    [Senate Hearing 108-805]
    [From the U.S. Government Publishing Office]

                                                            S. Hrg. 108-805

       BLAKELY V. WASHINGTON AND THE FUTURE OF THE SENTENCING GUIDELINES

    =======================================================================

                                    HEARING

                                   before the

                           COMMITTEE ON THE JUDICIARY
                              UNITED STATES SENATE

                          ONE HUNDRED EIGHTH CONGRESS

                                 SECOND SESSION

                                   __________

                                 JULY 13, 2004

                                   __________

                              Serial No. J-108-87

                                   __________

             Printed for the use of the Committee on the Judiciary

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                           COMMITTEE ON THE JUDICIARY

                         ORRIN G. HATCH, Utah, Chairman
    CHARLES E. GRASSLEY, Iowa            PATRICK J. LEAHY, Vermont
    ARLEN SPECTER, Pennsylvania          EDWARD M. KENNEDY, Massachusetts
    JON KYL, Arizona                     JOSEPH R. BIDEN, Jr., Delaware
    MIKE DeWINE, Ohio                    HERBERT KOHL, Wisconsin
    JEFF SESSIONS, Alabama               DIANNE FEINSTEIN, California
    LINDSEY O. GRAHAM, South Carolina    RUSSELL D. FEINGOLD, Wisconsin
    LARRY E. CRAIG, Idaho                CHARLES E. SCHUMER, New York
    SAXBY CHAMBLISS, Georgia             RICHARD J. DURBIN, Illinois
    JOHN CORNYN, Texas                   JOHN EDWARDS, North Carolina
                 Bruce Artim, Chief Counsel and Staff Director
          Bruce A. Cohen, Democratic Chief Counsel and Staff Director

                                C O N T E N T S

                                  ----------

                        STATEMENTS OF COMMITTEE MEMBERS

                                                                       Page

    Hatch, Hon. Orrin G., a U.S. Senator from the State of Utah......     1
        prepared statement...........................................   161
    Kennedy, Hon. Edward M., a U.S. Senator from the State of
      Massachusetts..................................................     7
        prepared statement...........................................   164
    Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont.     4
        prepared statement...........................................   171
    Sessions, Hon. Jeff, a U.S. Senator from the State of Alabama....     8

                                   WITNESSES

    Barkow, Rachel E., Assistant Professor, New York University
      School of Law, New York, New York..............................    38
    Bowman, Frank O., III, M. Dale Palmer Professor of Law, Indiana
      University School of Law, Indianapolis, Indiana................    35
    Cassell, Paul G., District Judge for the District of Utah, Salt
      Lake City, Utah................................................    18
    Mercer, William W., U.S. Attorney, District of Montana, Helena,
      Montana........................................................     9
    Piersol, Lawrence L., Chief Judge, District Court for the
      District of South Dakota, and President, Federal Judges
      Association, Sioux Falls, South Dakota.........................    17
    Steer, John R., Vice Chair and Commissioner, Sentencing
      Commission, Washington, D.C., and William K. Sessions III,
      Chief Judge, District Court for the District of Vermont, and
      Vice Chair and Commissioner, Sentencing Commission, Washington,
      D.C............................................................    13
    Vinegrad, Alan, Covington and Burling, New York, New York........    42
    Weich, Ronald, Zuckerman Spaeder LLP, Washington, D.C............    39

                             QUESTIONS AND ANSWERS

    Responses of William W. Mercer to questions submitted by Senator
      Leahy..........................................................    51
    Responses of William Sessions III and John Steer to questions
      submitted by Senator Leahy.....................................    58

                           SUBMISSIONS FOR THE RECORD

    Alschuler, Albert W., Julius Kreeger Professor of Law and
      Criminology, University of Chicago, Chicago, Illinois, letter..    61
    American Bar Association, Dennis W. Archer, President, Chicago,
      Illinois, letter...............................................    66
    Barkow, Rachel E., Assistant Professor, New York University
      School of Law, New York, New York..............................    69
    Berman, Douglas A., Professor of Law, The Ohio State University
      Moritz College of Law, Marc L. Miller, Associate Dean for
      Faculty and Scholarship and Professor of Law, Emory University
      School of Law, Nora V. Demleitner, Professor of Law, Hofstra
      University School of Law, Ronald F. Wright, Professor of Law,
      Wake Forest University School of Law, joint statement..........    82
    Bowman, Frank O., III, M. Dale Palmer Professor of Law, Indiana
      University School of Law, Indianapolis, Indiana, prepared
      statement and attachment.......................................    87
    Brennan Center for Justice at NYU School of Law, Correctional
      Education Association, Drug Policy Alliance, Families Against
      Mandatory Minimums, Justice Policy Institute, Leadership
      Conference on Civil Rights, Maryland Jusstice Coalition,
      National Association of Criminal Defense Lawyers, National
      Association of Federal Defenders, National Association of
      Sentencing Advocates, National Black Police Association,
      National Council of La Raza, National CURE (Citizens United for
      Rehabilitation of Errants), Penal Reform International, Rebecca
      Project for Human Rights, The Sentencing Project, Virginia
      C.U.R.E., joint letter.........................................   123
    Cassell, Paul G., District Judge for the District of Utah, Salt
      Lake City, Utah, prepared statement............................   125
    Families Against Mandatory Minimums Foundation, Washington, D.C.,
      letter.........................................................   143
    Hillier, Thomas W., II, Federal Public Defender, Western District
      of Washington, Seattle, Washington, letter and attachment......   153
    Lake, Sim, Chair, Judicial Conference Committee on Criminal Law,
      Houston Texas, letter..........................................   166
    Leadership Conference on Civil Rights, Wade Henderson, Executive
      Director and Nancy Zirkin, Deputy Director, Washington, D.C.,
      letter.........................................................   168
    Mercer, William W., U.S. Attorney, District of Montana, Helena,
      Montana, prepared statement....................................   174
    National Association of Criminal Defense Lawyers, E.E.(Bo)
      Edwards, President and Barry Scheck, President-Elect,
      Washington, D.C., letter.......................................   194
    National Center for State Courts, Ronal M. George, President,
      Conference of Chief Justices, San Francisco, California, letter   198
    Piersol, Lawrence L., Chief Judge, District Court for the
      District of South Dakota, and President, Federal Judges
      Association, Sioux Falls, South Dakota, prepared statement.....   199
    Steer, John R., Vice Chair and Commissioner, Sentencing
      Commission, Washington, D.C., and William K. Sessions III,
      Chief Judge, District Court for the District of Vermont, and
      Vice Chair and Commissioner, Sentencing Commission, Washington,
      D.C., prepared statement and letter............................   203
    Vinegrad, Alan, Covington and Burling, New York, New York,
      prepared statement.............................................   213
    Weich, Ronald, Zuckerman Spaeder LLP, Washington, D.C., prepared
      statement......................................................   218

       BLAKELY V. WASHINGTON AND THE FUTURE OF THE SENTENCING GUIDELINES

                                  ----------

                             TUESDAY, JULY 13, 2004

                                  United States Senate,
                                    Committee on the Judiciary,
                                                        Washington, DC.
        The Committee met, pursuant to notice, at 10:06 a.m., in
    room SD-226, Dirksen Senate Office Building, Hon. Orrin G.
    Hatch, Chairman of the Committee, presiding.
        Present: Senators Hatch, Sessions, Cornyn, Leahy, Kennedy,
    and Durbin.

     OPENING STATEMENT OF HON. ORRIN G. HATCH, A U.S. SENATOR FROM
                           THE STATE OF UTAH

        Chairman Hatch. We are happy to have you all here this
    morning, so we welcome you to the Judiciary Committee's hearing
    examining the Supreme Court's recent holding or decision in
    Blakely v. Washington and the future of the Federal sentencing
    guidelines.
        As one of the original cosponsors of the United States
    Sentencing Commission and a proponent of reducing sentencing
    disparity across the Nation, I have a strong interest in
    preserving the integrity of the Federal Guidelines against
    constitutional attack. However, I am also open because I want
    to hear what you good authorities have to say about this.
        As many here may already know, defendants are routinely
    sentenced by judges who decide sentencing facts based upon a
    preponderance of the evidence standard. Now, this has all
    changed in the last two weeks. On June 24, 2004, in Blakely v.
    Washington, the Supreme Court held that any fact that increases
    the maximum penalty under a State statutory sentencing
    guidelines scheme must be presented to a jury and proved beyond
    a reasonable doubt, even though the defendant's sentence falls
    below the statutory maximum sentence.
        Although the Supreme Court explicitly stated in a footnote
    that, quote, ``The Federal Guidelines are not before us and we
    express no opinion on them,'' unquote, it also characterized
    the Government's amicus brief as questioning whether
    differences between the State and Federal sentencing schemes
    are constitutionally significant. The ambiguity apparent in
    Blakely and the strong suggestions by the dissent that it will
    apply to the Federal sentencing guidelines has understandably
    created angst throughout the Federal criminal justice system.
        If Blakely were to apply to the Federal sentencing
    guidelines, you would have a clear double standard. Any
    sentencing fact that would increase a sentence would have to be
    presented to a jury and proven beyond a reasonable doubt, but
    any sentencing fact that would decrease a sentence would be
    decided by a judge by a preponderance of the evidence. Not only
    would this be incredibly confusing to everyone involved in this
    process, but I imagine that crime victims and their families
    would consider this one-way ratchet to be fundamentally unfair.
        In the last two-and-a-half weeks alone, the criminal
    justice system has begun to run amok. Some judges have thrown
    out the guidelines and are sentencing defendants with
    unfettered discretion. Other judges have adopted some of the
    guidelines, those guidelines that favor defendants, and ignored
    all guidelines that might increase a defendant's sentence.
    Still other judges have convened juries to decide sentencing
    factors that might increase a sentence even though there are no
    procedures in place to govern such sentencing juries.
    Prosecutors are submitting verdict forms for juries that are
    over 20 pages in length because they cover every possible
    sentencing factor that might be applied in a particular case.
        While I believe most Federal judges are trying their
    hardest to address this issue deliberately and with the utmost
    fairness, I fear that some judges might view Blakely as an
    opportunity to selfishly garner judicial power in the hopes of
    restoring unlimited judicial discretion with respect to
    sentencing. Even among those judges with the best of
    intentions, however, there is legitimate disagreement about
    whether Federal sentencing guidelines will be subject to the
    proof and procedural requirements announced in Blakely.
        You have heard of circuit splits, but here we have splits
    within a single district. Not only have the Fifth and Seventh
    Circuit disagreed on this issue, but in my home State of Utah,
    district judges have adopted three different approaches to
    sentencing defendants in light of Blakely. As I am sure Judge
    Cassell will explain in m ore detail in his testimony, he found
    the Federal guidelines unconstitutional as applied in United
    States v. Croxford. But just yesterday, Judge Dee Benson, the
    chief judge of the Federal district court, upheld the Federal
    sentencing guidelines.
        I am heartened to hear that just yesterday afternoon, the
    Second Circuit en banc certified a set of three questions for
    the United States Supreme Court and urged it to adjudicate
    promptly the threshold issue of whether Blakely applies to the
    Federal sentencing guidelines. I hope the Supreme Court
    promptly considers this matter.
        I know we will hear more about what is going on in the
    courts from our witnesses, so I will not go on at length about
    these cases now. I would, however, like to mention just a
    couple of examples for those who have not been following the
    issue closely.
        I am sure we all recall Dwight Watson, the man who sat in a
    tractor last year outside the U.S. Capitol for 47 hours and
    threatened to blow up the area with organophosphate bombs. The
    day before the Blakely opinion, Mr. Watson was sentenced to a
    6-year prison sentence. Less than a week after the Supreme
    Court's opinion, he was re-sentenced to 16 months, which was
    essentially time served. He is now a free man.
        A defendant in West Virginia had an offense level that was
    off the sentencing charts. Although he would have been subject
    to a life sentence under the guidelines, the statutory maximum
    penalty was 20 years. He was given a 20-year sentence 3 days
    before Blakely was decided. A week later, his sentence was
    drastically reduced to 12 months. The judge did not rely on any
    relevant conduct or any sentencing enhancements in calculating
    the defendant's sentence. In other words, he only applied a
    portion of the sentencing guidelines--those that he thought
    remained valid after Blakely.
        Blakely is potentially harmful to defendants, as well as to
    prosecutors. Right now, the Federal Rules of Evidence prevent
    extraneous information about prior bad acts from coming before
    a jury during a trial. But the Federal Rules of Evidence do not
    apply at sentencing hearings. If Blakely applies to the Federal
    sentencing guidelines, the rules may need to be amended to
    ensure that prior bad acts that constitute relevant conduct can
    be presented to a jury so that they can determine sentencing
    facts.
        In addition, it is possible that some here in Congress may
    respond by creating new mandatory minimum penalties to
    compensate for this unfettered discretion. The House already
    has legislation pending that would do exactly that. It may only
    take a couple of lenient sentences in high-profile cases to
    raise enough of a stir to increase mandatory minimum penalties.
    And I have to say I have real concerns about that.
        Another long-term problem for defendants is in negotiating
    plea agreements. Prosecutors who are better acquainted with
    sentencing nuances will be in a better position to dictate
    which factors will apply in the 97 percent of cases that plead
    out each year. This will result in greater disparity among
    equally culpable defendants across the Nation.
        I have been working with my colleagues on the left, as well
    as my counterparts in the House, to come up with a temporary
    bipartisan fix to this sentencing dilemma that now faces our
    Nation. Although we do not have any legislative language as of
    yet, we are looking at a proposal that is similar to one that
    Professor Frank Bowman, one of our witnesses today, proposed to
    the Sentencing Commission a couple of weeks ago. In addition to
    raising the maximum penalties within a guideline range to the
    statutory maximum penalty, we are considering some safeguards
    to prevent hanging judges from sentencing all defendants to the
    statutory maximum.
        As you can see, this is somewhat of a mess, some of which
    may have been created by us, and some of which may have by
    necessity been created by some of you. All I can say is that we
    need to get together and resolve these matters in ways that are
    in the best interest of criminal justice in our society.
        I have long had problems with the sentencing of the
    girlfriend couriers to big, stiff jail terms, while the
    pleading defendant drug king gets off with a much, much more
    minor sentence. I also have had lots of problems with
    sentencing people to Federal prison, at a cost of $30,000 to
    $40,000 a year to the taxpayers, who are not dangerous at all.
        I am hopeful that through some of these hearings, we can
    maybe come to some ways of making sure people pay proper
    penalties, but yet we don't sock the taxpayers as much as we
    have been socking them, and that we do more justice in our
    sentencing approaches. A lot of judges hate the sentencing
    guidelines; they hate the mandatory minimums. I can understand
    why, but the judges themselves were one of the reasons why we
    went to that form of law because so many of them were disparate
    in their approach toward sentencing through the years. And some
    of them were downright dishonorable in some of the sentences
    that they gave.
        So this is an important hearing. We have got very important
    people here who should be able to enlighten this Committee and
    help us to go from here and do a better job than we have done
    in the past.
        [The prepared statement of Senator Hatch appears as a
    submission for the record.]
        With that, I will turn the time over to Senator Leahy, and
    then we will go to our witnesses.

      STATEMENT OF HON. PATRICK J. LEAHY, A U.S. SENATOR FROM THE
                            STATE OF VERMONT

        Senator Leahy. Well, thank you, Mr. Chairman. Of course,
    the main reason we are here today is because of the Supreme
    Court decision, not because of the decision of any of our
    panelists, other Federal judges, or decisions of people in the
    Congress.
        We should also point out that regardless of the reasonings
    for some of the mandatory minimums Congress passed--and I am
    sure I can find some that, in retrospect, I should not have
    voted on--many of them were passed because a number of crimes
    were federalized and mandatory minimums made for great press
    release back home.
        It allowed members of Congress to show just how tough they
    are on crime. Many found it easy to take the latest issue
    appearing in the newspaper that day, whether it be violent car-
    jacking or anything else, and say, ``let's make a Federal crime
    out of this. Even though the State and local police are usually
    able to handle it fine, we will make a Federal crime out of it
    and add a mandatory minimum. And, by the way, let's give a
    speech about the clogged-up Federal courts.''
        The Supreme Court's ruling last month in Blakely v.
    Washington, I believe, threatens to crumble the very foundation
    of the Federal system of sentencing guidelines that Congress
    established 20 years ago in the Sentencing Reform Act of 1984.
    At that time, members of this Committee took the lead in
    crafting the Sentencing Reform Act. Today, we have to revisit
    that landmark legislation in the light of the Blakely decision.
        So to begin, I want to thank all of the witnesses who have
    taken the time to come here today. We have two very
    distinguished panels of experts.
        The issue in Blakely was the constitutionality of a State
    sentencing system that allowed the judge to impose an
    exceptional sentence in a kidnapping case above the standard
    guideline range because the judge found the defendant's conduct
    involved deliberate cruelty. Those who have read the case would
    agree, I believe, that the defendant was deliberately cruel.
        In a five-to-four decision written by Justice Scalia, the
    Court held that this sentencing scheme violated the defendant's
    Sixth Amendment right to a jury trial because the maximum
    sentence a judge may impose can only be based on the facts
    reflected in the jury verdict or admitted by the defendant.
        Unfortunately, though, Justice Scalia's opinion raises more
    questions than it answers. We saw cogent dissents by Justice
    Breyer and Justice O'Connor, and they articulated many of the
    critical issues that are now going to flood our already
    burdened criminal justice system, starting with the obvious
    one: does Blakely apply to the Federal guidelines.
        The Seventh Circuit and several district court judges have
    already ruled, as the Chairman pointed out, that Blakely doomed
    some, if not all of the current Federal guideline system. The
    Fifth Circuit held that the guidelines survived Blakely. The
    Second Circuit, my circuit, effectively punted; they certified
    the question to the Supreme Court--something I don't think they
    had done for 20 years or more.
        Now, whether we disagree or not with Justice Scalia's
    opinion, the Court has spoken and that is the law. Like Federal
    judges, prosecutors and defense attorneys who must now grapple
    with the scope and impact of the Blakely opinion, we in
    Congress are concerned. As I started reading over this material
    last night, I thought to myself, do we have a situation where
    we have created a prosecutor's nightmare and a defense
    counsel's dream? Many would read the Blakely decision to be
    just exactly that.
        So I hope that this hearing is going to be helpful. I want
    to find out whether we have a prosecutor's nightmare and a
    defense counsel's dream. I want to hear from the experts and
    petitioners who are testifying before us about what aspects, if
    any, of the Federal sentencing system can or are likely to
    survive Blakely. We need to explore what will happen to the
    thousands of criminal cases that are currently pending, and
    actually the hundreds of thousands of cases that were resolved
    pre-Blakely.
        Twenty years after the enactment of the Sentencing Reform
    Act, we have to remind ourselves about the core values and
    principles that explain the bipartisan popularity of the
    original Federal guidelines concept. The 1984 Act was enacted
    against a history of racial, geographical and other unfair
    disparities in sentencing.
        Congress sought to narrow those disparities, while leaving
    judges enough discretion to do justice in the particular
    circumstances of each individual case. The task of harmonizing
    sentencing policies was deliberately placed in the hands of an
    independent Sentencing Commission. The guidelines, as
    originally conceived, were about fairness, consistency,
    predictability, reasoned discretion, and minimizing the role of
    Congressional politics and the ideology of the individual judge
    in sentencing.
        Unfortunately, Justice Scalia's decision in Blakely
    threatens a return to the bad old days of fully indeterminate
    sentencing when improper factors such as race, geography and
    the predilections of the sentencing judge could drastically
    affect the sentence. While I favor Federal judges exercising
    their discretion to do individual justice in individual cases,
    I don't want to see us go back to the bad old days.
        I also think we have to avoid moving too far in the other
    extreme. In recent years, Congress has seriously undermined the
    basic structure and fairness of the Federal guidelines system.
    We have done it with posturing and ideology.
        There has been a flood of legislation establishing
    mandatory minimum sentences for an ever-increasing number of
    offenses. As I said, many of them should have been left in the
    State system, but many have become Federal offenses with
    mandatory minimums as determined by politics rather than any
    systemic analysis of the relative seriousness of different
    crimes.
        There has been ever-increasing pressure on the Sentencing
    Commission and on individual district court judges to increase
    guideline sentences. This culminated in the PROTECT Act, in
    which this Congress got the Commission out altogether, rewrote
    large sections of the guidelines manual, and also provided for
    a judicial blacklist to intimidate judges whose sentences were
    insufficiently draconian to suit the current Justice
    Department.
        We are all familiar with the assault on judicial
    independence known as the Feeney amendment to the PROTECT Act.
    It was forced through Congress, virtually no debate, and
    without meaningful input from judges, practitioners,
    prosecutors or defense attorneys. That process was particularly
    unfortunate, given that the majority's justification for the
    amendment, a supposed crisis of downward departures, was
    unfounded. In fact, downward departure rates were below the
    range contemplated by Congress when it authorized the Federal
    sentencing guidelines, except for departures requested by the
    Federal Government, by the current Justice Department.
        Having a false factual predicate for forcing significantly
    flawed Congressional action has become all too familiar during
    the past few years. The attitude underlying too many of these
    recent developments seems to be that politicians in Washington
    are better at sentencing than the Federal trial judges who
    preside over individual cases, and that longer sentences are
    always better, no matter what the cost to society might be.
        Somewhere along the line, we appear to have forgotten that
    justice is not just about treating like cases alike. It is also
    about treating different cases differently. Blakely raises real
    practical problems that unfortunately are going to clog our
    Federal courts with procedural and constitutional nightmares.
    But we can use it as a springboard to discuss Federal
    sentencing practices thoughtfully. As we analyze Blakely's
    implications, let's keep in mind the simple principles of the
    1984 Act, passed with strong support of Republicans and
    Democrats alike. We must respect the wisdom and good faith of
    Federal judges, while maintaining the safeguards of structure
    and transparency to their exercise of discretion. We must
    remember that consistency and predictability to sentencing are
    admirable goals. And let us avoid the further politicizing of
    sentencing.
        So I look forward to working with the Chairman and all
    members of this Committee to see if we can find our way out of
    this mess.
        Thank you, Mr. Chairman.
        [The prepared statement of Senator Leahy appears as a
    submission for the record.]
        Chairman Hatch. Thank you.
        I am going to turn to Senator Kennedy, who has been
    Chairman of this Committee, and then to Senator Sessions. Then
    we will move to our witnesses.

     STATEMENT OF HON. EDWARD M. KENNEDY, A U.S. SENATOR FROM THE
                         STATE OF MASSACHUSETTS

        Senator Kennedy. Thank you very much, Mr. Chairman, and
    thank you for having this hearing. It is enormously important.
        In preparing for the hearing, I went back over the time of
    the consideration of this Committee. It took 10 years for this
    Committee to actually report out the legislation which I
    introduced in 1975, and it was reported out in 1984. It had
    days of hearings, and I think the legislation that was reported
    out tried to deal with what was the general challenge that we
    were facing at the time in terms of our sentencing system,
    characterized by unfettered judicial discretion. It was, in
    Judge Frankel's words, ``lawless.''
        Similarly situated defendants received dramatically
    different sentences. Sentences were subject to personal
    philosophies and biases of individual judges. As a result,
    substantial disparities based on race, ethnicity, geography and
    improper factors were prevalent. There was no truth in
    sentencing. Sentences handed down by judges did not always
    reflect the actual time a defendant would serve, and there was
    little transparency or accountability in the sentencing system.
        Now, we have to try and find what the next steps will be.
    We have a short-term challenge and a long-term challenge. I
    believe that any fair reading of the history of the Sentencing
    Commission would have to conclude it has been trying to improve
    the system and trying to find a middle ground. But time and
    time again, their efforts have been blocked. The Justice
    Department has worked to squeeze every bit of discretion and
    humanity out of the system, and now we have a backlash from the
    Supreme Court and the entire system is in peril and there is a
    real question about what we have to do next.
        It may, in the short term, make sense to do nothing and
    wait until the Supreme Court gives greater clarification. But
    over the long term, we have to examine the effectiveness of the
    mandatory minimums. We ought to look again at the disparity
    between crack and powder cocaine, which has been out there for
    years. We ought to take a look at the departure standards and
    we ought to take a look at the complexity of the guidelines.
        I think we have one last chance to fix this system and make
    it fair and effective. I look forward to working in a
    bipartisan way with our Chairman, who was very much involved in
    the development of the sentencing guidelines initially. We did
    it in a broad bipartisan way. Hopefully, we can do the same and
    get it right this time. I welcome all of our panelists here
    today.
        Thank you, Mr. Chairman.
        [The prepared statement of Senator Kennedy appears as a
    submission for the record.]
        Chairman Hatch. Well, thank you, Senator.
        Senator Sessions, we will wind up with you.

     STATEMENT OF HON. JEFF SESSIONS A U.S. SENATOR FROM THE STATE
                               OF ALABAMA

        Senator Sessions. Thank you, Mr. Chairman.
        I was, like Mr. Mercer, a United States Attorney
    prosecuting Federal cases when this Congress passed the
    sentencing guidelines. I remember distinctly, as referred to in
    Justice O'Connor's dissent, a bank robbery defendant going
    before one judge and getting 25 years and going before another
    judge and getting probation. There were tremendous
    inconsistencies.
        Some judges just had an aversion to sentencing; they didn't
    believe in sentencing. Some judges were tough sentencers. There
    was great disparity. There was racial disparity in the system,
    as Justice O'Connor mentions in her dissent to this Blakely
    case.
        The Congress, after great effort, passed the sentencing
    guidelines, which was a tremendous achievement, in my view. It
    worked in the real world. Mr. Steer and his commission and
    others have worked hard to make it a practical and workable
    system. It worked better than anybody would have thought.
        They predicted, you remember, Senators Kennedy and Hatch,
    that everybody would go to trial and nobody would plead guilty.
    Now, we have a higher number of guilty pleas than we ever had
    because people know what they are subjected to if they go to
    trial and what the options are. The outcome is not a mere crap
    shoot.
        I thought Apprendi was a bad decision. This Blakely
    decision is stunning in its impact. It undercuts the basic
    justice system. It is a complete confusion of law. It indicates
    to me that members of the Supreme Court do not understand how
    the criminal justice system works. They think juries are going
    to sit around and decide these issues. Juries come in, render a
    verdict, pick up their check and go home. Then the judge has
    hearings on the facts and renders opinions on what the
    appropriate sentence is going to be.
        They can't bring this evidence before a jury during the
    trial because often it would bias the outcome of the case. It
    would impact a jury by causing them to be inflamed, perhaps,
    and to render a verdict of guilty or not on issues that are
    irrelevant to the case.
        So sentencing has always been in the province of the judge.
    Judges have always had the ability to sentence within the
    sentencing maximum range given by Congress or the State
    legislatures, and now we have this confused and dangerous
    ruling.
        Mr. Chairman, I read the Sixth Amendment: ``In all criminal
    prosecutions, the accused shall enjoy the right to a speedy and
    public trial by an impartial jury in the state and district
    where the crime shall have been committed''; have the witnesses
    and compulsory processes and assistance of counsel for a
    defense. I don't see in there anything that says that a judge
    can't consider facts and render a sentence based on that. In
    fact, that is the way it has always been for the most part.
    Some States allow juries to impose the sentences, but most
    scholars feel that is not the preferable way. It is better for
    the judge to impose sentences.
        I thank you for having this hearing. I am greatly troubled
    because this is a constitutionally based decision and it is
    certainly going to cause havoc in the criminal justice system.
        Chairman Hatch. Well, thank you, Senator.
        At this time, I would like to introduce our first panel.
    William Mercer, United States Attorney for the District of
    Montana, will be testifying on behalf of the United States
    Department of Justice. Before his current position, Mr. Mercer
    served as an Assistant U.S. Attorney in Montana for over 6
    years and as counselor to the Assistant Attorney General and
    senior policy analyst in the Office of Policy Development for
    the U.S. Department of Justice.
        We certainly are happy to have you with us today and
    welcome you to the Committee.
        Second, we will hear testimony from Vice Chair and
    Commissioner of the U.S. Sentencing Commission, John Steer.
    Prior to his current position, Mr. Steer served as the general
    counsel for the Sentencing Commission and was legislative
    director for Senator Strom Thurmond and counsel for the Senate
    Judiciary Committee from 1979 to 1985.
        So we are happy to welcome you back and appreciate the
    service you give.
        Our next witness will be Chief Judge William Sessions, who
    has served as a district judge in Vermont since 1995. Before
    that, he was a partner with the law firm of Sessions, Kiner,
    Dumont and Barnes. Mr. Sessions served in the Office of the
    Public Defender for Addison County and as a professor at the
    Vermont Law School.
        We are sure happy to have you here, as well.
        The next witness will be Hon. Lawrence L. Piersol, Chief
    Judge of the United States District Court of South Dakota.
    Before becoming a judge, Chief Judge Piersol was a member of
    the South Dakota House of Representatives and practiced law
    with the firm of Davenport, Evans, Hurwitz and Smith.
        So, Chief Judge, thanks for being with us today.
        Our final witness for the first panel will be Hon. Paul G.
    Cassell, United States District Court Judge for the District of
    Utah. Before being appointed to the bench, Judge Cassell was a
    law professor at the S.J. Quinney College of Law at the
    University of Utah, where he continues to teach. Before that,
    he was an Assistant U.S. Attorney for the Eastern District of
    Virginia, an associate deputy attorney general in the U.S.
    Department of Justice, and clerked with Chief Justice Warren E.
    Burger and then-Judge Antonin Scalia.
        We are really happy to have you here, as well, Judge
    Cassell. You have played a pivotal role here lately in some of
    the thinking here, and so we are looking forward to benefitting
    from your experience.
        Now, we have an extremely talented and experienced panel of
    witnesses with us today and I am sure we are going to have an
    interesting discussion regarding this very, very important set
    of topics. I look forward to hearing each of your remarks. I
    would like each witness to please limit your remarks to not
    more than 5 minutes, and each Senator will have 5 minutes to
    ask questions of you.
        So we will start with you, Mr. Mercer, and go right across
    the table.

        STATEMENT OF WILLIAM W. MERCER, UNITED STATES ATTORNEY,
                  DISTRICT OF MONTANA, HELENA, MONTANA

        Mr. Mercer. Chairman Hatch, Senator Leahy, members of the
    Committee, 19 days ago the Supreme Court in Blakely v.
    Washington cast doubt on some of the procedures of Federal
    sentencing reforms. The Blakely decision has caused a
    tremendous upheaval in the Federal criminal justice system and
    has put the constitutionality of Federal sentencing guidelines
    into question, and I can affirm this for the Senate today in my
    capacity as Chairman of the Attorney General's Advisory
    Committee and the feedback that I have heard from colleagues
    all over the country.
        I am here today, first and foremost, to reaffirm the
    commitment of this administration to the principles of
    sentencing reform that unified this Committee 20 years ago and
    which we hope will once again unify the Committee today.
        Second, I am here to briefly lay out for the Committee why
    the United States continues to believe that the Federal
    sentencing guidelines system is significantly distinguishable
    from the Washington State guidelines system at issue in Blakely
    and meets all constitutional requirements.
        Because some lower courts have disagreed with our
    reasoning, I will, third, discuss the Department's legal
    position on how Federal sentencing should proceed before the
    courts that find the Federal guidelines are implicated by
    Blakely.
        Finally, I will outline why we believe Congress should take
    the time to carefully consider any legislative proposals that
    try to remedy the current uncertainties surrounding Federal
    sentencing policy.
        Twenty years ago, this Committee coalesced around the noble
    idea of making the Federal criminal justice system fair, honest
    and more effective. Congress unified under the common
    recognition that unstructured criminal sentencing had evolved
    into a vehicle for disparity in actual punishment that simply
    could not be justified, and uncertainty in sentencing that was
    contributing to intolerable levels of crime.
        Offenders with similar criminal histories who committed
    similar offenses often received and served substantially
    different sentences. A substantial percentage of offenders were
    not sentenced to prison at all, and in many cases sentences
    were not sufficiently punitive. This system was incompatible
    with effective crime control.
        Under the Sentencing Reform Act of 1984, offenders with
    similar criminal histories who commit similar offenses receive
    similar sentences because sentencing courts are directed to
    evaluate specific enumerated factors in the guidelines and
    engage in a rigorous and appealable fact-finding to determine
    whether these factors are present in each case.
        The sentences handed down under the guidelines have been
    predictable. In addition, the guidelines structure allows for
    targeting longer sentences to especially dangerous or
    recidivist criminals. The structure designed to calibrate
    sentences is only part of the story. Congress has established
    important statutory purposes of punishment. Among other things,
    sentences must reflect the seriousness of the offense, promote
    respect for the law, provide just punishment for the offense,
    afford adequate deterrence to criminal conduct, and protect the
    public from further crimes of the defendant.
        The guidelines are tough, providing appropriately punitive
    sentences for violent, predatory and other dangerous offenders.
    We believe this type of tough sentencing is smart sentencing.
    While some critics have argued that Federal criminal sentences
    are too long and that we need to have smarter sentences, the
    facts demonstrate that they are wrong.
        The increase in Federal sentences under the guidelines and
    the increase in State sentences as States follow the lead of
    the Federal Government in adopting truth in sentencing regimes
    have resulted in significant reductions in crime, which is
    exactly what we would expect to observe.
        Sentencing policies contribute to the fact that our Nation
    is experiencing a 30-year low in crime. We do not believe that
    it is a coincidence that the sharp decreases in crime started
    in the 1990's, shortly after the Supreme Court upheld the
    sentencing guidelines. Over the preceding decade, given the
    existing levels of crime and trends at the time the Sentencing
    Reform Act was adopted, statisticians estimate nearly 27.5
    million violent crimes were not committed because of the
    promulgation of this Act.
        To try to resolve the current uncertainty in Federal
    sentencing policy created by Blakely in a manner consistent
    with the principles of sentencing reform, the Department of
    Justice intends to seek review of an appropriate case in the
    very short term before the Supreme Court and ask the Court to
    expedite review of the case.
        However, in the event that we are incorrect about the
    inapplicability of Blakely to the Federal sentencing
    guidelines, Federal prosecutors have begun to charge cases in a
    prophylactic fashion and a number of Department lawyers are
    analyzing policy options which might restore the system to its
    pre-Blakely status.
        Nonetheless, we think having the Court provide a definitive
    ruling on the application of Blakely to the Federal sentencing
    guidelines is one important answer necessary to address the
    somewhat chaotic state of events of the last two weeks.
        The Court in Blakely applied the rule announced in Apprendi
    v. New Jersey to invalidate under the Sixth Amendment an upward
    departure under the Washington State sentencing guidelines
    system that was imposed on the basis of facts found by the
    court at sentencing. The State contended that there was no
    Apprendi violation because Blakely's sentence was within the
    10-year statutory maximum.
        The Court rejected that argument, holding that the
    statutory maximum for Apprendi purposes is the maximum sentence
    a judge may impose solely on the basis of the facts reflected
    in the jury verdict or admitted by the defendant. The Court did
    not wholly invalidate the Washington State sentencing
    guidelines, nor did it invalidate the Federal guidelines. The
    Court reserved whether its Sixth Amendment holding applied to
    the Federal guidelines, stating that ``The Federal guidelines
    are not before us and we express no opinion on them,'' close
    quote.
        Much has transpired in the 19 days since the Blakely
    decision. Even though the Supreme Court did not rule on the
    Federal sentencing guidelines, some lower courts have already--
    and we believe prematurely--invalidated them. Others have
    applied the guidelines in ways never contemplated by the
    Congress or the United States Sentencing Commission.
        The results in these cases have at times been quite
    disturbing. For example, two weeks ago, in West Virginia, a
    Federal judge reduced the sentence of a dangerous drug dealer
    from 20 years to 12 months. The dealer, Ronald Shamblin, was
    not bit player, no courier and no low-level dupe. According to
    uncontested findings, Shamblin was a leader in an extensive
    methamphetamine and cocaine manufacturing and distribution
    conspiracy. He possessed a dangerous weapon during this crime,
    enlisted a 14-year-old to join his conspiracy, and obstructed
    justice.
        Because of the Apprendi decision, the court was limited to
    a maximum penalty under the statute as charged to 20 years'
    imprisonment. Because of the court's interpretation of Blakely,
    the court believed it was obligated to sentence Shamblin to no
    more than 12 months' imprisonment.
        In this and other cases, the court severed the aggravating
    elements from the sentencing calculation and applied only the
    base guideline sentence and the guideline mitigating factors in
    a manner we believe was a distortion of the Federal sentencing
    system, inconsistent with Congressional intent and policy. It
    is hard to see how such sentences promote respect for the law,
    provide adequate deterrence, or protect the public.
        On the other hand, some courts have continued to uphold and
    apply the Federal sentencing guidelines, awaiting definitive
    word from the Supreme Court. Still others have seen fit to
    invalidate some or all of the procedures of the Federal
    guidelines, but have nonetheless looked to the guidelines to
    mete out sentences consistent with Congressional intent and
    policy.
        We believe the Committee and Congress as a whole should be
    careful and deliberate in considering legislative proposals
    designed to address Blakely. In examining any short-term
    legislative proposals, we are guided by, and we suggest the
    Committee consider the following criteria, among others.
        One, will legislation provide a clear short- and long-term
    solution to the many pending litigation issues? Two, is the
    litigation consistent with the principles of sentencing reform
    that have been supported by both Republican and Democrat
    majorities of Congress for 20 years and by Republican and
    Democrat administrations for 20 years? Third, does the
    legislation address all of the constitutional issues that
    remain unresolved or is there a significant likelihood that the
    court will be reviewing Federal sentencing policies shortly
    even with the legislative change?
        I would be happy to try to answer any questions that the
    Committee may have. Thank you.
        [The prepared statement of Mr. Mercer appears as a
    submission for the record.]
        Chairman Hatch. Thank you.
        Mr. Steer, we will turn to you.

    STATEMENT OF JOHN R. STEER, VICE CHAIR AND COMMISSIONER, UNITED
    STATES SENTENCING COMMISSION, WASHINGTON, D.C., AND WILLIAM K.
    SESSIONS III, CHIEF JUDGE, UNITED STATES DISTRICT COURT FOR THE
     DISTRICT OF VERMONT, AND VICE CHAIR AND COMMISSIONER, UNITED
             STATES SENTENCING COMMISSION, WASHINGTON, D.C.

        Mr. Steer. Mr. Chairman, members of the Committee, we wish
    to thank you for timely calling this hearing to assess the
    impact of the United States Supreme Court decision in Blakely
    v. Washington on the Federal sentencing guidelines system.
        If I could, I would like to ask that the joint written
    statement of Judge Sessions and myself on behalf of the
    commission be placed in the record and we will make a few
    remarks.
        Chairman Hatch. Without objection, we will put all full
    statements in the record.
        Mr. Steer. Thank you.
        I would like to note at the outset a point from our side of
    the table that has already been made from the dais, and that is
    that the Sentencing Reform Act was very much a bipartisan
    endeavor. The Congress ultimately passed it overwhelmingly. In
    the Senate, the vote was 99 to 1, as I recall, and the House
    vote was also an overwhelming endorsement.
        It called for creating a bipartisan sentencing commission
    in the judicial branch, and that is the manner in which we have
    worked, our group of commissioners. And I think as a former
    staff member, I can say that that is the way that the
    commission has tried to operate from the outset. That is
    significant because the matters that bring us together today
    are not partisan in nature. We all have a common interest in
    effective sentencing policy. We appreciate the way in which
    with respect to this issue you and your staffs have already
    started to get their arms around this issue, and we hope that
    that bipartisan, cooperative manner will continue.
        I have several substantive points that I would like to
    make, and then I will ask to yield to my colleague, Judge
    Sessions.
        First, as has also been noted, Blakely has precipitated
    considerable sentencing uncertainty and disparity. Of course,
    both of these phenomena are in tension with the Sentencing
    Reform Act goals. But this said, district and appellate courts
    are quickly moving to restore a measure of order.
        We can already see from examining our sentencing statistics
    that because many guidelines cases do not involve any
    sentencing enhancements, and because plea agreements and
    waivers will adequately handle many others, in fact, only a
    minority of cases will likely involve Blakely problems.
    Nevertheless, the situation is serious and legal certainty
    needs to be restored as soon as possible, preferably by the
    Supreme Court in a clarifying decision, but if necessary by
    Congress working with the commission, the Department of Justice
    and others to correct any unconstitutional system defects, if
    those be found.
        Secondly, we believe there is a reasonably good chance the
    Supreme Court can be persuaded to distinguish Blakely and not
    apply it to the Federal guidelines system. Thus, we are very
    pleased that the Department of Justice plans a vigorous
    defense, including seeking expedited Supreme Court review.
        Now, why do we think that? To be sure, some would say we
    have an institutional bias. Well, I think that that is probably
    true. We believe that the Federal sentencing guidelines system
    is fundamentally, not perfect, but a good sentencing system
    that has brought about many improvements.
        We are currently engaged in a self-critical 15-year review
    project, a series of research reports that soon will be
    available to this Committee and others to highlight some of the
    important gains that have been made over the last 20 years, as
    well as point out some areas where work remains to be done.
        As to the legal issues, we think it is significant, of
    course, that the Supreme Court majority in both Blakely and in
    Apprendi, on which the former is based, specifically reserved
    the issues of applicability to the Federal guidelines. More
    significantly, in a long line of other cases, the Supreme Court
    has not only upheld the constitutionality of the Federal
    guidelines, but it has time and again validated the propriety
    of judges finding facts and guidelines factors relevant to
    determining the guideline sentence within the legislated
    statutory range.
        These prior cases include, for example, an important case,
    Edwards, in which the Court approved of judges finding drug
    type and quantity according to relevant conduct guideline
    rules, and another case, Watts, in which the Court even
    validated judges taking into account conduct in another related
    count of which the defendant was actually acquitted. It is
    difficult, if not impossible, to square these and other
    holdings with a literal extension of Blakely language to the
    Federal guidelines system.
        Citing these and other precedents, as has been mentioned,
    the Fifth Circuit yesterday held that Blakely does not extend
    to the Federal guidelines. And although the Seventh Circuit
    went the other way a few days earlier, a strong dissent by
    Judge Easterbrook in that case makes the same points.
        Third, the Federal guidelines are different in a number of
    important respects from the Washington State guidelines at
    issue in Blakely. Time will not permit a complete recitation,
    but there are at least these differences.
        First, of course, they are not as a system affirmatively
    enacted by the legislature as statutory law, as the Washington
    State guidelines system is. But, rather, the Federal guidelines
    are sentencing rules promulgated by an independent commission
    within the judicial branch.
        Second, structurally they are very different. Unlike
    Washington's system of relatively simple, quote, ``standard
    guideline ranges,'' end quote, that clearly correspond to the
    offense elements underlying jury verdicts, the Federal
    guidelines employ multiple steps in a much more nuanced fashion
    to construct a guideline range based in part on the elements of
    an offense, but largely on the judge's determination and
    guideline scoring of the entirety of a defendant's relevant
    offense conduct and its seriousness.
        And to account in a workable and a rational way for the
    fact that there are, for example, several hundred fraud and
    embezzlement statutes in the United States Code with widely
    varying statutory maximums, ranging from a few to 30 years, the
    sentencing judge in working through the guidelines uses one
    generic fraud and theft guideline, but he adjusts the guideline
    sentence based on characteristics of the offense.
        It would be highly inappropriate to assume that the
    standard guideline range, to analogize again to the Washington
    system, for each of these statutory offenses is derived solely
    from the Federal guidelines' base offense level starting point
    and the defendant's criminal history category. Yet, it is that
    very inapt rule that is now being urged upon the Federal
    courts.
        The Federal guidelines also differ markedly from State
    guidelines, including the State of Washington, in their level
    of detail. Now, this feature, of course, is an effort by both
    Congress and the commission to appropriately individualize
    punishment according to the distinguishing characteristics of
    offenses and offenders. A court's departure authority further
    augments this key guideline feature.
        It would be a strange application of the Sixth Amendment
    jury trial right to consign all of these features and the bulk
    of these individualizing distinctions to the scrap heap of
    sentencing history. But for reasons of practicality, that may
    be a likely outcome of a literal Blakely extension to the
    Federal guidelines system.
        Mr. Chairman, with those points, I would like your
    permission to yield to Judge Sessions.
        Chairman Hatch. Thank you.
        Judge Sessions, we will turn to you.
        Judge Sessions. Thank you, Mr. Chairman, and I on behalf of
    the commission sincerely appreciate the invitation and the
    opportunity to speak on this extraordinarily significant issue.
        We have had a close working relationship with Congress,
    really, since its inception and clearly over the past 5 years,
    as long as I have been on the commission, and I want to say
    that we would be available and willing to assist in any way as
    you address these post-Blakely questions.
        Now, there is no question that the Blakely decision
    temporarily, at least, has caused significant troubles at the
    district court level. And I am speaking here not as a district
    court judge at this point, but as a sentencing commissioner. I
    have actually, for the record, recused myself in regard to any
    questions dealing with the constitutionality of the guidelines.
        But it has caused tremendous difficulties in Vermont. We
    postponed sentencings for approximately two weeks--in fact, we
    have not started re-sentencing yet--so that each side could
    develop responses to Blakely. We have asked for supplemental
    briefing before we actually address the Blakely issues.
        Blakely causes for those of us who are trial judges
    enormous difficulty in its application. The fact is the
    sentencing guidelines are a part of the legal culture. We are
    adjusted to the way they work. We are adjusted to the
    definitions. Now, we are put in a situation of having to try to
    shift that responsibility to juries. That creates, as Senator
    Sessions has indicated, enormous problems in regard to the
    kinds of evidence that juries would be told to consider, as
    well as the definitions. For us, to define such complex terms
    as loss or the various other enhancements that are applied
    universally today to a jury is going to create enormous
    difficulties. So we tread on these issues very delicately.
        I will say that there is an additional problem that comes
    up when you talk about intermittent kinds of solutions, and
    that is the ex post facto difficulty as well. Even if Congress
    was to do something right now, of course, that only resolves
    cases for offenses which were committed as of this date
    forward, which leaves us in the same hiatus period that
    existed.
        In fact, if you change the guidelines dramatically now,
    then we have a post-Blakely guidelines system and a pre-
    guideline system to be applied to all others. And then if
    eventually somewhere down the road there is a much more
    significant change in the guidelines, then there is a third
    guideline application or set of applications, which means that
    forever judges will have to be sensitive to the issue as to
    exactly when an offense was committed because you have to apply
    the guideline range, theoretically, that was applicable at the
    time the person committed the offense.
        Now, I know that there have been differences of opinion
    among district court judges. I know that the circuit split
    exists between the Fifth and the Seventh Circuits, and
    hopefully the Supreme Court will take up the challenge as laid
    out by the Second Circuit. But I want to tell you at this point
    respectfully that I think that the sky is not falling; that, in
    fact, we are not in the middle of a crisis. The reason that I
    say that--well, there are three separate reasons.
        The first is we at the Sentencing Commission are trying to
    follow closely all of the decisions, all of the developments in
    the law to be able to respond appropriately with some
    reflection and some deliberation.
        Second, the Department of Justice has developed policies
    which are going to be extraordinarily helpful at this point.
    Essentially, now, generally speaking, all defendants who are
    being indicted will be indicted on sentencing factors, and then
    as a result, when they come to a plea discussion--and, again,
    in our particular jurisdiction 98 percent of all criminal cases
    are resolved by pleas. As a part of that plea arrangement,
    there are either stipulations to facts, sentencing enhancement
    facts, or waivers to permit the judge to sentence consistent
    with the guidelines. So from this point forward, it seems that
    those policies may very well reduce, quite frankly, the impact
    of Blakely until there is an ultimate resolution.
        Finally, the courts are stepping in. I want to say that I
    have only been a judge for 9 years. I have been on the
    Sentencing Commission for 5 years. Certainly, the reaction of
    judges universally at the beginning was one of criticism. I
    don't think that is true any longer. I think, in fact, people
    rely and depend upon all of the factors that are laid out in
    the guidelines to weigh their sentencing decisions and, in
    fact, rely upon that, whether or not the guidelines are
    mandatory in nature or not.
        So my sense is that the judiciary as a body will react to
    this change; that ultimately, over a relatively short period of
    time, there will be some internal resolution either by
    consensus or by direction from the Supreme Court. So I guess
    what I would urge the Senate on behalf of the Commission is to
    step cautiously in this area. We would love as a commission to
    take a very active role in trying to advise you as to any
    changes which would be positive and constructive and will lead
    to the guidelines remaining in full force and effect.
        Thank you.
        [The prepared statement of Mr. Steer and Judge Sessions
    appears as a submission for the record.]
        Chairman Hatch. Well, thank you, Judge.
        Judge Piersol, we will turn to you.

     STATEMENT OF LAWRENCE L. PIERSOL, CHIEF JUDGE, UNITED STATES
    DISTRICT COURT FOR THE DISTRICT OF SOUTH DAKOTA, AND PRESIDENT,
         FEDERAL JUDGES ASSOCIATION, SIOUX FALLS, SOUTH DAKOTA

        Judge Piersol. Good morning, Mr. Chairman and distinguished
    members of the Committee. Thank you so much for allowing me the
    privilege to appear before you. My name is Larry Piersol and I
    am the chief judge in the District of South Dakota, but I am
    appearing as the president of the Federal Judges Association
    that is an association comprised of about 70 percent of the
    members of the Article III judiciary, district and circuit
    judges.
        The Association was formed 20 years ago to preserve
    judicial independence. Of course, as you know, judicial
    independence is important for the public. It isn't something
    just for judges at all, and it is surely at issue in whatever
    Congress may decide to do or not to do as a result of the Sixth
    Amendment principles announced in Blakely v. Washington.
        Now, Blakely issues are, as I see it, in two main areas.
    The first is the immediate issues that judges, as well as
    prosecutors, defendants and victims now face in charging,
    pleas, trials and sentencings. Secondly, the less immediate
    issue, although probably more important, is what, if anything,
    should be changed in the procedures and the substance of
    Federal sentencing law.
        With regard to the immediate issues, let me suggest that a
    temporary solution legislatively may not be necessary. The
    Fifth and the Seventh Circuits, as the Chair and others have
    indicated, has already ruled. The Second has certified
    questions to the Supreme Court. The Fourth Circuit is soon
    going to hear argument. Before long, there will be rulings from
    all the circuits on various issues. We all know that there are
    splits in circuits all the time. That is one of the bases for
    the Supreme Court taking jurisdiction. The district courts will
    simply be following what the circuits are telling them to do,
    unless and until the Supreme Court tells them otherwise.
        Also, in reading the testimony from the second panel, the
    testimony is at odds as to whether a temporary solution is
    necessary or desirable, as well as disagreeing on whether a
    temporary solution would meet the letter, aside from the
    spirit, of the Constitution. However, if a temporary solution
    is determined to be necessary, the Federal Judges Association
    stands ready to provide whatever information and input Congress
    might desire. I would also point out that we are not attempting
    to provide information or positions different than the Judicial
    Conference, although that is possible. But, rather, we are in
    close contact with our member Article III judges.
        The second area of issues is that whatever the reading of
    the Blakely decision, much of Federal sentencing law and
    practice has at least been put in question by the Blakely
    principles. As a result, now is the time, I would urge, for the
    examination of the good, as well as the troubling portions of
    Federal sentencing law. We urge that there be a thorough review
    of Federal sentencing law and policy by Congress. We hope we
    will be called upon to participate in that important process.
        The Sentencing Commission, prosecutors, defenders and
    academics can all provide helpful input, but we are the ones
    more than anyone who look the defendants and the victims in the
    eye not only at sentencing, but at motion hearings, at trials,
    at pleas, at revocation hearings, and resentencings if there is
    a revocation. For example, I sentence about 150 people a year
    as one Federal judge. We believe that we much to offer before
    you make whatever final decisions you make.
        Now, just one example. You know how complex Federal
    sentencing law is, how interrelated it is. But for one example,
    I chaired the Native American advisory group that reported last
    November to the Sentencing Commission. It was to study the
    impact of the sentencing guidelines upon Native Americans.
    Especially in non-Public Law 280 States--and that is a whole
    other area--the guidelines have a greater impact upon Native
    Americans. South Dakota is one of those States. For instance,
    we try juveniles, sexual abuse cases and many other cases,
    where white people are tried in State court. I use this one
    example only to illustrate the complexity of dealing with
    sentencing law, where each day and each sentence is crucial to
    the lives of many people.
        I would attempt to answer any questions that you might
    have.
        [The prepared statement of Judge Piersol appears as a
    submission for the record.]
        Chairman Hatch. Well, thank you, Judge.
        We will finally turn to Judge Cassell. Welcome, and we
    appreciate you coming.

    STATEMENT OF PAUL G. CASSELL, UNITED STATES DISTRICT JUDGE FOR
               THE DISTRICT OF UTAH, SALT LAKE CITY, UTAH

        Judge Cassell. Thank you, Mr. Chairman, members of the
    Committee. I appreciate the opportunity to come here this
    morning and discuss the effects of Blakely v. Washington on our
    Federal courts. Because I have legal issues relating to Blakely
    pending in front of me right now, I will confine my remarks
    this morning to simply trying to describe what has been going
    on in the 19 days since the decision.
        As you indicated, Mr. Chairman, Senator Leahy and others,
    there seems to be a radically changing legal landscape almost
    hourly in this area. Because of that changing legal landscape,
    it is tempting to jump to terms like ``chaotic'' or ``crisis''
    to describe what is going on, as some press accounts have done.
        Along with Judge Sessions, I agree that such terms are not
    appropriate. Federal judges around the country are working
    diligently now to try to sort out the implications of the
    Blakely decision. To characterize these processes as chaotic, I
    think, would overlook the skill, care and resourcefulness with
    which these issues are being dealt.
        At the same time, though, it is fair to say, as Senator
    Sessions and others have suggested this morning, that the
    criminal docket in our Federal courts is now operating under
    tremendous uncertainty after Blakely. And whether this
    uncertainty is so destabilizing as to require remedial
    legislation, I will leave it to others on these two panels to
    discuss.
        What I would like to do this morning is to focus on the
    ways in which Federal district courts around the country, and
    particularly in my home State of Utah, have been trying to deal
    with questions that Blakely raises. My testimony collects
    reports from various districts, so let me focus in on what we
    are doing in my own district of Utah to deal with the Blakely
    situation.
        My own approach was announced in United States Croxford on
    June 29. In that decision, I held that Blakely's interpretation
    of the Sixth Amendment prohibited a judge from embarking on
    fact-finding that would increase a defendant's sentencing
    guideline range. I concluded that Blakely made that approach
    unconstitutional.
        I then sketched out three different options that judges
    might have for dealing with the Blakely situation. The first
    option was to take matters that judges had made findings on
    before and submit them to a jury. The second option was to
    apply only the downward adjustments in the guidelines, but not
    the upward adjustments that Blakely rendered unconstitutional.
    And then the third option was to return to sentencing as it
    existed before the enactment of the guideline scheme in its
    entirety.
        I concluded that the Sentencing Reform Act, as has been
    drafted and enacted by Congress, did not authorize me to use
    either option one or option two. Instead, I concluded that, by
    default, I was required to use option three in my sentencing;
    that is, to determine an appropriate sentence looking at the
    guidelines as instructive, but not giving them the
    unconstitutional binding effect that would be problematic under
    Blakely.
        Several days later, my capable colleague, Judge Stewart,
    was the next to rule on this question. In United States v.
    Montgomery, he agreed with me that Blakely rendered the
    guidelines unconstitutional. But as a remedy, he selected
    option two; that is, he felt he could apply downward
    enhancements, but not upward enhancements.
        My capable colleague, Judge Kimball, has also wrestled with
    what to do with Blakely. In United States v. Adams, a three-
    week jury trial involving drug and money laundering charges, he
    put together a very detailed jury verdict form which submitted
    to the jury a number of questions that would ordinarily have
    been decided by a judge about how to apply the guidelines. Such
    things as drug amounts or the amount of money laundered, the
    role and the offense--he has now submitted those to a jury.
        Finally, the latest ruling from Utah came yesterday from
    our capable chief judge, Dee Benson. In United States v.
    Olivera-Hernanez, Judge Benson held that he would continue to
    apply the sentencing guidelines until he had a definitive
    statement from an appellate court. He wrote that, like reports
    of Mark Twain's death, the predictions of the guidelines'
    demise might be greatly exaggerated.
        However, he recognized that Blakely might also be seen as a
    giant wrecking ball heading directly for the sentencing
    guidelines. And as a result, he announced that he would impose
    a ``backup'' sentence in every case; that is, a guideline
    sentence and a non-guideline sentence, so that regardless of
    how the appellate courts resolve the issue, the position of the
    appropriate sentence would be announced.
        These four decisions from Utah provide a fair sampling of
    the kinds of responses that courts have developed for
    protecting the Sixth Amendment right to a jury trial, as
    explained in Blakely. Others here today can testify about
    whether the need for certainty and the need to avoid
    unwarranted sentencing disparity requires some kind of
    legislative quick fix.
        My concluding observations would be that even if Congress
    decides that some sort of quick fix is necessary this year, I
    hope that Congress will revisit this subject in future years.
    Nothing we do as judges is more important than imposing an
    appropriate criminal sentence, and I urge you to think of
    Blakely not as a problem not to be overcome, but rather as a
    spur for discussion about how our criminal sentencing system
    can be improved.
        Thank you, Mr. Chairman.
        [The prepared statement of Judge Cassell appears as a
    submission for the record.]
        Chairman Hatch. Well, thank you, Judge. Let me turn to you
    first. In footnote 9 of the Blakely opinion, the Supreme Court
    explicitly stated that, quote, ``The Federal guidelines are not
    before us and we express no opinion on them.'' Given this
    explicit mandate in footnote 9, did you feel that your decision
    was necessary?
        Judge Cassell. I did, Senator. On Thursday, they announced
    their ruling, and then on Tuesday I had a sentencing. That
    sentencing involved a little 11-year-old girl who was going to
    explain her view about the situation. Now, the Justice
    Department and the defense attorneys had requested more time to
    brief these issues, but if I had granted their motion to delay
    that sentencing, that little girl would have waited several
    more weeks to have justice reached in that case.
        She was represented by a guardian that I had appointed to
    articulate her interests. He opposed the continuance, and I
    agreed with him that the sentencing should not be delayed and
    therefore I had to move forward and resolve the case in
    controversy that was presented to me by this objection on
    Blakely.
        Chairman Hatch. I have listened to your testimony and I
    appreciate your thorough sampling of what Federal courts across
    the Nation are currently doing to respond to Blakely. It will
    be extremely helpful to us to weigh our options on what actions
    are necessary to respond to Blakely. You make a point of saying
    that the judiciary is not in a state of crisis; in fact, a
    number of you have made that point. Yet, your testimony taken
    as a whole seems to contradict that very statement.
        Although I agree that most, if not all courts are working
    diligently to come up with a reasoned response to Blakely, it
    does strike me that the Federal criminal justice is fast
    approaching a state of crisis, or as Professor Bowman, who is
    going to testify later, puts it, ``profound disarray.'' It
    strikes me that we currently have an environment where
    uncertainty and disparity are rampant.
        Do you agree with that or do you not agree with that?
        Judge Cassell. I think the point to focus on is the one
    that Judge Sessions and John Steer focused on a moment ago. We
    are certainly in a transition period and there are going to be
    some problems for all of us in the district courts and other
    courts in dealing with the Blakely issues. But once the Supreme
    Court gives us some guidance in this area, then I think at that
    point things will sort themselves out considerably. So what
    we're dealing with is a transition period, and I guess I would
    simply urge Congress to think carefully about what to do in
    that transition period of time.
        Chairman Hatch. We could use your advice on that.
        Did you have a comment, Judge Piersol?
        Judge Piersol. I was thinking while you were talking about
    that. I was thinking about when Apprendi came out, there was a
    flurry of petitions by people who had already been sentenced,
    and so on, under Apprendi, and the circuits went through and
    worked through the different issues out of Apprendi. So there
    is a short-term problem, but I don't think that there is
    anything that, as I indicated, necessarily needs a short-term
    legislative fix, in part because I think the short-term
    legislative could itself become problematic and I think the
    courts will work this out.
        Chairman Hatch. Mr. Mercer, are you concerned that the
    Blakely decision is going to undercut the goal of the
    Sentencing Reform Act to do away with unwarranted disparities
    in sentencing?
        Mr. Mercer. Well, Mr. Chairman, I do think that there are
    significant concerns that when different circuits go in
    different directions, as we have seen in the course of the last
    three or 4 days, and when we have seen that even within
    specific judicial districts that some courts may be going to
    indeterminate sentencing, some courts may agree with the
    Department's position that Blakely is not applicable to the
    Federal guidelines, I think there certainly is some risk that
    that will occur.
        The Committee should know, however, that even if district
    courts determine that they must essentially find that the
    guidelines are not severable and must sentence in an
    indeterminate scheme, the Department will be asking for a
    sentence that would be within the applicable guideline range.
    So the Department is on record in terms of trying to advance
    the principles of the Sentencing Reform Act even in this time
    of uncertainty.
        So is there a risk? I think there is certainly a risk, but
    I also am cognizant of the fact that we are only 19 days post-
    Blakely and the Department has spent more than half that time
    trying to provide advice to my colleagues around the country in
    terms of how we can advance those principles of the Sentencing
    Reform Act. As we get into August, I think it will be much
    clearer about what sort of legislative fix might be appropriate
    and whether something like that is necessary.
        Chairman Hatch. Now, Mr. Steer, some courts have applied
    only portions of the Federal sentencing guidelines after
    Blakely. For example, a court might apply the defendant's base
    offense level based upon the facts in a plea agreement related
    to the offense of conviction, but will not consider relevant
    conduct, any specific offense characteristics, any upward
    adjustments under Chapter 3 of the guidelines, or any upward
    departures under Chapter 5 of the guidelines.
        As drafters of the guidelines, can you please tell the
    Committee whether you think it is appropriate for courts to
    apply only a portion of the guidelines?
        Mr. Steer. As a legal matter, I think it is probably best
    that we leave that to the courts to resolve. As a policy
    matter, clearly, that is not the way that the guidelines are
    intended to work. The guidelines typically start with a
    relatively low base offense level and build from there, using
    the characteristics of the offense, what we call specific
    offense characteristics, and other general adjustments to
    arrive at an appropriate guideline range.
        The guideline range for a serious white-collar offender
    that would typically be appropriate is considerably different
    and contains a range of sentences that are much more severe
    than the fraud range that would apply to someone who has maybe
    taken one Social Security check and cashed it when he was not
    the rightful owner. So that approach of simply taking the
    starting point and applying any downward adjustments is very
    much not the way in which the guidelines were intended to
    operate.
        Chairman Hatch. Thank you. My time is up.
        Senator Leahy.
        Senator Leahy. I find this a little bit interesting, and
    based on what Mr. Mercer and others have said, I want to make
    sure I am correct. None of the five witnesses here are urging
    the Congress to step in at this time.
        Is that correct, Mr. Mercer?
        Mr. Mercer. Yes, that is correct.
        Senator Leahy. Mr. Steer?
        Mr. Steer. Yes.
        Judge Sessions. That is correct.
        Judge Piersol. That is correct.
        Judge Cassell. I am taking no position on that.
        Senator Leahy. I just want to make sure.
        Judge Cassell, you said there was no crisis, but you just
    held the entire Federal criminal sentencing system
    unconstitutional. I am sure the defense counsels in your
    district are probably elated. Are the prosecutors sharing your
    excitement at this?
        Judge Cassell. Well, I don't think excitement is what any
    of us are--
        Senator Leahy. Are they sharing your feelings on this?
        Judge Cassell. Well, there is certainly, as I suggested, a
    great deal of angst in the criminal justice system about how
    this is going to play out. I guess what I am worried about,
    Senator, is people describing the system as chaotic. As you
    know from having been involved in the system for many years,
    there are always going to be shocks to the system. The Supreme
    Court ends up resolving many of those and I think we are in
    that kind of a posture here today.
        Senator Leahy. I think one of the things that works is
    that, as you know, if all the criminal cases presently before
    the Federal courts today--if all of them said, okay, we want
    our right to a speedy trial and we want a trial, the whole
    system would collapse. You have to have pleas. I don't know how
    a prosecutor works out pleas today. I have been both a defense
    attorney and a prosecutor. Today, in your court especially, I
    would much rather be the defense attorney than the prosecutor
    under these circumstances.
        Let me ask Mr. Mercer, in the amicus brief in Blakely, the
    Justice Department tried to distinguish the Federal guidelines
    from the Washington State guidelines by arguing that the
    Federal guidelines are written by an independent commission
    with substantial discretion.
        Let me quote from the brief, quote, ``Because Congress
    entrusted to the commission the specification of the numerous
    facts that authorize differing punishments under the
    guidelines, there is a strong argument that the guidelines do
    not implicate the concerns addressed by Apprendi. Those
    concerns arise only when the legislature itself dictates the
    facts that control a defendant's increased exposure to
    punishment, thereby effectively creating enhanced crimes.''
        Now, that is the Department of Justice's position in
    defending the guidelines. But last year, the Department had a
    different position. It supported--and many people helped
    write--the so-called Feeney amendment to the PROTECT Act, in
    which Congress usurped the power of the Sentencing Commission
    and rewrote substantial portions of the Guidelines Manual, in
    effect cut out a great deal of the independence of the
    Sentencing Commission.
        So are these positions at odds with each other?
        Mr. Mercer. I think they are very separable, in fact,
    Senator.
        Senator Leahy. But they are different.
        Mr. Mercer. I don't think they are different. I think the
    position--
        Senator Leahy. In the Supreme Court, you are defending the
    independence of the Sentencing Commission. In Feeney, you are
    saying they are too independent and we have got to cut in and
    make a legislative fix to remove independence. I mean, it has
    got to be one or the other, doesn't it?
        Mr. Mercer. Well, certainly, this branch, the legislative
    branch, has the opportunity to govern in a variety of ways,
    whether it is--
        Senator Leahy. I am asking about the Department of
    Justice's position. They have taken two different positions
    here, one defending the independence of the Sentencing
    Commission and the other supporting legislation to
    substantially change the independence and take away the
    independence of the Sentencing Commission.
        On those two positions, not what Congress does, but what
    the Department of Justice does, are you inconsistent?
        Mr. Mercer. Sentencing at the Federal level and sentencing
    in Washington State are something that can be differentiated.
    Washington has two different classes that establish the
    classification of the particular crime. In the Federal system,
    like in the State of Washington, the legislative branch has the
    authority to act in a particular way to set minimums and
    maximums. The same thing happens with the legislative branch
    here. The narrow question that we were addressing before the
    Supreme Court certainly is not something that draws into
    conflict what this body did--
        Senator Leahy. Apparently, you were taking the position
    because you were trying to protect the Federal system. It
    wasn't just the Washington State system. You were trying to
    protect the Federal system with the idea that Blakely may be
    applied to the Federal system as well as the State system.
        So aren't you in a position where, in trying to defend the
    Federal system as being independent today, last year DOJ was
    saying we want to cut back that independence? Let me ask you
    this: You don't see any inconsistency. Is that your statement?
        Mr. Mercer. My statement is that nothing that we argued in
    front of the Supreme Court would suggest that all authority to
    make determinations about sentencing, including minimum
    penalties, standard review, those sorts of things, are all
    delegated to the Sentencing Commission.
        So, no. I think in terms of both what the Washington State
    statutes allow for and what the Federal statutes allow for and
    what we argued in front of the Supreme Court, they are not
    inconsistent.
        Senator Leahy. Do you see any noticeable differences on
    working out plea agreements since Blakely?
        Mr. Mercer. I do think, Senator, that you have raised a
    number of important points. Of juries are in a position to make
    findings about everything that is in this 491-page manual--and
    Commissioner Steer has talked about what governs loss
    calculations. Juries would be having to consider what
    constitutes reasonably foreseeable pecuniary harm. The
    Government would be in the position of needing to prove that
    beyond a reasonable doubt.
        And all jurors making those conclusions for any enhancement
    that is in this book--and I think that there are going to be
    significant implications and that is why in my earlier
    statement I said we are sort of waiting for the precincts to
    report here.
        Senator Leahy. But my question was are you seeing, as the
    press has reported today, that in some districts plea
    bargaining and pleas are at a standstill?
        Mr. Mercer. I wouldn't say standstill, but I would say that
    it is certainly a more--
        Senator Leahy. The press is wrong?
        Mr. Mercer. There isn't as much certainty that we had 21
    days ago in the current context, and that certainly makes it
    difficult for defendants to know and prosecutors to know
    exactly how to proceed. That is why we are monitoring this very
    carefully and we will be looking forward to working with this
    Committee.
        Senator Leahy. You are the expert here. I don't have to
    worry about those press accounts saying that in some districts
    it is at a standstill. The press is wrong?
        Mr. Mercer. Well, it is really a case-by-case basis. I
    mean, do I think that right now this is having a significant
    implication for, say, cases where we are charging gun crimes?
    There aren't a lot of upward adjustment factors that are
    applicable above and beyond the base offense level in a case
    like that, and there are some low-level fraud cases where that
    is the case.
        But then there is another class of cases where, if this
    book has a number of upward adjustment factors, then I think it
    is going to be increasingly difficult for the parties to
    understand the parameters of what we are dealing with. So on a
    case-by-case basis, it is much more difficult today to resolve
    things by pleas or to give Blakely waivers because of the
    decision in the short term.
        We will be in touch and hoping to collaborate very closely
    with you and the staff on these issues.
        Senator Leahy. My time is up. I will go back to that press
    account and find out where they are wrong.
        Chairman Hatch. Senator Sessions.
        Senator Sessions. This is a big deal. I don't think it
    should be minimized. I hear, well, we will just minimize this.
    I think Mr. Cassell said this decision was a spur to
    discussion. I think it is a lot more than a spur to discussion.
    Judge Piersol says courts will work this out. Well, I am not
    sure about that. I think it is a big deal.
        I will just ask all of you the panel, if you can think in
    the history of American criminal law of a decision that has had
    more impact on the practical working-out of justice in a court
    than this one.
        Judge Cassell. I can, Senator.
        Senator Sessions. All right.
        Judge Cassell. I think the Miranda decision--
        Senator Sessions. I don't agree. I thought you might say
    that.
        [Laughter.]
        Senator Sessions. It is right up there with it. I will say
    that. I think it is beyond Miranda because it affects every
    case, and most cases didn't have a Miranda problem, frankly,
    but a lot of them did.
        Sir?
        Judge Piersol. Sir, I would say this doesn't affect every
    case. I have sentenced some people already and this didn't have
    anything to do with the sentencing. It does affect some cases,
    yes.
        Senator Sessions. Well, maybe it doesn't affect every case.
    It is important though, when it affects such a large number of
    cases on a routine basis that go on in our courts. So I think
    it is a big deal there.
        When you have four judges in the District of Utah all
    rendering different opinions, it is pretty close to chaos, it
    seems to me. And I think Senator Leahy is correct. We do have a
    problem with pleas, and certainly, predictability that we
    didn't have before in many, cases.
        I think it is imperative that the courts realize that it is
    not some theoretical world in which they operate. Out here in
    the real world, cases are being tried everyday and lawyers are
    having to decide whether to plead or not, what sentence to
    expect their client may get, and how to advise their client. I
    don't think there is any doubt that Senator Leahy is correct
    that this has caused great concern.
        Judge Sessions, you have handled pleas, and Judge Piersol.
    When a person comes in and pleads guilty, they are advised of
    the maximum statutory penalty, are they not?
        Judge Sessions. Yes, they are.
        Senator Sessions. They know they have guidelines, but they
    are advised that 10 years--in this case in Washington, a 10-
    year maximum statutory offense; no matter what a guideline
    says, a sentence cannot exceed the 10 years. So they are
    advised of that, are they not?
        Judge Sessions. They are.
        Senator Sessions. So they are told what the maximum
    sentence is when they enter a plea of guilty. And 98 percent in
    your district plead. That may be a little high, but it is not
    far off; over 90 percent plead in America today. They are not
    being misled. They are aware that a judge could go above maybe
    the base level offense, are they not, Judge Piersol?
        Judge Piersol. They are told that the judge has the ability
    under the guidelines system to depart upward or downward. In
    addition, they are told, of course, what the maximum penalty
    is. And if there is a mandatory minimum, they are told what
    this is, too, and that the mandatory minimum overrides the
    sentencing guidelines, with the exception of the circuit-
    breaker.
        Senator Sessions. But at the plea, they are not
    specifically told what the guideline range is going to come out
    to be?
        Judge Piersol. That is correct. They are not.
        Senator Sessions. They are told the maximum sentence, which
    I think is what the Sixth Amendment--if there is any power
    there, I think that is what it refers to. So I think this
    opinion is just bad law. I am just shocked. I can't imagine
    Justice Scalia rendering such an opinion.
        Judge Cassell, you are thoughtful on these issues. What is
    the impact, for example, if a State does not have a sentencing
    guideline and a judge can give--say Washington State didn't
    have it and a judge could walk in and give 10 years under the
    old law in which a judge's sentence was unreviewable. Does this
    alter that historic procedure?
        Judge Cassell. There certainly are some implications there.
    I think I may have to defer on that question because in Utah we
    have a situation similar to what you are describing and I might
    see that kind of an issue come before me.
        Senator Sessions. Well, it seems to me if you can't go
    above a guideline range, then how can a judge impose a maximum
    sentence without any statement?
        I don't know who has been in this business the longest.
    Judge Piersol, you must have or you wouldn't be elected
    president of that association. Before the guidelines, were you
    a judge then?
        Judge Piersol. No, I wasn't.
        Senator Sessions. I will just ask, before the guidelines, a
    sentencing judge in the Federal system could give the maximum
    statutory sentence and not have to state a basis for that
    decision and it was unreviewable on appeal. Is that not
    correct?
        Judge Piersol. That is my understanding, and I have only
    done a few.
        Senator Sessions. And under the guidelines that Senator
    Hatch and Senator Kennedy and others passed, you have review of
    sentencing on appeal. A judge, if he goes outside even the
    guideline range, has to defend it and it is reviewable by an
    appellate court. That was to help criminal defendants, to give
    some objectivity, was it not, and did it not do that?
        Judge Piersol. I believe so.
        Senator Sessions. So I don't know how this opinion came
    out.
        Mr. Mercer, are your prosecutors now charging cases and
    putting in a whole lot of new charges and facts in the
    indictment that they would not have done before to try to
    comply with this system?
        Mr. Mercer. The memo issued by the Deputy Attorney General
    instructs all Federal prosecutors to charge within any charging
    document, indictment, information, any sort of offense
    characteristic that would increase the sentence. So, yes.
        Senator Sessions. Does that have the danger of making a
    trial arguably less fair for a defendant, in that more dirt is
    thrown in against the defendant in the indictment itself than
    otherwise would be the case?
        Mr. Mercer. I am sure that as we proceed here, there will
    be conversations about whether trials need to be bifurcated and
    whether we need to have a guilt stage and then a stage where
    this sort of thing happens. But we will be arguing that in
    front of district courts, and I imagine on a different case-by-
    case basis we will see what the outcome is. For instance, in a
    fraud case, I don't think the fact that we would say the loss
    equals $250,000 is something that would require bifurcation.
        Senator Sessions. Well, isn't it true that as a practical
    matter, you try a case, say a fairly complex fraud case, and
    the jury returns a verdict of guilty, you then sit down and
    work on the facts, where the guidelines may play, how much the
    loss might be? People take memoranda from the defense lawyers
    on what should this be and how much should be counted, and the
    judge renders a ruling that is reviewable on appeal. Is that
    not correct?
        Mr. Mercer. That is correct.
        Senator Sessions. Wouldn't it be very difficult for a jury
    to be involved in all of that?
        Mr. Mercer. I think there isn't any question that it is
    going to complicate the work of juries. Again, this manual sets
    forth a number of characteristics that may be relevant to what
    the individual defendant has done that are going to increase
    the sentence over the base offense level.
        Given this ruling, we are now, as you say, Blakely-izing
    all of our pleadings in order to make sure that we have got the
    opportunity to have the jury make those findings. But the
    standard is going to be different; it is no longer
    preponderance of the evidence. In some of these cases,
    particularly complex cases, market loss cases where the number
    of victims and the amount of loss is extraordinary, it is going
    to certainly complicate proceedings.
        Senator Sessions. It is going to be beyond a reasonable
    doubt, is it not?
        Mr. Mercer. That is right.
        Senator Sessions. That is a stunning change in itself. I
    forgot that.
        Chairman Hatch. Senator, you have made a lot of good
    points. Your time is up, however.
        Senator Sessions. My time is up. I am sorry.
        Chairman Hatch. At this time, I want to submit into the
    record the following letters, articles and written testimonies:
    the Federal Public Defenders; National Association of Criminal
    Defense Lawyers; the American Bar Association; Professors
    Douglas Berman, Marc Miller, Nora Demleitner and Ronald Wright;
    and a New York Times editorial dated June 29, 2004, by Kate
    Stith and William Stuntz.
        Senator Kennedy, we will turn to you.
        Senator Kennedy. Thank you very much, Mr. Chairman.
        I think on this Committee we have enormous diversity,
    reflecting different philosophies, but I am enormously
    interested in how much Senator Sessions and I look at certain
    aspects of this consistently, and that is about trying to stay
    away from unfairness and inconsistency. that was the concept
    behind the guidelines, to have fairness, consistency and
    transparency. The good Senator went into a number of different
    areas on that issue, but this is an underlying factor which we
    wanted in the guidelines.
        I was enormously distressed, quite frankly, with the
    Justice Department and its proposals on the Feeney amendment.
    We had taken 10 years to develop these guidelines. We had days
    and weeks and months of hearings and markups. And then right
    out of the blue, with eight minutes of debate in the House of
    Representatives, and without an hour of hearing here in the
    Senate, without an hour's consideration, without a single
    witness, it was tagged onto the Amber safety bill, which was
    obviously a matter of enormous importance to families, and just
    jammed through the Senate of the United States over the
    opposition of the Judicial Conference, the American Bar
    Association and the U.S. Sentencing Commission.
        We spent a lot of time trying to deal with a complex issue
    dealing with criminal law. We spent a lot of time trying to do
    it. We might not have gotten it exactly right, but it did
    reflect, as has been pointed out here, about as good an effort
    here, with 99 members of the Senate in support of it.
        Mr. Mercer, did you support the judge-specific reporting in
    that proposal in the Feeney amendment?
        Mr. Mercer. I chaired at the time something called the
    Attorney General Advisory Committee's Subcommittee on
    Sentencing Guidelines, and we had taken a look--in fact, I am
    going to make sure to leave a copy of this article. I wrote an
    article in the Federal--
        Senator Kennedy. I would be interested in that, but this is
    the one specific aspect on that, on the judge-specific
    reporting that was included in the legislation. There was
    strong, strong opposition. It is called basically black-
    listing. You can characterize whatever you want, but I just
    want to know your position on that.
        Mr. Mercer. Well, we categorically deny that there is any
    sort of judicial blacklist. That statute has two doors.
        Senator Kennedy. I am not asking about how many doors. I am
    just asking did you write it or do you support--
        Mr. Mercer. Oh, no, no, but--
        Senator Kennedy. Did you support the judge-specific
    reporting provisions in the Feeney amendment, yes or no? This
    is pretty simple stuff.
        Mr. Mercer. The provision says that the Department of
    Justice needs to promulgate a directive that would allow all
    cases that resulted in adverse sentencing departures to be
    reported for appellate consideration. And the Attorney General
    issued that memorandum and that is the protocol we have.
        Now, sentencing decisions are the same as any other adverse
    decision. They need to be reported to the Department of Justice
    for consideration. There is no blacklist.
        Senator Kennedy. There is a listing of those judges that--
        Mr. Mercer. No, no, there isn't.
        Senator Kennedy. And how do you know? If no one keeps a
    list, how in the world do you know who is doing what?
        Mr. Mercer. Because if there is an adverse decision in a
    particular judicial district, if there is a downward departure
    that undercuts the purposes of the Sentencing Reform Act by
    saying this defendant is all of a sudden going to get a
    different sentence than contemplated by the commission, a
    memorandum is written saying this occurred; let's make a
    determination about whether an appeal needs to be taken.
        That is the same as whether we have an adverse decision in
    a civil case. That is the way we refer these matters for
    determinations by the Solicitor General. The way the Sentencing
    Reform Act was written, no appeal can be taken unless the
    Solicitor General authorizes an appeal.
        Senator Kennedy. Well, can I ask you, Judge Piersol, why
    was there such concern about that particular provision?
        Judge Piersol. Well, I can speak for a lot of judges that I
    talked to, and that is because the judges felt there was a
    black-listing. That is why.
        Senator Kennedy. Do you think this ought to be an area that
    we take another look at?
        Judge Piersol. I would hope so.
        Senator Kennedy. Let me just ask quickly, because my time
    is going to be up, just for the panel, who do you think we
    ought to listen to or talk to in terms of these issues that we
    are looking at over a longer period of time?
        I mean, the idea that we are going to act quickly is, I
    think, probably extremely unlikely, particularly from what we
    have heard. We have got another panel with some differing
    views.
        Who should we really listen to? Each of us sort of outlined
    the different areas that we looked at. I mentioned the
    mandatory minimums and the disparities in the crack/powder
    departure standards, complexity of the guidelines. Who do you
    think we can get the best information from in terms of trying
    to look at how we can best meet our responsibilities?
        The red light is one, but I would ask each of you to maybe
    just take 30 seconds and tell us what we can do?
        Judge Sessions. If I could respond to that, I think this is
    such a significant issue that it is going to take extensive
    research and development, it seems to me. Turning to judges,
    turning to prosecutors, turning to the Department, turning to
    defense lawyers, turning to probation officers and victims, I
    think you need to look at all of the areas.
        But I also think, and I mean I really believe that the
    United States Sentencing Commission is chartered with the
    responsibility of advising Congress in regard to changes of
    this magnitude. My feeling is that the Sentencing Commission
    should take an active leadership role in addressing sentencing
    issues in the future.
        Judge Piersol. I agree with what Judge Sessions says. All
    those groups should be consulted; most of all, I would say the
    Sentencing Commission and the judges.
        Senator Kennedy. Judge Cassell?
        Judge Cassell. And I would say--maybe somewhat self-
    servingly--the district court judges. As has been mentioned, we
    are the ones who end up sentencing people everyday and
    hopefully have some insights.
        Mr. Steer. Senator, I agree, and I think you provided the
    answer to a large degree in the Sentencing Reform Act. It
    describes a process by which all those who are involved in the
    criminal justice process are to be involved in shaping
    sentencing policy.
        Senator Kennedy. Mr. Mercer?
        Mr. Mercer. I think that amount of consultation is a good
    idea. There just may be a need, come the summer, for some sort
    of action, and we will look forward to talking about that.
        Senator Kennedy. Thank you, Mr. Chairman.
        Senator Sessions [presiding.] Thank you, Senator Kennedy. I
    would just note that Congress did create the guidelines and we
    have a responsibility to monitor how they are working. If they
    have problems, we ought to fix them. We have not done that. I
    have offered legislation to modify the crack/powder cocaine
    problem. I haven't gotten much support for it yet, but the
    perfect is the enemy of the good. This is a good first step.
        I don't mean to say that the guidelines are perfect. They
    need to be monitored by historical accuracy and realistic
    experience, and we ought to alter them when it is appropriate
    to do so. I know Mr. Steer and I have talked about that before.
        Senator Durbin, thank you, and we will recognize you.
        Senator Durbin. Thank you, Mr. Chairman.
        Thank you to the panel for your testimony.
        A few years ago, a Governor in Illinois decided, for
    reasons of conscience, that he could no longer approve death
    penalties in my State. That decision by that one person caused,
    I think, a national and international discussion about the
    death penalty which was long overdue. I think a lot of us at
    the State and Federal level have taken a new look at it, as we
    should have. It was comfortable to stay with the old process,
    but now we have to question the old process and whether it fits
    the needs of justice.
        It strikes me the same thing is happening here. Apprendi
    and Blakely are causing us to take 19 years of accepted
    practice when it comes to sentencing guidelines and to step
    back and say is it fair, does it work. We don't like to face
    these questions. We would rather just continue with the status
    quo, but we have no choice now. Blakely has thrown this all up
    for grabs.
        Judge Sessions, it is not in your testimony; you said this
    in a statement attached to it that you felt that there was a
    general consensus and support--I don't want to misstate your
    position--a general consensus and support by judges of
    sentencing guidelines. Sitting next to you, Judge Piersol said
    now is the time for an examination of the good, as well as the
    troubling portions of the Federal sentencing law.
        It seems to me that those two statements are not
    consistent. And to hear one from the Sentencing Commission and
    another representing the Federal judges reflects, I think, the
    need for this debate. I can tell you that whether it is the
    Feeney amendment or just the sentencing guidelines or the
    mandatory minimums, many Federal judges have come to me and
    said, I have been put in unconscionable situations when it
    comes to sentencing because of established guidelines and
    because of mandatory minimum sentencing.
        So I would ask each of you if you would comment on that. Is
    it time for us to take a fresh look at the whole concept and
    ask ourselves some hard questions as to whether justice has
    been served? I would ask Judge Piersol and Judge Sessions.
        Judge Piersol. Well, I think I was suggesting that it is
    time to look. I would say--and I am speaking personally for
    myself now because the association hasn't taken a specific
    position on this. But I have sentenced 1,500 people or so, so I
    have got a little experience.
        I would say that the concept of sentencing guidelines is a
    generally accepted concept. That doesn't mean it is working as
    well as it could or should, because any time you sentence
    somebody where the sentence, in your best judgment, is
    inappropriate, that is a tragedy.
        Senator Durbin. Has that happened to you as a judge
    sentencing?
        Judge Piersol. Yes.
        Senator Durbin. Under the guidelines?
        Judge Piersol. Yes.
        Senator Durbin. Where you felt that what you did was not
    just?
        Judge Piersol. Yes, and I can't imagine that there is a
    judge who has sentenced for very long that wouldn't say that.
    So the real problem is, speaking personally, there isn't enough
    latitude. There is a need for sentencing guidelines, but they
    are not guidelines. That is a euphemism. They are not
    guidelines at all. They have the force of law. So there is need
    for a system similar to what we have, but it is not one that
    provides justice as often as it should.
        Senator Durbin. Judge Sessions, have you been through the
    same experience?
        Judge Sessions. Sure, I have been through the same
    experience, and first I would want to say that Judge Piersol
    and I are great friends and we agree on just about everything
    in the world. So I think probably if asked to get down to
    basics, the agreement probably would be quite clear.
        What I meant by my comments is that most judges feel that
    the process, generally speaking, is fair, and it is fair for a
    number of reasons. Primarily, it provides consistency and a
    sense of an ability to understand what is happening by a
    defendant, so that they know exactly what the process is, what
    the ranges are, generally speaking.
        The other advantage of the guidelines is that they provide
    factors that judges should consider in weighing sentences that
    are universally applied. That is why the enhancements are so
    important because it allows judges to go beyond just dollar
    amounts and drug quantities that focus in upon those things.
        Now, having said that, the end product--these are, of
    course, mandatory guidelines and they are oftentimes based upon
    mandatory minimums; that is, how the drug quantity arrived at
    where it did. I know Senator Sessions has raised a bill in
    regard to low-level drug couriers as a part of the crack
    cocaine bill that he had proposed a couple of years ago.
        In those kinds of situations, oftentimes you are finding
    yourself restricted by mandatory minimums, in particular, and
    at that point you feel like you could be doing an injustice.
    But as to the general perception of the guidelines themselves,
    I think the vast majority of judges would say they like them.
        Senator Durbin. I would like to really kind of sum up, and
    I am sorry I couldn't get each panel member to express their
    own opinions on this. It seems to me that the guidelines are
    looking for some certainty and, as we have said here, eliminate
    unwarranted disparities in sentencing. But at the same time,
    the system is looking for justice which would protect warranted
    disparities. And the only person who can make that decision
    ultimately is the judge, or in Blakely's suggestion, the jury
    as well.
        Can we get to the bottom of Blakely and Apprendi without
    addressing this core issue of whether or not we are serving
    justice, as opposed to just serving the need for certainty in
    sentencing?
        Judge Piersol. In my view, great injustice could come from
    some legislative solutions. Justice could also come from some
    legislative solutions. That is why you have such a heavy charge
    upon you and that is why we want to be at the table.
        Judge Sessions. And I would say that just like Congress now
    is addressing this particular issue as a result of Blakely, the
    Sentencing Commission chose a number of years ago--Judge
    Castillo was one of the driving forces in this--suggested that
    we review the guidelines, review how they are working and
    develop a 15-year study, a part of which has already been
    released in regard to the crack cocaine report, an idea that
    the Sentencing Commission itself internally is reviewing this
    to see if we can improve the process.
        Senator Durbin. Thank you. Thanks, Mr. Chairman.
        Senator Sessions. Thank you.
        Well, it has been an excellent discussion and we thank you
    for that.
        Senator Leahy, do you want to comment?
        Senator Leahy. Just one follow-up question to Judge
    Sessions and Mr. Steer.
        I realize this is broad-brush, but in your testimony you
    suggest that the Federal guidelines are different from the
    State guidelines because the Federal guidelines are promulgated
    by an independent agency in the judicial branch, not by the
    legislature.
        So just for the purposes of the question, assuming this
    might make a constitutional difference, then, of course, the
    question I ask is are you sufficiently independent. Think of
    three facts: first, the Congress has to approve the
    commission's recommendations for changes to the Guidelines
    Manual. Secondly, the Congress has made a number of directives
    over the past few years telling the commission to make changes
    in the guidelines.
        Third, the Feeney amendment, backed by the Department of
    Justice, actually wrote guidelines and commentary without any
    input from either the commission or the Federal judiciary, as
    everybody from the Chief Justice on down has reminded me.
        Assuming there is a constitutional difference, because of
    your independence, from what is seen in Blakely are you
    sufficiently independent?
        Judge Sessions. Senator, you have asked questions of me in
    the past that are equally troubling. I think essentially we are
    as independent as Congress is willing to make us at this
    particular point. We are, I will say, an independent body in
    the sense that we deliberate independently. We clearly pass
    guidelines independently based upon our best assessment, and I
    think to the extent we are, in fact, an independent body.
        Of course, Congress has the power, the absolute power and
    the right to restrict the Sentencing Commission in any way it
    deems appropriate at this particular point. But to the extent
    that decisions are made independently by collaboration and, by
    the way, by consensus--this is the only body I have ever been
    on in which politics or your political background plays no
    part. It is done by consensus. To the extent, I believe that
    our decisions are made independently.
        Mr. Steer. Senator, if I could just add a footnote, I think
    the reason why that feature might be important--and we don't
    know whether it is critical. Some judges have already examined
    it and found it insufficient. It is just one of the things that
    might be relied on in trying to distinguish the Federal
    guidelines from Blakely. But the reason why it might be
    important is it derives from a strong statement by the U.S.
    Supreme Court in the Mistretta decision that upheld the
    constitutionality of the guidelines.
        I think historically the Sentencing Commission wants to
    operate in a way and according to the vision that the Congress
    laid out in the Sentencing Reform Act. And so when we are
    constrained by overly detailed directives, we recognize that
    that is Congress' prerogative. But as we are involved in
    working with you and your staffs in crafting legislation, we
    point out the need for flexibility. We prize our discretion as
    an institution just as judges for different reasons prize
    theirs in crafting an appropriate sentence.
        But I think the bottom line and the reason for it, and the
    reason why we feel like independence is important is Congress
    created an expert body here and we want to use that expertise
    to try to carry out the goals of the Sentencing Reform Act.
        Senator Leahy. Thank you. Thank you, Mr. Chairman.
        Senator Sessions. Thank you.
        Well, Judge Sessions, I think you make a good point, what
    is justice? Many have asked this question. Consistency and
    predictability is part of it, at least. Judge Piersol sees
    occasions when he thinks that consistency created unfairness,
    but there are some situations in which I have seen judges,
    before the guidelines and when I was prosecuting cases, render
    sentences that were incomprehensible. So maybe we have made
    some progress.
        Mr. Mercer, I would just give you briefly an opportunity to
    comment on the Feeney amendment. Is that consistent with the
    Sentencing Guidelines, what the Department of Justice proposed
    or supported there?
        Mr. Mercer. Well, it is, Your Honor--yes, it is, Senator.
        Senator Sessions. That is proof that you are a good lawyer.
    You have been in court before. I can tell.
        Mr. Mercer. The whole principle of the Sentencing Reform
    Act--the preeminent goal was to make sure that unwarranted
    disparity was minimized. I was noting for Senator Kennedy--and
    I will leave a copy of this--this article tracks downward
    departure rates. This is not an article that is trying to get
    at substantial assistance.
        The data in these charts are based upon Sentencing
    Commission data and they track year by year the rates in
    various districts. A place like Connecticut has never had a
    non-substantial assistance downward departure rate below 25
    percent. In fact, in the current period, sort of year in, year
    out, it is right around 30 percent. Then you will see in that
    same table that a place like the Western District of Arkansas,
    in the 2-year period, was below 3 percent in both years.
        So the whole point of the PROTECT Act appears to be that
    unwarranted sentencing disparity threatens to undercut the
    purposes of the Sentencing Reform Act. If, in fact, both on an
    intra-district and on an inter-district basis you have outcomes
    that are generated based upon a number of circumstances that
    don't comport with the Sentencing Reform Act, that is a
    problem. I think that goes to why the Congress said to the
    commission, we need to make sure that the purpose that
    departures would be rare is reinforced because these data
    suggest that that goal has sort of slipped away.
        Senator Sessions. Well, I just thank all of you. It has
    been a very, very good discussion. In view, since we have
    undertaken to direct sentencing from this Congress and have, in
    effect, done so to a large degree, we have a responsibility to
    listen to practitioners and those who are out there, and
    consider what is working and what is not and fix it when it is
    not working as well as it should. But I strongly believe that
    the Court ought not to be demolishing this wonderful work that
    Senator Leahy and his colleagues did 20 years ago.
        Senator Leahy. Thank you.
        Senator Sessions. Thank you so much. We will go to our next
    panel.
        As you take your seats, I will do the introductions.
        The first witness will be Professor Frank Bowman. He
    teaches at the Indiana University School of Law, has worked for
    the Department of Justice as a trial attorney in the Criminal
    Division, and was a deputy district attorney for Denver,
    Colorado. Professor Bowman also worked in the U.S. Attorney's
    office for the Southern District of Florida.
        That should have kept you busy.
        Mr. Bowman. It did.
        Senator Sessions. What years?
        Mr. Bowman. 1989 to 1996.
        Senator Sessions. And where you were deputy chief of the
    criminal division and specialized in complex white-collar
    crime. He also served as special counsel to the United States
    Sentencing Commission in Washington, D.C., and was academic
    adviser to the Criminal Law Committee of the United States
    Judicial Conference.
        So welcome, Professor Bowman. You have a remarkable
    background on these issues.
        Second, we will hear from Professor Rachel Barkow.
    Professor Barkow is an assistant professor of law at the New
    York University School of Law. She clerked for Justice Scalia
    on the U.S. Supreme Court--and maybe you can explain this
    decision for us--and Judge Laurence Silberman of the D.C.
    Circuit. Professor Barkow's research and writings focus on
    criminal and administrative law, with an emphasis on the
    administration of criminal justice through the use of agencies
    and commissions.
        Professor Barkow, we welcome you to the Committee and look
    forward to hearing from you.
        Next is Ronald Weich. He is a partner in the firm of
    Zuckerman Spaeder. He has previously held positions as general
    counsel to the Labor and Human Resources Committee and as chief
    counsel to Senator Kennedy on this Committee. He also served as
    special counsel for the U.S. Sentencing Commission and as
    assistant district attorney in New York.
        Were you with Senator Kennedy when the guidelines were
    passed?
        Mr. Weich. No. I joined Senator Kennedy's staff in 1990. I
    was at the commission when the guidelines first became
    effective, and then in the early years of implementation I was
    with Senator Kennedy.
        Senator Sessions. Well, you have a valuable perspective,
    then.
        Our final witness will be Mr. Alan Vinegrad, a partner with
    Covington and Burling in New York. He is a former United States
    Attorney for the Eastern District of New York. He previously
    served as the office's chief Assistant U.S. Attorney, chief of
    the criminal division, and chief of civil rights litigation,
    which should have given you some experience in the real world.
    So it is a delight to have you with us.
        Professor Bowman, would you start off, please? I must say
    that we are moving along. If you could attempt to hold your
    comments to four minutes, we would appreciate that. If you need
    an extra minute, that will be fine.

     STATEMENT OF FRANK O. BOWMAN III, M. DALE PALMER PROFESSOR OF
      LAW, INDIANA UNIVERSITY SCHOOL OF LAW, INDIANAPOLIS, INDIANA

        Mr. Bowman. Thank you to you and the other members of the
    Committee for inviting me to testify.
        The imposition of sentences in the Federal criminal justice
    system is a shared responsibility. We are here today because
    all of the institutions which share that responsibility have in
    some measure failed. The catalog of our collective failure is
    too long for detailed examination today, but its principal
    components, it seems to me, are these.
        First, we have taken a guideline sentencing system that was
    sound in its conception almost 20 years ago, and which
    incidentally I have long supported, and made it too
    complicated. As but one measure, the size of the Sentencing
    Guidelines Manual has quite literally doubled since 1987 until
    today.
        Second, the process of making sentencing rules, which was
    designed probably over-optimistically to minimize the influence
    of narrowly political concerns, has become a one-way upward
    ratchet. Raising sentences is common and easy. Lowering them is
    difficult and scarcely ever done.
        Third, the result is a system which remains for many cases
    an excellent vehicle for determining a proper sentence, but
    which too often generates sentences that seem to judges and to
    prosecutors and defense counsel like unjustly severe, or at
    least higher than necessary.
        It is thus no surprise to find, as many studies have done,
    including some that I have done myself, that judges,
    prosecutors and defense counsel routinely collude to evade the
    guidelines mandates. The response of national policymakers to
    this quiet rebellion by front-line legal professionals against
    the unreasonable sections of the guidelines has not been to
    moderate the rules. Instead, the trend has been to make the
    rules harsher and to enforce compliance by restricting judicial
    discretion and imposing greater centralized control even on the
    decisions of line prosecutors.
        Everyone involved intimately in the Federal sentencing
    process knows these things to be true, and every institution
    involved in Federal sentencing--the judiciary, most
    particularly included--bears its share of the blame for this
    condition. But my important point this morning is not to assign
    blame, but rather to insist that we take a clear-eyed view of
    the problem that confronts us.
        We are gathered here this morning because Blakely v.
    Washington has thrown the Federal judicial system into
    unprecedented disarray. But Blakely is not the underlying
    problem; it is merely a symptom. I happen to think, with
    Senator Sessions, that Blakely is a bad decision. It carries a
    dubious constitutional premise to absurd lengths and it is
    breathtaking heedless of both short- and long-term practical
    consequences.
        Senator Sessions. Well, don't underestimate the problems
    with it now.
        [Laughter.]
        Mr. Bowman. I won't.
        Senator Sessions. Well, you probably did, but go ahead.
        Mr. Bowman. That said, it also seems reasonably clear that
    although Blakely addresses a State sentencing system, it is
    really about, in my view, the Federal guidelines, by which I
    mean that Blakely cannot be understood except as an expression
    of a deep and abiding frustration with the current state of
    Federal sentencing, a frustration which I think is widely
    shared both inside and outside the judiciary.
        Now, I don't know if the court will declare Blakely
    applicable to Federal sentencing guidelines, though it is
    really hard to see, frankly, how that result can be avoided,
    despite the earnest arguments by the commission and various
    other able judges.
        I do know that while we wait for an answer, the Federal
    criminal justice system is in turmoil. And here, too, I agree
    with you, Senator Sessions. I think that suggestions to the
    contrary ignore reality. Judge Cassell points out that in his
    district, four different judges have arrived at four entirely
    separate conclusions about how sentencing should be conducted,
    which leaves us with two questions: what should we do right
    now, and what should we do for the longer term?
        Now, yesterday morning, I probably would have favored
    immediate legislation because the turmoil in the courts is so
    crippling and because the prospect of even partial guidance
    from the Supreme Court in the near future seems to remote.
        Yesterday's decisions by the Second and Fifth Circuits have
    altered my opinion somewhat. We now have rulings from three
    appellate courts, one holding the guidelines constitutional,
    one holding them unconstitutional, and the third certifying the
    question to the Supreme Court.
        Now, I hasten to add that the fact that these courts have
    moved with such astounding speed--and it is astounding; in 19
    days, we have 3 appellate opinions. But the fact that they have
    moved with such astounding speed is not an indication that
    everything is just fine and dandy with the system and that the
    system is coping.
        To the contrary, the actions of the circuit courts are the
    best evidence that we are in the midst of a national judicial
    train wreck, that the courts know it and that they think they
    need help really fast. Still, the existence of a circuit split
    of certification and a general outcry from the lower courts for
    clarification suggests that we might get rapid action from the
    Supreme Court.
        Accordingly, I think it would probably be sensible to wait
    not more than a week or two or three to see if the Court is
    really going to move quickly. If they do, by accepting a case
    and setting an expedited schedule for resolving it, it might be
    wise to wait and see what they do.
        Now, make no mistake. Even a rapid ruling by the Supreme
    Court is unlikely to resolve the current crisis unless,
    contrary to expectation, the Court finds that the guidelines
    are constitutional, despite Blakely. If, on the other hand, the
    Court invalidates the guidelines, one element of uncertainty
    will be removed. But we will then be without a constitutionally
    valid sentencing system and it is highly unlikely--and this, I
    think, is critical--it is highly unlikely the Court, in its
    opinion rendering the guidelines unconstitutional, will tell us
    much about how to create a new one.
        So if the Court sits on its hands or if it doesn't, we are
    all likely to be back here in a few months looking for both
    short-term and long-term answers. In the short term, if
    legislation is to be considered either now or a month or 2
    months from now, I think it should meet four criteria.
        First, it should be simple to draft and understand. Second,
    it should have easily predictable consequences. Third, it
    should solve or greatly ameliorate the litigation problem.
    Fourth, it must be easy to implement and not require extensive
    revision of current rules and practices. Any proposal that
    doesn't do all four of those things should not be enacted.
        Now, I have put forward one legislative solution that I
    think meets these criteria. Others have made other suggestions
    and I am certainly happy to talk about those, should you like
    to do so, Senator Sessions. But I want to make one final point.
    There is no entirely satisfactory short-term solution to the
    problems of the Federal sentencing system. I repeat, Blakely is
    a symptom of profound, ongoing, systemic dysfunction.
        I believe two things. First, the orderly functioning of the
    Federal criminal system must be restored quickly, but once that
    is done, the underlying problems must be addressed. If they are
    not, the system will either collapse under the next judicial
    assault--and rest assured, there will be one--or perhaps worse,
    struggle on for years as an evermore punitive set of rules
    increasingly evaded or manipulated by the judges and lawyers
    who use them.
        We can do better than that. We can, if we listen to each
    other, if we respect the competence and the wisdom and the
    professionalism of all the participants in the sentencing
    process--judges, prosecutors, defense lawyers, sentencing
    commissioners and legislators--if we respect each other and if
    we listen to each other, we can build a sentencing system that
    the country can be proud of. We owe it to the country to try.
        Thank you.
        [The prepared statement of Mr. Bowman appears as a
    submission for the record.]
        Senator Sessions. Thank you very much.
        Professor Barkow.

     STATEMENT OF RACHEL E. BARKOW, ASSISTANT PROFESSOR, NEW YORK
              UNIVERSITY SCHOOL OF LAW, NEW YORK, NEW YORK

        Ms. Barkow. Thank you, Mr. Chairman and members of the
    Committee, for inviting me to testify before you today. I am
    honored to have the opportunity to discuss with you how to fix
    the Federal sentencing guidelines so that they comply with the
    bedrock of our criminal process--the jury.
        In Blakely, the Supreme Court reminded us of the
    fundamental importance of the criminal jury. Before the state
    can take away someone's liberty, it must obtain the approval of
    ordinary citizens. The jury system reflects America's great
    respect for its people and the values of its communities. That
    is why 78 percent of Americans believe that the jury system is
    the fairest way of determining guilt or innocence, and almost
    70 percent believe that juries are the most important part of
    our judicial system.
        Because the sentencing guidelines in their current form
    unconstitutionally interfere with the jury, reforming them
    should be an urgent priority. But any proposal for revising
    them must have as its primary goal the preservation of the
    Constitution's jury guarantee.
        Before I offer my own proposal, I would like to spend just
    a moment addressing the proposal that Professor Bowman has
    offered because I believe that although it is quite ingenious
    in its design, it fails to meet that standard of what the
    Constitution requires for the jury. Its main goal is not to
    preserve the jury, but to preserve the guidelines in as close
    to their current form as possible.
        The guidelines under this proposal would allow judges to
    make crucial findings that would increase the range of
    punishment to which a defendant is exposed. The Court, in its
    decision in Apprendi, made clear that that is unconstitutional,
    and although Professor Bowman designed his proposal to fit
    within a loophole created by the Supreme Court's decision in
    Harris, I do not believe that decision sweeps so broadly. In
    fact, five Justices in that case made clear that Apprendi does
    not allow judges to find facts triggering an increase in a
    defendant's minimum sentence.
        So in my view, Congress can't ignore the logic of Apprendi
    without defying its own independent obligation to uphold the
    Constitution. Because this proposal is such a calibrated effort
    to bypass the jury, I believe it would draw the ire of the
    Court.
        In addition to its constitutional problems, I believe there
    are policy issues with the proposal as well. The proposal would
    make sentencing ranges sweepingly broad, repeating the very
    situation that prompted Congress to enact the Sentencing Reform
    Act in the first place. In fact, the only real difference is
    that this proposal would also serve to increase sentences
    because it would raise the ceilings. But there is no evidence
    that an across-the-board increase of guideline sentences is
    justified or necessary at this time.
        I don't think there is a need to adopt this kind of
    proposal because I think there is an alternative that both
    preserves the criminal jury's role and meets the goals of the
    sentencing guidelines. In the short term, Congress can either
    opt to wait and see what the Supreme Court is going to do, or
    if it wants to act, I think the wisest course is to make the
    guidelines advisory, for as long as they have the force and
    effect of binding laws, they currently demean our jury system
    and undermine our criminal process.
        They require a multitude of sentencing increases on facts
    found by judges, including increases for uncharged and even
    acquitted conduct. As long as they remain in this state of
    confusion, you will see different district courts dealing with
    them in different ways, some of which may only look at the base
    level offenses with no increases, which I think does a
    disservice to the Government. So a voluntary guidelines system
    across the board would be fair for both sides.
        Now, I don't believe that voluntary guidelines are a
    sufficient solution for the long term because they wouldn't
    adequately address the problems of disparity and uncertainty
    that you spoke of. And, undoubtedly, they would lead to those
    conditions again to at least some extent. I believe there are
    some sentencing factors--using a firearm in the commission of
    an offense, the terrorism enhancement--that are just too
    important to be left to judicial discretion.
        So as a longer-term solution, I recommend that Congress,
    with the commission's assistance, identify those factors that
    are sufficiently important that they should trigger in all
    cases an enhancement of a specified length. Any factor of such
    importance is then required by the Constitution to be treated
    as an offense element to be found beyond a reasonable doubt by
    a jury.
        Given the need to keep trials management, I would expect
    that Congress would not single out every existing guideline
    factor to be treated as an offense element, and those factors
    not identified as offense elements could then become part of a
    guidelines regime that is advisory. If, over time, the
    Sentencing Commission found there was a lack of judicial
    attention or compliance with some important factors, it could
    then recommend that Congress make those offense elements as
    well.
        Thank you very much for the opportunity to testify. I am
    happy to answer any of your questions.
        [The prepared statement of Ms. Barkow appears as a
    submission for the record.]
        Senator Sessions. Thank you.
        Mr. Weich.

     STATEMENT OF RONALD WEICH, ZUCKERMAN SPAEDER LLP, WASHINGTON,
                                  D.C.

        Mr. Weich. Thank you, Senator Sessions. In the course of
    introducing me, you mentioned my Government experiences. Let me
    just add that in my private practice, I serve as counsel to the
    Leadership Conference on Civil Rights regarding criminal
    justice issues and as counsel to the Constitution Project, a
    non-profit organization that in this area intends to convene
    experts to develop recommendations for policymakers. I speak,
    though, as an individual here today, not on behalf of those
    organizations.
        Senator Sessions. I assume your people are happy with the
    chaos that has resulted.
        Mr. Weich. No, no, actually not. Let me say the Leadership
    Conference, in particular, is disturbed because the Leadership
    Conference is about fairness in sentencing. There was a time
    when groups within the Leadership Conference supported
    mandatory minimum sentencing because they thought that was the
    only way to deal with unwarranted judicial discretion in which
    minorities were greatly disadvantaged.
        When the guidelines came in, civil rights groups understood
    that this was a more sophisticated way to channel judicial
    discretion and have fairness. The civil rights community
    continues to support guidelines. We have fought for more
    fairness, working with you and your staff, for example, on the
    crack/powder issue. But the Leadership Conference is not at all
    happy with the chaos, and neither is the Constitution Project
    or any other organization that I am affiliated with.
        Blakely is a very confusing decision for people who care
    about civil liberties and civil rights. On the one hand, there
    is a nugget of a principle there that I think we should all
    agree with, and I know you agree with, which is that if you are
    accused of committing a burglary, the government should have to
    put its proof to a jury and find you guilty beyond a reasonable
    doubt of a burglary before you are sentenced for a burglary.
        They can't arrest and convict you for jay-walking, which
    might have a 10-year maximum sentence, and then ask the judge
    to sentence you to 10 years because after you crossed the
    street, you committed a burglary. That, of course, is something
    of an exaggeration, but it illustrates the kind of thing that
    is happening day in and day out in Federal court today, or at
    least until Blakely. That problem is what I think the Supreme
    Court intended to address in Blakely.
        That said, I, for one, think that the decision goes way too
    far in saying that every single factor that could possibly
    increase a sentence has to be put to a jury. That can't be
    right. The trick, of course, is to find the middle ground, to
    determine what are elements of an offense that need to be put
    to a jury and what are sentencing factors that a judge should
    be able to consider and weigh and use in imposing a just
    sentence. Finding that middle ground is very difficult. As
    Justice Breyer said, the decision appears to knock out the
    middle of the policy spectrum, so that Congress and state
    legislatures have a much tougher job.
        You have, as everyone has said, a short-term and a long-
    term question before you. I think the short-term question has
    largely been answered, and to my mind the Justice Department
    was the reality check here. They are a party in every single
    criminal case in the country. If they had come in and said to
    the Congress they need a short-term legislative fix to deal
    with chaos or bedlam, then I think Congress would have
    appropriately acted. They have not said that.
        I heard Mr. Mercer refer to some possibility of coming back
    in the summer. I think that is wrong. I think they either ask
    for their legislative fix right now or the case is closed until
    presumably the Supreme Court acts at the end of this year and
    then the new Congress considers this at the top of its agenda
    next year. It is a very important subject.
        If you do anything short-term, I think, as Professor Barkow
    said, it should be advisory guidelines. That is a simple,
    elegant solution. You don't even need to write it that way. You
    would simply suspend one section of the criminal law that makes
    the guidelines binding and leave in place the section--it is 18
    U.S.C. 3553(a)--which already says that the guidelines are one
    factor for a judge to consider in arriving at a just sentence.
        But in my testimony, I outline what I think are the
    serious, long-term issues that Congress and the commission and
    judges and defense lawyers and prosecutors need to grapple
    with. As Frank Bowman said, this system has been dysfunctional
    and unjust for a long time.
        Judge Sessions and Judge Piersol are right that everybody
    had come to figure out how to work with the guidelines, and in
    a rough way justice was meted out. But there were repeated
    instances of injustice that disturbed even the most hardened
    prosecutors and judges--long-term issues like crack/powder,
    long-term issues like the complexity of the guidelines. And I
    think the most fundamental issue here is Criminal Code reform.
        I will take just 15 more seconds. I was a state prosecutor
    in New York; that is where I began my legal career. New York
    State criminal law is based on the model penal code. You have
    assault in the first degree, assault in the second degree,
    assault in the third degree, and the legislature--this was
    decades ago--very clearly laid out what elements are a part of
    each of those offenses.
        So the presence of a gun or seroius bodily injury raises
    you from assault in the second degree to assault in the first
    degree. Those are elements. The jury has to find each of those
    elements beyond a reasonable doubt before you are subject to
    that maximum penalty that attaches.
        But the Federal Code a mish-mash, and it gets worse and
    worse because of the way that the Congress writes the Federal
    criminal law. I have a perspective on this from having been a
    staffer to this Committee. I can't tell you how many times I
    sat in that ante room and staffers would gather to talk about
    the bill that was going to be marked up the next day and you
    would see somebody pull out an amendment that said, well, we
    will increase the maximum from 10 to 20, or the minimum from 5
    to 10, or direct the commission to raise a bare offense level
    in the guidelines manual by another seven levels.
        And I would say why? Have you asked the commission? Has the
    Justice Department asked for this? Have you looked at the
    empirical evidence? And the staffer often didn't have an
    answer. There was one time, in particular, when the amendment
    said no less than 5 years. And I said that is a mandatory
    minimum penalty and you don't need that anymore. And he struck
    out ``less'' and put in ``more,'' and changed ``no less than 5
    years'' to ``no more than 5 years.'' That is the sloppiness
    with which--and I say this, of course, with no disrespect to
    the Chair, but that is the sloppiness with which the Federal
    Criminal Code has been written in recent years.
        That needs to change. There needs to be fundamental reform
    to make the system fair. Blakely makes it more difficult, but
    it is an opportunity that the Congress must seize.
        [The prepared statement of Mr. Weich appears as a
    submission for the record.]
        Senator Sessions. Well, I think there are some problems in
    how we draft statutes. I don't think they are quite as grim as
    you suggest.
        Mr. Vinegrad.

     STATEMENT OF ALAN VINEGRAD, COVINGTON AND BURLING, NEW YORK,
                                NEW YORK

        Mr. Vinegrad. Thank you, Senator Sessions. I thank the
    Committee for giving me the opportunity to be here before you
    today.
        The Blakely decision, I believe, warrants consideration of
    both short-term and potential long-term responses. In the short
    term, until the constitutionality of the Federal guidelines
    system is resolved, some action should be considered to remedy
    the unstable, if not chaotic, state of affairs in the Federal
    criminal justice system.
        Courts around the country are taking, and will likely
    continue to take many divergent approaches in response to
    Blakely, from upholding the guidelines, to declaring them
    unconstitutional, to declaring them unconstitutional only
    insofar as upward adjustments to the base offense level and
    then sentencing within that level, to authorizing or refusing
    to authorize juries to resolve disputed sentencing enhancements
    either as part of the trial or in a separate sentencing
    proceeding.
        The Department of Justice is asking all of its prosecutors
    to ask judges to announce three separate sentences in every
    case. Temporary legislation bringing some order to this process
    is something that should be seriously considered, particularly
    since the turmoil will not end if the Supreme Court declares
    the guidelines unconstitutional. It will, in fact, continue
    until a long-term legislative solution is found.
        Others have spoken about possible short-term solutions. I
    will focus my remarks here on potential long-term solutions, in
    the event the guidelines are held unconstitutional, because I
    believe it is important to start that dialogue now.
        My views on this issue rest on three basic premises. First,
    I believe the guidelines generally make sense to the extent
    that they promote uniformity and predictability in sentencing,
    with sufficient flexibility for judges to exercise discretion
    to impose more or less punishment based on the unusual facts of
    a given case.
        Second, juries can and already do have a role to play in
    determining certain basic facts that are relevant to
    sentencing. The most obvious example is in capital cases where
    juries control the determination. However, even in non-capital
    cases, in the wake of the Apprendi decision 4 years ago, juries
    in Federal cases have been called upon to decide a number of
    issues affecting the statutory maximum punishment.
        For example, juries determine the type and quantity of
    narcotics, whether certain violent crimes result in serious
    bodily injury or death, or whether a dangerous weapon was used
    to commit a bank robbery. I tried two such cases as a Federal
    prosecutor.
        If the Court holds the guidelines unconstitutional, then
    Congress, with the assistance of the Sentencing Commission,
    could designate other factors critical to the sentencing
    process that would increase a defendant's sentencing guideline
    range and thus require a jury determination beyond a reasonable
    doubt. Such factors could include, for example, the amount of
    loss in a financial crime case or the number of guns in a gun
    trafficking case. Because these facts typically are already
    part of the proof in the guilt phase of a criminal trial, I
    believe that requiring juries to decide these issues would
    require little additional effort on the part of the various
    parties to the criminal trial process.
        On the other hand, I do not believe that juries should be
    called upon to decide the many other factors now contained in
    the sentencing guidelines. A single case can give rise to 5,
    even 10 or more specific issues under the guidelines, including
    alternative base offense levels, specific offense
    characteristics, upward adjustments and upward departures.
        Oftentimes, some of these factors are not fully developed
    or even known about until just before, during or after the
    trial. It is doubtful that a system requiring juries to decide
    all of these issues would be workable, let alone desirable.
        Instead, sentencing guideline ranges could be calculated
    based on the offense of conviction, as well as other critical
    factors either found by a jury or admitted by a defendant
    during a guilty plea. The size of the guideline ranges could be
    broadened to allow judges to take into account all the other
    aggravating factors that are relevant to the sentencing
    decision, such as role in the offense, the use of a special
    skill, or obstruction of the prosecution.
        Numerical values could continue to be assigned to these
    factors and could serve as non-binding guidance on how these
    factors should presumptively be taken into account in
    determining the defendant's sentence. This sort of sentencing
    system would satisfy several competing objectives.
        First, it would preserve substantial uniformity in the
    sentencing of similarly situated offenders. Second, it would
    preserve the jury's role in determining the basic facts that
    are essential to determining maximum punishment. Third, it
    would maintain the basic structure of the current guideline
    system with relatively narrow ranges of presumptive punishment
    for Federal crimes.
        Fourth, it would allow for a reasonable degree of judicial
    discretion in determining the ultimate sentence. Fifth, it
    would be relatively feasible to implement. And, finally, it
    would be constitutional, for it would satisfy Blakely's
    requirement that factors that increase a defendant's maximum
    punishment be proven to a jury beyond a reasonable doubt.
        Thank you.
        [The prepared statement of Mr. Vinegrad appears as a
    submission for the record.]
        Senator Sessions. Thank you. That was a very thoughtful
    discussion and I appreciate it very much.
        Mr. Vinegrad, I don't know if just cutting the baby in half
    is a good solution here.
        Mr. Vinegrad. Somebody told me that was the that kind of
    thing that happens in these halls.
        Senator Sessions. Well, we have decided this matter. Five
    members of the Supreme Court have apparently declared that the
    Sixth Amendment to the Constitution says that judges can't
    consider factors to be used in sentencing, that it has to be
    decided by a jury, which is contrary to our history, and
    contrary to American policy. Anybody who has ever been in a
    courtroom knows that.
        Many States do not have guidelines at all, correct? I will
    ask you, Mr. Vinegrad and Mr. Bowman. You all have practiced. A
    jury comes in and renders a verdict, and the maximum penalty is
    1 to 20 years and the judge renders a sentence. Isn't that
    correct?
        Mr. Vinegrad. Yes, although an increasing number of States
    not only have guidelines, but others--and I believe Mr. Weich
    said this--have statutory schemes, like the one in New York,
    which do give increasing levels of punishment for certain types
    of crimes.
        Senator Sessions. Well, that is the way we have always done
    it. I mean, the Congress has always put the penalties there. We
    do have jury involvement in some areas, but fundamentally
    judges sentence.
        In the past, Mr. Bowman, you couldn't even appeal. As long
    as a judge sentenced within the statutory limit, you couldn't
    appeal. Isn't that correct?
        Mr. Bowman. Certainly, prior to 1987, in the Federal
    system, you really couldn't appeal. Indeed, the courts of
    appeals that ruled on the question customarily said that they
    lacked jurisdiction to reconsider the sentence of a district
    court judge within the statutory maximum so long as that
    decision was not based on some unconstitutional factor. That is
    certainly correct, Senator.
        Senator Sessions. That is the deal, so I am not giving up
    on this opinion. I think Justice O'Connor is going to prevail
    because her logic and her history is so compelling.
        Mr. Weich, to address your comment about the elements of
    the offense, maybe we are blurring somewhat the elements of the
    offense. However, if you commit a robbery and the maximum
    penalty for the robbery is 20 years and someone carries a gun
    and the judge says, well, you carried a gun in that robbery, I
    am going to give you 20 years, if you hadn't carried a gun, I
    might have given you 10 years--I don't see how a constitutional
    issue is implicated here.
        Mr. Weich. I don't think that it is constitutionally
    required that the presence of the gun in the crime be an
    element of the offense. I think that a rational legislature
    might decide that that is such an important fact in that crime
    that it is one which should be placed before a jury and then
    expose the defendant to more punishment if found.
        Senator Sessions. I agree that you could address it as an
    element of the offense, but I don't know that it is necessary.
        Mr. Bowman, you made some excellent, thoughtful comments
    about the system being too complicated. Your second point was
    it seemed to be always an upward ratchet on sentence. But we
    want, do we not, the base offense to be moderately low and
    things that aggravate that offense add to the sentence? Isn't
    that, as Mr. Steer suggested, the scheme of the guidelines,
    that if you make the base offense too high and the person has
    no aggravating circumstances, maybe you have imposed too long a
    sentence. Isn't it inevitable that we would ratchet up the
    penalty?
        Mr. Bowman. Well, I think there are two points here,
    Senator. Certainly, your observation is a correct description
    of the guidelines as they function. We start with a base
    offense level, as Commissioner Steer talked about, and work
    upward from that point.
        But the point I was making was not a point about the design
    of the guidelines, but, in fact, how policymaking and
    rulemaking and guidelines-making has proceeded over the last 10
    years or so. And the point I was making is that, for a variety
    of reasons far too complicated to go into right now, it has
    become politically very easy to raise the sentencing levels
    stated in the guidelines by either simply increasing base
    offense levels or adding additional enhancements. It has become
    very easy to do that, but it has become very difficult to do
    the reverse, to bring sentencing levels down.
        I think a terribly important point needs to be made here. I
    have been a supporter of the guidelines, both when I was in
    practice and in my life as an academic, relatively short though
    it has been. But I have been a supporter of the guidelines
    because I believe they achieve certainly and they achieve
    reasonable fairness.
        But what we have done is we have created a situation in
    which the input of the people on the ground--the judges, the
    lawyers, both prosecutors and defenders, the probation
    officers--the wisdom of people who actually face defendants
    everyday has not been listened to by people in Washington. And
    I don't refer only to the legislature, but I also refer
    sometimes to the commission and sometimes certainly to the
    Department of Justice.
        National decisionmakers have not listened to the wisdom of
    the people who are actually doing the job out there, and
    sometimes the people who are actually doing the job out there
    convey to the people in Washington, look, we ought to raise
    some sentences of a particular class. When that message comes
    forward, that should be listened to.
        But sometimes, and increasingly over the past few years at
    least for some classes of cases, the people who really do the
    job out there are saying in every way they can to national
    policymakers that some kinds of sentences are too high; you
    should do something about that, you should reduce them. And
    that message is not getting through, Senator.
        Senator Sessions. Well, it is not getting through, I will
    admit to you. I have offered legislation to do that. The
    biggest complaint has been over crack cocaine penalties being
    too harsh, and I have offered legislation. I got Senator Hatch
    to agree with me and we have sponsored it. We can't get
    cosponsors to reduce the penalties for crack cocaine. I would
    have thought it would have been easy. I think Congress deserves
    criticism there.
        We ought to be looking at all of this. We have sort of
    taken it over and set these ranges, and we can't just say that
    we are never going to reconsider it. So I agree with you
    fundamentally. We need to listen to that and that is our
    responsibility.
        Professor Barkow, do I understand that since this is a
    symptom of the problem, according to Mr. Bowman, that we have
    this opinion, that Justice Scalia is of the view that if
    Congress doesn't act like he would like them to, he can just
    create a way to strike down the whole guideline system? Is that
    what this judge who shows restraint is about?
        Ms. Barkow. I, of course, would make no pretense to speak
    on behalf of Justice Scalia, but I do think that the opinions
    in Blakely and Apprendi are comprised of an interesting
    coalition of Justices: Justice Scalia, Justice Stevens, Justice
    Souter, Justice Ginsburg and Justice Thomas. So you have five
    obviously very intelligent people who have looked at the
    history and the background of sentencing and at the role of the
    jury, and have found that these facts that require a sentence
    to be increased have to go to a jury.
        Now, I think it is important to note that the opinion does
    make clear that Justice Scalia and the Justices who joined the
    opinion are saying that there is no set way that Congress needs
    to respond to it and that you are free to make all of these
    same determinations in the future.
        All the opinion is really about is who finds those facts.
    In our system, who decides what a defendant really did? Who
    makes that decision? Blakely says that is what our jury is for.
    And it is not the neatest and most efficient way of deciding
    things, but it is a uniquely American tradition that I think we
    should be very proud of, and I think that opinion is a great
    testament to how we try to preserve it.
        Senator Sessions. We have never understood it that way. We
    have never understood that juries have to sentence. Sometimes
    they have and sometimes they haven't. Most criminal justice
    reformers, as I recall, over the years have favored judge-
    sentencing rather than jury-sentencing, thinking juries are far
    more aberrational and are likely to not have the necessary
    experience or knowledge of how the prison system works. And so
    we have been encouraged to move away from jury-sentencing.
        Ms. Barkow. Could I just clarify that it is not actually
    jury-sentencing that the opinion requires. It just says when
    something is an offense element and when it is a sentencing
    factor. When it is a offense element, you can set the sentence
    and it can be that when the jury finds the facts, a very
    specific sentence can follow and the jury need not have any
    discretion at all in terms of what the defendant ultimately
    receives as punishment.
        Senator Sessions. Right. Justice O'Connor dealt with that a
    little bit. She said it is not about whether sentencing is
    constitutional, only about, quote, ``how it can be
    implemented.'' In effect, as she notes, you make the cost so
    high and the difficulty so high that it is going to cause us a
    great deal of trouble as a practical matter.
        I don't need to pursue that matter too much more, but maybe
    we better go back to the principles of the guidelines.
        Mr. Weich, do you think Congress needs to be more involved
    in monitoring how the guidelines work and listen to information
    from various sources as to how they are working and what can be
    done to improve them?
        Mr. Weich. I certainly think that the Congress should be
    involved in monitoring. That sounds right in those terms. As
    Frank Bowman says, there have been voices crying out for some
    relief from what everyone agrees are unjust sentences. And
    hearings on the sentencing system have been few and far between
    over the years, so monitoring is a good thing.
        I think the Congress needs to be much less involved in
    micromanaging the commission. The point was made before about
    the Feeney amendment. There were lots of things that were wrong
    about that Feeney amendment, in my view. The fact that the
    Congress actually wrote guidelines is a bad thing. The fact
    that the Congress created what some call a judicial blacklist,
    I think, is a bad thing.
        But to my mind, the worst was when the Congress wrote
    guideline commentary in the voice of the commission. The
    statute reads that the commentary accompanying 2A1.-whatever
    shall read, we have written this guideline because of x, y and
    z, turning the commissioners into, as I say in my testimony,
    glorified ventriloquist dummies. And that is a big problem if
    the Justice Department is now going to defend the guidelines as
    court rules rather than legislation. You can't create a
    commission of judges and other experts and turn them just into
    a mouthpiece for Congress. So monitoring, yes; micromanagement,
    no.
        Senator Sessions. You mentioned, Mr. Bowman, and I think
    Mr. Vinegrad, perhaps widening the discretion of a judge. It is
    now, what, 25 percent?
        Mr. Vinegrad. Six months or 25 percent, whichever is
    greater.
        Senator Sessions. Yes. I have often thought that that is
    too tight a range. It means if a judge likes you, he gives you
    16 years. If he doesn't like you, he gives you 20 years. That
    is not a lot of range. Is that 25 percent? Yes. That is what
    the guidelines actually call for.
        Do you think justice would be enhanced, Mr. Vinegrad, if
    that range were widened from 25 percent?
        Mr. Vinegrad. Well, if the Supreme Court would hold the
    present system unconstitutional, then the answer is yes. I
    think that would accommodate the need for judicial discretion
    in determining--
        Senator Sessions. If they would hold it unconstitutional?
        Mr. Vinegrad. If they held them unconstitutional and
    something had to be done to change them, then I think in order
    to accommodate both the need for juries to have some role in
    finding the important sentencing facts, but have judges take
    into account all the various detailed enhancements and
    adjustments that are contained in the guidelines now, then,
    yes, I think that ranges should be broadened so that a judge
    has a greater ability to take into account those many factors
    than the judges have now.
        Senator Sessions. Well, if they did not declare it
    unconstitutional, do you still think the range should be
    widened?
        Mr. Vinegrad. Well, what I think is that these rules, these
    guidelines have become, like the Criminal Code itself,
    extraordinarily complex, and far more complex than frankly they
    need to be. If you look at State analogs--and admittedly States
    are simpler institutions, but if you look at the Kansas system,
    for example, which has been discussed, including the Blakely
    decision, there are about half a dozen aggravating factors,
    half a dozen mitigating factors, and that is essentially the
    variation from what otherwise are the standard or presumptive
    sentences.
        To have the plethora of adjustments that are in the
    guidelines now, I think, has made this far too complex a
    process. So I would think that with a combination of
    simplification and expansion of the ranges, you would have a
    better system.
        Mr. Bowman. Senator, if I might answer that question, what
    has come to be known as the 25-percent rule, the piece of the
    Sentencing Reform Act that requires that the top of the
    sentencing range be no higher than 6 months or 25 percent below
    the bottom, is a classic example of the law of unintended
    consequences.
        There is no question why it was put it, at least I think,
    though I wasn't there. I am sure that Congress was interested
    in making sure that the ranges within which judges could
    exercise their discretion were somewhat limited, as that was
    one of the objectives of the Act. And 25 percent sounds like a
    considerable range within which a judge can move, and I have
    made that same argument in defense of the guidelines for years.
        On the other hand, what happens when you actually go and do
    the math, if you will, is that if you start at the bottom with
    zero months and you go up to the top sentence allowed for by
    Federal law, which is essentially 30 or 40 years, and you try
    to work your way up mathematically going only 25 percent at a
    time, you have to have a very complicated system; you have to
    have a lot of boxes.
        When you create all those boxes, incentives arise to fill
    them and the result is the complexity that we see. Perversely,
    if we had wider ranges and a smaller number of boxes, that
    would in itself force simpler guidelines.
        Senator Sessions. It would allow judges who are complaining
    that they don't have enough freedom, or who say that they have
    some intuitive feeling that a sentence is too harsh, to have a
    little more freedom, would they not?
        Mr. Bowman. They certainly would.
        Senator Sessions. Would that make the judges happier?
        Mr. Bowman. I think it would make them happier. I think it
    would make all of us who are interested in improving the system
    happier, because I have to say again this is a technical
    matter, but it is an important one. If indeed, after Blakely
    and the Supreme Court's next decision--if indeed we get, as I
    hope we will, to the point of seriously thinking about how the
    Federal sentencing system can be improved, how the guidelines
    can be improved, one considerable structural impediment to
    doing anything meaningful is that 25-percent rule. As long as
    it is there, the guidelines will probably remain more
    complicated than they need to be.
        Senator Sessions. They are complicated, but a lot of it is
    the result of requests of professionals who say, well, with
    regard to this sentence, you didn't put in that they took
    advantage of an elderly person that a judge would normally
    consider. It allows a judge to go upward, but a judge isn't
    always required to go upward. I have been amazed at how well
    the courts have accommodated and followed fairly consistently
    these guidelines.
        Do you agree, Mr. Vinegrad? You have tried cases and
    supervised cases. When you want to estimate what a judge is
    going to do, are you pretty confident that they will follow the
    guidelines and, as a prosecutor and defense lawyer, pretty much
    confident of what the defendant may get if they are tried and
    convicted?
        Mr. Vinegrad. Generally speaking, I think that is right,
    and I think the vast majority of judges conscientiously apply
    the guidelines as they are written. Frankly, to the extent that
    a sentence comes out of a case that is either unexpected, or
    worse, that one party thinks is wrong, they have a right of
    appeal, which to me is sort of the solution which is preferable
    to some of the other ones that we have seen lately in some of
    the sentencing legislation such as the PROTECT Act.
        If a party thinks that the sentencer exercised discretion
    in one way or the other wrongly, they can take an appeal. But I
    think in the vast majority of the cases--and the data from the
    Sentencing Commission proves this out--apart from cases
    involving cooperation where the government asks for the
    departure, judges are by and large sentencing within the
    guidelines.
        Senator Sessions. Any further comments on any of that?
        Mr. Weich. Senator, may I include something in the record?
    Mr. Mercer on the first panel asked that a letter that he wrote
    at the time of the PROTECT Act be included in the record. That
    letter complains about specific cases where there are
    departures. That complaint is actually at the heart of the
    discussion here: how flexible should the guidelines be? The
    Department of Justice, I think, has been overly rigid about
    trying to squeeze out judicial discretion by limiting
    departures.
        I would like to include in the record an August 1, 2003,
    letter from the organization Families Against Mandatory
    Minimums, which, in the interest of full disclosure, is an
    organization that was founded by my wife, Julie Stewart. It is
    addressed to then-Chair of the Sentencing Commission, Judge
    Murphy, and it rebuts case by case the allegations of
    unwarranted judicial leniency. I think that for the record to
    be complete, this should be included as well.
        Senator Sessions. We would be glad to have that made a part
    of the record.
        I frankly think some judges have had coffee with their
    brothers and a few have decided they are not going to be very
    respectful of the guidelines. But for the most part, as I just
    said, I think judges are following it consistently. I don't
    blame the Department of Justice, who is an advocate here, for
    being concerned if they note a trend by certain judges to
    consistently evade or skirt or avoid the guidelines. But that
    is not really the problem. I think we can deal with that and we
    can deal with most of these issues, but I still remain really
    disappointed in the Supreme Court's ruling.
        I don't think it is consistent with good constitutional
    law. It shows a lack of understanding of how criminal justice
    works in America. I don't see how and when you would call a
    jury back to determine whether the white-collar fraud person
    was a manager or a leader.
        When would that happen, Mr. Vinegrad?
        Mr. Vinegrad. Never, in my experience.
        Senator Sessions. Would they stay and continue the
    deliberations before the issues are ripe, or come back two
    weeks later?
        Mr. Vinegrad. There actually is a drug statute that does
    call for that sort of determination in continuing criminal
    enterprise cases, where one of the elements is that somebody
    had an organizational role. But by and large, in the vast
    majority of Federal crimes, I agree with you that that is not
    something the jury is going to be called upon to decide.
        Senator Sessions. A judge determines now whether or not the
    white-collar crime defendant was a manager or not. They decide
    on their own.
        Mr. Vinegrad. Correct.
        Senator Sessions. And it is subject to review on appeal if
    the evidence doesn't support it, but it does not require a
    jury. I would say it is going to have a tremendous impact on
    the system if we can't figure a way to avoid what appears to be
    the logical impact of Blakely.
        If anyone else has anything to add to this, we will keep
    the record open until next Tuesday. Senator Leahy indicated he
    will be submitting some questions to you, and I hope that you
    will be willing to answer those. Thank you for an excellent
    discussion.
        We are adjourned.
        [Whereupon, at 12:45 p.m., the Committee was adjourned.]
        [Questions and answers and submissions for the record
    follow.]
        [Additional material is being retained in the Committee
    files.]

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