[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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