[House Hearing, 109 Congress]
[From the U.S. Government Publishing Office]



                  UNITED STATES V. BOOKER: ONE YEAR LATER--
                          CHAOS OR STATUS QUO?

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

                                HEARING

                               BEFORE THE

                   SUBCOMMITTEE ON CRIME, TERRORISM,
                         AND HOMELAND SECURITY

                                 OF THE

                       COMMITTEE ON THE JUDICIARY
                        HOUSE OF REPRESENTATIVES

                       ONE HUNDRED NINTH CONGRESS

                             SECOND SESSION

                               ----------                              

                             MARCH 16, 2006

                               ----------                              

                           Serial No. 109-121

                               ----------                              

         Printed for the use of the Committee on the Judiciary


   Available via the World Wide Web: http://judiciary.house.govFOR 
                               SPINE deg.
     UNITED STATES V. BOOKER: ONE YEAR LATER--CHAOS OR STATUS QUO?

 
               UNITED STATES V. BOOKER: ONE YEAR LATER--
                          CHAOS OR STATUS QUO?

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

                                HEARING

                               BEFORE THE

                   SUBCOMMITTEE ON CRIME, TERRORISM,
                         AND HOMELAND SECURITY

                                 OF THE

                       COMMITTEE ON THE JUDICIARY
                        HOUSE OF REPRESENTATIVES

                       ONE HUNDRED NINTH CONGRESS

                             SECOND SESSION

                               __________

                             MARCH 16, 2006

                               __________

                           Serial No. 109-121

                               __________

         Printed for the use of the Committee on the Judiciary


      Available via the World Wide Web: http://judiciary.house.gov


                                 ______

                    U.S. GOVERNMENT PRINTING OFFICE
26-647                      WASHINGTON : 2006
_____________________________________________________________________________
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                       COMMITTEE ON THE JUDICIARY

            F. JAMES SENSENBRENNER, Jr., Wisconsin, Chairman
HENRY J. HYDE, Illinois              JOHN CONYERS, Jr., Michigan
HOWARD COBLE, North Carolina         HOWARD L. BERMAN, California
LAMAR SMITH, Texas                   RICK BOUCHER, Virginia
ELTON GALLEGLY, California           JERROLD NADLER, New York
BOB GOODLATTE, Virginia              ROBERT C. SCOTT, Virginia
STEVE CHABOT, Ohio                   MELVIN L. WATT, North Carolina
DANIEL E. LUNGREN, California        ZOE LOFGREN, California
WILLIAM L. JENKINS, Tennessee        SHEILA JACKSON LEE, Texas
CHRIS CANNON, Utah                   MAXINE WATERS, California
SPENCER BACHUS, Alabama              MARTIN T. MEEHAN, Massachusetts
BOB INGLIS, South Carolina           WILLIAM D. DELAHUNT, Massachusetts
JOHN N. HOSTETTLER, Indiana          ROBERT WEXLER, Florida
MARK GREEN, Wisconsin                ANTHONY D. WEINER, New York
RIC KELLER, Florida                  ADAM B. SCHIFF, California
DARRELL ISSA, California             LINDA T. SANCHEZ, California
JEFF FLAKE, Arizona                  CHRIS VAN HOLLEN, Maryland
MIKE PENCE, Indiana                  DEBBIE WASSERMAN SCHULTZ, Florida
J. RANDY FORBES, Virginia
STEVE KING, Iowa
TOM FEENEY, Florida
TRENT FRANKS, Arizona
LOUIE GOHMERT, Texas

             Philip G. Kiko, General Counsel-Chief of Staff
               Perry H. Apelbaum, Minority Chief Counsel
                                 ------                                

        Subcommittee on Crime, Terrorism, and Homeland Security

                 HOWARD COBLE, North Carolina, Chairman

DANIEL E. LUNGREN, California        ROBERT C. SCOTT, Virginia
MARK GREEN, Wisconsin                SHEILA JACKSON LEE, Texas
TOM FEENEY, Florida                  MAXINE WATERS, California
STEVE CHABOT, Ohio                   MARTIN T. MEEHAN, Massachusetts
RIC KELLER, Florida                  WILLIAM D. DELAHUNT, Massachusetts
JEFF FLAKE, Arizona                  ANTHONY D. WEINER, New York
MIKE PENCE, Indiana
J. RANDY FORBES, Virginia
LOUIE GOHMERT, Texas

                     Michael Volkov, Chief Counsel

                          David Brink, Counsel

                        Caroline Lynch, Counsel

                 Jason Cervenak, Full Committee Counsel

                     Bobby Vassar, Minority Counsel


                            C O N T E N T S

                              ----------                              

                             MARCH 16, 2006

                           OPENING STATEMENT

                                                                   Page
The Honorable Jeff Flake, a Representative in Congress from the 
  State of Arizona, and acting Chair, Subcommittee on Crime, 
  Terrorism, and Homeland Security...............................     1
The Honorable Robert C. Scott, a Representative in Congress from 
  the State of Virginia, and Ranking Member, Subcommittee on 
  Crime, Terrorism, and Homeland Security........................     1
The Honorable Howard Coble, a Representative in Congress from the 
  State of North Carolina, and Chairman, Subcommittee on Crime, 
  Terrorism, and Homeland Security...............................     3

                               WITNESSES

The Honorable Ricardo H. Hinojosa, U.S. District Judge and 
  Chairman, U.S. Sentencing Commission
  Oral Testimony.................................................     4
  Prepared Statement.............................................     7
The Honorable William Mercer, Principal Associate Deputy Attorney 
  General and U.S. Attorney for the District of Montana, U.S. 
  Department of Justice
  Oral Testimony.................................................    23
  Prepared Statement.............................................    26
The Honorable Paul G. Cassell, Judge, U.S. District Court for the 
  District of Utah
  Oral Testimony.................................................    61
  Prepared Statement.............................................    63
Mr. James E. Felman, Partner, Kynes, Markman & Felman, P.A.
  Oral Testimony.................................................   142
  Prepared Statement.............................................   144

                                APPENDIX
               Material Submitted for the Hearing Record

The Honorable Howard Coble, a Representative in Congress from the 
  State of North Carolina, and Chairman, Subcommittee on Crime, 
  Terrorism, and Homeland Security...............................   197
The Honorable Robert C. Scott, a Representative in Congress from 
  the State of Virginia, and Ranking Member, Subcommittee on 
  Crime, Terrorism, and Homeland Security........................   198
Prepared Statement of the Honorable Tom Feeney, a Representative 
  in Congress from the State of Florida..........................   199
Prepared Statement of the Honorable Sheila Jackson Lee, a 
  Representative in Congress from the State of Texas.............   200
Supplemental Testimony of James E. Felman, Esq., Kynes, Markman & 
  Feldman, P.A., Tampa, Florida..................................   205
Prepared Statement of Carol S. Steiker, Professor of Law, Harvard 
  Law School, Cambridge, Massachusetts...........................   232
Responses to Questions for the Record from William E. Moschella, 
  Assistant Attorney General, Office of Legislative Affairs, U.S. 
  Department of Justice, Washington, DC..........................   239
Responses to Questions for the Record from Judith W. Sheon, Staff 
  Director, U.S. Sentencing Commission, Washington, DC...........   262
Letter to the Honorable Howard Coble, Re: Revised Testimony for 
  the Record from Judith W. Sheon, Staff Director, U.S. 
  Sentencing Commission, Washington, DC..........................   286
Supplemental Information for the Record from the Honorable Paul 
  G. Cassell, Judge, U.S. District Court for the District of Utah   288
Letter to the Honorable Paul G. Cassell and ``Report on Post-
  Booker Sentencing in the United States District Court, District 
  of Massachusetts,'' from the Honorable Mark L. Wolf, Chief 
  Judge, U.S. District Court for the District of Massachusetts...   296
Revised Testimony of the Honorable Ricardo H. Hinojosa, U.S. 
  District Judge and Chairman, U.S. Sentencing Commission........   307


     UNITED STATES V. BOOKER: ONE YEAR LATER--CHAOS OR STATUS QUO?

                              ----------                              


                        THURSDAY, MARCH 16, 2006

                  House of Representatives,
                  Subcommittee on Crime, Terrorism,
                              and Homeland Security
                                Committee on the Judiciary,
                                                    Washington, DC.
    The Subcommittee met, pursuant to notice, at 12:16 p.m., in 
Room 2141, Rayburn House Office Building, the Honorable Jeff 
Flake (acting Chair of the Subcommittee) presiding.
    Mr. Flake [presiding]. This hearing will come to order. I 
am filling in for the Chairman, who will be here momentarily, 
but we will go ahead and get started.
    Thank you for your indulgence. When we have floor votes, 
obviously, we've got to be on the floor, but thank you.
    I am pleased to be here for this important hearing, the 
Subcommittee on Crime, Terrorism, and Homeland Security, to 
look at the impact of the Supreme Court decision, United States 
v. Booker. A lot of us have been anxious to hear, after all the 
hype of what this decision might mean, it will be nice to hear 
what it actually has met over the past year. So I look forward 
to the testimony of the witnesses. Thank you all for traveling 
here and for what you are doing.
    Before introducing you, I should mention Chairman Coble has 
a statement which will be in the record, so I will not read 
that. Then I will turn the time over to Mr. Scott from Virginia 
for an opening statement.
    Mr. Scott. Thank you, Mr. Chairman. I am pleased to join 
you in the hearing on Federal sentencing since the Booker-
Fanfan Supreme Court decisions. The title of this hearing is 
``United States v. Booker: One Year Later--Chaos or Status 
Quo?'' When we are looking at the question posed by the title, 
it is clear from the recent Sentencing Commission Report on 
sentencing during this period, that the answer is clearly 
status quo. There is nothing to suggest chaos.
    Given the fact that the Booker decision eliminated 
mandatory application of guidelines and required the courts to 
consider a broader array of factors, including the guidelines, 
it's amazing that there is not a more pronounced difference in 
sentencing when compared to pre-Booker sentencing. Indeed, 
expecting sentencing to be the same, despite the changes, would 
be--just doesn't make sense.
    Yet, with over 69,000 cases in 94 districts during a time 
implementing the new sentencing regimen, judges sentenced 
within the guidelines 85 percent of the time that did not 
involve a governmental motion. With any database this large, 
you can find whatever you're looking for. So those looking for 
an anecdotal evidence that there are more unjustified downward 
departures can point to the fact that the percentage of 
prosecutor- and judge-initiated downward departures were 
slightly up during this post-Booker period. They can look until 
they find a category that happens to show a greater rate of 
downward departures, and they, in fact, found one, where in one 
small category the downward departures were, percentage-wise, 
somewhat large.
    Whether it is post-Booker or pre-Booker, you can't look at 
sentences based on the name of a crime and expect to come up 
with an intelligent analysis of the sentences. A sentence 
usually involves, or at least should involve, input and impact 
of the Federal prosecutor, the probation officer, defense 
attorney, possibly a victim, and a judge, looking at all of the 
facts and circumstances in that individual case. The impact is 
marginalized and nullified when the data is analyzed simply on 
the name of the crime or the code section they're prosecuted 
under, and not the details of the crime itself.
    While it's good that we have given ourselves at least a 
year before we began to evaluate the impact of Booker and 
Fanfan on sentencing, given the continuing impact that 
practice, experience, feedback and appeals have had on focusing 
attention--focusing sentencing decisions, it would be 
premature, I believe, to take any action at this time until 
we've got more data that's clearly on the way.
    The impact of appeals that are pending should be awaited. 
There have been several circuit court appeals decided, but they 
have not had another Supreme Court decision since the post-
Booker context. There is at least one case that the Supreme 
Court has already taken, Cunningham v. United States., which is 
due to be decided during the next term, and that would address 
some of the post-Booker issues including constitutionality of 
certain approaches. So any legislative action taken prior to 
that decision would clearly be premature.
    Moreover, when we look at the data regarding the circuit 
appeals, what we see is that circuits are more prone to affirm 
within guidelines and above guideline sentences, than they are 
to affirm sentences that are below the guidelines. Of the 
appeal decisions issued since Booker, all but one sentence 
within the guidelines has been confirmed. Of the 21 appeals of 
departures, 15 have been reversed, only 6 have been affirmed. 
At the same time, 14 appeals above the guideline sentences have 
been affirmed, while only 2 have been reversed. The circuits 
all agree that even after Booker, they still lack jurisdiction 
to review the court's denial of a motion of downward departure.
    So, Mr. Chairman, I think I have spoken long enough for you 
to get your statement in before--but, Mr. Chairman, I believe 
the sentencing data clearly reflects that there is no chaos in 
Federal sentencing that we need to fix at this time. However, 
there are some things that existed before Booker that adversely 
affect sentencing, and in my view, need to be addressed. Among 
them are mandatory minimum sentencing in general, the 101 
sentencing disparity between crack and powder cocaines, and the 
astounding disparity in substantial assistance treatment given 
to offenders in different circuits. We will hear more about the 
details of these problems from our witnesses.
    So, Mr. Chairman, I look forward to the witnesses, and look 
forward to your statement.
    Mr. Coble [presiding]. Thank you, Mr. Scott, and to Mr. 
Scott, and to Mr. Flake and Mr. Delahunt, and to the panel and 
to those in the hearing room, I apologize for my belated 
arrival, but this is one of those days if it could go wrong, 
believe me, it has gone wrong. So I am hoping here in the calm 
of the hearing room, Mr. Scott, things will slow down.
    I am going to ask unanimous consent to have my written 
statement made a part of the record.
    [The prepared statement of Mr. Coble follows in the 
Appendix]
    Mr. Coble. I will only say this, and I think I maybe told 
Mr. Scott this earlier, shortly after Booker, I called the late 
Chief Justice Rehnquist, and asked him for counsel and advice. 
I said, ``Do you have any advice for me?'' He said, ``I think 
the best advice is just to be deliberate and thorough for 
several months,'' and that is what we have done. That brings us 
to this hearing today.
    And I am delighted to welcome you all here, and it's the 
practice of the Subcommittee to swear in all witnesses 
appearing before it, gentlemen, so if you all would, please, 
stand and raise your right hands.
    [Witnesses sworn.]
    Mr. Coble. Let the record show that each of the witnesses 
answered in the affirmative. Let me suspend just a moment.
    [Pause.]
    Mr. Coble. We have four distinguished witnesses with us 
today. Our first witness is the Hon. Judge Ricardo Hinojosa. 
Judge Hinojosa was nominated by Ronald Reagan and served as a 
United States District Judge for the Southern District of 
Texas. In addition, Judge Hinojosa is the Chairman of the 
United States Sentencing Commission. He joined the Commission 
in 2003 and has been chairman since January 31, 2004. 
Previously, the Judge served as a law clerk for the Texas 
Supreme Court, as well as working in private practice in 
McAllen, Texas. The Judge is a graduate of the University of 
Texas, and earned his J.D. at the Harvard University School of 
Law.
    Our second witness is the Hon. William Mercer, Associate 
Deputy Attorney General, and United States Attorney for the 
District of Montana. Mr. Mercer has served in this dual 
capacity since 2005. Previously he served as Assistant United 
States Attorney for Montana. He currently serves on the 
Advisory Committee on Appellate Rules for the United States 
Court of Appeals for the Ninth Circuit, and has previously 
chaired the Attorney General's Advisory Committee Subcommittee 
on Sentencing Guidelines. Mr. Mercer was awarded his 
undergraduate degree from the University of Montana, his 
master's degree from Harvard, and a J.D. from the George Mason 
University School of Law.
    Our third witness is the Hon. Judge Paul Cassell. Judge 
Cassell was nominated by President Bush and currently serves as 
a Federal District Court Judge for the District of Utah. He is 
also a professor of law at the University of Utah. Previously 
he served as an Associate Deputy Attorney General, and as an 
Assistant U.S. Attorney in the Eastern District of Virginia. 
Judge Cassell clerked for the then-Judge Antonin Scalia of the 
United States Court of Appeals for the District of Columbia. He 
received an undergraduate and law degree from the Stanford 
University.
    Our fourth witness is Mr. James Felman, Partner at Kynes, 
Markman & Felman. Mr. Felman currently co-chairs the 
Practitioners Advisory Group to the United States Sentencing 
Commission, and served as President of the Tampa Bay Chapter of 
the Federal Bar Association. He is also a member of the 
Sentencing Initiative of the Constitution Project. Mr. Felman 
is also the author of numerous publications on the issue of 
sentencing, including ``How Should the Congress Respond if the 
Supreme Court Strikes Down the Sentencing Guidelines?'' He 
received his undergraduate degree from Wake Forest University, 
and I regret to advise you, Mr. Felman, I think they lost their 
initial game last night. I regret that as well. [Laughter.]
    And a master's degree of law from Duke University.
    Gentleman, we are delighted to have you all with us. We 
will, as we have previously reminded you, we would like to 
comply with the 5-minute rule. You will not be keel hauled if 
you violate it, but when you see the amber light appear on your 
panel, that is your warning that you will have a minute 
remaining before the 5-minute deadline. When the red light 
appears, that is your cue to wrap up. We are on a short leash 
today, all of us are. We will have votes on the floor, but I 
think we'll have enough time here to resolve the matters before 
us.
    Judge, let me start with you, if I may.

 TESTIMONY OF THE HONORABLE RICARDO H. HINOJOSA, U.S. DISTRICT 
         JUDGE AND CHAIRMAN, U.S. SENTENCING COMMISSION

    Judge Hinojosa. Thank you, Chairman Coble, Ranking Member 
Scott and distinguished Members of the Subcommittee. Thank you 
for this invitation to testify today on behalf of the United 
States sentencing Commission regarding the impact of the 
Supreme Court's decision in United States v. Booker on Federal 
sentencing.
    The Commission has spent the year since Booker collecting 
data and monitoring appellate court decisions so that it could 
determine what national sentencing trends have emerged since 
Booker was decided. Those determinations can be found in our 
recently released Booker Report. Because I wish to keep my 
remarks brief, I will not discuss in great length during my 
opening remarks the over 200 pages of detailed analysis about 
sentencing practices over time that are contained in our Booker 
Report. Instead, I will give you a brief overview of the 
Commission's approach to the Booker Report and a brief 
description of our findings.
    The Commission looked at four topic areas as it prepared 
its Report. First: Has Booker affected the rates of imposition 
of sentence within and outside the applicable guideline range, 
if so, how has it affected sentence type and length, including 
the extent of departure or variance from the guideline range? 
Second: Has Booker affected Federal sentencing compared to 
sentencing practices occurring prior to the decision? Third: In 
what circumstances do judges find sentences outside the 
guideline system more appropriate than a guideline sentence? In 
other words, for what reasons do judges impose non-guideline 
sentences, and have those reasons changed after Booker? Fourth: 
The Commission also sought to examine the appellate courts' 
responses to Booker, particularly whether they were developing 
case law on what constitutes an unreasonable sentence?
    The Commission concludes that the Booker decision has had 
an impact on Federal sentencing. The magnitude of the impact 
depends on which historical period one compares post-Booker 
sentencing practices. The Commission data indicate that after 
Booker, conformance with the guidelines still occurs in the 
majority of cases. The rate of within-guideline range 
sentencing is 62.2 percent after Booker, compared with 64 
percent in fiscal year 2001, and 65 percent in fiscal year 
2002.
    For the 7 months between October 1, 2002 and April 30, 
2003, the date of enactment of the PROTECT Act, what we refer 
to in our report as the pre-PROTECT Act period, the within-
guideline range rate was 68.3 percent. From May 1, 2003 to June 
24, 2004, what we call the post-PROTECT Act period in our 
report, the within-guideline range rate was 71.7 percent. After 
Booker the Commission did detect an increase in below-range 
sentences. This increase was present both in the area of 
Government-sponsored below-range sentences, and non-Government-
sponsored below-range sentences. Government-sponsored below-
range sentences were imposed after Booker at a rate of 23.7 
percent, compared to 22.3 percent in the pre-PROTECT Act 
period, and 22.0 percent during the post-PROTECT Act period.
    The post-Booker Government-sponsored below-range rate is 
similar to rates from fiscal year 2001, which were 24.4 
percent, and fiscal year 2002, which were 23.9 percent. Non-
Government-sponsored below-range sentences were imposed after 
Booker at a rate of 12.5 percent compared to 8.6 percent in the 
pre-PROTECT Act period, and 5.5 percent during the post-PROTECT 
Act period. In fiscal year 2001, this rate was 11.1 percent, 
and in fiscal year 2002, it was 10.3 percent.
    The Commission concluded in its Booker Report, that 
although sentencing practices have changed since Booker, the 
severity of sentences has not changed. The average sentence 
length has slightly increased nationally after Booker to 58 
months, from 56 months in the pre-PROTECT Act period, and 57 
months in the post-PROTECT Act period. The Commission's Booker 
Report also identifies certain areas that may be of concern to 
some, including some regional disparities.
    After collecting data, monitoring appellate court decisions 
and issuing its Booker Report, the Commission believes that it 
is time for serious consideration of a legislative response to 
Booker. As anticipated by the decision itself, at 543 U.S. page 
265, quote, ``Ours, of course, is not the last word. The ball 
now lies in Congress's court. The National Legislature is 
equipped to devise and install, long-term, the sentencing 
system, compatible with the Constitution, that Congress judges 
for the Federal system of justice.'' End of quote. That is a 
quote from the Booker decision itself.
    The Commission strongly believes that any legislation 
considered should preserve the core principles of the 
bipartisan Sentencing Reform Act of 1984 in a constitutionally 
sound fashion. The Commission believes that at the very least, 
the legislative response to Booker should include the following 
four adjustments, all of which can be made within the 
Sentencing Reform Act. First, the legislative response should 
include codification of the three-step process for imposing a 
sentence as outlined in my written testimony. Second, the 
Commission believes that any legislative response to Booker 
should address the appellate review process and standard. 
Third, as the Commission has noted throughout this testimony, 
timely and uniform use of sentencing documentation is 
imperative to the Commission's ability to accurately ascertain 
and report about national sentencing practices. Any legislative 
response should include the continued importance of proper and 
uniform sentencing documentation being sent to the Commission. 
Fourth, the Commission believes that a legislative response 
should clarify that a sentence reduction for cooperation or 
substantial assistance is impermissible absent a motion from 
the Government.
    The Commission stands ready--and I'm just about done, 
Chairman Coble--the Commission stands ready to work with 
Congress, the judiciary, the executive branch, and all other 
interested parties in refining the Federal sentencing system so 
that it preserves the core principles of the bipartisan 
Sentencing Reform Act in a constitutionally sound manner that 
will lessen the possibility of further litigation of the system 
itself. Such an approach would be the best for the Federal 
criminal justice system.
    Thank you very much, and I would be glad to answer any 
questions, and thank you so much for not acting like a Federal 
Judge and making me stop at the end of the 5 minutes.
    [The prepared statement of Judge Hinojosa follows:]

        Prepared Statement of the Honorable Ricardo H. Hinojosa




    Mr. Coble. Well, Your Honor, thank you for at least 
acknowledging the illumination of the red light. [Laughter.]
    Judge Hinojosa. Thank you, sir.
    Mr. Coble. Mr. Mercer.

TESTIMONY OF THE HONORABLE WILLIAM MERCER, PRINCIPAL ASSOCIATE 
 DEPUTY ATTORNEY GENERAL AND U.S. ATTORNEY FOR THE DISTRICT OF 
              MONTANA, U.S. DEPARTMENT OF JUSTICE

    Mr. Mercer. Chairman Coble, Congressman Scott, Members of 
the Subcommittee, thank you for the opportunity to appear 
before you today and for inviting the Department of Justice to 
testify about this important issue.
    The Attorney General regards today's hearing as an 
important step, but certainly not the last step in the serious, 
frank, and ongoing dialogue of the Supreme Court's decision 
United States v. Booker has generated.
    Since the Booker decision, Department of Justice 
representatives have been in discussion with interested 
parties. We hope and expect that this fruitful exchange will 
continue after today's hearing.
    In the early 1980's, with crime rates at near record highs, 
Members of Congress from both political parties, working 
together, reformed Federal sentencing policy to replace a 
broken and weak system of indeterminate sentencing with a 
strong and honest determinate sentencing system that would more 
effectively fight crime and address inequities in sentences. 
The Sentencing Reform Act of 1984 brought about comprehensive 
reform. It created the United States Sentencing Commission, and 
in turn, the Federal Sentencing Guidelines. The fundamental 
principles underlying the act and the guidelines were: 
consistency, fairness and accountability in sentencing. 
Defendants who commit similar crimes and have similar criminal 
records are to receive similar sentences.
    Today, serious crime is the lowest it's been in more than a 
generation. We believe that increased sentencing levels and 
more consistent sentencing practices have been responsible for 
much of this achievement. Yet, beginning with the Supreme 
Court's decision in Blakely v. Washington, the principles and 
practice of determinate sentences have been in jeopardy, 
putting at risk the progress we have made.
    These developments culminated last year when the Supreme 
Court, in Booker, held that the Federal Sentencing Guidelines 
violated the sixth amendment right to a jury trial. As a 
remedy, the Court severed two provisions of the act, thereby 
rendering the guidelines advisory only, and weakening the 
standard review for Government appeals of sentences below the 
applicable guidelines range.
    Given the great complexity of this issue, the Attorney 
General wanted to make sure that the department did not act 
precipitously. In the 14 months since the Booker decision, we 
have viewed Federal sentencing decisions with measured concern. 
At the same time, we have been careful not to draw premature 
conclusions. However, it is becoming increasingly clear that 
both anecdotal and statistical evidence demonstrate very 
troubling trends, a marked decrease in within-guideline 
sentences, and increased inter- and intra-district disparity in 
sentences.
    Some have suggested that there has been little change in 
Federal sentencing practices because the average length of 
Federal sentences has remained nearly constant at 56 to 58 
months. While this is correct, we do not believe that this is 
the beginning and the end of the analysis. The department 
remains very concerned about the decline in compliance with the 
Federal Sentencing Guidelines because it is evidence of 
increasing disparity in Federal sentences. After passage of the 
PROTECT Act in 2003, there was an increase in the percentage of 
sentences imposed within the ranges set forth by the Federal 
Sentencing Guidelines from 65 percent in fiscal year 2002 to 
72.2 percent in fiscal year 2004. However, in the year since 
Booker was decided, we have seen a 10 percent decline in the 
number of sentences within the guideline range.
    This is a significant increase in downward departures. 
Indeed, nearly 8,200 defendants benefited from downward 
departures not endorsed by the Government in the period since 
Booker was decided. Moreover, we believe that the rise in 
sentences below the range is contrary to what Congress intended 
when it passed the PROTECT Act in 2003. The size in the 
individual departures is also troubling. The Sentencing 
Commission's report on post-Booker sentences indicates that a 
third of the defendants, approximately 2,700, who have received 
a downward departure not endorsed by the Government had their 
sentences reduced by 40 percent or more below the low end of 
the applicable guideline range.
    Statistics also point to significant disparities between 
the circuits and within the circuits as the courts exercise 
their new authority. In the Fifth Circuit only 8.6 percent of 
defendants received departures not endorsed by the Government, 
whereas, in the Second Circuit, 23.1 percent of the defendants 
received departures not endorsed by the Government. The risks 
to fair and consistent treatment are not simply geographic. The 
Sentencing Commission's data just released similarly shows that 
Black defendants are now receiving longer sentences than their 
White counterparts, a result not observed after passage of the 
PROTECT Act. That same data also shows that despite Congress's 
repeatedly expressed concerns about sexually related offenses, 
Booker has resulted in judges increasingly sentencing 
defendants to below guideline sentences for these crimes.
    While the data in the aggregate can be very instructive, it 
is also useful to look at particular outcomes and particular 
cases. My written statement identifies a number of cases, and 
there are many others worthy of analysis. The cases demonstrate 
two things. First, the new discretion given to district judges 
under Booker is undermining our ability to achieve the firmness 
and consistency necessary to accomplish Congress's purpose in 
establishing sentencing policies. Second, allowing appellate 
courts to review below guideline sentences under a reasonable 
standard cannot ensure achievement of the statutory purposes of 
punishment.
    There are hundreds and hundreds of examples of sentences 
below the guidelines. As noted in our case examples, these 
decisions not only undermine the goal of minimizing unwarranted 
disparities in sentencing, but also impair key goals of the 
Sentencing Reform Act: deterrence, promoting respect for the 
law, and incapacitation.
    We know how hard Federal judges work to faithfully execute 
their duties every day. It is inevitable, however, that given 
broad discretion, well-intentioned judges will come to 
inconsistent and competing conclusions about what factors 
matter most heavily in sentencing. Ultimately, a system that 
produces such results is neither desirable, nor capable of 
sustaining long-term public confidence.
    We believe there is a clear danger to the gains we have 
made in reducing crime, and achieving fair and consistent 
sentencing will be significantly compromised if mandatory 
sentencing laws are not reinstituted in the Federal criminal 
justice system. We believe reinstituting mandatory sentencing 
guidelines can be done best by creating a minimum guidelines 
sentencing system. Under such a system, the Sentencing 
Guidelines minimum would have the force of law, while the 
guidelines' maximum sentence would remain advisory. This would 
comport with the constitutional requirements of Booker because 
defendants, upon conviction, would always be subject to the 
maximum statutory penalty set by Congress, rather than being 
subject only to the maximum set in the guidelines. The 
Sentencing Guidelines would work in the same manner they have 
since their inception, with judges identifying aggravating and 
mitigating factors in individual cases with carefully measured 
judicial discretion, and with results that are certain, 
consistent and just.
    Interestingly, experts of all political and ideological 
stripes predicted before Booker was decided that a purely 
advisory system would undoubtedly lead to greater disparity, 
and further, that over time this disparity is likely to 
increase. We believe that we are beginning to see the results 
of that problem.
    Thank you again for the opportunity to testify. I look 
forward to your questions.
    [The prepared statement of Mr. Mercer follows:]

         Prepared Statement of the Honorable William W. Mercer




    Mr. Coble. Thank you, Mr. Mercer.
    Your Honor, Judge Cassell.

    TESTIMONY OF THE HONORABLE PAUL G. CASSELL, JUDGE, U.S. 
            DISTRICT COURT FOR THE DISTRICT OF UTAH

    Judge Cassell. Thank you, Mr. Chairman. I am pleased to be 
here on behalf----
    Mr. Coble. Judge, your mike's not hot.
    Judge Cassell. All right. Hopefully, it will be hot.
    Mr. Chairman, I am pleased to be here on behalf of the 
Judicial Conference, and on behalf of hundreds of men and women 
around the country who serve on the Federal Bench and struggle 
every day to make the tough calls that are involved in 
sentencing decisions. We also appreciate the fact that Congress 
has waited before diving into the Booker issue, and by waiting, 
you now have the data, as Judge Hinojosa has mentioned, and the 
data shows quite clearly that what has happened in the last 
year is judges have imposed tough sentences that protect 
society, while tailoring some sentences to the unique 
individual circumstances of particular cases.
    The most salient fact about Booker is shown on the chart 
here to the side. This is the bottom line average total of 
sentences that have been imposed over the last several years, 
and the bottom line is that last year judges imposed average 
sentences of 58 months as compared to 57 months in the year 
before Booker. This same pattern occurs across the most 
significant categories of Federal offense, drug trafficking, 
firearms, theft and fraud, all saw increases in average 
sentence length last year.
    Rather than focusing on the overarching fact that judges 
have, in general, been tougher after Booker, what the Justice 
Department has done is cherry-pick a few individual statistic 
on variances from the guidelines. But the bottom line here is, 
again, as Judge Hinojosa mentioned, 93 percent of all the cases 
today are being resolved exactly the way they would have come 
out before Booker. And what of the roughly 7 percent of the 
cases that are coming out a bit different? On average, judges 
are going down about 12 months, hardly a significant change in 
the grand sweep of things.
    Now, judges have exercised their newfound discretion 
responsibly in all categories of offenses, including that tiny 
sliver of the Federal docket that I know is of interest to 
Congressman Feeney and some others, the sex offense area. It 
has been said that there has been a fivefold increase in the 
cases in which judges have gone down for sexual exploitation of 
a minor. What that means in the Nation's Federal courtrooms is 
that in 2004, there were 2 such cases, in 2005, there were 11 
such cases, hardly a dramatic increase given that the system 
prosecutes 65,000 offenders every year.
    The reason for these adjustments is not, as some have tried 
to suggest, that we have some sort of soft spot in our heart 
for sex offenders. The reason is that Federal sex offense cases 
are not reflective of the Nation's criminal justice docket. 
About a half to two-thirds of these cases involve Native 
American defendants, who have committed State law crimes that 
end up being prosecuted in the Federal system solely because 
the defendants live within Federal jurisdiction. And indeed, if 
one looks at the big picture of all sex offenses, one finds 
that the overall situation has not changed much since Booker 
for criminal sexual abuse, sexual abuse of a minor, 
exploitation of a minor, trafficking in child pornography and 
possession of child pornography, sentences all went up after 
Booker.
    Turning to the subject of geographic disparities mentioned 
by Mr. Mercer, we believe that the most pernicious contributor 
to geographic disparity in Federal sentences today is the 
Justice Department's inconsistent approach to filing motions 
for substantial assistance reductions for defendants who 
cooperate with the Government. We pulled together some data 
that has been provided to us by the Sentencing Commission. You 
can see, we have adjacent jurisdictions in Pennsylvania, North 
Carolina--I will focus on the last two from my neck of the 
woods. Idaho, 30 percent of all of their criminal cases are 
resolved by a substantial assistance motion. In my State, next 
door, Utah, it is only 8 percent. There is no rational 
explanation for these kinds of disparities, as the Sentencing 
Commission has explained in a comprehensive report on the 
subject. Even more troubling is that the Sentencing Commission 
found that there were racial disparities in the way that the 
Government handles these motions.
    While the department has not been able to put its own house 
in order, it has been quick to cast stones at particular judges 
who had to make some tough calls in post-Booker sentencing. In 
its prepared testimony, the department recites six individual 
cases that it believes demonstrate the need for reform. Four of 
those cases were decided before Booker. One of those cases is 
on appeal by the Government, and we don't know whether it's 
final. The sixth case, United States v. Montgomery, involved--
although this isn't mentioned in the Government's testimony--a 
mentally ill defendant who was given a shorter prison term in a 
fraud case so that she could make greater restitution payments 
to her crime victim.
    I would request the opportunity to provide more details 
about these particular cases, but the bottom line is that these 
six horror stories hardly are compelling examples of judges 
running amuck.
    In conclusion, while there is no need for dramatic 
legislation in this area, I should mention several specific 
areas that would be appropriate for reform, such as restoring 
the Sentencing Commission to its traditional membership of at 
least three judges, creating standardized procedures for 
determining sentences, giving judges greater power to award 
appropriate restitution to crime victims, and to prevent 
profiteering by notorious criminals. In addition, we should 
eliminate inappropriate crack/power sentencing disparities. We 
should repeal unjustified mandatory minimums, and that the 
Congress should commission a report from the Sentencing 
Commission that would take a broad and global look at 
sentencing issues.
    The Judicial Conference would be happy to work with the 
Department of Justice, this Subcommittee, and Members of 
Congress, to make sure that Federal judges continue to impose 
sentences that are fair and just to all concerned, just as 
Federal judges have been doing for the last year under Booker.
    Thank you.
    [The prepared statement of Judge Cassell follows:]

          Prepared Statement of the Honorable Paul G. Cassell




    Mr. Coble. Thank you, Your Honor.
    Mr. Felman, you are recognized.

TESTIMONY OF JAMES E. FELMAN, PARTNER, KYNES, MARKMAN & FELMAN, 
                              P.A.

    Mr. Felman. Mr. Chairman, Ranking Member Scott and other 
distinguished Members of this Subcommittee, I am truly honored 
to have the opportunity to address you today on the important 
question of whether or not there is a need for immediate 
legislation to address the Booker decision. I believe there is 
not. I believe the data makes a compelling demonstration that 
status quo is an overwhelmingly more reasonable explanation 
than chaos. The bottom line statistic in sentencing is what is 
the average sentence length? Before Booker it was 56 months. 
After Booker it is 58 months. This is not about district judges 
going wild and giving everybody breaks. The average sentence 
went up.
    While there are a modest number of additional downward 
variances, we could expect that. This is not the same system we 
had before. I am surprised by how modest the change is. And to 
talk only about what is the difference in the percentage of 
variances before and after Booker can be very misleading, 
because a 2-month variance looks the same as a 20-month 
variance under that statistic. It is very important to focus on 
what is the average extent of a departure. The average extent 
of departures relying on Booker authority is identical to the 
average extent of departures pre-Booker, and it is only 12 
months. It is a rather modest amount, particularly in 
comparison to the average substantial assistance departure 
which is nearly 2\1/2\ times that, at 28 months. The reason 
sentences are outside the range more often is a Government 
motion, and the extent of the variance, which is such a 
critical factor, is much greater in a Government motion.
    While the data does not show a need for legislation, there 
is a compelling reason not to make legislation right now, and 
that is that we are in a period of considerable constitutional 
uncertainty that will impact whatever legislation options you 
may wish to consider. The United States Supreme Court, just a 
few weeks ago, agreed to hear a case that will determine the 
constitutionality of California's presumptive sentencing laws. 
It is inevitable that the Court's opinion in that case will 
help clarify some of the critical uncertainty regarding the 
developing constitutional doctrines under Blakely and Booker.
    There are two, as I understand it, legislative options that 
have been discussed. Both of them are quite potentially 
unconstitutional, and we will know much more about that if we 
wait and see what the Court says in the Cunningham v. 
California case.
    The first of those options that has been discussed by Mr. 
Mercer today, they describe that as a minimum guideline system. 
I think that would be a little hard. It is suggested there be a 
few guidelines or they would not mean much. I would describe it 
as a mandatory minimum guideline system. It especially turns--
and I believe the department has acknowledged in their 
testimony that the constitutionality of that proposal turns 
exclusively on the continuing viability of the Court's 
precedent in Harris v. United States. Harris is a 414 plurality 
opinion, and we have two new Justices. If both of the Justices 
that are being replaced, that have been replaced, voted to 
uphold Harris, or if either of the new Justices change the vote 
of the Justices they replaced, Harris would fall.
    But of particular interest is Justice Breyer's opinion in 
Harris. He issued the concurring opinion that resulted in--that 
caused that result. Justice Breyer said, ``I cannot agree that 
there is any logical difference between using judicial fact-
finding to raise a sentencing maximum,'' which is the rule of 
Apprendi, ``and using judicial fact-finding to raise a 
guidelines minimum,'' which is what the department proposal 
relies upon. For Justice Breyer, he thinks there is no logical 
basis for that distinction. However, in Harris he said, 
``Because I do not yet accept the rule of Apprendi,'' I am not 
prepared--``I am prepared to go along with those who would 
permit judicial fact-finding to raise the sentencing floor.''
    Since Justice Breyer lost the vote in Apprendi, he has lost 
that same vote in Ring v. Arizona. He has lost that vote in 
Blakely v. Washington. He has lost that vote in Booker v. 
United States. He may very well lose that vote in Cunningham. 
What are the odds now that Justice Breyer will still say he 
cannot yet accept that? If Justice Breyer decides he must now 
accept the rule of Apprendi, Harris falls. It is an incredible 
gamble to wager on that vote, because if Harris falls, it is 
not just your new mandatory minimum guideline system that 
falls, it is every single mandatory minimum sentence in the 
Federal Criminal Code. They would all be unconstitutional 
because they rely on Harris. It's a heck of a gamble to take.
    Before I think you could take a gamble like that, there 
would have to be a compelling demonstration of chaos, a 
compelling demonstration that we need to act. What is the 
reason we should not wait a year and find out whether that is a 
gamble worth taking? I think that the only word I can use to 
describe the suggestion that we should legislate now on that is 
``irresponsible.''
    The second proposal that has been suggested is so-called 
presumptive guidelines, that is, we could pass a law that would 
add additional weight to the guidelines. That pushes the 
constitutional envelope. We know that binding guidelines are 
unconstitutional. We know that advisory guidelines are not. We 
do not know whether presumptive guidelines are constitutional. 
I do not think that that approach can be supported by a cost 
benefit analysis.
    And I see that my time has expired, and so I will stop, but 
I will be happy to answer any questions that you have. Thank 
you.
    [The prepared statement of Mr. Felman follows:]

                 Prepared Statement of James E. Felman




    Mr. Coble. Thank you, Mr. Felman, and thank each of you for 
complying with the time limit. We also impose the 5-minute time 
limit against ourselves, so if you all could keep your answers 
as tersely as possible.
    Mr. Mercer, having reviewed the Sentencing Commission's 
statistics, and having discussed or listened to prosecutors in 
the field, walk us through very briefly what happened post--
Booker.
    Mr. Mercer. As I indicated in my opening statement, we're 
seeing significant increases in disparity within judicial 
districts, and also on an inter-circuit and intra-circuit 
basis. I think numbers here are somewhat helpful. Let me talk 
for a minute about the Southern District of New York. In 2003, 
the non-substantial assistance downward departure rate was 8.3, 
and that was fairly constant after Blakely and pre-Booker in 
2004, 8.1 and 8.9 percent. It is now up to 23.6 percent.
    In the Western District of Louisiana, pre, in 2003, the 
rate was 2.3 percent for non-substantial assistance downward 
departures. It was 1.8 and 1.0 percent in 2004, pre-and post-
Blakely. And then it's up to 14.2 percent now. So we have seen 
a very significant increase in the number of cases in which 
courts are imposing below guideline range sentences.
    We also know from the Sentencing Commission data set--and 
this comports with what we've seen in the field--that of those 
defendants who are getting non-substantial downward departures 
and non-governmental-sponsored departures, 40 percent of those, 
one-third of that cohort of cases, about 2,700 of them, involve 
departures of 40 percent or more. So you've heard a couple 
witnesses talk about how that only means 12 months, but if we 
play that out in a real case, maybe a fraud case with a loss 
of, say, $250,000, where the guideline range is 12 to 18 
months. In a case where you've got a downward departure, 
typically on a factor that was disfavored or unmentioned in the 
guidelines manual, and something that we would not have seen 
after the PROTECT Act, relied upon to lower a sentence, so now 
we may see a sentence down to zero months with one of those 
defendants, the other one getting 18, and a significant 
disparity if you've got the same fraud and the same criminal 
history for this defendant, and a sentence of zero months for 
this defendant. That is the sort of unwanted disparity that the 
Sentencing Reform Act was designed to get rid of.
    Mr. Coble. Thank you, Mr. Mercer.
    Judge Hinojosa, why, if you know, why are judges handing 
down more below-range sentences for the crimes of sexual abuse 
of a minor, sexual contact of a minor, or trafficking in child 
pornography, sexual exploitation of a minor, and furthermore, 
the below-range sentences increased for all major drugs, meth, 
heroin, marijuana, powder cocaine? Can you explain why?
    Judge Hinojosa. Well, it's difficult to explain, Chairman 
Coble, but I will say that one thing we have found in the sex 
offenses is that it appears to be at the level where there is 
no prior criminal history, and that is where you see the 
highest percent of post-Booker below-range sentences, and that 
seems to be a common factor with regards to those.
    Mr. Coble. Your Honor, that probably, and cooperating with 
the State or Federal Government in developing a case?
    Judge Hinojosa. No. When we say the below-range, that 
includes basically judicially-initiated below-range sentences. 
The Government-sponsored ranges are kept separate.
    Mr. Coble. I got you.
    Judge Hinojosa. And so it would not include that. We do not 
see that with regards to rape cases. Those have actually, as 
far as the below-range sentences, gone down from the post-
PROTECT Act. That is the one area where they have gone down. 
That is one of the explanations. Judge Cassell mentioned 
others.
    With regards to the drug cases, again, basically the same 
thing, first-time offenders.
    Mr. Coble. Thank you, Your Honor.
    Judge Hinojosa. And/or low criminal history categories. 
There are some of these drugs that are higher than others with 
regard to the below-range sentences.
    Mr. Coble. Let me go--thank you, Judge.
    Let me to Judge Cassell before my red light illuminates. 
Judge, do you expect the rate of below-range sentences to 
continue to increase over time?
    Judge Cassell. No----
    Mr. Coble. Your mike's not hot, Judge.
    Judge Cassell. All right. I expect--in my testimony, I've 
actually got data on that, and if you look at what's happened 
January, February, March of this year, each month there has 
been an increase in the number of sentences within the 
guideline range, and so I would expect that to increase over 
time. We need to remember, Booker came down about a year ago, 
and the Courts of Appeals hadn't told us in the District Courts 
exactly what to do. They've now told us in a number of circuits 
that we should be giving very serious attention to the 
Sentencing Guidelines, and so over time, we're seeing that 
trend with more and more guideline compliance.
    Mr. Coble. Thank you, Your Honor.
    The distinguished gentleman from Virginia, Mr. Scott.
    Mr. Scott. Thank you, Mr. Chairman.
    Mr. Mercer, if you had two people in court pleading guilty 
the same day, one's a 19-year-old high school senior having 
consensual sex with a 15-year-old, more than 4 years difference 
in age, consensual sex, pleads guilty to it. At the same a 50-
year-old pleads guilty to having sex with a 12-year old. 
They're prosecuted under the same code section. Should they get 
the same sentence?
    Mr. Mercer. Well, of course, we'd look at the criminal 
history in that case, Your Honor--excuse me--Congressman, but 
we--I think you're right in saying that the guideline 
calculation would be different in all likelihood, probably be a 
coercion enticement case for the 50-year-old. It depends on the 
facts. But I think you're right, the sentence would probably be 
different in that case, and that would be reflected----
    Mr. Scott. If there were a downward departure for the 19-
year-old compared to the 50-year-old, would that be bad?
    Mr. Mercer. Well, typically, we would look for that 
variance to be within the guideline range.
    Mr. Scott. So you would expect both of them to be sentenced 
within the guideline?
    Mr. Mercer. Absolutely. In fact, the example----
    Mr. Scott. The 19-year-old high school student having 
consensual sex with a 15-year-old high school student within 
the same guideline as a 50-year-old having sex with a 12-year-
old, ought to be sentenced within the same guideline?
    Mr. Mercer. Let me--if I may back up just to talk about--we 
do a fair number of those cases in my district because of our 
jurisdiction in Indian country offenses. And we would look to 
whether the State law would even allow us to bring that case, 
depending upon the age of the victim and the age of the 
offender, but we've got a real----
    Mr. Scott. This is Federal law. We passed it. It's illegal 
for a 19-year-old to have consensual sex with a 15-year-old. 
Should they get the same sentence as the--do you see much 
difference? I mean, maybe you don't see a difference. I see a 
difference.
    Mr. Mercer. I think the thing that we see in the 
legislative history is that the Congress is concerned about 
protecting the 15 and 14-year-old girl, and so we would expect 
that sentence to be within the range, and that's typically what 
we see victims wanting.
    Mr. Scott. Thank you. You would expect the same guideline 
sentences for the two?
    Mr. Mercer. Well, there might be an upward departure, Your 
Honor, if the court didn't find the range to be adequate for 
the older defendant.
    Mr. Scott. And if the range is right for the 50-year-old 
having sex with the 12-year-old, that it's appropriate for the 
19 and 15-year-old to be in the same range?
    Mr. Mercer. Well, I think there would be specific offense 
characteristics that would change the sentencing calculation.
    Mr. Scott. If you have four people in court, one with 490 
grams of powder, one with 4.8 grams of crack, one with 5.01 
grams of crack, and one sharing one gram of crack with a 
friend, but the guy he got it from was dealing 10 pounds, so 
he's part of a 10-pound conspiracy, who ought to get the most 
time?
    Mr. Mercer. I have to admit you lost me in the 
hypothetical. What are the----
    Mr. Scott. You get 490 grams of powder; he can get 
probation. 4.8 grams of crack; he can get probation. 5.01 grams 
of crack; he's stuck with a 5-year mandatory minimum. And a 
friend sharing a gram of crack with his buddy, but it's part of 
a 10-pound conspiracy, is probably locked up for life. Does any 
of that make sense?
    Mr. Mercer. Well, I think what the Congress has tried to do 
in this area is make sure that the punishment reflects the fact 
that we're really concerned about what's happening in the 
community, and we think that the mandatory minimums in this 
area have really helped establish and protect the public, so--
--
    Mr. Scott. That would make sense to you?
    Mr. Mercer. Well, I think the----
    Mr. Scott. If the 4.8 grams of crack walks out on 
probation, and the 5.01 grams of crack gets stuck with a 5-year 
mandatory minimum, makes sense to you?
    Mr. Mercer. We think the system will allow enough--with 
those sort of sentencing ranges, we think that we've been able 
to induce cooperation in many cases, and by doing so, work up 
the chain and make cases that help protect the public, and so 
we believe that those sentencing ranges have helped advance the 
purposes of punishment.
    Mr. Scott. All this disparity that you've been complaining 
about, how much of it is due to the prosecutor having the 
discretion, as opposed to the judge exercising common sense?
    Mr. Mercer. The Government really does take issue with what 
Judge Cassell has set forth in terms of substantial assistance. 
Let's talk about that for a minute. The Commission, and I think 
the Congress, has recognized that the Government needs to be 
able to find cooperators, and typically, those are people who 
were engaged in criminal activity. And by finding cooperators 
that can help us make cases, we're able to better protect the 
public and bring people to justice.
    So unlike many of the factors that we talk about in our 
testimony, substantial assistance is a favored practice. It's 
something where we're trying to induce cooperation and make 
cases. Things in 5(h) and 5(k) are typically--those departure 
factors are typically disfavored or prohibited factors. So 
substantial assistance is designed to serve a larger goal, and 
therefore, any disparity that's created there is designed to 
help protect the public, and we believe that that, in large 
part, explains why the Commission allows us to make those 
motions to reduce----
    Mr. Scott. And you haven't asked us for these draconian 
sentences for white-collar crimes, where you can really go in 
and get some cooperation. You just say, you know, a little bit 
of lightweight fraud, you can get 30 years to serve unless you 
cooperate. You haven't----
    Mr. Mercer. I think, Congressman Scott, that Mr. Felman 
would say that he thinks that the Economic Crime Package in 
2001 has created very substantial sentences in the economic 
crime area, and that, in fact, we depend very much on the 
cooperation in corporate fraud cases in order to identify those 
who were able to put those cases together for us----
    Mr. Scott. If I could ask one question, kind of follow in 
on the same area? On this cooperation, this is based on a 
Government motion. Apparently some judges have noticed 
cooperation that the prosecutor hasn't made a motion for. 
What's wrong with the judge noticing two people equally 
cooperation, one got a motion and the other one didn't, being 
sentenced the same, if you had the same amount of cooperation?
    Mr. Mercer. Well, I think both the historical notes in the 
Commission's work in the guidelines, and the--I don't know 
about the legislative history, but certainly, the whole concept 
here was to say the Government's in the best position to note 
who was cooperating. And to the extent that courts are then 
making determinations to reduce sentences, even though the 
Government says that cooperation either didn't exist or didn't 
constitute substantial assistance to what we were doing in that 
case or another case, it's going to undercut the Government's 
ability to get substantial assistance if defendants think the 
court's likely to cut our sentence even in the event the 
Government doesn't believe we've rendered cooperative--valuable 
cooperation.
    Mr. Scott. So it's okay if the judge notices, as a finding 
of fact, that the cooperation of two individuals was identical, 
but the Government only made a motion in one of them, that they 
should get vastly different sentences because in one case you 
had a motion, the other case you didn't, although as a finding 
of fact, the judge found that they had cooperated equally, they 
should get vastly, wildly divergent sentences?
    Mr. Mercer. It might have an effect on the within-range 
calculation, but the whole point, I think, of the Commission 
saying in 5(k)1.1 that the determination of the Government was 
central to the motion is because the Government's in the best 
position to determine whether its case or another case was 
advanced through that cooperation. So, yes, we believe it would 
be very problematic if that were to change. I think the 
Commission's already addressed that in its proposal.
    And, frankly, the fact that we have somewhere between 280 
or 290 instances where sentences were reduced below the lower 
end of the guideline range when the Government didn't believe 
cooperation was rendered, is a real serious issue for us, and 
one we've been worried about from the time that the Booker 
decision came down. So we're very concerned about that.
    Mr. Feeney [presiding]. Thank you, and, Congressman Scott, 
unless there's a mad rush by our colleagues to get here and 
participate, I think you'll have time for another round. So I 
want to thank all the witnesses for being here.
    Judge Hinojosa, I wanted to, you know, use--Congressman 
Scott's entitled to create his own hypothesis, and I won't 
change it for him. I'll leave it to him. But, number one, 
isn't--aren't there separate offenses for coercive and--
coercive sex versus consensual sex? Aren't they separate 
offenses under the Federal code?
    Judge Hinojosa. I know that we break them by guidelines, 
and I'm sure they are connected to the Federal code, and we 
call them criminal sexual abuse, and under 2(a)3.1 that would 
be rape, and we have criminal sexual abuse of a minor, which is 
statutory rape, which would be 2(a)3.2. And then we have 
abusive sexual conduct, which is inappropriate sexual contact, 
which is 2(a)3.4. And then we go to the sexual exploitation.
    But I believe because of the age, although I am not totally 
sure, that he has used of 19 and 50, I don't think that there 
is a separate criminal code section for those because----
    Mr. Feeney. Well, the----
    Judge Hinojosa [continuing]. This is somebody who is of 
majority age with someone who is a minor. Some of the State 
statutes--and I'm not--will make a variance based on the 
difference in the age as to how they classify it. I'm not sure 
that the criminal code----
    Mr. Feeney. But within the guidelines----
    Judge Hinojosa. I'd be guessing if I said that.
    Mr. Feeney. Within the guidelines that the Commission has 
established, though, there is a great deal of discretion that 
judges have within the guidelines themselves for most offenses. 
Is that right?
    Judge Hinojosa. Well, that's true. It is also true, 
Congressman Feeney, that 60 percent of the cases are sentenced 
within the minimum range.
    Mr. Feeney. Right.
    Judge Hinojosa. Within the minimum----
    Mr. Feeney. One of the red herrings in this argument is it 
would take----
    Judge Hinojosa. Within the minimum amount of the 
guidelines.
    Mr. Feeney. One of the red----
    Judge Hinojosa. There is a wide range within the guideline 
that----
    Mr. Feeney. Yeah, one of the red herrings in the argument 
is that we're taking all discretion away from judges in 
sentencing, and, in fact, that's not what the guidelines do. 
They allow a great deal of discretion within the guidelines, 
and in exceptional circumstances, we allow departures. But they 
were designed to be explicitly in the '84 legislation 
exceptional circumstances.
    Judge Hinojosa. And I----
    Mr. Feeney. You know, if----
    Judge Hinojosa. This would be my suspicion as a judge. I 
think a judge would treat both of those cases differently, 
whether it's within the guideline range or through a departure 
upward or downward.
    Mr. Feeney. Mr. Mercer, one of the things that Mr. Felman 
said confused me a little bit. Maybe you could clarify. As I 
understood Mr. Felman's testimony, he said that the Supreme 
Court has ruled that advisory guidelines are constitutional, 
but that the guidelines on mandatory--binding guidelines are 
unconstitutional, I think was the language he used. In fact, 
seven of the nine Justices in Booker said that the guidelines, 
by and large, were very much constitutional, even if binding. 
Isn't that right? We had a bifurcated decision in Booker. We 
had a couple Justices that said when you add on--after the jury 
decision on guilt, when you add on time served with the jury 
participating, that denies right to a trial by jury. But the 
majority of the Court, a distinct majority, did not declare the 
binding guidelines unconstitutional. Is that right?
    Mr. Mercer. Well, in the remedial opinion that we are now 
working under every day, there are two very significant things 
that happened. One, the Court said that the guidelines as 
written could no longer function as a mandatory system, and 
that's Mr. Felman's point in terms of rendering it as an 
advisory system. The second thing that it did in order to 
achieve that remedy was to strike the de novo standard of 
review, which was, arguably, the most significant component of 
the PROTECT Act of 2003. And so----
    Mr. Feeney. But there's not a majority on the Court today 
that would rule the guidelines themselves unconstitutional.
    Mr. Mercer. Well, I think--in fact, I think the opinions--
and this goes back even to what the Court said about Blakely--
talked about the salutary effort and effect of having 
Sentencing Guidelines and the fact that they're a very positive 
thing in terms of trying to calibrate sentences and advance the 
purposes of punishment. But that remedial opinion made the 
system advisory as opposed to mandatory, which we view as a 
really significant problem and one that needs to be remedied by 
the Congress.
    Mr. Feeney. One of the points that Judge Cassell makes is 
that the average sentencing has gone up, but a couple points 
about that I'd like you to address. Number one, we have 
increased minimum mandatories in the past few years for a 
number of offenses, and that's reflected in the average 
statistics. Number two, the average doesn't tell us anything 
about uniformity. In trying to treat Black defendants the same 
as White defendants, this disparity has been greatly enhanced 
by Booker, the geographic disparity and some of the other 
differences, for example. So while the average may have gone 
up, the uniformity is the problem that Congress was, by and 
large, trying to get to.
    And then, finally, Judge Cassell says that we've got really 
too few cases, if you look at just the sexual offenses, to be 
worried about some mass pattern. But, in fact, it's not just 
the sexual offense cases, which I have a particular interest 
in, but the departure on theft and fraud has increased from 7.3 
percent to a post-PROTECT standard of 14.2 percent post-Booker. 
Drug trafficking has gone from departures of 6 percent to 
almost 13 percent, firearms from about 9 percent to over 15 
percent.
    So, in fact, almost every major set of Federal offenses has 
seen a significant increase in downward departures since the 
Booker decision. Do you want to comment on how the average 
statistic may be accurate but misleading in terms of what 
Congress was trying to accomplish with these guidelines?
    Mr. Mercer. Yes, I appreciate that, Congressman Feeney, 
because this is a crucial thing and something that the 
department's very interested in trying to work with the 
Committee on talking about case examples. Judge Cassell has 
taken issue with some of our cases. We're happy to show a 
number of others because we've taken appeals now in about 122 
cases where we think the departures are dramatic and there 
shouldn't be any way that they could be viewed as reasonable 
sentences.
    But I share your concern about the trends and the fact that 
there is very significant disparity, no matter how you measure 
it. Let's just work some of the numbers.
    The First Circuit, Massachusetts right now, their downward 
departure rate, non-governmental-sponsored, is 33.6 percent. So 
one in three cases, you're going to have a below-the-range 
guideline system, even though the Government has not made a 
motion. In Maine, it's 5.5 percent. So the chance that someone 
is going to get a below-the-guideline range sentence in Maine 
is dramatically lower than it is within that same circuit just 
up the road in Massachusetts. The same thing with Rhode Island, 
a State that before Blakely came down had been at 3.3 and 2.1 
percent, is now at 22.9 percent. And if we break that into 
categories--and I think Judge Cassell was trying to focus on a 
very narrow category. I can't remember if he was talking about 
the number of sentences in the sexual abuse of minor category, 
but certainly the child pornography category is a growing 
category. We had about a thousand convictions in that category 
in 2005. And if we look at those numbers, the numbers tell a 
very significant story. Before the PROTECT Act, 25 percent of 
the cases results in below-guideline-range sentences. After the 
PROTECT Act, that was down to 16.9. Now it's up to a number 
that exceeds where it was before the PROTECT Act was passed. 
It's at 26.3 percent. So more than one in four child 
pornography possession cases result in sentences that are below 
the guideline range. And, in fact, 6.6 percent of those 
defendants aren't going to prison at this point, which I think 
is very interesting given what the Congress did in 2003.
    Trafficking in child pornography, obviously a guideline 
that is much more significant in terms of those purposes of 
punishment, the rate is way up. It's up--was it 13.7 before the 
PROTECT Act? Now it's at 19.1 percent of the people are getting 
sentences below the guideline range based upon this new 
Commission data.
    So we can go through every category. We can talk about 
first offenders. We can talk about career offenders. We can 
talk about the economic crimes. Every trend line is in the 
wrong direction, and it's going to have a big effect, as I 
said, when you take a defendant in Maine and a defendant in 
Massachusetts convicted of the same crime, whether it's fraud 
or child pornography, the probabilities, given these 
statistics, would suggest that they're going to be treated 
differently in terms of whether the sentence is within the 
range or below the range.
    Mr. Feeney. Thank you. My time has expired.
    Mr. Delahunt, you are recognized.
    Mr. Delahunt. I thank the Chairman, and I happen to come 
from Massachusetts.
    Mr. Mercer. I know.
    Mr. Delahunt. So I have a particular interest in the 
statistics that you're using here, Mr. Mercer.
    First let me say that I'm very familiar with the 
Massachusetts Federal District Court, and I hold each and every 
one of those justices in high regard. I've had different 
experiences with each of them during 22 years as a prosecutor. 
Some of them were former prosecutors. In fact, one of them 
worked for me. And I guess let me just conclude by saying I 
really have the utmost confidence in their decisions.
    I've heard a lot of statistics here today, but I don't 
necessarily accept the fact that the statistics that you cite 
fairly represent the decisions of these individual justices. 
And I'd submit to the Chair that what we should do is have a 
judge or two and maybe the United States Attorney from the 
Massachusetts district come and let's have a good, hard look at 
the reality of what's happening in Massachusetts. I think it 
would be important, and I think it would be very revealing. I'm 
always proud to point out that Massachusetts is probably one of 
the safest States in the country in terms of incidence of 
violence, homicides, et cetera.
    The 25-percent figure that is utilized by Mr. Mercer I 
would suggest relies on a product of--a methodology that 
isn't--doesn't really reflect the reality, because when the 
district court judges reported their data to the Commission, 
the Commission reviewed the data and interpreted the entries. 
In most cases, I presume they were doing it without the benefit 
of sentencing transcripts or decisions, because those forms had 
not been, my understanding is, electronically attached.
    I thought what's particular interest to me was that the 
statistics from the Commonwealth of Massachusetts Probation 
Department are different from the Commission's statistics based 
on the exact same form, Judge Hinojosa. And, additionally, from 
a very cursory review of the data, I noted a number of 
sentences included in the category of judge-initiated that 
were, in fact, agreed to by the Government.
    So I have some serious concerns about the validity of the 
data as it applies to the District of Massachusetts, but I 
think this raises a very important question because we sit here 
and accept this data, and I'm sure that the data is not 
miscalculated intentionally, but I'd like to hear from those 
that supplied the data, and I'm going to request the Chair if 
you would consider having representatives of the Massachusetts 
Federal Court and possibly a representative of the U.S. 
Attorney's Office come down so that we can really interact 
together and see whether the data would lead to the same 
conclusions that Mr. Mercer has. I don't know whether they 
would come, but I think we should at least extend that 
invitation, because it could very well be, Mr. Chairman, that 
as we see in the Commission's number could be reflective of the 
U.S. Attorney's practices.
    Judge Hinojosa. Do you have a question of the Commission on 
that, Congressman?
    Mr. Delahunt. No, I don't. No. I'm just up here kind of 
letting the pain out there a little bit. But we have some time 
left, Judge Hinojosa. I'd be interested in your response.
    Judge Hinojosa. I would be glad to say something about it.
    Mr. Delahunt. Well, you know, maybe we can do--maybe we can 
have you back if the Chair honors my request about having--
let's make it a case study, because conclusions have been 
reached relative to Massachusetts that I believe are not valid 
in terms of the reality of what's going on on the ground. Now, 
we can have stats going up and down, and bars and graphs, and 
we can all do it. But I'd really like to hear from those that 
participate, you know, the judges that are--as Judge Cassell 
knows, I'm sure, the judges that are here and from the U.S. 
Attorney to see whether there is this great disparity. Let's 
get to what the reality is.
    You know, the Commission claims that the Government 
sponsors below-range departures nationally at a rate of 24 
percent. And yet in Massachusetts it's 12 percent. You know, 
are the courts, are the judges trying to, you know, make it up 
a little bit because of the practices of the U.S. Attorney? I 
don't know, but I'd like to hear before--as Mr. Felman 
indicated, before we leap off into the abyss, it's incumbent 
upon us to really take all of these stats, take a good look at 
them, rip them apart, open them up so that we can educate 
ourselves.
    And I note my time is out, so I will just turn off my mike, 
Mr. Chairman.
    Mr. Coble [presiding]. I thank you.
    Mr. Delahunt. But I would really genuinely hope that you 
would consider my request.
    Mr. Coble. We'll certainly discuss that, Mr. Delahunt.
    Mr. Delahunt. Thank you.
    Mr. Coble. And, gentlemen, I think this issue is 
significant enough to warrant a second panel or second line of 
questioning, and I believe time will permit that to occur.
    I thank the delegate from Massachusetts Mr. Delahunt. Many 
of my friends in the rural South believe that Massachusetts is 
a hotbed for danger, so I am going to pass it on to them that 
it is better than they think it is.
    Mr. Delahunt. Mr. Chairman, I will tell you, if we have a 
hearing, we ought to come to Boston.
    Mr. Coble. Let's go to Cape Cod.
    Mr. Delahunt. And we will go to Cape Cod, maybe even 
Nantucket. But I can assure you, I think that Massachusetts--I 
think Boston, in fact, has the lowest homicide rate of any 
major urban center in the country right now.
    Mr. Coble. Cape Cod and Nantucket are sounding increasingly 
appealing.
    Mr. Delahunt. In fact, we could schedule it sometime in 
June. You could bring your tennis racket.
    Mr. Coble. I am going to cut his mike off in a minute. 
[Laughter.]
    Only kidding, of course.
    Mr. Felman, I did not intend to ignore you last time. Let 
me ask you this: I believe you recommend leaving the 
reasonableness standard in place, do you not?
    Mr. Felman. I do.
    Mr. Coble. Are you concerned in any way--and maybe you're 
not--that the circuit courts have adopted varying definitions 
or standards for reasonableness?
    Mr. Felman. I think they're still working that out. There 
is not a wide disparity between them, but there is--I mean, 
this is a new standard of review for this type of review. There 
have always been reviews for reasonableness in terms of extent 
of departure, so it's not an unheard of standard of review. But 
in terms of reviewing sentences for overall reasonableness, 
they are still working that out. And that takes time.
    The part that bothered me the most about changing it is 
that what was suggested is that we ought to change it to a de 
novo standard of appellate review. I got to tell you, you know, 
that sends the signal to me that what that means is that in 
sentencing, as a matter of policy, the ability to actually see 
the human being who is going to be punished, the ability to 
actually observe that person is of absolutely no value to our 
system of justice. That is what a de novo standard of review 
says. It is worthless to be able to look the person in the eye 
who is going to be sentenced. I find that view abhorrent, and I 
would urge this Congress not to take that view.
    Mr. Coble. I thank you for that, sir.
    Judge Hinojosa, you appeared that you were anxious to 
insert your oars into Mr. Delahunt's waters, and I am going to 
give you a chance to do that if you wanted to add to what he--
--
    Judge Hinojosa. Well, I will start off by saying that 
Massachusetts is the only other State I have ever lived in 
besides the State of Texas, and that was when I was in law 
school. So I have great respect for the State, loved my time 
there, and would love to get back there. And I have great 
respect for the judges of the District Court of Massachusetts, 
some of whom are my very good friends.
    What I wanted to clarify is that the Booker Report itself 
indicates that we do caution the reading of some of these 
statistics because of the fact of the way the information is 
sent to the Commission. The Congress wisely decided in the 
Sentencing Reform Act of 1984 that there should be an 
independent agency that would collect this information in one 
place and put it together as opposed to have 94 district courts 
with quite a few divisions having this slotted individually and 
then there would be no control about this information.
    So our statistics are based on the information that we 
receive, and the PROTECT Act required that five documents be 
sent to us. There is a high compliance rate with regards to the 
sending of the documents. However, with regards to the 
statement of reasons, especially post-Booker, there was a 
period of time where different forms were being used and sent 
to the Commission, and we indicate that in the report. And we 
caution with regards to some of these statistics about that. We 
have said that in the report, and we say it publicly when we 
use these statistics.
    In fact, there have been times where we get more than five 
different statement of reasons forms, some of which in no way 
indicate whether the Government agreed to certain things or 
not. And so, therefore, we base this information on the way it 
is sent to us, and it is checked and looked at, and we put it 
out based on that, but we always indicate what the caveats are.
    We commend and thank the Congress for putting into the 
PATRIOT Act the requirement that all of the district courts in 
the United States use the same statement of reason form so that 
we have uniform reporting, a form that will be adopted and 
passed by the Judicial Conference and approved by the 
Commission. And so, therefore, it's important that we receive 
this information uniformly.
    Sometimes we do get contacted by courts, and they are 
sending information in different ways, which it's hard to 
capture. And so, therefore, if anything, what this particular 
situation points out is the importance of having these 
documents sent in the same fashion from all of the district 
courts that we can compare apples and apples and not apples and 
oranges, and that it is important to have it come to one 
independent agency within the judiciary that then puts out the 
information so there can be informed decisions made.
    Mr. Coble. Thank you, Your Honor. My time is about to 
expire.
    The Chair recognizes the distinguished gentleman from 
Virginia, Mr. Scott.
    Mr. Scott. Thank you, Mr. Chairman.
    Judge Hinojosa, did I understand your testimony to be that 
if you saw a 19-year-old having sex with a 15-year-old, that 
that would--and another case where a 50-year-old was having sex 
with a 12-year-old, that common sense would require you to 
treat them differently?
    Judge Hinojosa. Well, certainly within the guideline range, 
I would suspect that I would treat them differently. I've never 
had such a case. And you say if I saw it. I don't know that I 
would see it personally, but you mean in the courtroom, I am 
sure, Congressman Scott. But, yes, I----
    Mr. Scott. I mean, are those different--those essentially 
are different crimes?
    Judge Hinojosa. As we see in the commission of any type of 
crime, there are differences with regards to the way 
individuals--and I will say there is discretion within a 
guideline system, even the mandatory system, within the ranges 
and, therefore, also with departures.
    Mr. Scott. Judge Cassell, do you see an essential 
difference between two criminals, one a 19-year-old having 
consensual sex with a 15-year-old and a 50-year-old having sex 
with a 12-year-old? I mean, Mr. Mercer didn't notice much 
difference.
    Judge Cassell. It would seem, having sentenced sexual abuse 
cases, those two cases seem to me to be dramatically different.
    Mr. Scott. Thank you.
    If you were to notice, Judge Cassell, that an aggressive 
prosecutor were to overcharge consistently, would you expect 
downward departures more in that jurisdiction than in a case 
where a prosecutor did not aggressively overcharge?
    Judge Cassell. I would. The system tries to bring warranted 
uniformity. We've heard a lot about unwarranted disparity, but 
there are situations where judges need to make adjustments to 
what other actors are doing in the system. And we have heard 
from Mr. Mercer that my statistics are unfair. I'm still 
wondering why folks in Idaho are so much more willing to 
cooperate than folks are in Utah. I think that there are a lot 
of people in Utah that would be happy to cooperate with the 
Government. Maybe they should just bring down some of the 
prosecutors from Idaho, and we can get a little more uniformity 
between those two jurisdictions.
    Mr. Scott. Thank you.
    Mr. Mercer, of the 69,000 sentences issued last year, could 
you remind me how many you appealed?
    Mr. Mercer. In the post-Booker period, we have taken 
appeals in, I think, about 125 Booker----
    Mr. Scott. Out of 69,000.
    Mr. Mercer. Yes.
    Mr. Scott. And the standard is reasonableness?
    Mr. Mercer. It is.
    Mr. Scott. How many of those 122 out of 69,000 that you 
selected as unreasonable were found by the appellate court to, 
in fact, be unreasonable?
    Mr. Mercer. At this point we don't have a large body of 
case law from the circuits on the reasonableness question. I 
have not gone back to say--make a determination about how many 
of those cases have resulted in published opinions, but I guess 
I'd be surprised if it's more than 15 at this point. I talk 
about a couple in my full statement. I talk about the 
Menyweather case, which is a Ninth Circuit case. It involves a 
fraud of around $400,000 where the defendant only served 40 
days--the term of the judgment is 40 days on consecutive 
weekends in a jail like----
    Mr. Scott. Wait a minute. We're talking about trying to fix 
a system that some people believe in chaos. You looked at--your 
department looked at 69,000 cases, picked out the most 
egregious 122 as being unreasonable, and won some and you lost 
some on those 122. Is that right?
    Mr. Mercer. Well, the point I'm trying to make is we only 
have a very small percentage of----
    Mr. Scott. Well, how many have you won and how many have 
you lost so far?
    Mr. Mercer. I can't--I can certainly supply that as 
supplemental information to the Committee, but----
    Mr. Scott. But it's fair to say that you won some and lost 
some.
    Mr. Mercer. That's correct.
    Mr. Scott. And this is out of--122 out of the worst of the 
69,000. I would assume that your 122 would be the worst, 
egregious cases of judicial mistake.
    Mr. Mercer. Well, the cohort starts with the 8,200 cases in 
the post-Booker period where there were sentences below the 
guideline range. Obviously, we aren't going to contest 
sentences within the guideline range, and we don't have any 
basis to challenge those. We believe that a sentence within the 
guideline range is presumptively reasonable.
    Mr. Scott. Well but----
    Mr. Mercer. The problem here--may I just quickly? The 
problem here is 8,200 cases, although we certainly are going 
to, as we are contesting in the district court whether a 
sentence below the guideline range is reasonable, for us to 
appeal, say, a thousand of those cases would have a dramatic 
effect on our ability to process all the other criminal cases 
that we need to do. Unlike defendants who have a constitutional 
right to get a lawyer and, if they can't afford it, have the 
Government pay for that lawyer, the United States Attorney's 
Offices have to figure out a way to prosecute appeals at the 
same time as meeting its obligation to prosecute all the other 
defendants that need to be prosecuted for subsequent crimes. So 
we are trying, in working with the Solicitor General, to take 
appeals, but there isn't any way that we can take 8,200 
appeals.
    Mr. Scott. That's right, and you picked out the worst 122 
and couldn't even win a lot of those. The downward departures 
are, in fact, part of the process, and some downward departures 
are, in fact, looking at all the facts and circumstances 
reasonable. And when you get up with a--when you get on the 
appellate court with a downward departure and they say, well, 
that downward departure, taking everything into consideration, 
was reasonable. I mean, it's part of the process. So just 
because you have a downward departure does not mean it's 
unreasonable, and particularly when you look at a 50-year-old 
and a 12-year-old having sex, having a downward departure for 
the 19- and 15-year-old, the people on your left and right 
might think a difference was reasonable. And if you went up to 
the appellate court, I suspect that the court would find a 
difference in sentencing those two defendants reasonable.
    And so just because you have a downward departure doesn't 
mean it's unreasonable, and the fact that out of 69,000 cases, 
and you only picked out 122, and you couldn't even win those, 
suggests to me that the system is working pretty well.
    I yield back.
    Mr. Coble. I thank the gentleman.
    The Chair recognizes the distinguished gentleman from 
Florida, Mr. Feeney.
    Mr. Feeney. Well, Mr. Scott can be very persuasive unless 
you pick apart his major and minor premises.
    Mr. Mercer, one of the reasons that you've only appealed 
122 cases is the reasonableness standard is very deferential, 
is it not?
    Mr. Mercer. Yes. In fact, the Ninth Circuit has equated the 
reasonableness review to an abuse-of-discretion review, which 
is exactly what the Congress tried to eliminate through the 
PROTECT Act, because it's very difficult for the Government to 
challenge on an abuse-of-discretion standard departures that 
result in sentences that we don't believe advance the purposes 
of punishment. And if I may, I'll just quickly talk about----
    Mr. Feeney. Well, let me--I think you've made the point. 
One of the reasons you're not appealing is because appellate 
judges, when asked to review whether a lower-court judge was 
reasonable, give a lot of deference. And that's one of the 
reasons why a lot of appeals may not be fruitful; whereas, had 
the law Congress passed been followed, which is basically to 
say what we've all known since 1984, that departures are in 
some cases reasonable, as Mr. Scott pointed out, but that they 
should be granted only under, in quotes, ``rare 
circumstances,'' end of quotes. That's the law. Unfortunately, 
we've got some circuits that in some instances are giving 
downward departures 33 percent of the time. They look at 
Congress's law as a suggestion, and a judge may follow our 
suggestion or not as he or she pleases. And that's the problem 
we have with uniformity, which leads to disparities in 
geography, in--according to race, and according to a number of 
other--.
    Now, one of the things I was interested in is that Judge 
Cassell suggested one of the problems we have with lack of 
uniformity is on the prosecutorial end, and he implies or 
stated that it would be overcharging by the prosecutor that 
would account for a lot of the disparity.
    How does a prosecutor obtain a high conviction rate if he 
is overcharging for offenses? I mean, if you charge people for 
things they're not guilty of, I'd be interested in knowing how 
you get a conviction. It's a neat trick if you can do it, I 
guess.
    Mr. Mercer. I guess I want to talk about the department's 
charging policy because we believe we've made very important 
steps in this Administration in this area.
    Attorney General Ashcroft issued a memo in 2003, known as 
``the Ashcroft memo,'' that says, among other things, the 
Government must charge the most serious, readily provable 
offense. That's the standard.
    So if we've got a bank larceny charge that somehow would 
minimize the conduct--let me use an example where we could 
charge something as a misdemeanor and charge something as a 
felony. That policy requires that we charge the case that's 
most serious, readily provable, and if that's the felony 
charge, then that's the case that we charge. We don't 
overcharge. We charge the criminal conduct that we believe is 
most serious and readily provable.
    So that's the standard. We apply that standard across the 
country. When we're evaluated, we're measured on whether we're, 
in fact, meeting that standard. So that's been the policy since 
2003.
    Mr. Feeney. Mr. Felman, maybe I'll ask you, because I think 
we have perhaps some, you know, fundamental differences of 
philosophy. You know, as old as the rule of law--I mean, 
Cicero, when he wrote his great his law books, indicated when 
it came to criminal sentencing, he said, ``Let the punishment 
suit the offense.'' And I think the implication there is that 
similar defendants in similar positions ought to be treated 
similarly. And I think a lot of us believe that's part of what 
the rule of law means.
    I believe that article I establishes Congress's exclusive 
right to determine what a Federal crime is. We define what 
Federal offenses are. We can add them or subtract them from the 
law books. And I think inherent in Congress's sole and 
exclusive plenary power, is, if we want, to micromanage what 
the sentencing ought to be. If we wanted to establish a fine 
down to the penny or a prison sentence down to the last second, 
while it may not be wise--and Congress does a lot of unwise 
things--I think we've got that implied right under our article 
I power to define what a Federal offense is. Do you agree with 
that or not?
    Mr. Felman. I do, but I think that it's easy to get overly 
concerned with making sure that like offenses are treated in a 
similar manner. And I think that--I think everyone understands 
that it's also very important to make sure that unlike offenses 
are treated differently. And I think that's one of the real 
problems here.
    It's pretty easy to compare statutes and say anybody who 
violates this statute should be punished, you know, if you 
commit crime X you should receive sentence Y. That's pretty 
easy for you guys to do from Washington.
    Mr. Feeney. Right.
    Mr. Felman. What makes it hard for us is that life is just 
so rich in its detail, and the truth is just stranger than 
fiction.
    Mr. Feeney. Well, you and I agree, not all wisdom resides 
in Congress, so trust me. But whether or not we have the power 
to do something and whether we're exercising that power wisely 
are two different questions. I'm glad that you agree with me 
that we've got the inherent and implied power to micromanage 
sentencing if we desire, as unwise as that may be.
    Finally, Justice Breyer in the Booker decision said that 
the ball's in Congress's court. I mean, he believed that there 
was some sorting out that had to be done legislatively. If you 
don't think we need to take any additional action, why is it 
that you disagree with Justice Breyer in the Booker decision?
    Mr. Felman. Well, I don't know that I said I disagreed with 
his decision. I think when I was referring to Justice Breyer 
earlier, I was talking about his concurring opinion in the 
Harris case and the fact that I think there's a very real 
possibility that he will now be forced to accept the votes of 
his colleagues that, when it comes to raising a sentencing 
ceiling--or floor--that that may not be done by judicial fact-
finding, that that has to be put to the jury. And that's where 
I think it's really quite clear in Booker that there were five 
Justices who agree that if you are going to try to raise a 
sentencing maximum based on judicial fact-finding, that is 
unconstitutional. And I just respectfully would disagree with 
your earlier description of the case. I think that's what the 
merits majority opinion is about, and there's five Justices who 
signed it.
    Mr. Feeney. Well, but remember, Booker was a bifurcated 
decision, and on the issue of the guidelines themselves--not 
the enhanced sentencing, the guidelines themselves--seven of 
the nine Justices indicated they thought the guidelines were 
constitutional. When they tried to figure out a remedy they 
could all agree on, they basically said, well, we've got to 
make them advisory and start from scratch. But seven of nine 
believed the guidelines are constitutional as of Booker. I've 
read the decision. I'll have to go back and read it, but it was 
pretty clear to me.
    Mr. Felman. We'll just have to agree to disagree on that.
    Mr. Coble. The gentleman's time has expired. If the 
gentleman--we are going to keep the record open for 7 days so 
we can continue the dialogue.
    The Chair recognizes the distinguished gentleman from 
Maryland--from Massachusetts. I stand corrected.
    Mr. Delahunt. It begins with an M, Mr. Chairman.
    You know, I heard my friend from Florida quote--I think it 
was Cicero, updated by Feeney. [Laughter.]
    About let punishment, you know, fit the crime. And, 
clearly, I believe that, you know, there has to be a sense of 
fairness in terms of the application of a sanction under our 
criminal justice system. But I would put forth that that's only 
one component in the equation of what our criminal justice 
system is about, because fundamentally the criminal justice 
system is our effort to secure public safety and public order.
    You know, I would just refer to the hypothetical that was 
mentioned by Bobby Scott about the victim in a rape case being 
14 and her boyfriend being 16 and the stranger, the sexual 
predator being 42 with a vicious rape. I mean, you know, to say 
that the punishment should be the same in both of those cases 
just simply, I would suggest, doesn't make any sense, because a 
downward departure, you know, for that 16 or 17-year-old might 
be predicated on the fact that we don't want to introduce that 
particular defendant to a situation where he will become a real 
dangerous threat to society at 20 or 21 or 25. I mean, so it 
is, it's very much a system that needs to have the ability to 
look in a comprehensive way as to a particular case.
    But having said all that, you know, we're talking about 
variances in terms of sentences. What I think is interesting as 
well is the variance in substantial assistance motions offered 
by the Government among circuits. There's a 4 percent in one 
circuit and a 36 percent in another circuit. That tells me--and 
I think it was Judge Cassell that alluded to this--to try to 
lay this all on the courts, the judges, the judiciary, I don't 
think really is fair, because the prosecutor here plays a 
significant role. You know, in New York, you know, maybe 
there's an extraordinary reliance on the use of informants, and 
we're talking statistics. But for those that have been 
prosecutors, in the--you know, again, in the real world, so to 
speak, you're sitting down with, you know, an unsavory 
character with an extensive criminal background, and you're 
trying to secure cooperation, you know, maybe that's a practice 
that exists in one district that doesn't exist in another 
district, the reliance on informants.
    That's why, when I made the request to take a look at 
Massachusetts, I think it's important to implicate the 
Department of Justice in this process, not just simply rely on 
the data supplied by the Sentencing Commission. And I 
understand and I do appreciate the explanation by Judge 
Hinojosa, and it does make sense. I think we're working our way 
through this.
    But while there might be a charging philosophy, is there a 
philosophy or a policy in the Department of Justice that is 
consistent in terms of substantial assistance motions being 
filed? Because, clearly, there is a significant departure, 4 
percent and 36 percent.
    Now, maybe there is, but it comes out in a way 
statistically that when you examine it, you're taken aback. I'm 
sure there's a good explanation, but I'm just putting for an 
opinion. I'd be interested to hear from Judge Cassell and Mr. 
Mercer about how complex this is, and it just isn't simply a 
black-and-white and dry formula. There's much more to it.
    Mr. Coble. The gentleman's time has expired, but you 
gentlemen may respond.
    Judge Cassell. Well, the Sentencing Commission investigated 
this, Congressman Delahunt, and they found no rhyme or reason 
to the geographical disparities in what the Justice Department 
was doing. They said, well, let's try to control for this. Is 
this the more serious cases or drug cases? They put in controls 
for all of that, and they ran a multiple regression equation, 
and they couldn't come up with any explanation.
    They also found that there were racial differences in the 
way that cases were being handled, and this is what disturbs 
me. This information was given to the Justice Department 8 
years ago, that their practices were having racial disparities, 
and they have done nothing to fix it. And yet Monday afternoon, 
the Sentencing Commission for the first time says, well, we've 
run into some data here that may be suggesting a problem, and 
the Justice Department runs over and says something needs to be 
done right away.
    Why haven't they in 8 years gotten their house in order and 
eliminated these kinds of dramatic disparities from district to 
district that are done in secret, without any opportunity for 
appellate review, without any kind of a transcript or other 
record? That's the question that we have in the judiciary.
    Mr. Mercer. Well, I guess--I think I want to discuss the 
process that is set forth in the department policy because I 
think it might be useful, and----
    Mr. Coble. Mr. Mercer, as quickly as you can, because 
there's going to be a vote imminent.
    Mr. Mercer. Okay. Disparity, given what we have said as 
part of this testimony, is a significant issue for us, whether 
we're talking about a non-substantial assistance departure, as 
is the focus of this testimony, or whether we're talking about 
any disparity that is introduced through substantial 
assistance.
    It's important, I think, that the Committee know that when 
the Government makes a substantial assistance motion, it can't 
grant that motion on its own. It's got to be granted by the 
court. The court then makes a determination----
    Mr. Delahunt. Let's really be honest here. When the 
Government comes before a Federal district court judge and puts 
forth a request for substantial assistance and a downward, I 
would think in most cases that it's almost an automatic 
departure. So I don't think, with all due respect, Mr. Mercer, 
you can lay that one on the courts. That's the responsibility 
of the Department of Justice.
    Mr. Mercer. I am just laying out the way this process 
works, because----
    Mr. Delahunt. I'm familiar with how the process works.
    Mr. Mercer. And it is certainly a concern to us that, to 
the extent that that motion results in a departure of, say, 60 
percent or 70 percent or 80 percent, there are going to be very 
significant disparities introduced into the system, but in 
terms of the way those motions are processed, typically offices 
have committees where they're making determinations not just on 
the line but in terms of whether, in fact, the defendant has 
rendered substantial assistance. And I think some of the 
differences in the averages in, say, Utah versus Idaho, I'm 
going to go back and take a look at that. I think it may have a 
lot to do with things like in Utah there's a substantial number 
of firearms prosecutions. In firearms prosecutions around the 
country, you're going to see a lot fewer substantial assistance 
motions than you are in drug cases, typically based upon the 
type of conduct we see. So there----
    Mr. Delahunt. Okay. And I do respect your response. But the 
point is, if we're looking at this simply in a statistical 
fashion, as you would have this Committee do in terms of the 
judiciary, there is in all likelihood a rational explanation. 
And that's why, Mr. Chairman, I think it's important, let's 
take the Massachusetts case--okay?--and those statistics and 
have a full hearing so that we can explore the reasoning and 
the realities behind the stats. Fair enough, Mr. Mercer?
    Mr. Mercer. I think--we're interested in analyzing these 
statistics in general because disparity is something that this 
system is designed to----
    Mr. Delahunt. Whether it's the responsibility of the 
Government or whether it's the responsibility of the court.
    Mr. Mercer. Unwarranted disparity is a problem, and I said 
earlier----
    Mr. Delahunt. I don't think anybody--anybody--on this panel 
or on the panel that you're sitting on--would countenance 
unwarranted disparities, but the real question is: Is the 
disparity rational and reasonable and does it enhance public 
safety in the long term in a holistic, comprehensive way?
    Mr. Mercer. And as I noted when this question came up 
within Congressman Scott asked it, the distinction between a 
substantial assistance motion under 5(k)1.1 and the vast 
majority of the provisions in 5(h) or 5(k) of the Sentencing 
Guidelines are that most of those provisions in 5(h) and 5(k) 
were deemed to be factors that were only going to be used in 
exceptional cases or extraordinary circumstances. They're 
disfavored factors--things like age, things like whether the 
person has made great community service over a number of years. 
Those are all factors that are disfavored and only to be 
applied in exceptional cases.
    Substantial assistance, the Commission has designed a 
system in which we have the authority to try to induce that 
cooperation in order to make other cases, and so they're on a 
different playing field, and that's got to weigh into the 
question of whether the disparity is warranted or unwarranted.
    Mr. Coble. I thank the gentleman.
    We've been joined by the distinguished lady from Texas, Ms. 
Jackson Lee, but Mr. Scott wanted to make a comment initially.
    Mr. Scott. Thank you, Mr. Chairman.
    Mr. Chairman, the gentleman from Florida isn't with us, but 
he suggested that departures ought to be rare. My view is I 
don't know how often they ought to be, but you ought to have a 
departure when it makes common sense. That might be rare; that 
might be often. But whenever it makes common sense, you ought 
to have a departure. And there's nothing in these statistics 
we've seen so far that shows that anything unreasonable is 
going on. The department has picked out 122 of the most--
apparently most egregious cases, and many of those have found--
notwithstanding the fact that there are only 122 out of 69,000 
have been found still to be reasonable.
    Furthermore, if you look--if you're going to have any 
consistency in charging--in sentencing, you've got to have 
consistency in charging, and when the department has 
articulated today that they have a new way of charging, they're 
going to charge the highest provable case, not the one that 
will produce the most rational outcome, but the highest 
sentence for the same action, you would expect more downward 
departures, down to things that make common sense.
    So, Mr. Chairman, as I indicated, I don't--the suggestion 
that we're in chaos I think has just been not--hasn't been 
found.
    Mr. Coble. I thank the gentleman.
    Gentlemen, I realize you all have been with us since 10:30 
this morning, but I feel obliged to recognize Ms. Jackson Lee. 
And, Ms. Jackson Lee, if you could keep it fairly terse, I know 
these folks would appreciate it. But we're delighted to have 
you with us.
    Ms. Jackson Lee. I will be a little bit colorful, Mr. 
Chairman. Let me thank you very much for giving me the 
opportunity. I want the gentlemen to know that the importance 
of this hearing is such that even with a hobbled foot and in 
another hearing two buildings away, I hobbled as fast as I 
could in order to be able to query you. So let me thank you for 
your patience, but my hobbled foot is hurting trying to get 
over here to be able to question you because this is for me an 
extremely important issue. And it's particularly important 
because I live in a State that, although this is a Federal 
jurisdictional question--and I will lead toward my question. I 
live in Texas, and so I bear the brunt of extreme decisions, 
sentencing decisions statewide, under the State system. And, of 
course, as you well know, we have a parole system, probation 
system under the State system.
    I also live in a State where, many of you may know, the 
infamous Tulia case--Tulia case in the State of Texas, and I 
pronounce it differently each time. But in any event, that 
dealt with the incarceration, innocent incarceration of 
individuals who were the victims of a conspiracy by, 
unfortunately a law enforcement officer, who then blanketed and 
painted the entire town with charges of drug violations and 
ultimately these individuals were incarcerated. This case is 
well proven. This is not hearsay because ultimately the rogue 
officer was found out under oath and indicated that he made up 
these stories.
    These are the extremes, but they're very real. They break 
people's lives. And so let me just probe where we are.
    I was going to say--beyond my hobbled foot, I was going to 
use the terminology ``Halleluia for Booker,'' because I think 
it gives us a moment of pause. And, Mr. Hinojosa, I want to--as 
you have taken the lead of this Sentencing Commission that I've 
worked with since coming to Congress almost about a decade 
ago--and I respect what you do. And, in fact, you were some of 
our strongest allies so many years ago to raise the question of 
giving more flexibility or giving the Sentencing Commission 
back its job.
    So let me just try to ask a pointed question, and if you 
can not take my role and be expansive, you be concise, is the 
idea of the Sentencing Commission, do you feel, broken with 
Booker? Are you able to go along with business? And do you feel 
that it's given you some parameters in which to operate on to 
be as fair as you possibly can be under the very heavy 
responsibility that you have?
    Judge Hinojosa. Well, actually, being your fellow Texan, 
I'm glad that you did manage to hobble here.
    Ms. Jackson Lee. For you.
    Judge Hinojosa. Thank you very much.
    The Commission has been extremely busy post-Booker and has 
continued to act in the fashion that it has always acted, 
whether it's in promulgating amendments or responding to 
congressional directives or responding to emergency amendment 
requests. And certainly with regards to data collection, we 
have turned it into real time so that we can put out the 
information as quickly as possible so that informed decisions 
can be made. So from that standpoint, I think the Booker 
decision itself predicted that the Commission would continue to 
exist and continue to operate in the same legislative statutory 
fashion that it had before. And so, therefore, we have.
    We have been in a situation where we have to develop more 
resources with regards to the post-Booker period and trying to 
determine how to proceed, both from training as well as data 
collection as well as there was a period of time where we were 
affected because post-Blakeley and pre-Booker it was an 
uncertain period and we were unable to proceed with too much 
amendment with regards to guidelines that needed to be looked 
at, including the immigration guidelines, which you would be 
familiar with.
    Ms. Jackson Lee. Very much so.
    Judge Hinojosa. Coming from the State of Texas.
    Ms. Jackson Lee. Let me--time is of the essence. Let me 
just raise these questions, Mr. Hinojosa, Mr. Mercer, and then 
both Mr. Cassell and Mr. Felman--Mr. Cassell--Judge Cassell, in 
fact, you are in the midst of, obviously, rendering sentencing.
    Mr. Mercer, you said there is a problem in that we have 
actually determined that sentencing has gone up. Since I happen 
to be the author of the good time early release bill on the 
Federal system because I believe we have languishing in the 
Nation's prisons individuals, nonviolent, over 45 years old, 
and wasting more time than not, that came about--came about 
through mandatory sentencing and no parole.
    My question to you is: What is the problem when we found 
that sentencing has actually gone up? Judge Cassell--let me 
just finish. Judge Cassell, we want the courts to have 
jurisdiction. Sometimes--not jurisdiction. Discretion. 
Sometimes I'm completely in dismay at the decision that may be 
made, because I've been character witnesses, my community comes 
to me, I'm arguing for leniency, and, of course, the mandatory 
comes in. How has Booker impacted you? And if you said it 
earlier, I apologize. I missed it. And, Mr. Felman, who deals 
with this on a daily basis, your thoughts on how we can make 
Booker the guidepost for bringing some rationale to this idea 
of mandatory sentencing, which really is not a key component of 
rehabilitation which I think we'd like to do with, 
particularly, nonviolent crime and make it work as opposed to 
now suggesting that we need to pull back either legislatively 
and otherwise.
    Mr. Mercer, why is it a problem?
    Mr. Mercer. It's a problem, Congresswoman, because, first 
and foremost, we have seen a real significant increase in 
disparity among similarly situated offenders, and----
    Ms. Jackson Lee. That's discretion. That's the court's 
discretion.
    Mr. Mercer. Well----
    Ms. Jackson Lee. That's looking at the facts. That's 
looking at the individual situation. That's what we have 
Federal judges for, well trained in the law. Yes, Mr. Mercer?
    Mr. Mercer. And the guidelines, as they were promulgated 
back in the late eighties, and as they've been applied, and 
certainly applied in the post-PROTECT Act era, the notion of 
fairness is to say if a person has committed a crime in 
jurisdiction A and another person has committed the same crime 
in jurisdiction B--let's use as an example a fraud case of 
$250,000. Neither of them have any criminal history whatsoever, 
and so maybe the guideline range is 12 to 18 or 15 to 21 
months, and there isn't anything remarkable about them other 
than maybe they both have been very active members in their 
communities. If judge A says, you know, this person really 
should deserve less of a sentence, first-time offender, really 
done a lot of great things in the community, straight 
probation, and if judge B says, you know, I really worry about 
fraud crimes because I think it really is corrosive when----
    Ms. Jackson Lee. If judge B says, what, you don't--you 
don't deserve probation and you get a sentence?
    Mr. Mercer. Judge B says I'm putting you at the top end of 
the guideline range, 21 months, 15 months, you've got 
completely comparable conduct, completely comparable criminal 
histories, and you've got very different outcomes, and this----
    Ms. Jackson Lee. Well, Mr. Mercer, I like your merciful 
approach. You're being merciful. You're concerned about the 
fact that the gentleman and lady getting the higher end. Let me 
ask Judge Cassell, what about that? What about the individual 
given probation and the other judge giving 21 months? How can 
we fix that? That's what seems to be Mr. Mercer's problem. He 
wants fairness. He wants to make sure they both get probation. 
How do we work on that issue? [Laughter.]
    Judge Cassell. Well, judges agree with those principles. We 
certainly want fairness in sentencing. But let's look at what's 
happened since Booker. We heard just a second ago from Mr. 
Mercer there's been a, quote, real significant increase in 
departures. What the data shows is that 93 percent of the cases 
are being resolved the same way today as they were before 
Booker. So we're talking about 7 percent of the cases around 
the country. What happens in those 7 percent of the cases? Men 
and women who work very hard on the Federal bench to reach fair 
decisions in these cases have found some unusual factor that is 
not accounted for in the guidelines or the departure provisions 
that they believe requires some modest adjustment in the 
sentence. And I say ``modest''--again, let's talk statistics.
    The average adjustment is 12 months in prison, an 
adjustment down to reflect the circumstances of the case, and I 
should mention that there are some Federal judges that have 
gone up a little bit more because they've found cases that are 
more aggravated.
    I would suggest that what that is causing is not 
unwarranted disparity, but it's eliminating unwarranted 
uniformity. Under the old rule, we had situations where two 
cases, even though they were dramatically different, sometimes 
had to be sentenced in the same way, and the new, more 
discretionary system has given judges the opportunity to be 
judges and to render justice in those cases.
    Ms. Jackson Lee. Mr. Felman? Thank you very much, Judge. 
Thank you, Mr. Chairman and Ranking Member.
    Mr. Felman. No doubt Booker from my perspective is an 
improvement to the prior guidelines system. I think there was a 
consistent, widespread consensus that the previous guideline 
system was simply too rigid. I am honored to be a part of a 
bipartisan group that the Constitution Project has put 
together. It's chaired by former Attorney General Ed Meese and 
former Deputy Attorney General Philip Heymann. It includes 
Judge Cassell. Until his appointment to the United States 
Supreme Court, it included Samuel Alito.
    We reached consensus on the point that the guidelines and 
their binding fashion were simply too rigid. Booker represents 
a dramatic improvement although albeit a somewhat modest one in 
light of the fairly modest changes in departures.
    There are still improvements that could be made, and I have 
four to recommend----
    Ms. Jackson Lee. And we can do this legislatively, are you 
suggesting?
    Mr. Felman. Yes.
    Ms. Jackson Lee. If you can give them quickly, I'd 
appreciate it.
    Mr. Felman. Number one, fix the crack:powder ratio. It's 
wrong.
    Number two----
    Judge Cassell. We agree with that, by the way.
    Ms. Jackson Lee. And I agree with that, absolutely.
    Mr. Felman. Number two, there needs to be a look at the 
relevant conduct issue where people are sentenced for behavior 
they were not charged or convicted for and, indeed, might even 
have been acquitted for.
    Number three, there is a need for procedural reform in the 
system. Not many people understand this, but the Federal Rules 
of Criminal Procedure have never been revised to take into 
account the ways in which sentencing procedures happen. Pre-
sentence investigation reports drive the facts at sentencing 
hearings. They are conducted by each of the parties submitting 
ex parte submissions to the court. I am not entitled to receive 
the factual information the Government presents to the court 
and upon which pre-sentence investigation reports are written. 
That's wrong and it could be fixed.
    Number four, we believe that the Sentencing Commission 
could benefit from the addition of an ex officio member that 
represents the interests of the defense bar. Presently, the 
Department of Justice has two ex officios: one of them the 
chairman of the Parole Commission--Parole has been abolished 
for more than 20 years. They don't need that spot anymore, and 
the interests of the defense bar should be represented as an ex 
officio member of the Sentencing Commission.
    Thank you.
    Ms. Jackson Lee. Thank you very much to the witnesses.
    Mr. Chairman, Mr. Ranking Member, let me thank you very 
much. I think our work is before us, and I think we need to 
act. I yield back.
    Mr. Coble. I say to the distinguished lady from Texas, 
you've been plagued by a hobbled foot, Ms. Jackson Lee. I've 
been plagued by a hobbled back, so after the March work period, 
I hope you and I come back sound of body.
    Gentlemen, I thank you all for your--Bobby, anything else?
    Mr. Scott. Mr. Chairman, I'd like unanimous consent to 
enter in the record a statement from Carol Striker, Professor 
at Harvard, in reference to the importance of having judges on 
the Sentencing Commission.
    Mr. Coble. Without objection, it will be received.
    [The prepared statement of Ms. Steiker follows:]
    Mr. Coble. And, furthermore, without objection, all 
Members' opening statements will be made a part of the record.
    [The prepared statement of Ms. Jackson Lee follows in the 
Appendix]
    Mr. Coble. I thank the witnesses for your durability--I 
know you all have been here a long time--and for your 
testimony. We very much appreciate your contribution.
    In order to ensure a full record and adequate consideration 
of this important issue--and it is indeed an important issue--
the record will remain open for additional submissions for 7 
days. Also, any written questions that a Member wants to submit 
should be submitted within that same 7-day period.
    This concludes the oversight hearing on ``United States v. 
Booker: One Year Later--Chaos or Status Quo?'' Thank you again. 
This Subcommittee stands adjourned.
    [Whereupon, at 2:06 p.m., the Subcommittee was adjourned.]

                            A P P E N D I X

                              ----------                              


               Material Submitted for the Hearing Record

The Honorable Howard Coble, a Representative in Congress from the State 
of North Carolina, and Chairman, Subcommittee on Crime, Terrorism, and 
                           Homeland Security

    Good morning. I want to welcome everyone to this very important 
oversight hearing before the Subcommittee on Crime, Terrorism and 
Homeland Security to examine the impact the Supreme Court's decision in 
United States v. Booker has had on the federal sentencing system.
    I want to commend the United States Sentencing Commission for its 
very thorough and comprehensive ``Report on the Impact of United States 
v. Booker on Federal Sentencing.'' This report is detailed and 
thorough, and raises many significant issues.
    There is no question that the Booker decision has had a dramatic 
impact on Federal sentencing. Unfortunately, the Supreme Court's 
decision to strike down the mandatory guidelines and replace them with 
an advisory system has jeopardized the fundamental principles 
underlying the Sentencing Reform Act of 1984. It is important to 
remember that the Sentencing Reform Act of 1984 was a bi-partisan 
measure designed ``to provide certainty and fairness in meeting the 
purposes of sentencing, avoiding unwarranted disparities among 
defendants with similar records who have been found guilty of similar 
criminal conduct.''
    The Sentencing Commission Report documents in considerable detail 
how federal judges have responded to the Booker decision. The data 
speaks for itself and it speaks loud and clear.
    Most significantly, the data demonstrates that the judiciary has 
undone, or circumvented, the basic sentencing reform measures passed 
overwhelmingly by the House and the Senate as part of the PROTECT Act 
of 2003. Those reforms were critical and the data shows that they were 
working--the incidents of judicial downward departures declined. 
Unfortunately, the data shows that once freed from the mandatory 
guideline system, judges have now returned to sentencing practices, and 
handed out unwarranted and unjustified downward departures for sex 
offenders, child pornographers, pedophiles, drug traffickers and career 
criminal offenders.
    While it is true that there has been no decline in average 
sentences, that fact is simply misleading. First, it does not account 
for the fact that Congress has passed legislation to increase sentences 
in several areas; and it does not account for the fact that the 
Sentencing Commission has raised guideline ranges in many crime 
categories. Significantly, that fact does not explain why there has 
been a dramatic increase in downward departures for sex offenders who 
prey on our children, child pornographers, and drug traffickers.
    The Sentencing Commission's Report shows that in the last year 
there has been a six hundred percent increase in below guideline 
sentences for defendants convicted of sexual abuse of a minor, a four 
hundred and fifty percent increase in below guidelines sentences for 
sexual exploitation of a minor, and a fifty percent increase in below 
guidelines sentences for defendants convicted of sexual contact of a 
minor, trafficking in child pornography and possession of child 
pornography.
    The Commission's report also reveals increases in below guidelines 
sentences for drug traffickers and repeat offenders, and that district 
judges have increasingly awarded substantial assistance departures for 
cooperation without the filing of a government motion. The Subcommittee 
intends to study these issues carefully and to examine legislative 
solutions to the problems identified in the Sentencing Commission's 
Report. In order to return to the basic principles of the Sentencing 
reform Act of 1984, Congress must address the issue.
    We look forward to hearing from our distinguished panel of 
witnesses. I am particularly interested in hearing your proposed 
solutions to the issues I have outlined today. The Committee will 
continue to monitor these issues in the coming months. I now yield to 
the ranking Member of this Subcommittee, the gentleman from Virginia, 
Mr. Bobby Scott.

                               __________
 The Honorable Robert C. Scott, a Representative in Congress from the 
     State of Virginia, and Ranking Member, Subcommittee on Crime, 
                    Terrorism, and Homeland Security

    Mr. Chairman. I am pleased to join you for this hearing on federal 
sentencing since the Booker/Fanfan Supreme Court decision. The title of 
the hearing is ``U.S. v. Booker: One Year Later--Chaos or Status Quo?'' 
When we look at the question posed by the title, it is clear from the 
recent Sentencing Commission report on sentencing during this period 
that the answer to the question is ``status quo''. There is nothing to 
suggest chaos. Given the fact that the Booker decision eliminated the 
mandatory application of the guidelines and required the courts to 
consider a broad array of factors, including the guidelines, it is 
amazing that there is not a much more pronounced difference in 
sentencing when compared to pre-Booker sentencing. Indeed, expecting 
sentencing to be the same despite the changes required by Booker would 
suggest that judges were expected to ignore the decision and go on 
applying the guidelines as if they were still mandated. Yet, with over 
69,000 cases in 94 districts, during a time of implementing a new 
sentencing regimen, judges sentenced within the guidelines range in 
over 85% of the sentences that did not involve a government motion.
    With any data base this large, you can find whatever you are 
looking for. So, those looking for anecdotal evidence that there are 
more unjustified downward departures can point to the fact that the 
percentage of prosecutor and judge initiated downward departures were 
slightly up during this post Booker period. And they can look until 
they find a category of cases that happens to show a greater rate of 
downward departures and say that is the evidence they were looking for. 
But to conclude that such departures are unjustified or unacceptable, 
one would have to ignore or minimize the fact that average sentences 
increased during the period and that upward departures doubled. Also, 
such a conclusion would have to ignore the fact that there were less 
than 200 appeals among the 69,000 sentences, a fraction of a percent.
    Whether it is post-Booker or pre-Booker, you can't look at 
sentences based on the name of the crime and expect to come up with an 
intelligent analysis of the sentences. A sentence usually involves the 
input and impact of a federal prosecutor, a probation officer, defense 
attorney, possibly a victim and a judge. Their impact is marginalized 
or nullified when the data is analyzed simply on the basis of the name 
of the crime, as some have done since the Commission's report.
    While it is good that we have given ourselves at least a year 
before we began to evaluate the impact of Booker/Fanfan on sentencing, 
given the continuing impact that practice, experience, feedback, and 
appeals are having on focusing sentencing decisions, it would still be 
premature to take any legislative action based on this first year of 
data. The impact of appeals should, especially be awaited. There have 
been several circuit court appeals decided, but we have not had another 
Supreme Court decision on the post Booker context. There is a case in 
which the Supreme Court has accepted cert, Cunningham v. U.S, which is 
due to be decided during the next term and would address some of the 
post Booker issues, including the constitutionality of certain 
approaches. So, any legislative action prior that decision would 
clearly be premature.
    Moreover, when we look at the data regarding the circuit appeals 
what we see is a that the circuits are more prone to affirm within 
guideline and above guideline sentences than they are below guideline 
sentences. Of the appeal decision issued for cases since Booker, all 
but one sentence within the guidelines have been confirmed. And, of 21 
appeals of downward departures, 15 have been reversed and only 6 
affirmed. At the same time, 14 appeals of above guideline sentences 
have been affirmed while only 2 have been reversed. And the circuits 
all agree that even after Booker they still lack jurisdiction to review 
a court's denial of a motion for downward departure.
    So, Mr. Chairman, I believe the sentencing data clearly reflects 
that there is no chaos in the federal sentencing that we need to fix at 
this time as a result of Booker/Fanfan. However, there are some things 
that existed before Booker that adversely affect sentencing, in my 
view, and need to be addressed. Among them are mandatory minimum 
sentencing, the 100-to-1 sentencing disparity between crack and powder 
cocaine and the astounding disparity in substantial assistance 
treatment given offenders in the different circuits. We will hear more 
about the details of these problems from our witnesses.
    So, Mr. Chirman, I look forward to the testimony of our experts on 
the issue of sentencing and look forward to working with you to 
properly address the problems and advice they bring to our attention. 
Thank you.

                               __________
  Prepared Statement of the Honorable Tom Feeney, a Representative in 
                   Congress from the State of Florida

    Good Morning. I'd like to start out by welcoming everyone to the 
Subcommittee hearing on this vitally important issue. We are here today 
to discuss the effects that the Supreme Court's decision in United 
States v. Booker has had on the sentencing of federal criminal 
defendants. Approximately one year ago, the Supreme Court's decision in 
Booker declared that the Sentencing Guidelines promulgated by the 
United States Sentencing Commission were no longer mandatory 
requirements, but rather advisory in nature.
    Though this decision created immediate concerns over equity and 
fairness in sentencing, Members of Congress agreed to wait until they 
had more information available to thoroughly evaluate the consequences 
of Booker. Chairman Coble himself was advised by the late Chief Justice 
Rehnquist to hold Congressional action until enough time had passed to 
gauge the effects of the ruling. Now that a year has gone by, the 
Sentencing Commission has released a report just this week detailing 
how Booker has influenced the federal sentencing system.
    Before I address the contents of the Sentencing Commission's 
report, I would like to praise the Commission for its hard work in this 
bipartisan effort to compile data and analysis on the issue. The 
Commission's report is very detailed and thorough, and it shows that 
the Booker decision has had a dramatic impact on the way that judges 
sentence defendants. What troubles me the most is that the Commission's 
report indicates that protections for America's children are being 
undone by judicial discretion.
    On April 30, 2003, I was proud to stand with President Bush in the 
Rose Garden as he signed into law the PROTECT Act to help defend our 
children from sexual predators while strengthening law enforcement's 
ability to keep these criminals off the street. A key component of this 
bill was the Feeney Amendment which I authored, to ensure that those 
who commit sexual crimes against our nation's children will receive the 
full punishment of the law. The Commission's report reveals that that 
some judges are working to undermine this tough legislation.
    According to the report, in the last year there has been a six-fold 
increase in below guideline range sentences for defendants convicted of 
sexual abuse of a minor, a five-fold increase in below guideline range 
sentences for defendants convicted of sexual exploitation of a child, 
and a fifty percent increase in below guideline range sentences for 
defendants convicted of sexual contact of a minor, trafficking in child 
pornography, and possession of child pornography. The sexual 
exploitation of children is one of the most vicious crimes conceivable, 
a violation of mankind's most basic duty to protect the innocent. We 
can not tolerate the deliberate evasion of public laws by those in our 
courtrooms, and American families and our children deserve protection 
from predators and abusers.
    After Booker, judges are no longer held accountable for ensuring 
that defendants convicted of heinous crimes receive the punishments 
they deserve. Last year in Vermont, a judge initially sentenced a 
defendant who had admitted to sexually abusing a young girl over a four 
year period to only sixty days in prison. In the middle district of 
Florida, a judge gave a 52% reduction from the guideline sentence to a 
defendant who had distributed child pornography, fled when released on 
bond, and had an armed standoff with police.
    The creation of the Sentencing Commission and the Sentencing 
Guidelines was accomplished to prevent the exercise of unreviewable, 
arbitrary power in the hands of judges. When the Supreme Court's 
decision in Booker granted this kind of authority to judges, the 
results speak for themselves. Sentences after Booker have exhibited a 
marked tendency to increase downward departures from the Guidelines. In 
addition to the erosion of protection for child victims of sexual 
abuse, the Commission's report shows that there was an increase in 
below range sentences for drug offenses, including those for powder 
cocaine, crack cocaine, heroin, marijuana, and methamphetamine. This 
failure to shield our children from predators and from drug offenders 
is a breakdown in the system that we must find intolerable and 
unacceptable.
    The findings of the Sentencing Commission indicate that Booker has 
endangered the principles of predictability, uniformity, and toughness 
in federal sentencing. In the coming months, the Subcommittee plans to 
study this issue in depth, and we will consider legislative solutions 
to the problems exposed by the Commission's report. I look forward to 
hearing from our distinguished panel today.

                               __________
       Prepared Statement of the Honorable Sheila Jackson Lee, a 
           Representative in Congress from the State of Texas



                               __________
   Supplemental Testimony of James E. Felman, Esq., Kynes, Markman & 
                     Feldman, P.A., Tampa, Florida




                               __________
 Prepared Statement of Carol S. Steiker, Professor of Law, Harvard Law 
                    School, Cambridge, Massachusetts

    March 14, 2006

    The Honorable Howard Coble

    Chair

    Committee on the Judiciary

    Subcommittee on Crime, Terrorism and Homeland Security

    US House of Representatives

    Washington, D.C. 20515

    Dear Chairman and Subcommittee Members:

    I submit the attached statement in the hope that it will be of use 
in your consideration of appropriate responses to the Supreme Court's 
recent decisions regarding the constitutional status of the Federal 
Sentencing Guidelines. My statement deals with a discrete but extremely 
important feature of the current federal sentencing scheme: the 
composition of the Federal Sentencing Commission. Congress' decision 
three years ago to amend the Sentencing Reform Act by stripping the 
judiciary of mandatory representation on the Sentencing Commission is 
extremely problematic, both for prudential and constitutional reasons. 
I urge you to reconsider this aspect of the Feeney Amendment for the 
reasons that follow in my statement.

    My interest and expertise in this matter stems from a twenty-year 
legal career focused almost exclusively on issues of criminal justice: 
fourteen years as a scholar of the American criminal justice system on 
the faculty of Harvard Law School, four years as a staff attorney 
representing indigent defendants in the District of Columbia courts, 
and two years as a judicial law clerk on the Federal Court of Appeals 
for the District of Columbia Circuit and the United States Supreme 
Court. I include a copy of my curriculum vitae with my statement.

    If there is any further information or assistance that I can 
provide, I can be contacted by telephone at (617) 496-5457 or by e-mail 
at [email protected].

    Respectfully submitted,

    Carol Steiker
    Professor of Law

prepared statement of statement of carol s. steiker, professor of law, 
    harvard law school, to the subcommittee on crime, terrorism and 
 homeland security, of the house judiciary committee, regarding march 
  16, 2006, hearings on appropriate responses to the supreme court's 
              rulings on the federal sentencing guidelines
  Prudential and Constitutional Reasons to Correct the PROTECT Act's 
    Elimination of Mandatory Judicial Representation on the Federal 
                         Sentencing Commission

I.  Requiring Judicial Involvement on the Commission Serves Important 
                    Goals

    Title IV of the Prosecutorial Remedies and Other Tools to End the 
Exploitation of Children (``PROTECT'') Act, (the ``Feeney Amendment,'') 
altered federal sentencing law by changing the composition of United 
States Sentencing Commission.\1\ The Feeney Amendment eliminated the 
prior mandatory involvement of at minimum three federal judges on the 
Commission; on the contrary, the Feeney Amendment required that not 
more than three members be judges.\2\ In implementing such a drastic 
change, Congress provided no notice, opportunity for discussion, or 
solicitation of contrary views.\3\ In doing so, it overlooked the 
important benefits of requiring judicial membership on the Commission 
and instituted a Commission that violates the separation of powers.
---------------------------------------------------------------------------
    \1\ See PROTECT Act, Pub. L. No. 108-21 Sec.  401.
    \2\ Pub. L. No. 108-21 Sec.  401(n)(1).
    \3\ See, e.g. 149 Cong. Rec. S5137-01, 5145 (daily ed. Apr. 10, 
2003) (statement by Sen. Leahy) (stating, ``the Feeney amendment. . 
.was added to the bill on the House floor after only 20 minutes of 
debate.'').

---------------------------------------------------------------------------
A. Judges are uniquely qualified to serve on the Sentencing Commission

    The United States Sentencing Commission has two purposes: to 
``establish sentencing policies and practices for the Federal criminal 
system,'' \4\ and to ``develop means of measuring the degree to which 
the sentencing, penal, and correctional practices are effective in 
meeting the purposes of sentencing. . . .''\5\ In order to accomplish 
these goals, it is vital that the Federal Sentencing Commission have 
first-hand knowledge of variations in offenders and offenses, the way 
in which sentences are applied, and the considerations that go into 
sentence determination. Judges - more than any other group - understand 
the particulars involved in sentencing. They learn the details of each 
crime and each defendant; they hear arguments from both the prosecution 
and the defense; they receive input from parole officers and family 
members - both of defendants and victims; they see and respond to 
changes over time in crime commission and enforcement. Judges have the 
everyday, ground level, case-by-case view of sentences in action. In 
fact, this first-hand knowledge of the law's interaction with real 
parties and facts is why Congress placed the Federal Sentencing 
Commission in the Judicial Branch of the government.\6\ In upholding 
the constitutionality of the original Sentencing Reform Act in 
Mistretta v. United States, the Court stressed that ``judicial 
participation on the Commission ensures that judicial experience and 
expertise will inform the promulgation of rules for the exercise of the 
Judicial Branch's own business - that of passing sentence on every 
criminal defendant.''\7\ It would defy the Court's understanding of the 
nature of the Commission and defeat the Commission's very purpose to 
take away the expertise that Congress initially built into its 
structure.
---------------------------------------------------------------------------
    \4\ 28 U.S.C.A. Sec.  991(b)(1).
    \5\ 28 U.S.C.A. Sec.  991(b)(2).
    \6\ See Mistretta v. United States, 488 U.S. 361, 396 (1989) 
(``Congress placed the Commission in the Judicial Branch precisely 
because of the Judiciary's special knowledge and expertise.''). See 
also S. Rep. No. 98-225, at 159 (1983) (Senate Report on the Sentencing 
Reform Act) (``Placement of the commission in the judicial branch is 
based upon the committee's strong feeling that even under this 
legislation, sentencing should remain primarily a judicial 
function.'').
    \7\ Mistretta, 488 U.S. at 407.
---------------------------------------------------------------------------
    Unlike prosecutors, defense attorneys, or legislators, judges are 
also uniquely positioned to provide a long-term view of sentencing. An 
appointment to the federal judiciary is for life, and a judge may spend 
years on the bench before sitting on the Commission. Prosecutors and 
defense attorneys rarely spend as much time in their respective 
capacities. This is true of the current Commission membership.\8\
---------------------------------------------------------------------------
    \8\ The Commission Chair - Judge Ricardo H. Hinojosa - has served 
as a federal judge for 23 years. Judge Ruben Castillo has spent 12 
years as a federal judge, in addition to four years as an Assistant 
United States Attorney. Chief Judge William K. Sessions has served on 
the federal bench for 11 years, in addition to 4 years as a public 
defender. In contrast, Vice Chair John R. Steer has no direct 
experience in the criminal justice system. Commissioners Beryl A. 
Howell and Michael E. Horowitz served as Assistant United States 
Attorneys for 6 years and 8 years respectively, and neither holds that 
position currently.
---------------------------------------------------------------------------
    Judges are also less susceptible to political pressure and sudden 
shifts in popular opinion than are prosecutors.\9\ A sudden rise in 
crime will not prompt a Commissioner-judge to take extreme but perhaps 
unwise measures in order to satisfy immediate demands for harsher 
punishment. Additionally, unlike prosecutors or defense attorneys, 
judges do not spend their careers either trying to convict defendants 
or trying to acquit them. Rather, they are able to focus on the 
criminal justice system as a whole: with the benefit of all relevant 
arguments, they are more likely to be able to take a balanced view.\10\ 
Of course, prosecutors and defense attorneys have experience in the 
criminal justice system too, but the nature of the adversary system 
demands that they advocate zealously for their perspective, making it 
difficult for them to be as open to competing values.
---------------------------------------------------------------------------
    \9\ See, e.g., a statement by the President of the American Bar 
Association: ``By overriding the Sentencing Commission and 
legislatively rewriting the Guidelines, the Feeney Amendment threatens 
the legitimacy of the Commission. The Commission was created by 
Congress to ensure that important decisions about federal sentencing 
were made intelligently, dispassionately, and, so far as possible, 
uninfluenced by transient political considerations.'' Letter from 
Alfred P. Carlton, Jr., President of the American Bar Association to 
Senator Orrin G. Hatch, (Apr. 1, 2003), available at http:// 
www.nacdl.org/departures. See also Paul J. Hofer & Mark H. Allenbaugh, 
The Reason behind the Rules: Finding and Using the Philosophy of the 
Federal Sentencing Guidelines, 40 Am. Crim. L. Rev. 19, 28 (2003). 
``[M]any guideline amendments are not initiated by the Commission based 
on research identifying flaws in the existing rules. The Guidelines are 
often amended because Congress directs the Commission to increase 
sentences for a particular type of crime, often a crime that has 
received media attention. For example, in 2000, Congress directed the 
Commission to increase penalties for trafficking in the `club drug' 
MDMA, commonly known as `ecstasy.' The Commission responded with an 
amendment doubling, and in some cases tripling, penalties.''
    \10\ See, e.g., Statement of Senator Leahy: ``Judges are extremely 
valuable members of the Commission. They bring years of highly relevant 
experience, not to mention reasoned judgment, to the table.'' 149 Cong. 
Rec. S5137-01, 5146 (daily ed. Apr. 10, 2003) (statement of Sen. 
Leahy).
---------------------------------------------------------------------------
    Moreover, judges will tend to be highly qualified even without 
significant experience on the bench. That they have passed the uniquely 
rigorous selection process applied to federal judges indicates a 
Congressional belief in their qualifications to determine and apply the 
law, including appropriate sentences.
    Finally, the guidelines promulgated by the Commission are not 
applied by prosecutors, defense attorneys, or legislators; they are 
applied by judges. Judges thus have the most clear-eyed view of how 
adversaries on both sides might seek to exploit ``loopholes'' in the 
guidelines. They also have a unique perspective on how judges will 
respond to guidelines once promulgated. Judges can most effectively 
advise the Commission on how to make their policy goals apply in 
practice. That other judges will consider guidelines promulgated with 
substantial judicial input more credible further proves the value of 
having more, not fewer, judges.

B.  Requiring judicial membership on the Commission insulates judicial 
                    members from Executive Branch pressure

    Even though the Commission can benefit from judicial members' 
expertise whether or not their participation is required, a guarantee 
that some members of the Commission will be from the judiciary helps 
ensure that judicial members will be insulated from Executive Branch 
pressure in their decision-making. Judicial members on the Commission 
serve under the awareness that the President is under no obligation to 
replace them with other judicial members. They also know that the 
Attorney General or his representative, as an ex officio member of the 
Commission, will be aware to every last particular of the nature of 
their participation on the Commission. Therefore, without a legislative 
requirement that judges will be part of the Commission, judicial 
members may feel compelled either to comply with or be more 
accommodating to the demands or desires of the executive so as to 
preserve the possibility that there will be continued judicial 
representation on the Commission after their terms have been served. 
There is thus always the danger that judicial members on the Commission 
will act in response to fear of executive retaliation rather than from 
considered judicial expertise, depriving the Commission of the benefits 
of judicial participation in the first place. Requiring that judges be 
a part of the Commission allows judicial members to provide their 
expertise with the reassurance that continued judicial participation 
will not be subject to the demands or whims of the chief executive.\11\
---------------------------------------------------------------------------
    \11\ The Supreme Court has long recognized the constitutional 
significance of the chilling effect of fear of retaliation in the First 
Amendment context. See, e.g., Buckley v. Valeo, 424 U.S. 1, 68 (1976) 
(``It is undoubtedly true that public disclosure of contributions to 
candidates and political parties will deter some individuals who 
otherwise might contribute. In some instances, disclosure may even 
expose contributors to harassment or retaliation.'').

C.  Judicial participation is necessary to avoid self-dealing by the 
---------------------------------------------------------------------------
                    Executive Branch

    Without a requirement of judicial membership on the Commission, the 
Executive Branch could potentially have full control of the Commission. 
Because the Executive Branch already holds a significant amount of 
power in sentencing decisions, a lack of judicial membership 
concentrates too much power in that branch and creates a situation 
where the only effective discretion in the sentencing process is the 
discretion of the executive. The executive would be able to determine, 
through the Sentencing Commission, the appropriate level of punishment 
for any given offense, enhancing and perhaps even perverting the power 
it already holds to prosecute those offenses. Without judicial 
involvement, the executive could engage in a form of ``self-dealing'' 
and use its control of the Sentencing Commission to benefit itself and 
make certain kinds of prosecution easier. For example, the Commission 
could enhance sentences attached to specific lesser crimes that are 
easier to prosecute to provide the executive with larger bargaining 
chips in pursuing more serious crimes that are more difficult to 
prosecute. The concentration of power in one branch in sentencing 
raises serious concerns that could be alleviated by a judicial 
``check'' in the form of judicial participation on the Commission.

D.  Judicial membership is necessary to avoid the appearance of 
                    unfairness

    Even if judicial members of the Commission do not in fact feel 
pressure to conform to the desires of the Executive Branch, and even if 
a Commission fully controlled by the Executive Branch does not engage 
in self-dealing, judicial membership on the Commission is necessary to 
avoid the appearance of improper influence and unfairness. Though 
judicial members may try to make their decisions free from Executive 
Branch influence, they may be perceived by the public as compromised by 
the undue influence of the executive through its appointment powers - 
decisions, especially unpopular ones, that may have been motivated by 
independent concerns will be questioned and potentially undermined by 
the fact that judicial membership on the Commission is not guaranteed 
and subject to the desires of the executive. Similarly, if the 
Executive Branch takes full control of the Commission, it will 
potentially undermine public confidence in the justness and fairness of 
the sentencing process and the federal criminal justice system. Our 
adversary system is premised on the idea of zealous partisanship by 
adversaries, presided over neutrally by judges, and ultimately resolved 
through sentencing after conviction by those same neutral judges.  If 
one of the adversary parties in the system, the Executive Branch, is 
given complete control over all decisions made by the Commission, it 
can create the perception that the executive is both prosecuting and 
sentencing at the same time. Regardless of the actual fairness and 
justness of prosecutions by the executive, the legitimacy of its 
decisions will have been compromised by its complete and potentially 
corrupting control of the sentencing process. Thus, a guarantee of 
judicial membership on the Commission can help uphold in the eyes of 
the public and of defendants both the legitimacy of the Commission's 
decisions and of the Executive Branch's powers.\12\
---------------------------------------------------------------------------
    \12\ The importance of the appearance of the independence of the 
judiciary in its adjudicative role is a longstanding concern. See, 
e.g., Hobson v. Hansen, 265 F. Supp. 902, 931 (D.D.C. 1967) (``The need 
to preserve judicial integrity is more than just a matter of judges 
satisfying themselves that the environment in which they work is 
sufficiently free of interference to enable them to administer the law 
honorably and efficiently. Litigants and our citizenry in general must 
also be satisfied.'').

II.  Failure to Mandate Judicial Involvement Violates Separation of 
---------------------------------------------------------------------------
                    Powers Doctrine

    In addition to raising important prudential concerns about fairness 
within the adversarial system, the elimination of required judicial 
participation on the Sentencing Commission raises fundamental questions 
about the very constitutionality of such an organization. As the 
Supreme Court has held, ``the separation of governmental powers into 
three coordinate Branches is essential to the preservation of 
liberty.''\13\ By vesting sentencing decisions primarily in the 
Executive Branch, the Feeney Amendment's change in the necessary 
composition of the commission violates the separation of powers 
doctrine in two significant ways. It unites the power to prosecute, a 
purely executive function, with the power to sentence, a judicial 
function; additionally, the allocation of traditionally judicial 
responsibilities to the Executive Branch encroaches upon judicial 
authority while aggrandizing executive oversight.
---------------------------------------------------------------------------
    \13\ Mistretta v. United States, 488 U.S. 361, 380 (1989).
---------------------------------------------------------------------------
    A Sentencing Commission with no judicial involvement falls 
exclusively within the purview of the Executive Branch as a matter of 
functional reality. With no mandated judicial involvement on the 
Commission, all sentencing decisions will in some way be connected to 
the executive branch.\14\ This degree of executive power mirrors 
presidential oversight of ``independent agencies,'' which fall within 
the scope of the Executive Branch.\15\ In independent agencies, the 
President retains appointment power, at minimum, of the chief 
administrator; the agency then formulates rules and performs other 
functions.\16\ Likewise, a Sentencing Commission without mandatory 
judicial membership will contain only Presidential appointees who may 
act devoid of any input from judicial actors, despite their unique 
experience and expertise on the issue and the long history of judicial 
control of the sentencing rules and processes. As one court has held, 
``[t]his concentration of sentencing power in the Executive Branch is 
unprecedented.''\17\
---------------------------------------------------------------------------
    \14\ See United States v. Detwiler, 338 F. Supp.2d 1166, 1174 (D. 
Or. 2004).
    \15\ Freytag v. Commissioner, 501 U.S. 868 (1991) (Scalia, J., 
concurring in part and concurring in the judgment).
    \16\ FMC v. S.C. State Ports Auth., 535 U.S. 743, 773 (2002); 
Panama Co. v. Ryan, 293 U.S. 388, 428 (1935).
    \17\  Detwiler, 338 F. Supp.2d at 1175.
---------------------------------------------------------------------------
    By functionally embedding the Sentencing Commission within the 
Executive Branch, the Feeney Amendment unconstitutionally united the 
prosecutorial and sentencing powers within one governmental sector. In 
Mistretta, the Supreme Court upheld the then-required appointment of at 
minimum three judges to the Sentencing Commission. Rather than finding 
a separation of powers violation due to judicial involvement, the Court 
instead speculated that Executive responsibility for ``promulgating 
sentencing guidelines'' might ``unconstitutionally. . .unite[] the 
power to prosecute and the power to sentence within one Branch.''\18\ 
Mandated judicial involvement was therefore central to the Court's 
upholding of the prior structure of the Sentencing Commission. In 
criminal cases, the prosecutor is an executive actor. The judiciary is 
prohibited from encroaching on the executive's wide discretion in 
bringing charges and trying cases, except in rare cases like overt race 
discrimination in jury selection.\19\ Likewise, the Executive Branch 
must refrain from infringement on the judiciary's role as the neutral 
sentencer. Placing the development of sentencing standards within the 
purview of the executive gives this branch both wide discretion in 
bringing charges, along with the ability to impact sentencing by 
promulgating rules that favor its own prosecutorial interests.\20\ This 
is exactly the type of unified action against which the Mistretta court 
cautioned. ``To permit the same body to serve as prosecutor, an 
advocate for the sovereign, and also determine the penalty for the 
offense, is contrary to fundamental notions of liberty and 
justice.''\21\
---------------------------------------------------------------------------
    \18\ Mistretta, 488 U.S. at 391 n.17; see also Detwiler, 388 F. 
Supp.2d at 1175.
    \19\ See United States v. Robertson, 45 F.3d 1423 (10th Cir. 1995) 
(Separation of powers mandates that judicial independence from 
executive affairs and executive independence from judicial affairs).
    \20\ See Jamie Escuder, Congressional Lack of Discretion: Why the 
Feeney Amendment is Unwise (and Perhaps Unconstitutional), 16 Fed. 
Sent. R. 276, 276-277 (2004) (``[B]y edging judges out of the 
sentencing process, the Feeney Amendment removes a critical check on 
the Executive's ability to design a sentencing structure that is biased 
in its favor.'').
    \21\ Detwiler, 388 F. Supp.2d at 1175.
---------------------------------------------------------------------------
    Not only does the Separation of Powers doctrine preclude the 
unification of sentencing and prosecuting powers within one branch; it 
also expressly prohibits any form of ``encroachment or aggrandizement 
of one branch at the expense of the other.''\22\ The placement of the 
Sentencing Commission entirely within the scope of the executive does 
just this. Previously, the Supreme Court has struck down laws that give 
one branch powers appropriately diffused among three branches, laws 
that undermine the authority and independence of another branch of law, 
and laws that reassign power vested in one branch to another 
branch.\23\ Though some blending of the branches' functions is 
appropriate, this is true only when the overlap poses ``no danger to 
either aggrandizement or encroachment.''\24\ However, when this 
blending prevents one branch from exercising its constitutionally 
assigned tasks, the Founders' fear of the ``hydraulic pressure inherent 
within each of the separate Branches to exceed the outer limits of its 
power'' is realized.\25\ In identifying unacceptable infringement, the 
Court looks to the ``practical consequences'' of a challenged plan 
within the context of traditional Article III principles.\26\
---------------------------------------------------------------------------
    \22\ Buckley v. Valeo, 424 U.S. 1, 122 (1983); INS v. Chadha, 462 
U.S. 919, 951 (1983).
    \23\ See Mistretta, 488 U.S. at 382; see e.g., Bowsher v. Synar, 
478 U.S. 714 (1986) (Congress cannot control enactment of legislation 
by retaining the removal power); Chadha, 462 U.S. at 951 (Congress 
cannot control the mechanism in which laws are executed).
    \24\ Mistretta, 488 U.S. at 382; Morrison v. Olson, 487 U.S. 654 
(1988) (judicial appointment of independent counsel does not aggrandize 
its functions); Commodity Futures Trading Comm'n v. Schor, 478 U.S. 833 
(1986) (the executive agency may exercise jurisdiction over state-law 
counterclaims).
    \25\ Chadha, 462 U.S. at 951; see also Nixon v. Administrator of 
General Services, 433 U.S. 425, 443 (1977).
    \26\ Commodity Futures Trading Comm'n, 478 U.S. at 857.
---------------------------------------------------------------------------
    Sentencing has long been designated as a ``primarily judicial 
function.''\27\ By effectively relocating the Sentencing Commission 
within the Executive Branch, the Feeney Amendment both interferes with 
the judiciary's traditional sentencing role and allows the executive to 
assume a function that has long been entrusted to the judiciary. The 
Sentencing Commission determines the appropriate range of punishments 
for particular offenses. Without the required application of judicial 
expertise to this decision-making process, the executive will have 
increased its ability to determine sentences, particularly when 
combined with its plea bargaining power and its ability to decide what 
charges to bring. It will simultaneously have limited or eliminated the 
judiciary's ability to individually tailor sentences. Such a merging of 
responsibilities impermissibly concentrates what has long been a 
diffused sentencing power among the three branches and unquestionably 
aggrandizes the executive's power. The ``practical consequence'' of not 
mandating judicial involvement on the Sentencing Commission is to 
aggrandize the executive's power and to encroach upon the judiciary's 
function as the neutral arbiter.\28\
---------------------------------------------------------------------------
    \27\ Mistretta, 488 U.S. at 382 (``For more than a century, federal 
judges have enjoyed wide discretion to determine the appropriate 
sentence in individual cases.''); Detwiler, 388 F. Supp.2d at 1170 (the 
judiciary has historically determined ``what sentence is appropriate to 
what criminal conduct under what circumstances.'').
    \28\ Mistretta, 488 U.S. at 392.
---------------------------------------------------------------------------
    Likewise, by not mandating judicial involvement on the Commission, 
the Feeney Amendment risks intimidating any judicial members who are 
lucky enough to secure an appointment to the commission, chilling their 
promotion of independent ideas. With no judicial positions guaranteed, 
a judge may be subject to removal by the executive and replaced by a 
non-judicial member. Under such circumstances, any judicial members who 
are appointed to the Commission may feel pressure to act in adherence 
to executive policy desires, as a failure to adhere may imperil 
judicial representation on the Commission in the future. This potential 
for intimidation undermines the necessary elicitation of judicial 
expertise in the Commission's deliberations and encroaches on the 
independence of the judiciary branch.\29\ In creating the original 
Sentencing Commission, Congress clearly recognized that ``any 
suggestion that the Executive Branch should be responsible for 
promulgating the guidelines would present troubling constitutional 
problems. . .'' and would ``fundamentally alter the relationship of 
Congress to the Judiciary with respect to sentencing policy and its 
implementation.''\30\ By not mandating judicial involvement with the 
Sentencing Commission, those prescient congressional fears will be 
realized.
---------------------------------------------------------------------------
    \29\ See Bowsher v. Synar, 478 U.S. 714, 725 (1986) (``The 
fundamental necessity of maintaining each of the three general 
departments of government entirely free from the control or coercive 
influence, direct or indirect, of either of the others, has often been 
stressed is hardly open to serious question.'').
    \30\ H.R. REP. 98-1017, at 94-95 (Sept. 13, 1984).

                               __________
   Responses to Questions for the Record from William E. Moschella, 
    Assistant Attorney General, Office of Legislative Affairs, U.S. 
                 Department of Justice, Washington, DC




                               __________
   Responses to Questions for the Record from Judith W. Sheon, Staff 
          Director, U.S. Sentencing Commission, Washington, DC




                               __________
  Letter to the Honorable Howard Coble, Re: Revised Testimony for the 
     Record from Judith W. Sheon, Staff Director, U.S. Sentencing 
                       Commission, Washington, DC



                               __________
  Supplemental Information for the Record from the Honorable Paul G. 
      Cassell, Judge, U.S. District Court for the District of Utah




                               __________
  Letter to the Honorable Paul G. Cassell and ``Report on Post-Booker 
      Sentencing in the United States District Court, District of 
  Massachusetts,'' from the Honorable Mark L. Wolf, Chief Judge, U.S. 
            District Court for the District of Massachusetts




                               __________
 Revised Testimony of the Honorable Ricardo H. Hinojosa, U.S. District 
             Judge and Chairman, U.S. Sentencing Commission




                                 
