[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
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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
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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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