximately 11.7 percent of
the general population.
Requiring special mention are the disparities caused by the
disproportionately severe penalties that apply to crack cocaine
offenses. While a majority of crack users in the United States are
white, 94 percent of those sentenced under the incomparably severe
penalties for crack cocaine are black or Hispanic. United States
Sentencing Commission, 1999 Sourcebook of Federal Sentencing Statistics
69. The average sentence for crack cocaine (ten years) is thirty-five
percent longer than the average methamphetamine sentence and fifty-two
percent longer than the average powder cocaine sentence. Id. at 81.
Amid widespread criticism directed at the severity and disparate impact
of the crack sentencing regime, the Sentencing Commission has twice
called for reduced crack penalties, noting ``[t]he current penalty
structure results in a perception of unfairness and inconsistency.''
United States Sentencing Commission, Special Report to Congress:
Cocaine and Federal Sentencing Policy 8 (April 1997).
Indeed, the ball is in Congress' court--Congress has yet to act on
the recommendations in the congressionally ordered report issued by the
Commission in 1997. It seems clear that the Commission is waiting for
Congress to act in this area and that congressional action is necessary
to initiate reform. NACDL supports repeal of all mandatory minimums and
greater latitude for the Commission to set drug penalties. As a
intermediate step, we believe Congress should increase the quantity
thresholds necessary to trigger the mandatory minimums for crack
cocaine and direct the Commission to amend the guidelines accordingly.
Question 5. The Supreme Court in Koon held that the sentencing
judge is in the best position to evaluate whether a departure is
warranted, and any departure should be reversed on appeal only under
very limited circumstances where, for example, the judge abused
discretion or made a mistake of law. Some say that Koon is good for the
system because it supports the authority of judges to fashion an
appropriate sentence where there are unforseen or compelling
circumstances. Others have suggested that the Congress should pass
legislation that would effectively overrule Koon. What factors should
the Congress consider in evaluating the wisdom of a legislative effort
to statutorily overrule Koon, including, for example, the increase in
federal appellate litigation?
Answer 5. Departures are an integral part of the Sentencing Reform
Act which Congress enacted in 1984. As Congress and the drafters of the
first guidelines understood, departures make the guidelines possible.
As explained in our answer to Question 2, the guidelines could not
achieve their purpose of disparity reduction without departures.
Concern regarding departure rates in certain districts does not
warrant congressional abrogation of the Koon standard. The judicial
branch--through both the Sentencing Commission and the courts--has
repeatedly demonstrated its willingness to police the departure power.
See, e.g., USSG Sec. 5K2.19 (added Nov. 1, 2000, to prohibit downward
departures for post-sentencing rehabilitative efforts); United States
v. Banuelos-Rodriquez, 215 F.3d 969 (9th Cir. 2000) (en banc) (holding
that ``sentencing disparities arising from the charging and plea
bargaining decisions of different United States Attorneys is not a
proper ground for departing from an otherwise applicable Guidelines
range.''); In re Sealed Case, 181 F.3d 128 (D.C. Cir. 1999) (en banc)
(holding that Koon did not open the door to a downward departure,
without a government motion, based on substantial assistance).
To the extent that judges, prosecutors, and defense attorneys are
relying upon downward departures in response to overwhelming caseloads
or unduly blunt guidelines, abrogating Koon will only drive guideline
evasion underground and camouflage the root problems. Indeed, there are
many other mechanisms for evading the guidelines, including charge
bargaining and fact bargaining, which escape detection and resist
policing. The consequence of turning to these other mechanisms to do
the work of what under the guidelines would be a departure, justified
in writing, may be widespread disparity. See Justice Stephen Breyer,
Federal Sentencing Guidelines Revisited, 14-SPG Crim. Just. 28 (1999).
Finally, downward departures serve an important function in the
guideline writing process. As Justice Breyer has explained, the
original guidelines
were intended as a starting point. Sentencing judges would
remain free to depart from the guidelines' categorical
sentences. They would write down the reasons for their
departures. The Commission would learn from what the judges
said and did. and future commissions would adjust the
guidelines accordingly.
Justice Stephen Breyer, Federal Sentencing Guidelines Revisited, 14-SPG
Crim. Just. 28 (1999). See also USSG Ch.1, Pt. A, intro. comment.
(stating intent that the Commission would refine the guidelines based
on its review of departures). Thus, departure rates sometimes reflect
the fact that particular guidelines do not capture the ethically
relevant sentencing factors. Overruling Koon would hamper evolution of
the guidelines by denying the Commission an important source of
information regarding potentially important offense and offender
characteristics.
________
Responses of William G. Otis to Questions From Senator Strom Thurmond
Question 1. Mr. Otis, as the number of cases in which defendants
receive downward departure[s] increase, would you expect that the
number of government appeals in departure cases to increase?
Answer 1. Yes. The most effective way--indeed, perhaps, the only
effective way--for the government to rein in departures is to appeal. A
failure to appeal does more than allow what may be an injustice to go
uncorrected. It sends a signal to the district judge that the
government is unwilling or unable to stand up for the purposes of the
Sentencing Reform Act and the rules that limit departures to truly
exceptional cases.
Of course no sensible person believes that the government should
appeal in every case. But plainly the need to appeal is greater, not
less, when the number of departures accelerates. As things stand now,
the number of downward departures, both in absolute terms and as a
percentage of all sentences, is higher than it has ever been. At the
same time, the number of government appeals is lower than it has ever
been. In the most recent year for which statistics are available,
district courts granted slightly more than 8300 downward departures
without a prosecution request, but the government appealed only 19
times. That is an appeal rate of less than one-quarter of one percent.
In my view, this makes no sense. At best, it suggests a curious
degree of lassitude in the Department of Justice. At worst, it suggests
indifference, if not antagonism, to the system of serious and
determinate sentencing that, at least into the early 1990's, had done
so much to advance the rule of law in this vital area.
Question 2. Mr. Otis, based on your experience in the Eastern
District of Virginia, do you think the Government could significantly
promote compliance with the Guidelines if it had an aggressive policy
on appeals?
Answer 2. Yes. As you may know, the Eastern District of Virginia
has now, and for many years has had, one of the best records of
Guidelines compliance in the country. Specifically, according to the
Sentencing Commission's statistics, district judges in Eastern Virginia
impose sentences within the Guidelines at or above 90% of the time, as
opposed to the sluggish national rate of 65%. In considerable part,
this is because the judges in Eastern Virginia know that the United
States Attorney stands behind the Guidelines, and that less than fully
justified departures will be prime candidates for review by the Fourth
Circuit.
I should emphasize that the Eastern District's long record of
Guidelines compliance is not a result of happenstance or luck. It is a
result of the commitment of United States Attorneys of both parties,
Henry Hudson and Richard Cullen during the Reagan and Bush years, and
Helen F. Fahey under President Clinton. Each of these outstanding
prosecutors has shown a steadfast commitment to the rule of law and to
the public safety that Guidelines compliance promotes. Their crucial
insight, the key component of their willingness to take an aggressive
stand in the Court of Appeals, is their knowledge that fairness--for
both the defendant and the public--is served not by accommodating
special breaks for a minority of criminals, but by insisting on the
same rules for everyone.
Question 3. Mr. Otis, as you know, downward departures in
immigration cases have increased greatly in recent years. Do you think
there are other ways to handle increased caseloads of immigration
deportation cases rather than through downward departures from the
Guidelines?
Answer 3. Yes. The increased caseload created by border-related law
enforcement falls far short of providing an adequate explanation for
the present, nationwide departure rate--a rate which has grown over the
last eight years from slightly less than a fifth to more than a third.
First, the ``fast-track'' programs some United States Attorneys
have adopted do not need to involve wholesale departures, and indeed
not all of them do. The Central District of California (Los Angeles),
for example, has a considerable problem with illegal immigration to say
the least, but has an overall departure rate no greater than the
national average. Moreover, its rate of departures not based on a
defendant's substantial assistance in other prosecutions is only
roughly one-half the national rate. And its rate of such departures is
less than one-fifth the rate in the adjoining Southern District of
California.
The Central District of California has simply settled on a
different approach to the problem, one which in my view intelligently
addresses illegal immigration and related issues, and does so in a way
that avoids blasting an enormous hole in the Guidelines. Specifically,
that District obtains expeditious plans in more than 95% of its cases
by offering nothing more than credit for acceptance of responsibility
and a recommendation for a sentence at the lower end of the Guidelines
range. Defendants, and the defense bar, soon come to understand that
accepting that arrangement is their best option in cases where proof of
guilt is typically incontrovertible.
It is not clear why a similar approach could not be tried in other
districts with border- and immigration-related problems. But for
however that may be, a second approach is available if the Southern
District's plan is tried but turns out to be impractical. If a true
emergency were to exist after having made the effort, federal resources
could be re-focused on prosecuting only the most egregious offenders
(for example, alien smugglers, narcotics traffickers and persons
previously deported for illegal reentry after conviction for an
aggravated felony) and giving those defendants the full Guidelines
sentences they deserve. This approach would in my judgment better serve
the public interest than an undifferentiated program of half-measure
``justice'' spread thinly around the board.
The ``fast-track'' explanation for the growth in departures is
deficient for a second, more categorical reason. Practical difficulties
in border enforcement, even the most intractable difficulties, simply
cannot be an excuse for the Justice Department to squeeze around the
law. Article II. Sec. 3 of the Constitution requires that the Executive
``shall take Care that the Laws be faithfully executed.'' It does not
provide that they shall be executed when it is easy or convenient, but
shuffled to the sidelines when it is not. Some of our country's
landmark statutes, including statutes protecting civil rights, have
been difficult, and sometimes even dangerous, to enforce. We enforced
them nonetheless, and we are better for it.
The Sentencing Reform Act is a landmark effort in providing more
nearly equal treatment of defendants. It is not, and should not be
treated as, an unwanted stepchild. Enforcing it in full measure may
well be a daunting task, particularly in border districts. But it is
unacceptable to make the law the victim because the job is hard.
Question 4. Mr. Otis, are you concerned about the increase in the
use of substantial assistance departures in the last decade, and in the
great disparity in how substantial assistance is applied within
districts today?
Answer 4. I am concerned about both developments.
A. In fiscal 1992, there were substantial assistance departures in
slightly over 15% of the cases. Over the next two years, this increased
to 20%--a jump of one-third. The rate has remained at or about 20%
since then, although with a slight decrease in fiscal 1999.
Congress was wise to grant to the government the power to reward a
defendant's substantial assistance by making these motions. I am
unaware, however, of any reason to believe that defendants have become
one-third more willing to cooperate--or, indeed, any more willing to
cooperate--over the last eight years than they were in the five years
before that. Nor is it clear why the government should need to sponsor
below-guidelines sentences in 20% of its cases in order to obtain the
cooperation it needs. In the Eastern District of Virginia, for example,
the government makes these motions in only 7% of the cases, yet does
not suffer from a lack of cooperation. Indeed, over the 18 years I was
in the United States Attorney's Office there, it was my experience that
defendants were more eager to cooperate, and to do so in a timely
fashion, knowing that substantial assistance motions were hard to get.
In sentencing as elsewhere in life, it is the disciplined use of
incentives that reaps the greatest rewards.
It is natural, although unfortunate, for Assistant United States
Attorneys to be tempted to accommodate the pressure that may be placed
on them by judges antagonistic to the Guidelines, and of course by the
criminal defense bar, by stretching the standards for what will count
as ``substantial assistance.'' It is perhaps because of the build-up of
these pressures that we have seen the increase from 15% to roughly 20%
of cases in which the government makes substantial assistance motions.
The precise reason for the increase warrants further inquiry, perhaps
from the Sentencing Commission and Congress and certainly from the
Department of Justice. This much is clear, however: Having a supportive
and resolute United States Attorney will combat these pressures and
help insure that a reduction in sentence brought about by a government
motion truly reflects ``substantial assistance.''
B. The disparity in the rate of substantial assistance motions is
troubling. It is all but impossible to believe that in five districts
in the country, defendants cooperate 40% of the time or more, while in
five others they cooperate less than 7% of the time (see Commissioner
Steer's Exhibits 10 and 11). It simply cannot be the case that, based
on no obviously relevant difference in geography or crime patterns,
defendants in one district provide substantial assistance more than
five times as often as defendants in some other district.
Of course, some variation in rates is to be expected. A substantial
assistance departure is, after all, a departure, and departures by
definition will not exhibit the same degree of rough uniformity we can
expect when the Guidelines as followed.
Nonetheless, the enormous disparity in substantial assistance rates
from district to district should be addressed, because it disserves the
central goal of the Sentencing Reform Act. In order to encourage more
nearly equal treatment of cooperating defendants, the Department of
Justice, after consulting with the United States Attorneys, should
attempt to develop more uniform standards for what assistance will
count as ``substantial.'' This may be a difficult undertaking, because
the needs and circumstances of each case will vary, but it is worth the
candle. In my view, it should begin with the understanding that, at a
minimum, substantial assistance means results--that is, specific,
detailed information, typically resulting either in testimony or the
entry of a guilty plea by another party. Merely having a cooperative
attitude, or providing information that turns out to have little or no
use would be insufficient. A defendant who does no more than that may
well deserve leniency at sentencing, but that leniency can be given
within the Guidelines--for example, by a government recommendation for
full credit for acceptance of responsibility and for a prison term or
fine at the lower end of the sentencing range.
By adopting a more clearly defined and pointedly results-oriented
standard, the Department will still be able to obtain cooperation, but
at lower cost and with higher regard for uniform treatment.
Question 5. Mr. Otis, when the Guidelines are applied as the
Congress intended, do you consider the resulting punishment to be an
important reason for the decline in crime in recent years?
Answer 5. Yes. I am not a criminologist and do not pretend to be.
There are doubtless a number of factors that have contributed to the
decrease in crime, but common sense tells us that the more serious and
uniform sentencing we have seen under the Guidelines regime has helped
promote this encouraging development. After all, every day a drug
dealer spends in jail, courtesy of a Guidelines-mandated sentence, is a
day he is not standing outside your child's school.
It is true that the Guidelines cover only federal offenses, and
that those offenses account for only a fraction of all crimes. Still, I
believe that the Guidelines have contributed to the decrease in crime
both directly and indirectly.
Directly, they have created increased prison sentences for some of
the most powerful criminals, such as the leaders of national (and
occasionally international) drug cartels. With such criminals off the
street for a longer time, the effects ripple down, causing disruption
in the drug networks they used to command.
Indirectly, the Guidelines have been a model for the states. In the
13 years since the Guidelines became effective, more and more states
have adopted some form of determinate sentencing system modeled on
them, and have abolished or significantly curtailed parole. As the
visibility and truthfulness of sentencing have increased, the crime
rate has decreased. It would seem odd to believe that this trend, now
consistent for about a decade, is mere coincidence.
The Guidelines have indirectly promoted the decrease in crime in
another way, one which is difficult to quantify but, in my judgment,
not less for its statistical evanescence. The Guidelines signal that
our country is going to take sentencing seriously. We are no longer
content to hear that a criminal has been sentenced to, say, 15 years,
only to read in the papers two or three years later that, because of
bulging ``good time'' credits and easy parole, he is out on the street
and has done it again. The Guidelines are a model of being serious with
the criminal and honest with the public. A country that displaces
unbridled sentencing discretion--which in practice often meant nothing
more than disposition by lottery--with the rule of law, is a country
that tells its criminals, not to mention the rest of us, that the
chances of effectively ``beating the rap'' with an impassioned plea to
a soft judge are over. Sooner or later this message finds its way to
the street, and some who might have thought that getting a light
sentence was a good enough gamble to make crime worth the risk will
think again.
As noted, I am not a criminologist. But the coincidence of
Guidelines sentencing and less crime is there for all to see. At the
very least, it would be irresponsible to weaken the Guidelines without
studying whether their effect on the crime rate is what it certainly
seems to be.
Question 6. Mr. Otis, some have criticized the Guidelines for not
providing judges enough discretion in how to sentence offenders. What
are some of the ways that the system permits judges flexibility other
than [in] the Guidelines range?
Answer 6. Under the Guidelines, judges retain considerable
flexibility, much more than seems ordinarily to be assumed by the
critics.
First off, the Guidelines do not specify a particular sentence, but
a sentencing range--for example, 100 to 125 months. For each offense,
the top of the range is 25% higher than the bottom. Within the range,
the judge can fix the sentence at any point he chooses, no questions
asked. Beyond that, the judge can grant another two levels (or roughly
25%) off the sentence if he decides that the defendant has accepted
responsibility for his crime; for more serious crimes, the additional
amount off exceeds 35%.
In other words, taking into account nothing more than the court's
determination of acceptance of responsibility and its freedom to choose
where within the resulting range the actual sentence should fall, the
system allows for individual variations of at least 50%, and often
close to two-thirds.
But there is more. In many cases, particularly those involving
drugs or fraud (two of the most frequently charged federal offenses),
the Guidelines reserve to the judges the authority to make a number of
largely factual, and therefore effectively unreviewable, determinations
that can affect dramatically the sentencing range. For example, the
judge determines the amount of drugs that should be attributed to a
particular defendant in a narcotics ring; whether the dealer was a
major or a minor player; whether he attempted to obstruct justice by
``encouraging'' witnesses to lie, and so on. All these determinations
affect the sentence; in particular, the determination of the amount of
drugs involved, or the amount of money illegally obtained, can
influence the sentence as much or more than any other factor. Again,
the Guidelines leave all these determinations to the judge, and it was
my experience that, in cases where the evidence was anything less than
quite clear, the benefit of the doubt went to the defendant.*
---------------------------------------------------------------------------
* The Supreme Court's ruling last term in Apprendi may
significantly curtail the judge's authority to determine, for example,
the amount of drugs involved and to use that determination in fixing
the sentence, but not in any way that will redound to a defendant's
disadvantage. Before Apprendi the general rule was that a ``sentencing
factor'' had to be proved by a preponderance of the evidence. In at
least some cases after Apprendi, a ``sentencing factor'' that could
increase the defendant's exposure will have to be submitted to a jury
for its determination under the more exacting reasonable doubt
standard.
---------------------------------------------------------------------------
Finally, of course, there is the power to depart. The original
Sentencing Commission, under the leadership of Judge Wilkins, correctly
recognized that the power to depart in a truly exceptional case is an
important component of justice.
Departures are not inherently wrong or destructive. The problem
lies not in the idea of departures, but in what certainly appears to be
their increasing use for the improper purpose of circumventing a
Guidelines sentence that a particular judge may personally believe is
``too long.'' As written, the Guidelines asked of the judge only that
he give a persuasive reason not already taken into account as to why
the case is sufficiently unusual to justify a departure. If he can do
so, the departure will stand, as the Supreme Court noted in United
States v. Koon, 518 U.S. 81 (1996). If we cannot, the departure
shouldn't stand. At the end of the day, the present system allows for a
full measure of flexibility, asking in return only that good reasons be
given if the normal rules are to be by-passed.
Question 7. Mr. Otis, it has been argued since the
Guidelines were created that they are far too complex. However,
the intent of the Guidelines is to expressly apply a wide
variety of factors that judges should consider for each person
they sentence. What is your view about the complexity of the
Guidelines.
Answer 7. One man's complexity is another man's refinement.
Once Congress made the decision to place sentencing under
the rule of law, and to incorporate the sort of established,
written-down rules through which the rule of law expresses
itself, a certain degree of complexity became inevitable. Given
the stakes at sentencing, for both the defendant and society,
complexity--or as I view it, refinement--is a positive good.
At the outset, it should be borne in mind that the
Guidelines' ``complexity'' is easy to overstate. Guidelines
sentencing at the end of the day rests on the same two basic
factors that have always been considered: how serious the crime
was (the offense level) and whether we are dealing with a first
offender or a repeat customer (the criminal history score). One
major difference between Guidelines sentencing and past
practice is that now the defendant, and the public, know
exactly how much each of these factors contributes toward the
sentence, because each has a value assigned to it. Thus what is
criticized as complexity is often nothing more than visibility.
In order to be fair, the Guidelines have no choice but to
account for the wide variations in how any given crime can be
committed. Not every rape, for example, is perpetrated in the
same way. The Guidelines account for this by listing, in
addition to the base offense level for rape, specific offense
characteristics and adjustments to the sentence to be made in
light of them. To illustrate, if the rapist rendered his victim
helpless by force or drugs, of if the victim was a young child,
the sentence increases by about 50%. Smaller but still
significant increases are required if the victim was in the
rapist's care (such as a student raped by a teacher on a field
trip or an inmate raped by a guard), or if the victim was
injured or abducted. All this undeniably adds to the
Guidelines' ``complexity.'' The question is which of these
factors should be ignored. If as I believe none should be, and
if more broadly no relevant feature of a crime should be
ignored at sentencing, isn't it better to deal with them
explicitly and in concrete terms--even if this makes the
Guidelines tedious and ``complex''?
As long as crimes vary in important details, any sensible
sentencing system is going to be complex (or refined, depending
on how one cares to put it). The very refinement of the
Guidelines--that they require the judge to consider and assign
a weight to every relevant fact about the offense conduct--
belies the competing attack on the Guidelines, namely, that
they blot out individual consideration. To the contrary, they
guarantee individualized consideration in a way that the old,
discretion-based system never did. In the past, if the judge
overlooked an important fact or made a mistake about it, or
inexplicably counted it for much less or much more than it was
worth, the parties would be lucky to find out, much less be
able to seek correction. The judge could sit on the sentencing
bench sphinx-like. He was not required to say what facts he
considered, how much weight he gave them, or why.
The Guidelines have changed all this. Sentencing is now
more specific, detailed and visible. This means, as the critics
point out, that it is also more determinate, demanding and
litigious. But in exchange for these costs we have dramatically
reduced the opportunities for unwarranted disparity, hidden
bias and arbitrary decision making. We have increased to
opportunities to find and correct error. And we have opened up
the workings of the system, generally and in individual cases,
to the public that pays for it and has to live with its
results.
Permit me one final observation. It turns out that much of
the antagonism toward the Guidelines and their ``complexity''
takes root among those who prefer the old way, which was
literally a system of sentencing without law--a system, not
coincidentally, in which the emotional plea by an adroit or
well-paid lawyer might turn the tide at sentencing, there being
no settled rules to promote equality for defendants not so
fortunate.
One may debate the wisdom of particular aspects of the
Guidelines, but it seems bizarre to condemn the idea of a
rules-based system at all, and to demand a return to the days
when the length of the sentence turned on the draw of the
judge. No serious person doubts that whether a defendant
properly may be convicted should be decided under the rule of
law, no matter how complex and problem-laden it may be, and not
as an exercise of will by individual judges. It is difficult to
understand, then, why any serious person would want to nudge
the system back toward the time when, at sentencing, all bets,
and all rules, were off.
Question 8. Mr. Otis, as you have noted, there is only a
little over 60 percent compliance rate with the Guidelines
today. If the downward departure trends continue, does there
reach a point where the Guidelines system breaks down?
Answer 8. Yes. It is difficult to know precisely where the
point is, but my sense of it is that we are perilously close to
it now, if indeed we have not already passed it.
The Guidelines were modeled on he sentencing practices that
had been established in the years before they were adopted. The
Guidelines-prescribed sentencing range for any particular
offense was taken largely from the ``heartland'' range of
sentences imposed for that offense in pre-Guidelines practice.
Of course there were sentences that fell outside that range--
sentences that amounted to what one might call pre-Guidelines
``departures.''
Because I was not involved in crafting the Guidelines, I do
not know the percentage of cases in which such ``departures''
were allowed. I would be surprised, however, if it were as high
as the present rate of slightly over 35%. Obviously, if the
pre-Guideline ``departure'' rate were less than that, or even
just close to it, then there is strong reason to believe that
we have already returned to the point it was the whole purpose
of the Guidelines to leave--namely, the point of unpredictable
sentencing based on idiosyncratic and subjective factors.
As I have noted, allowing reasonable latitude for
departures is not per se either wrong or destructive. But a
fundamental choice has to be made. Either we are going to have
the rules-based system Congress intended by adopting the
Sentencing Reform Act, or we aren't. When the rules are by-
passed in more than a third of the cases, and when the rate of
by-pass has increased steadily for years, we have in my view
come to a crossroads. Continuing down the present path means
that the system will break down. What will emerge from its
quiet (and, as its opponents intend, mostly hidden) dismantling
will be worse than what we had before. In pre-Guidelines
practice, we had unwarranted disparity and luck-of-the-draw
sentencing--but at least we did not pretend to the public that
we had anything better. If the Guidelines system is eaten away
from the inside by departures, sentencing will be every bit as
random and unpredictable it was before, but less honest. We
will continue to display to the taxpayers the superstructure of
the Guidelines, but, I strongly suspect, never tell them how
little of the rule of law is really left inside.
----------
Question 1. According to Commissioner Steer's testimony,
deportation of aliens is the reason most often given by judges for
downward departures. His testimony shows that the districts that lead
the nation in rate of downward departures are Arizona and San Diego.
The caseloads of those districts and others that border Mexico have
dramatically increased over the past eight years due to the Clinton
Administration's resoundingly successful efforts to patrol our borders
more effectively and bring more border-related prosecutions in federal
court to deter illegal immigration and drug smuggling at the border.
This extraordinary increase in case load has not been matched by an
equal increase in prosecutorial and judicial resources. Thus, border
districts have implemented so-called ``fast-track'' programs by which
departures are granted as an incentive for defendants who commit
border-related crimes to resolve their cases quickly and with a minimum
of resource-consuming litigation.
Question a. Contrary to patently partisan accusations that there is
a nationwide trend among our federal judges and the Justice Department
to ignore or defeat the guidelines, do these facts suggest that the
spike in the rate of increase of departures is due to districts trying
to develop strategies to address increased emphasis on border-related
law enforcement?
Answer 1a. I believe Commissioner Steer's testimony showed that
there has been not so much a ``spike'' in the rate of departures as a
moderate, although certainly discernable, acceleration in the rate of
increase. Thus what I conclude is that the border-related issues have
simply exacerbated a problem of indiscipline that was already there.
Even assuming that there has been a ``spike'' in departures driven
by border-related law enforcement, however, that would fall far short
of providing an adequate explanation for the present, nationwide
departure rate--a rate which, as Mr. Kirkpatrick acknowledged, has
grown over the last eight years from slightly less than a fifth to more
than a third.
The explanation is inadequate for two reasons. First, fast-track
programs do not need to involve wholesale departures, and indeed not
all of them do. The Central District of California (Los Angeles), for
example, has what is to say the least a considerable problem with
illegal immigration, but has an overall departure rate no greater than
the national average. Moreover, its rate of departures not based on a
defendant's substantial assistance in other prosecutions is only
roughly one-half the national rate. And its rate of such departures is
less than one-fifth the rate in the adjoining Southern District of
California.
The Central District of California has simply settled on a
different approach to the problem, one which in my view addresses
illegal immigration and related issues, but does so in a way that
avoids blasting an enormous hole in the Guidelines. Specifically, that
District obtains expeditious pleas in more than 95% of its cases by
offering nothing more than credit for acceptance of responsibility and
a recommendation for a sentence at the lower end of the Guidelines
range. Defendants, and the defense bar, some come to understand that
accepting that arrangement is their best option in cases where proof of
guilt is typically readily at hand and incontrovertible.
It is not clear why a similar approach could not be tried in other
districts with border- and immigration-related problems. Nor is it
clear why, if a true emergency were to exist after having made the
effort, federal resources could not be re-focused on prosecuting only
the most egregious offenders (for example, alien smugglers, narcotics
traffickers and persons previously deported for illegal reentry after
conviction for an aggravated felony) and giving those defendants the
full Guidelines sentences they deserve. This approach would in my
judgment better serve the public interest than an undifferentiated
program of half-measure ``justice'' spread thinly around the board.
The ``fast-track'' explanation for the growth in departures is
inadequate for a second, more categorical reason. Practical
difficulties in border enforcement, even the most intractable
difficulties, simply cannot be an excuse for the Justice Department to
squeeze around the law. Article II, Sec. 3 of the Constitution requires
that the Executive ``shall take Care that the Laws be faithfully
executed.'' It does not provide that they shall be executed when it is
easy or convenient, but shuffled to the sidelines when it is not. Some
of our country's landmark statutes, including statutes protecting civil
rights, have been difficult, and sometimes even dangerous, to enforce.
We enforce them nonetheless, and we are better for it.
The Sentencing Reform Act is a landmark effort in providing more
nearly equal treatment of defendants. It is not, and should not be
treated as, an unwanted stepchild. Enforcing it in full measure may
well be a daunting task, particularly in border districts. But it is
unacceptable to make the law the victim because the job is hard.
Having said this, I do not wish to be misunderstood. Career
Assistants in United States Attorneys Offices, at the border and across
the country, are doing a remarkably good job under the weight of a
tremendous burden. I could scarcely agree more with your implicit
suggestion that Congress provide additional resources for them.
Likewise I agree with you that more judges are needed in these
districts. My point is simply that border-related issues should not be
allowed to become, and as a practical matter they are not, the
``explanation'' for the broad, steady, and now alarming nationwide
growth in departures.
Question 1b. Commissioner Steer's statistics show that the Eastern
and Western Districts of Washington, districts which border Canada, are
among the districts that lead the nation in [the] rate of downward
departures. Is the high rate of downward departures in those districts
attributable to border-related issues as it is in the southwestern
districts?
Answer 1b. Although I am at least acquainted with the practices in
Los Angeles because I have had the good fortune to know people working
in the United States Attorney's Office there, I do not know prosecutors
in the Washington districts. I thus confess that I do not know the
answer to your question. I am sure the United States attorneys in those
districts would be able to furnish the information you seek.
I have noticed one curious aspect of Commissioner Steer's
statistics, however. It is true that the Eastern and Western Districts
of Washington have among the highest non-assistance based downward
departure rates in the country, 40.85 and 26.3%, respectively. But the
next three districts to the east which also border Canada--Idaho,
Montana and North Dakota--have downward departure rates of,
respectively, 12.5%, 13.0% and 9.3%--each of which is lower than, not
merely the rates in Washington, but the national average of 15.8%.
Without knowing anything more, it would thus seem unlikely that the
high departure rates in Washington should be imputed to border-related
issues, since the three closed border states (having a combined border
more than twice as long as Washington's) have an average departure rate
only one-third of the Washington districts' combined average.
Question c. What would the rate of sentencings within the
applicable guideline range be since 1990 if border districts were
eliminated from the calculation?
Answer c. Again, my present resources do not enable me to answer
this question. This would be the case even if I were sure whether you
intended to include as ``border districts'' only those districts on the
southern border, or to include as well the districts that border
Canada, or to include only districts which have initiated ``fast-
track'' programs of the form employed by San Diego but not by Los
Angeles; or whether you would also include, for example, Florida, which
has its own significant and unique mix of immigration-related problems
but nonetheless maintains an extremely low rate of non-assistance based
downward departures. The Sentencing Commission may be able to provide
the data you seek.
Question 2. As United States Attorney Denise O'Donnell testified at
the hearing, the nation is divided into 93 geographic federal districts
each headed by its own United States Attorney. The districts are not
identical. The types of crimes that predominate in one district may be
very different from another district. Each district has its own law
enforcement priorities and a unique relationship with state and local
law enforcement. While the Sentencing Guidelines serve the goal of
sentence uniformity, the provision for downward and upward departures
in Guidelines Section 5K2.0 recognizes that some flexibility is
necessary so that the sentencing judge in an appropriate case can
account for compelling and otherwise unaccounted-for circumstances. Is
some degree of disparity inevitable and acceptable in a nation as
disparate as ours, and does Section 5K2.0 reflects the wisdom that room
for some flexibility is an essential ingredient in a fair sentencing
scheme in which the American people can have confidence?
Answer 2. There is not doubt that ``some flexibility'' is both
needed in sentencing and contemplated by the Guidelines. But the
situation we face today calls into question what is meant by ``some,''
and, if a point be made of it, also what is meant by ``flexibility.''
``Flexibility'' in sentencing means the ability to adjust a
sentence either up or down, depending on the nature of the unusual and
``compelling'' circumstances of a case. What departures accomplish now,
however, is not an adjustment up or down but a one-way ratchet down.
Downward departures outnumber upward departures by a ratio of 57 to 1.
Even excluding substantial assistance departures, downward departures
outnumber upward departures 26 to 1. Upward departures for practical
purposes do not exist.
What the sprawling growth in departures reveals, then, is not a
need for ``flexibility''--a need that would not on the face of it cut
in one direction more than the other--but a wholesale shrinking of
sentences. It is, in other words, a one-way street favoring criminals
that has understandably appropriated the more appealing, if not
particularly forthright, banner of ``flexibility.''
Even if departures were evenly balanced, however, the current rare
at which they are allowed shows something more than merely ``some''
flexibility. Downward departures are now given in more than one-third
of the cases nationwide. In my view, preservation of an ample degree of
flexibility easily could be accomplished with a departure rate of less
that half that. Indeed, in the Eastern District of Virginia, where I
was a prosecutor for many years, departures are given, not in a third
of the cases, but in less than a tenth. Downward departures for reasons
other than a defendant's substantial assistance are given in fewer than
2% of the cases--a rate less than one-eighth the national average.
The high compliance rate in the Eastern District of Virginia has
not come about because the district judges there are any less in need
of ``some flexibility'' than district judges anywhere else. It has not
come about because the Eastern District has some peculiar or singular
pattern of crime; to the contrary, we have a fairly typical mix. We
also have an enormously disparate district, with a long seacoast, urban
areas in Richmond and Norfolk, populous suburbs in northern Virginia,
and rural areas stretching out to the Blue Ridge Mountains. No--the
high rate of Guidelines compliance has come about because our district
judges understand that the Guidelines already permit considerable
flexibility for dealing with the unusual case (please see my response
to Senator Thurmond's Question 6), and understand as well the
importance, to both defendants and the public, of providing the
assurance of equal justice. It has also come about because the judges
have been encouraged to maintain this view by the commitment to the
Guidelines, and to seeking the Fourth Circuit's enforcement of them
when necessary, shown by United States Attorneys of both parties--Henry
Hudson and Richard Cullen during the Reagan and Bush years, and more
recently President Clinton's outstanding appointee, Helen F. Fahey.
Finally, the call for ``some flexibility'' can too easily become
the anthem of chaos. In seven districts in the country, only two of
which border on Mexico, the overall departure rate is already above
50%. This means that, in each of those districts, a defendant's chances
of getting a departure are greater than his chances of getting a
Guidelines sentence. It is regrettably no exaggeration to say that, in
those districts, there has been a de facto repeal of the Sentencing
Reform Act. With all respect to the judges and the United States
Attorneys in those jurisdictions, a departure rate that high is a
burlesque of ``flexibility.'' In my judgment, what is needed in these
and in many other districts with excessive departure rates is not more
flexibility but more discipline.
Question 3. The claim has been made by some that the number of
appeals taken by the Justice Department has not increased
commensurately with the increase in the rate of downward departures.
That claim ignores that the increase in downward departures is largely
due to policies and practices in border states to deal with caseloads
resulting from increased emphasis on border-related crime. That claim
also ignores United States v. Koon, 518 U.S. 81 (1996), in which the
United States Supreme Court made it more difficult to appeal a downward
departure by holding that appellate courts should only overturn a
departure where the sentencing judge makes a mistake of law or abuses
discretion. Mr. Kirkpatrick testified at the hearing that there are
ways of assuring compliance with the Sentencing Guidelines other than
taking appeals in particular cases, such as working with the Commission
to resolve conflicts among the circuit courts of appeal about
interpretation of the guidelines.
Question a. If border-related issues and Koon are considered, has
there in fact been any significant change in the rate with which the
Justice Department takes appeals from downward departures?
Answer 3a. I take Mr. Kirkpatrick at his word that Koon has made
government appeals potentially more difficult than they had been
before, but I have no way to quantify how much more difficult the
Department estimates appeals have become, still less to gauge how much
its estimate has affected the actual number of appeals it has
initiated.
There are some observations I can make, however. First, the rate of
unappealed downward departures has shown a remarkably steady increase
since the early 1990's. The increase began before Koon and has
continued at only a modestly accelerated pace afterward. It began
before border-state ``fast track'' programs and has continued at much
the same pace after them as well. This does not prove, but it would
seem to suggest, that Koon and the border-related issues have simply
added to a pre-existing problem.
Second, departures arising from border-related issues are at least
in part a self-inflicted wound, for reasons explained in the second,
third and fourth paragraphs of my answer to Question 1(a).
Third, the impact of Koon is not as one-sided as it might appear.
At the same time Koon may have made successful government appeals
potentially more difficult, it has also made a willingness to take such
appeals more important. That is because some district courts have
erroneously taken Koon as a ``green light'' to depart in cases where,
before, no departure would have been allowed. In fact, of course, and
as your question correctly states, Koon did not so much focus on the
standards district courts should employ for granting departures as on
the standards the courts of appeals should employ for reviewing them.
Nonetheless, the ``green light'' effect of Koon in district court has
been apparent. Thus, since Koon , we have seen some departures, and
some bases for departing, more adventuresome than in the past. A
Department determined to preserve the Guidelines as the rules-based
system Congress intended must resist this tendency to, in effect, take
Koon and run with it.
At the same time, the difficulties posed by Koon are easy to
overstate. Indeed, in a sense, appellate testing is more useful now
than ever to gauge how broadly--or narrowly--the courts of appeals will
interpret Koon. In one case I litigated, for example, Koon proved to be
no barrier to a successful government appeal even where the district
court had employed no fewer than six bases for departing. See United
States v. Rybicki, 96 F.3d 754 (4th Cir. 1996), on remand from the
Supreme Court in light of Koon , 116 S.Ct. 2543 (1996). The Fourth
Circuit there established that even after Koon, departures based on
factors not mentioned in the Guidelines should be ``highly
infrequent,'' and will be permissible only where the `` `structure and
theory of both the relevant individual guideline and the Guidelines
taken as a whole' indicate that they take a case out of the appellate
guidelines' heartland * * * The interpretation of whether the
Guidelines' structure and theory allow for a departure is * * * a legal
question subject to de novo review * * *,'' 96 F.3d at 758 (internal
citations omitted). This interpretation of Koon, which makes clear the
courts' duty to remain faithful to the rules-based ``structure and
theory'' of the Guidelines, makes that case less of an obstacle to
government appeals of departures than some apparently take it to be.
Finally, even though it is not possible to state the precise change
in the number or rate of government appeals in light of Koon and the
border-related issues, this much is clear. Of the more than eight
thousand downward departures given in fiscal 1999, the government
appealed 19 times. With all respect to the Department, that is not
careful case selection in light of difficult legal terrain. That is
surrender. Because the Sentencing Reform Act is worth fighting to
preserve, surrender is not in my view an acceptable option.
Question 3b. What are the ways in which the Justice Department
endeavors to assure the effectiveness of the Guidelines other than
taking appeals from downward departures?
Answer 3b. Based on my seven years in the Department and an even
longer tenure in the United States Attorney's Office, I believe that
appealing downward departures is by far the most effective means of
enforcing the Guidelines.
You note that the Department can work with the Sentencing
Commission to resolve conflicts among the circuit courts of appeals
about the interpretation of particular guidelines. This is true of
course, and Mr. Kirkpatrick deserves full credit for his efforts in
doing so. But I do not believe working through circuit conflicts can
substitute for a resolute appeals policy. No matter how successful the
Department may be in persuading the Commission to resolve conflicts in
a way favorable to public safety, its efforts will be wasted motion
unless the resulting guideline is reliably implemented. With departure
rates already at slightly more than 35% and headed higher every year,
we cannot tell the public that even the present guidelines are being
reliably implemented.
At the end of the day, the Guidelines are not a statement of
philosophy. They are legal rules that govern, or ought to govern,
sentencing in criminal cases. They are ``effective'' to the extent, but
only to the extent, they are followed in such cases. When the trial
court goes outside the Guidelines, the only means of correction is
recourse to the court of appeals.
Question 3c. Should the Justice Department's policy be to pursue an
appeal of every downward departure no matter the circumstances? What
factors does the Justice Department consider in determining whether or
not to pursue an appeal from a downward departure?
Answer 3c. It would be foolish for the Justice Department to pursue
an appeal in 100% of the cases in which a downward departure is
granted, and no one to my knowledge has suggested doing so. But there
is a considerable gap between an appeal rate of one hundred percent and
an appeal rate of one-quarter of one percent, which is what we have
now. Thus the question better suited to current realities is whether
the Justice Department should never appeal a downward departure no
matter the circumstances.
Attorneys in the Justice Department, like all attorneys, are
advocates for their clients. They are also public servants and officers
of the government, of course, so neither their behavior nor the
standards governing their behavior can precisely parallel what would be
the case for private counsel. Nonetheless, the duty to be a zealous
advocate for the client's legitimate interests should be among the
paramount guideposts for Department attorneys.
Accordingly, the first factor the Department should consider in
deciding whether to appeal a downward departure is the extent to which
public safety will be endangered by allowing the criminal back on the
street before he would have been had the Guidelines been followed. In
assessing that question, the Department should look to the nature and
seriousness of the crime and the amount by which the sentence was cut.
A departure of a few months for a relatively less serious offense
obviously does not present the same need for appellate correction as a
departure of a year (or as we increasingly see, several years) for
crimes of violence, drug trafficking offenses or (in my view) offenses
that attack the rule of law, such as witness intimidation and perjury.
Although I shall not attempt here to list every factor the
Department employs in deciding whether to appeal a downward departure
(a subject the Department is better situated to address in any event),
there is one more I should mention: the judge's track record. If a
judge consistently shows respect for the Sentencing Reform Act, then,
all other things being equal, it is less necessary to appeal the rare
departure he or she will allow (and less likely that an appeal would
succeed, since such a judge will typically have the sound reasons the
Act requires to support a departure). Conversely, if the judge has
shown by a long record of departing that he or she has not put aside
the luck-of-the-draw policies that once made sentencing little more
than a lottery, there is an increased need for the Department to
appeal, both to correct the injustice to its client and to make clear
its intention to back the Sentencing Reform Act with more than lip
service.
Question 4. Ms. Hernandez expressed concern about relentless
attempts by some to ratchet up the Guidelines and create unduly harsh
sentences with an unintended racially disparate impact. Mr. Kirkpatrick
in his written testimony expressed concern that our federal prison
population continues to grow even as the crime rate decreases. Indeed,
the population in our federal prisons has almost doubled in the last
five years, and there are now about two million people in our nation's
federal, state and local jails.
Question a. Is there reason for concern that our sentencing laws
have become too harsh and retributive?
Answer 4a. Not in my judgment. The main justification for
sentencing law is to protect the first civil right of our citizens--the
right to live in peace and safety. Although the sentencing structure we
put in place in the late 1980's has started to pay dividends with the
leveling off of the crime rate over the last few years, we still have a
high rate by historical standards. And while some might find it
troubling that so many criminals are in prison, it would be
considerably more troubling to have them back on the street with no
assurance that they won't do it again.
Persons convicted of crime deserve to be treated with dignity and
fairness--not only because of what it does for them, but because of
what it says about us. To understand this, however, is not to say that
we should abjure the serious sentencing we need, not only to impose
just punishment on the wrongdoer, but to protect ourselves and our
children.
To its credit, Congress has seen this point. In the 13 years the
Guidelines have been in effect, not once has Congress suggested that
the Sentencing Commission review any of its work as ``too harsh and
retributive.'' Quite to the contrary, on several occasions Congress has
asked the Commission to consider new and more stringent guidelines. And
the most significant action Congress took with respect to the
Commission's work was its legislation blocking an attempt by the
Commission to lower the penalties for crack cocaine. President Clinton
enthusiastically signed that legislation, noting in his signing
statement that crack dealers should understand that the price of doing
business was not going to be headed down.
In my view, the consistent and bi-partisan support for a resolute
response to crime, combined with the continuing need to depress the
crime rate and the encouraging signs that Guidelines sentencing has
started to do exactly that, undercuts any notion that sentencing has
become unjustifiably harsh.
Finally, the question before the Subcommittee concerned the
operation specifically of the federal Sentencing Guidelines. I am not
aware that any member of the Subcommittee has criticized a particular
guideline as excessively harsh. If such a guideline were identified to
me, I would do what I can to answer questions about its justification.
Short of that, I do not know that a free-ranging discussion about the
subject of sentencing laws in general would advance the Subcommittee's
work.
Question 4b. Is the Sentencing Commission as sensitive to unduly
harsh sentences as it is to inappropriately lenient ones?
Answer 4b. By law, three of the seven members of the Sentencing
Commission must be federal judges; often the Commission has had a
majority of judges. Five of the present Commissioners are judges, and
four of those are district judges who must sentence defendants as a
routine part of their work.
Except for the National Association of Criminal Defense Lawyers,
which Ms. Hernandez so ably represented at the hearing, and
organizations with allied interests favoring criminal defendants, no
responsible group of which I am aware has criticized the Commission for
insensitivity to ``unduly harsh sentences.'' Given the Commission's
strong complement of judges, not to mention its two other expert
members, the reason for this is clear. Judges, certainly including
those on the Commission, are acutely aware of the gravity of the
sentencing decision. I have often heard it said that federal judges
view sentencing as the most serious and difficult task they are called
upon to perform. I am therefore confident that the Commissioners are
fully sensitive to all proper considerations that should go into
formulating the Sentencing Guidelines.
If further evidence of this were needed, however, one need not look
far. For some time the Commission has invited and received input from
the Practitioners Advisory Group. Even if otherwise there might have
been doubt about whether the Commission is sensitive to ``excessively
harsh sentences,'' the work of this body of leading criminal defense
attorneys should allay any fears on that score. Regrettably, the more
realistic danger is that the Commission does not hear enough from crime
victims, who inexplicably have no comparable group to speak to the
Sentencing Commission in their behalf.
Question 4c. If application of the Guidelines creates an unintended
racially disparate impact, what steps should Congress take to address
that impact?
Answer 4c. There is a reason Lady Justice wears a blindfold.
A cornerstone of our freedom, and perhaps the crowning achievement
of our system of justice, is that we treat each defendant as an
individual citizen and not as the member of a subgroup of citizens.
Each defendant facing criminal penalties is entitled to have his case
and his sentence determined solely on the evidence about his conduct--
not on stereotypes, either favorable or unfavorable. In no area of the
law would it be less justifiable or more dangerous to arrange benefits
or burdens based, not on the evidence in the case before the court, but
on a politically determined and inevitably divisive recognition of
group identity, whether by race, religion or any similar criterion.
Question 5. The Supreme Court in Koon held that the sentencing
judge is in the best position to evaluate whether a departure is
warranted, and any departure should be reversed on appeal only under
very limited circumstances where, for example, the judge abused
discretion or made a mistake of law. Some say that Koon is good for the
system because it supports the authority of judges to fashion an
appropriate sentence where there are unforseen or compelling
circumstances. Others have suggested that the Congress should pass
legislation that would effectively overrule Koon. What factors should
the Congress consider in evaluating the wisdom of a legislative effort
to statutorily overrule Koon, including, for example, the increase in
federal appellate litigation?
Answer 5. Congress should consider whether it wants to preserve the
determinate sentencing system it created, and the considerable benefits
that system has brought both to public accountability and public
safety, or whether it wants to risk a continuation of the present slow
slide back to the failed policies of the past.
President Clinton's Justice Department argued, correctly in my
view, that the Sentencing Reform Act accommodates the relatively
stronger hand the courts of appeals had in pre-Koon law. That
relatively stronger hand was important in assuring that district courts
adhered to the system of rules-based sentencing the Act contemplates.
This was particularly useful in the face of the opposition the
Guidelines faced from the organized defense bar and some district
judges.
As the Department recognized, the Sentencing Reform Act was written
in the knowledge that the district judge alone sees the flesh-and-blood
defendant. For that reason, the Act provided and continues to provide
ample authority for the judge to fashion an appropriate sentence
outside the Guidelines where there exist compelling circumstances of a
kind or to a degree the Sentencing Commission did not take into
account. But while it is true that the district court is better
situated to know the individual defendant, the court of appeals is
better situated to know sentencing patterns in the much broader
surrounding area, and therefore to be able to discern whether there is
unwarranted disparity in granting departures from one district to the
next. Thus the appellate court is in a better position to safeguard the
most important goal of the Act, namely, to promote more nearly equal
treatment of defendants and more predictability in the law of
sentencing. And in practice, that is what appellate courts were more
clearly free to do, and did, before 1996.
By a legislative correction to Koon, Congress will simply restore
the more substantive role of appellate review that existed for almost
ten years before Koon was decided, and that the Justice Department
believed to be the better interpretation of the Sentencing Reform Act.
Although, as I have previously stated, Koon's impact is difficult to
quantify and may be overestimated by the Department, one could not
describe Koon as helpful. Congress thus would do well to reinstate the
relatively stronger hand of the circuit courts, which have shown
themselves to be more vigilant in safeguarding the determinate
sentencing system whose creation was the Congress's principal goal in
adopting the Act.
______
Additional Submissions for the Record
----------
Committee on Criminal Law of the
Judicial Conference of the United States,
Greenville, SC, June 16, 2000.
Hon. Diana E. Murphy,
Chair, U.S. Sentencing Commission,
Washington, DC.
Dear Judge Murphy: On behalf of the Judicial Conference Committee
on Criminal Law, I would like to take this opportunity to thank you and
all the Commissioners and staff for joining us for our meeting and
dinner in Boston on June 5, 2000. As promised, I am relaying to you the
list of circuit conflicts that the Committee recommends that you
resolve as soon as you can. We hope you will resolve as many of them as
possible in the 2001 guideline amendment cycle.
The full Committee reviewed your staff's materials on 38 current
circuit conflicts regarding guideline application. The Sentencing
Subcommittee in particular studied them, and proposed a list of 17 to
the full Committee. As you know, the full Committee approved that list,
and added another conflict, bringing the total of our recommended
conflicts to 18. Those 18 conflicts are listed below, generally in the
priority of voting.
No. 1 Stipulations/1B1.2(a);
No. 2 Aggravated assault/use of dangerous weapon enhancement;
No. 5 Marijuana plants;
No. 6 Interest and Loss;
No. 7 Intended loss (reverse stings w/o actual loss);
No. 9 Prior felonies;
No. 14 Mitigating role/couriers;
No. 19 Grouping money laundering and fraud;
No. 35 Consecutive sentences/5G1.3;
No. 8 Fraudulent representations (2F1.1);
No. 23 4A1.3/Expunged convictions;
No. 38 Reasonableness of upward departure;
No. 21 Acceptance/Unrelated acts;
No. 30 Crime of Violence/burglary;
No. 17 Flight/obstruction;
No. 3 Brandishing;
No. 22 Acceptance/entrapment; and
No. 26 Criminal History VI departures.
I note that conflict number 6 (interest and loss), 7 (intended
loss/0 actual loss), 19 (grouping money laundering and fraud), and 8
(fraudulent representations) relate to economic crimes, and would not
only be relevant to issues raised in the upcoming Economic Crime
Symposium, but also should be resolved as part of any economic crime
package the Commission may adopt in 2001. In any event, even if the
Commission is not able to complete the package, those conflicts are
near the top of the list the Committee recommends the Commission
resolve in 2001.
Regarding the discussion of circuit conflicts that I will moderate
at the Sentencing Institute, I plan to begin preparing the top ten or
so conflicts from the above list for that discussion, unless the
Commission suggests that other conflicts be discussed. It would make
sense to include the four involving economic crimes, to not only better
inform the issues for the subsequent Economic Crime Symposium, but also
to assist the Commission's consideration of the economic crime package.
As we indicated at our meeting, the Committee also specifically
recommends that the Commission update its 1991 Report to Congress on
Mandatory Minimum Penalties, prepared pursuant to P.L. 101-647,
Sec. 1703, which authorizes the Commission's updating of the report at
any time. The year 2001 would be the Tenth Anniversary of the first,
very fine report. This is a good time to remind Congress of the
fundamental problems with mandatory minimum penalties that were
explained in the original report, which can be even better informed and
exemplified by the subsequent ten years' experience with even more
mandatory minimum penalties. We urge and support the Commission's
updating of its previous report, as imperative in shaping future
federal sentencing legislation.
There can be nothing more important, in the larger perspective,
than for the Commission to take up the banner of further informing
Congress, and dissuading it from the passage of mandatory minimum
penalties. At the same time, there is no more important guideline
amendment than one that resolves a conflict among the circuits on the
Commission's intended meaning of a term or procedure, because such an
amendment avoids much unnecessary litigation and removes a significant
source of unwarranted disparity in guideline application.
Accordingly, we thank you for your consideration of these matters
in your 2001 amendment cycle. We also appreciate the opportunity to
work with the Commission in preparing for the Sentencing Institute in
September and Economic Crime Symposium in October.
With highest personal regards, I am
Sincerely,
William W. Wilkins, Jr.,
Chair.
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``Bill Otis Sentencing Essay''
The Post's series of October 6-10, 1996 entitled ``Justice by the
Numbers'' on the Sentencing Guidelines would leave you with this
picture: that it's a basically incomprehensible system of arbitrary
numbers, larded with excessive detail but lacking the human element;
that sentencing has become absurdly complicated, mistake-prone and
over-litigated; that judges' discretion to reach a fair outcome has
been all but ended in favor of deck-stacking prosecutors; and that
racial discrimination infects the whole process.
I have worked with the Guidelines from their inception, and in my
experience not a single facet of this criticism is true. There is no
way to rebut in one op-ed the five gigantic articles the Post published
on this subject, so I shall simply take the points in order and
apologize in advance for my omissions.
1. The Post started its series with excerpts from a sentencing
hearing that were presented to make it all seem like legal gibberish:
alien-sounding talk about offense levels, criminal history points and
adjustments pursuant to Guideline this and Chapter that. The truth is
that, although the language of sentencing has changed, a judge working
under the Guidelines bases the sentence on the same factors that have
always been considered. These boil down to two things: how serious the
crime was (the offense level) and whether we are dealing with a first-
offender or a repeat customer (the criminal history score). One major
difference between Guidelines sentencing and past practice is that now
the defendant, and the public, know exactly how much each of these
factors contributes toward the sentence, because each has a value
assigned to it. This increase in the availability of specific
information is a good thing, not a bad one.
A second major difference is that the Guidelines require each judge
to treat any given sort of offense with the same level of seriousness.
Recently we have seen episodes in which state judges opined that rape
wasn't all that serious because the victim was ``careless'' or ``was
asking for it'' or some such thing. The kind of sentence that results
from that attitude is virtually impossible in the federal Guidelines
system. The Sentencing Commission has assigned rape an offense level--a
number--that the judge may not change and that does not vary depending
on his attitude. It is of course possible to ridicule this, a la the
Post series, as ``justice by the numbers.'' It is also possible to say
that an assigned number for the severity of rape ``ties the judge's
hands.'' And within limits so it does, thank goodness.
Of course, not every rape happens the same way or has the same
consequences. The Guidelines account for this by listing, in addition
to the base offense level, specific offense characteristics and
adjustments to the sentence to be made in light of them. For example,
if the rapist rendered his victim helpless by force or drugs, or if the
victim was a young child, the sentence goes up by about 50 percent.
Smaller increases are required if the victim was in the rapist's care
(such as a student raped by a teacher on a field trip or an inmate
raped by a guard); or if the victim was injured or abducted. All this
undeniably adds to the Guidelines' ``complexity.'' The question is:
which of these factors should be ignored? If none should be, and if
more broadly no relevant feature of a crime should be ignored at
sentencing, isn't it better to deal with them explicitly and in
concrete terms? Even if it makes the Guidelines tedious and
complicated?
One person's complexity is another's refinement. As long as crimes
vary in important details, any sensible sentencing system is going to
be complex (or refined, depending on how you care to put it). The very
refinement of the guidelines--that they require the judge to consider
and assign a weight to every relevant fact about the offense conduct--
belies the notion that they blot out individual variations. To the
contrary, they guarantee individualized consideration in a way that the
old, discretion-based system never did. In the past if the judge
overlooked an important fact or made a mistake about it, or
inexplicably counted it for much more or much less that it was worth,
you would be lucky to find out, much less be able to seek correction.
The judge was not required to say what facts he considered in
sentencing, or how much weight he gave them, or why.
The Guidelines have changed all this. Sentencing is now more
specific, detailed and visible. This means, as the critics point out,
that it is also more determinate, demanding and litigious. But in
exchange for these costs we have dramatically reduced the opportunities
for hidden bias and arbitrary decisions. We have increased the
opportunities to correct error. And we have opened up the workings of
the system, generally and in individual cases, to the public that pays
for it and that has to live with its results--a fact proven,
ironically, by the Post's own series.
It turns out that much of the antagonism toward the guidelines and
their complexity is among those who prefer the old way, which was
literally a system of sentencing without law. One may debate the wisdom
of particular aspects of the Guidelines, but it seems bizarre to
condemn the idea of a rules-based system at all, and to demand a return
to the days when the sentence turned on the luck of the draw. No
serious person doubts that whether a defendant may properly be
convicted should be decided under the rule of law, and not as an
exercise of will by individual judges, who vary greatly in their
ideology, instincts and temperament. Why then should any serious person
suggest that at sentencing, all bets, and all rules, should be off?
2. While some criticize the Guidelines because they are supposedly
too involved, others criticize them because they aren't involved
enough. Specifically, these critics note that the Guidelines either
discourage or prohibit outright consideration of a defendant's personal
characteristics. This defect, so the argument has it, only exacerbates
the Guidelines' already mechanical and inhuman features.
Let's see what happens when offender characteristics re-enter the
sentencing system. How about considering the defendant's age?
Judge A: ``Defendant Smith, you're 19 years old, just starting out
in the adult world. Getting involved with selling these drugs was
wrong, and you surely realize that, but you were in with a bad crowd
and I know what peer pressure can be at your age. A jail term would
seriously jeopardize your future employment prospects, and with them
your chance for a productive life. I feel like someone your age
deserves the chance to right himself. Two years' probation with
counseling.''
Judge B: ``Defendant Smith, you're 19 years old and just starting
out in the adult world. Getting involved with selling these drugs was
wrong and you knew it. You chose to run with a gang, while most of your
peers have the sense to avoid them. If I don't impose a significant
jail term, I would undermine any lesson you might learn from this
experience and would, to the contrary, send a message that young people
can get caught but still beat the rap at sentencing. For your future if
not your survival, you need to be off the streets, and you need a wake-
up call. Five years in the penitentiary.
How about the defendant's social and economic status?
Judge C: ``Defendant Jones, you came from a disadvantaged
background--a broken home, inadequate schooling and few job skills.
With that baggage, maybe it's no surprise that you pulled a gun when
you robbed the convenience store. But you had other choices. It's tough
to start at the bottom, but millions of people in this country have
done it and succeeded. My father died when I was young and my mother
had to go it alone. We kids still grew up knowing right from wrong.
Besides that, with your background, and now with this conviction, your
prospects for getting an honest job are low, and the prospect of repeat
offenses therefore high. Five years in the penitentiary.''
Judge D: ``Defendant Jones, you came from a disadvantaged
background. Maybe it's no surprise that you robbed the convenience
store by sticking a gun in the cashier's face. But there's no denying
that your broken home, inadequate schooling and poor job skills
significantly narrowed your range of choices. I would have to be blind
not to understand that society helped create the conditions that
handicapped your life. Society thus shares some of the blame for your
predicament. Besides that, with counseling and the educational
opportunities your probation officer can help arrange, you will have a
new chance. Two years' probation with counseling.''
How about civic and work-life contributions?
Judge E: ``Defendant Brown, your taking pornographic pictures of
these girl scouts was terribly wrong, and it will hurt them
tremendously. Still, I can't overlook the fact that you have
contributed much time to being a scout leader, and there's no
documented evidence that you did anything blameworthy until now.
Moreover, you've given substantial amounts to the Habitat Project,
you've been a successful businessman providing jobs to many people in
our city, and you volunteered after your guilty plea to pay for the
girls therapy. Besides that, the psychiatrist you hired wrote me that
you were under stress, and that you're a good prospect for
rehabilitation. Given your unblemished record and contributions to
society, I agree. Two years' probation with counseling.''
Judge F: ``Defendant Brown, your taking pornographic pictures of
these girls scouts was terribly wrong, and a man who has accomplished
what you have must have known that. Dozens of parents will worry
themselves sick about what you were doing over the years you were a
scout leader. If I give you a break because of your contributions to
charity or your success in business, I would in effect be allowing you
to buy your way to a lower sentence. And maybe I'm being too harsh
here, but I wonder whether your offer to pay for the girls' therapy, an
offer made only after your conviction, isn't a form of trying to buy
off the victims. I sentence a lot of people who didn't have much of a
chance in life. You had plenty and blew it. Five years in the
penitentiary.''
Who's right about all this? Take your choice. There is no consensus
about these things, not in society and not among judges. Prosecutors
predictably push one line; defense attorneys predictably push the
opposite. Judges can come down on one side or the other, or in any of a
thousand places in between. It just depends on which judge has the
case.
And there's the rub. One persons' discretion is another's
subjectivity. if we return to the old system in which judges had
``discretion'' to consider offender characteristics like the ones
discussed (or a host of others), it is certain that luck-of-the-draw
disparity will return with it. Consideration of offender
characteristics is discouraged by the Guidelines not because such
characteristics have no significance, but because they have no agreed
significance. In a system that strives for the rule of law and equality
of treatment, there is simply no other choice.
3. The claim that judges' discretion has been all but drained from
the system is, in any event, considerably exaggerated in the Post
series. In fact, judges retain a good deal of leeway.
First off, the Guidelines do not specify a particular sentence, but
a sentencing range--for example, 100 to 125 months. For every offense,
the top of the range is at least 25 percent higher than the bottom.
Within the range, the judge can fix the sentence at any point he
chooses, no questions asked. Beyond that, the judge can grant another
25 percent off the sentence if he decides the defendant has accepted
responsibility for his crime; for serious crimes, the additional amount
off exceeds 35 percent. In other words, the system allows for
variations of at least 50 percent. The sentencing judge is free to
decide whether and how much of that to use, and except in the most
unusual circumstances, his outcome will stand up even if there's an
appeal.
But that's not all. In many cases, particularly those involving
drugs or fraud, the judge has the power to make a number of largely
factual (and therefore effectively unreviewable) determinations that
can dramatically affect the sentencing range. For example, the judge
determines the amount of drugs that should be attributed to a
particular dealer in a narcotics ring; whether the dealer was a major
player or just a flunky; whether he attempted to obstruct justice by
``encouraging'' witnesses to lie; and on and on. Justifiably, all these
determinations affect the sentence, sometimes substantially, and all of
them are left to the judge.
But that's not all either. On the inside pages of the Post's third
article was a little box titled, ``Some Leeway for Judges.'' The box
introduces us to judges' power to depart from the Guidelines. The Post
says that the authority to depart is a ``special provision'' of the
Guidelines system that allows judges ``to add extra time or trim time
for defendants in extraordinary circumstances.'' But the numbers in the
box tell a more interesting story.
First, they show that there is nothing unusual about departures.
They occur in three of every ten cases according to the Post's chart.
They are thus about as special'' as Cal Ripken's getting a hit. Second,
although it is theoretically true that departures can be used equally
either to add to or trim sentences, they are not used equally. Downward
departures outnumber upward departures 97 to 3.
There is an important message in that ratio, but before turning to
that, it's useful to reemphasize the fact that there is an enormous
amount of discretion left in the system. The demand for even more
discretion largely ignores this fact, but ignoring it does not make it
less true.
The capstone of discretion is the power to depart, essentially to
opt out of the Guidelines. The judge need only give a persuasive reason
that the Guidelines do not already take into account as to why the case
is sufficiently unusual to justify a departure, and his outside-the-
Guidelines sentence will stand up, as the Supreme Court noted recently
in the Koon case. If he can't state a persuasive reason, the sentence
shouldn't stand up. What is wrong with that? The present system allows
for a full measure of discretion, asking in return only that good
reasons be given. Is it wise to trade discretion based on reason for
discretion based on--well, who knows what? Will? Ideology? On the fact
that the judge is a political ally of the prosecutor, or a college chum
of defense counsel? The past system of unlimited discretion might not
have been infected with these things very often (although it's hard to
tell because it was mostly invisible). But that is hardly a reason to
tear down a new system that is better at eliminating them, smoking them
out if they creep in, and providing a means of correction in the court
of appeals.
4. When downward departures outnumber upward departures by more
than 30 to 1, that tells you something about what the campaign for more
``discretion'' is all about. It's about getting lower sentences.
It is true, as the Post's figures show, that well more than half of
all departures are given at the prosecutor's request, to reward the
defendant's cooperation. But even disregarding those, downward
departures still outnumber upward departures 10 to 1. At least for many
of its advocates, then, the call for more discretion is fundamentally a
call for lower sentences.
Lower sentences are not inevitably and in all circumstances a bad
thing. Many conscientious people believe that prisons do as much harm
as good, and point out that it costs a great deal of taxpayer money to
keep building them. Others argue that there is an even greater cost in
not incarcerating people who, out in the community, cause much
expensive social damage. And certainly it is true that every day a drug
dealer is in jail is a day he is not standing outside your kid's
school.
The point is not that the Sentencing Commission should be
automatically either for or against lower sentences. The point is that
the public has a right to know that lower sentence are what more
discretion will quite certainly produce. More broadly, the point is
that the proponents on this issue should do more to explain the
dramatic substantive effects of what they discuss as if it were merely
a procedural change.
5. The question of lower sentences is also a submerged issue that
should be brought to the surface in another hotly debated area covered
in the Post series, the controversy over crack cocaine penalties. As
the Post correctly reported, crack sentences are much higher than those
for powder cocaine, and close to 90 percent of those convicted of
federal crack offenses are black. Fewer than five percent are white.
This disproportion has led to an uproar to say the least. The
Sentencing Commission, by a one-vote majority, responded with a
proposal to change crack sentences so that both crack and powder would
be punished equally. Congress overwhelmingly rejected the proposal, and
it did not become law.
I agree with those who thing the degree of difference in the
punishment of these two drugs is wrong. But the Commission's majority
was wrong as well, and Congress acted wisely in counteracting it.
First, while the disparity in treatment under current law is
excessive and racially divisive, crack and powder should not be treated
equally for the simple reason that they are not, in fact, equal. As the
Justice department has pointed out, crack is more addictive, more
readily available to children, more frequently associated with
violence, and generally more of a menace than powder. And it is not
just the Justice Department. The federal courts of appeals unanimously
have rejected equal protection/racial disparity challenges, holding
that the significant difference is social harms between crack and
powder is an adequate basis to accept even the present, enormous
difference in punishment. In my view, that difference should be
narrowed, but not--as the Sentencing Commission would have done-
eliminated entirely.
The problem with the Commission's proposal was not, however, merely
that it went too far. The problem was that it went in only one
direction--the same direction that lies silently beneath the argument
for more ``discretion.''
It was obvious to the Sentencing Commission, and it remains
obvious, that it is possible to reduce the difference in treatment
between crack and powder by either (1) reducing crack sentences, (2)
increasing powder sentences or (3) a combination of these. If one
believes, as I do, that the disparity in punishments should be narrowed
but not eliminated, a relatively modest increase in powder sentences it
will do the job. Such an increase is justified independently by the
fact that the (white-dominated) powder consumption market is actually
more dangerous than it looks, because ultimately it feeds the
distribution networks for both powder and crack. But an increase in
powder sentences, although both obvious and justified as an answer to
the disparity problem, was not the answer the commission chose. In the
name of an equality that could have been achieved just as well by a
more balanced solution, the Commission chose only to lower sentences.
It chose to lower them by a huge amount, and to lower them for a drug
as pernicious to life in our cities as any this country has seen.
Congress and the President have been criticized for blocking the
Commission's proposal out of ``political expediency.'' I respectfully
disagree. The proposal deserved to be blocked because it was either
insufficiently thought through, or --worse if this is what happened--a
politically correct surrender to a one-sided view of sentencing. If en
masse higher sentences are not an automatic answer to our problems, en
masse lower sentences certainly aren't either.
6. A front page headline on the second day of the Post's series
announced that ``Prosecutors Can Stack the Deck;'' the ensuing story
suggested that that is exactly what they do. They get away with it, the
inside page headline continues, because ``U.S. Attorneys Have Usurped
the Power of Judges'' to determine the sentence.
What does ``stacking the deck'' mean? I think it means cheating to
obtain a better result than you're entitled to under the rules. As
applied to a prosecutor's role in sentencing, that would mean
attributing to a defendant things he didn't do in hopes of obtaining a
longer prison term that the law allows for the things he actually did.
Is that how prosecutors act according to the Post's story? Not a
bit. The Post cites not one instance of a prosecutor's having charged a
defendant with something he didn't do. To the contrary, by far the bulk
of the story recounts prosecutors' not charging defendants with things
they did do to permit a shorter prison term than the law allows. If
this is how prosecutors ``stack the deck,'' we would all do well to
break out the cards at the Justice Department and insist that they
deal.
The point here is not that prosecutor's variations in charging and
plea bargaining decisions present no difficulties under the present
sentencing regime. They do, and I shall turn to that momentarily. The
point is that for whatever those problems may be, they do not partake
of the self-serving, defendant-bashing sleaziness implied by the
headlined references to ``stacking the deck.
It is true, as the Post reports, that the prosecutor selects the
charges. But that is neither new with the Sentencing Guidelines nor
improper; it has always been part of the prosecutor's constitutionally
assigned task, as the Supreme Court emphasized recently in United
States v. Armstrong. Nor does the prosecutor select the charges as part
of a game; the charges arise from the defendant's conduct. And if a
prosecutor's ethical obligation to eschew unsubstantiated charges were
not enough, courtroom dynamics would do the job. No prosecutor wants to
look like an idiot by standing in the front of the jury with a blank
face and a molehill for evidence.
The prosecutor's decision about exactly what to charge, like the
judge's decision about where within the Guidelines range a sentence
should fall, necessarily involves an exercise of judgment--discretion
if you will. But two things should be borne in mind here. First, this
is unavoidable. No prosecutor's office has the resources to pursue
every crime, so a selection must be made. Second, the purpose of
written rules, whether the Guidelines for sentencing or Justice
Department regulations for charging--is to limit discretion, not end
it. The survival of discretion, in sentencing and in charging,
necessarily means the survival of a degree of disparate treatment, but
this fact hardly counsels going back to a system of unlimited disparate
treatment. If the prosecutor has too much discretion under the
Guidelines system, the answer is not to shift excess back to the judge,
but to develop more enforceable rules for both.
This really gets ahead of the game, however. It's not such much
that discretion has shifted to the prosecutor (since that's where it's
always been for charging decisions), as that the stakes in charging
have been raised. Prescribed sentences have become higher. But little
of that can be attributed to prosecutors or even the Sentencing
Commission. It is mostly due to the proliferation of a long mandatory
minimum terms imposed by Congress.
Again, there are those who believe that Congress acted out of
political expediency, and again I disagree. Like the public, Congress
is justifiably alarmed by the level of crime in this country and its
increasingly violent, random and predatory nature. And it is difficult
to explain the proliferation of mandatory minimums except as an
expression of Congress' concern that even the Guidelines leave to much
discretion to judges--not too little as the critics charge--and that a
more nearly absolute barrier to unpredictable--sentencing is needed.
The claim that Guidelines give over to prosecutors the discretion
that judges used to have is therefore overstated, and in some ways
flatly wrong. But even if it were entirely true, it does not take the
critics where they want to go. The unspoken and apparently unquestioned
assumption behind all this is that, in matters of sentencing, judges
must know best. It that true? Judges tend to have their roots in an
upper class of big-firm or boutique-firm lawyers. Often, although
certainly not always, their background is in business practice:
taxation, utilities, antitrust and the like. There is nothing wrong
with that, but it does not make anyone an expert in criminal
sentencing. And certainly judges do not tend to live anywhere near the
neighborhoods where a lightly-sentenced criminal is likely to return.
In my experience, veteran prosecutors, and veteran defense attorneys
for that matter, know more about how criminals actually behave than
corporate lawyers, before or after they become judges.
Finally, if Congress did want to shift power somewhat more toward
prosecutors, the shift would not be without reason. Did we do all that
well with the old system? Did sentencing decisions controlled entirely
by judges stem the rise in crime? Did the public feel increasingly
secure with the old system's mantra of rehabilitation and quickie
parole, or increasingly at risk? And there's this too: if you don't
like how the prosecutor handles the job, you can fire him and the
person who appointed him at the next election. If you don't like how
the judges are doing, too bad. Federal judges sit for life.
7. The Post series had a good deal to say about almost all the
actors in the system: the manipulating prosecutor, the clever defense
lawyer egging him on, the passive (or was it despairing) judge watching
them take over the system, the fractious Sentencing Commission, and a
cynical Congress in the background ever mindful of the political tides
if mostly oblivious to fairness. Indeed, there was only one actor for
whom the Post had no criticism at all.
The criminal.
In a huge series about criminal sentencing, the Post had almost
nothing to say about crime or the people who commit it. To the extent
crime or criminals got mentioned, it was short and antiseptic. In the
third article, for example, we heard about Johnny Patillo, who ``was 27
and * * * had never been involved with drugs.'' But one day Mr. Patillo
tried to send about half a kilo of cocaine from Los Angeles to Dallas,
although ``he didn't know what kind [of drugs were in the package] or
how much. And he needed the $500 he would get as a courier.'' So the
judge had to sentence Mr. Patillo to a mandatory minimum prison term, a
sentence that was likened to ``amputation of the offending hand * * *
for stealing a loaf of bread.''
The message: Mr. Patillo is not the bad guy. We are the bad guys.
Cocaine and the cocaine pipeline don't cause any social damage, at
least none worth mentioning, not in Dallas and certainly not in Los
Angeles, Mr. Patillo had gone to college but ``had fallen on hard times
financially.'' he is Jean Valjean. We are Javert.
And there was David Ives. Mr. Ives, who appeared as the lead-off
example in the second article, was part of an amphetamine ring that
apparently didn't do anything, since nothing about its operation
appears in the story. What does appear is the fact that Mr. Ives got a
sentence of over eight years imprisonment, while his brother and cohort
in the ring got one year. The reason for this was that the brother
agreed to cooperate with the government and was allowed to plead to a
less serious charge. David Ives chose not to. The Post quotes him as
saying that cooperation ``never even crossed my mind. I think anyone
who will rat on his friends to get his own self out of trouble should
be hung.'' And that's the last we hear of Mr. Ives.
The message: Mr. Ives is not only not a bad guy, he's heroic. He
stands up for his friends. We are the bad guys. We like people who
squeal. Was any social damage done by Mr. Ives, and the buddies whose
activities he continues to hide? None worth mentioning in the Post.
That is one message we can send to the criminals who were just
barely visible in the series--and to the other, more violent and
sadistic ones whom the Post was apparently unable to find. But I
believe we should send a message with a different emphasis: the
criminal is not our victim; we are his victims. Of course the system
could use improvements. But to understand that and take it seriously
should not mislead anyone, the Post or its readers, about the more
important source of our problems. What primarily needs changing is not
the system. What primarily needs changing is the criminal and his me-
first-at-any-cost way of thinking about the world.
8. Something more needs to be said about the Post's selection of
the cases it highlighted in order to paint its dour picture of the
Guidelines. The Post notes that it spent a year studying 79,000
sentencings from across the country. But the examples displayed for us
are all along the lines of the Patillo and Ives episodes. The
implication is that these are representative of the system. They also
supposedly illustrate what happens when we surrender discretion and
fall for the Guidelines' ``pseudo-science'' and half-baked formulas.
Let me present some different examples. They also say something
about the exercise of discretion. To find them, I didn't need to spend
a year scouring the country. I needed to spend three minutes scouring
my in-box. Case one: A jealous young fellow hired a hit-man to
neutralize his girlfriend's husband. The neutralizing was to be
accomplished by blowing the husband's head off. Unfortunately, for the
boyfriend, the would-be hit man turned out to be an FBI agent, so the
boyfriend got convicted of attempting to arrange a contract murder. The
``pseudo-science'' sentencing grid called for a sentence of from about
seven to nine years, something that most people would find reasonable
for this sort of crime. The judge thought differently, however, and
sentenced the man to 21 months. In the judge's view, the case was
unusual, and deserving of a light sentence, because romantic jealousy
is unheard of in contract murder cases. And there was at least one
other thing as well: the intended victim's misconduct. The husband was
beating his wife. Only not exactly: the husband wasn't really beating
his wife. Before sentencing, the defendant admitted that he was just
pretending about that one, or imagining it. His recently-hired
psychiatrist couldn't say. Whatever. Beating or no beating, real or
imagined, it was good enough to help persuade the judge, as an exercise
of ``discretion,'' that the sentence should be sliced by three-
quarters.
Case two: An inmate at Lorton Reformatory was dealing drugs in
prison. he was caught with 25 tinfoil packets containing various
amounts of 97% pure crack. Because he had five prior convictions for
drug crimes, he faced a sentence of from 14 to 17 years under the
Guidelines' provision for career criminals. The judge, acting from his
``discretion,'' refused to impose that sentence and instead sentenced
the man to 48 months. Although the judge knew that drug dealing in
Lorton precipitates some of the most gruesome murders you ever heard
of, he thought leniency was in order because, so he ruled, the
Sentencing Commission did not understand that dealing drugs in prison
might affect the prisoner's parole date. Why the judge thought this,
and why parole should be considered at all for someone with six drug
convictions, were matters the judge did not discuss.
Case three: A major, repeat drug felon faced 20 years in prison
under the Guidelines a related mandatory minimum sentencing provision.
Although the defendant's own lawyer made no argument that the 20 year
sentence was wrong, the judge cut it to a little over 11 years. The
judge did not claim that the defendant was gullible, or that he had
been mistreated by the government, or that he had psychiatric
difficulties. Instead, the judge gave two reasons for his exercise of
``discretion'': the defendant had delivered papers as a boy, and he was
overweight.
This is not a misprint. The judge sliced the drug dealer's sentence
about in half because the drug dealer was fat.
Unlike the Post, I do not wish to imply that these examples are
representative of the system. I supply them as an antidote to the
Post's tendentious selection of its own examples, hoping to illustrate
two points. First, it's not just that the return of galloping
discretion will produce lower sentences, although it will; it's that
judges can make enormous, even absurd blunders, just like any other
human beings. It is precisely that reason that the best systems are
those that (1) most sharply reduce the running room for misjudgment and
(2) most sharply increase the opportunities to spot misjudgment and
correct it. On both counts, the Guidelines beat the old system hands
down.
Second, argument by anecdote had too much potential to be
misleading. Anyone with a point of view can round up several dozen
cases out of 79,000 and paint the system to be a monstrosity. That the
Post's reporters did so proves a good deal about their diligence but
not much about anything else.
If anything, it's revealing that the Post could not come up with
something more damning--a point illustrated by a story featured in the
first article. The story was titled, in a headline bigger than the one
that announced life on Mars, ``Innocent Errors Add Years to Terms of
Guilty Parties.'' It recounted the plight of John Behler, a
methamphetamine dealer who was sentenced to 19 years because the judge
mistakenly used the wrong Guidelines book. The sentence should have
been 14 years. This fact eluded everyone until Behler himself caught it
after months in the prison law library. The Post went on to recount the
misfortune of William Davis, a Las Vegas crack dealer who got a bigger
term than he should have because the probation officer made a mistake
in recording the amount of drugs he distributed. It took the court of
appeals to discover the miscue.
Evidently we are supposed to infer from this that the Guidelines'
reliance on numbers invites blunderbuss errors--with potentially
disastrous consequences. I agree that the mistakes were unfortunate and
their consequences quite serious; what I doubt is that this can be
attributed to the Guidelines. A judge, now or in the past, could pick
up an outdated statute book just as easily as he can pick up an
outdated Guidelines book. And a probation officer's error in recording
the amount of drugs in a case could just as easily have been made
before the Guidelines existed: for obvious reasons, sentencing courts
in the past also were interested in knowing the details of the crime,
and probation officers routinely relayed such information to the judge.
The Post's treatment of error thus turns out to prove something
very different from what was apparently intended. Error has always been
in the sentencing system because the system has always been run by
human beings. What has changed is not the incidence of error but its
visibility. Both Behler and Davis were able to vindicate their claims
in the end because, under the Guidelines, the judge had to make a
record of what he did in determining the sentence, what facts he
counted and how much he counted them for, and how they affected the
outcome. Sentencing in the past did not require any of that. The Post
story thus proves not that the Guidelines invite and compound error,
but precisely the opposite. The Guidelines help expose and correct it.
9. The Post's focus on fairness to the defendant was entirely
appropriate but missed half the story. Sentencing is about fairness--
fairness to the defendant but fairness to the public as well. On this
latter subject the series had little to say. I wonder, though, whether
it is wise to be so critical of the Guidelines system without even
asking how well it does at protecting the public.
It is too early to answer that question (beyond the intuition that
more certainty about the sentence might deter at least some would-be
criminals), but there is some interesting and possibly suggestive
evidence. The crack epidemic appears to have leveled off. Murders in
New York City are down dramatically. The national crime rate is also
down over the last couple of years. Do the Guidelines get credit for
any of this? It's debatable. On the one hand, the great majority of
criminal cases are processed through state, not federal, court; in
addition, as noted earlier, the Guidelines do not significantly
increase sentences per se except to the extent they incorporate
Congressionally-imposed mandatory minimum terms. On the other hand,
many of the most serious drug crimes (and therefore many of the most
serious criminals) are charged in federal court; and the Guidelines at
least indirectly promote longer sentences in part because they require
the sentencing judge to take account of all the defendant's relevant
criminal conduct. In addition, an increasing number of states use a
Guideline system or some variant of it, and, like the federal system,
have abolished parole.
The point is not that the Guidelines have brought about the
decrease in crime. The point is that we ought to find out. Before we
do, it is premature to dilute or abolish a system that common sense and
some statistical evidence suggest is doing its most important job--
public protection.
10. The Post reported various proposals for improving the
Guidelines. Here's my list.
--Require sentencing impact statements for proposed changes in the
Guidelines. No more hidden agendas. At the end of the day, what people
care most about with the Guidelines is whether the sentence is the
right length for the crime. Any sort of proposed amendment to the
Guidelines should be accompanied by a statement revealing, through case
examples, its probable effect on actual sentences. For example, if
there is a proposed amendment to limit or eliminate consideration of
conduct relevant to the defendant's culpability, but not included in
the count of conviction, the public should be told up front and in
specifics what the effect of that amendment will be on jail time.
--Establish a Crime Victims Advisory Group. For several years, the
Sentencing Commission has recognized and solicited the views of a
Practitioners Advisory Group, which consists of many of the most
energetic and persuasive defense lawyers in the country. Fair enough,
at least in Washington's somewhat overgrown interest-group culture, but
where are the crime victims? It seems self-evident to me that crime
victims deserve at least the same independent voice at the table that
criminal defendants have now through their lawyers.
--Reduce but don't eliminate the difference in sentencing between
crack and powder. This issue should not become more political or
divisive than it already is. Create a modest increase in powder
sentences to bring the crack-powder sentencing ratio into a fairer
balance. There is good reason to punish crack more harshly than powder,
but no reason for allowing suburbanites, who ultimately finance crack
markets, to walk away with the small fraction of a crack dealer's
sentence they get now.
--Eliminate retroactive guidelines. Complexity in the Guidelines is
worth the cost most of the time. When the Sentencing Commission makes a
Guideline retroactive, however, it goes too far. Retroactivity is one
of the most difficult and vexing areas of the law. Retroactive
Guidelines therefore pave the way for some of the most involved and
expensive litigation anywhere in the criminal justice system. In
addition, retroactivity works to favor only one side--defendants. When
a Guideline goes up, the Ex Post Facto Clause prevents the increase
from being piled on a defendant's sentence. That's only fair, but it
also means that retroactivity is a one-way street.
--Lengthen the amendment cycle. Under current procedures, the
Commission can propose amendments every year. As U.S. Attorney Jay
McCloskey and Fourth Circuit Chief Judge J. Harvie Wilkinson have
pointed out, that is too often. The public would benefit from enhanced
predictability, and it's hard to predict much if this year's amendment
can change last year's amendment, which changed the amendment the year
before. Changes are especially difficult for the defense bar to
assimilate, because defense attorneys do not have the training
resources available to Justice Department lawyers.
--Once Congress regains confidence in the Sentencing Commission,
reexamine mandatory minimum sentencing laws. A properly functioning
Guidelines system should make mandatory minimum statutes unnecessary.
It is unlikely, however, that the wariness in Congress that underlies
such statutes will abate until Congress is satisfied that the
Sentencing Commission is getting the job done right. The Commission
lost credibility with its proposal to drastically lower crack
sentences. It will take time and a change in direction to restore that
credibility. If and when that happens, Congress may come to view
mandatory minimums in a different light.
In thinking about the kind of sentencing system we want, it's both
natural and right to look beyond the world that lawyers, judges and
defendants inhabit, and to consider the real world where the effects of
the system will be felt by the rest of us. That world has become a
remarkable place: bullet-proof glass at the filling station, metal
detectors at school, walled-in neighborhoods, shotguns under the
convenience store counter, purses filled with mace, criminal checks on
your kids' teachers and coaches, handgun sales at sky-high levels.
Block after block of inner city housing, formerly mostly just blighted
but now blighted and deadly. Home security systems for the few who can
afford them, pit bulls or nothing for the many who can't. Security
guards everywhere, reminding us less of the safety we have than of the
safety we've lost.
We do not have to live this way. We didn't used to. We have the
right to live in peace and safety. All of us have that right, not just
those who can (or think they can) buy their way to security in a
neighborhood of $400,000 houses. All of us, the wealthy but not just
the wealthy, are entitled to assert our right to safety against those
who would take it away, and to assert it without apologizing.
No sensible person believes that even the best criminal justice and
sentencing systems are the answer. But they are part of the answer, so
the kind of system we have makes a difference. The Guidelines have
brought into the system a degree of objectivity, accountability and
visibility that was not there before. They are a significant step
forward for effective punishment and equality of treatment. And they
are a revolutionary advance for the idea and the practice of the rule
of law. From the Post's contrary conclusions, I respectfully dissent.
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