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



IMPLICATIONS OF THE BOOKER/FANFAN DECISIONS FOR THE FEDERAL SENTENCING 
                               GUIDELINES

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

                                HEARING

                               BEFORE THE

                   SUBCOMMITTEE ON CRIME, TERRORISM,
                         AND HOMELAND SECURITY

                                 OF THE

                       COMMITTEE ON THE JUDICIARY
                        HOUSE OF REPRESENTATIVES

                       ONE HUNDRED NINTH CONGRESS

                             FIRST SESSION

                               __________

                           FEBRUARY 10, 2005

                               __________

                            Serial No. 109-1

                               __________

         Printed for the use of the Committee on the Judiciary


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


                                 ______

                    U.S. GOVERNMENT PRINTING OFFICE
98-624                      WASHINGTON : 2005
_____________________________________________________________________________
For Sale by the Superintendent of Documents, U.S. Government Printing Office
Internet: bookstore.gpo.gov  Phone: toll free (866) 512-1800; (202) 512ï¿½091800  
Fax: (202) 512ï¿½092250 Mail: Stop SSOP, Washington, DC 20402ï¿½090001

                       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                  ADAM SMITH, Washington
MIKE PENCE, Indiana                  CHRIS VAN HOLLEN, Maryland
J. RANDY FORBES, Virginia
STEVE KING, Iowa
TOM FEENEY, Florida
TRENT FRANKS, Arizona
LOUIE GOHMERT, Texas

             Philip G. Kiko, Chief of Staff-General Counsel
               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

                      Jay Apperson, Chief Counsel

                        Elizabeth Sokul, Counsel

                          Katy Crooks, Counsel

                 Jason Cervenak, Full Committee Counsel

                        Michael Volkov, Counsel

                     Bobby Vassar, Minority Counsel


                            C O N T E N T S

                              ----------                              

                           FEBRUARY 10, 2005

                           OPENING STATEMENT

                                                                   Page
The Honorable Howard Coble, a Representative in Congress from the 
  State of North Carolina, and Chairman, 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........................     3
The Honorable John Conyers, Jr., a Representative in Congress 
  from the State of Michigan, and Ranking Member, Committee on 
  the Judiciary..................................................     4

                               WITNESSES

The Honorable Christopher A. Wray, Assistant Attorney General, 
  Criminal Division, United States Department of Justice
  Oral Testimony.................................................     6
  Prepared Statement.............................................     8
The Honorable Ricardo H. Hinojosa, Chairman, United States 
  Sentencing Commission
  Oral Testimony.................................................    14
  Prepared Statement.............................................    17
Mr. Daniel P. Collins, Partner, Munger, Tolles, and Olson LLP
  Oral Testimony.................................................    24
  Prepared Statement.............................................    25
Mr. Frank O. Bowman, III, M. Dale Palmer Professor of Law, 
  Indiana University School of Law
  Oral Testimony.................................................    28
  Prepared Statement.............................................    31

                                APPENDIX
               Material Submitted for the Hearing Record

Prepared Statement of the Honorable Howard Coble, a 
  Representative in Congress from the State of North Carolina, 
  and Chairman, Subcommittee on Crime, Terrorism, and Homeland 
  Security.......................................................    59
Prepared Statement of the Honorable Robert C. Scott, a 
  Representative in Congress from the State of Virginia, and 
  Ranking Member, Subcommittee on Crime, Terrorism, and Homeland 
  Security.......................................................    59
Prepared Statement of the Honorable Sheila Jackson Lee, a 
  Representative in Congress from the State of Texas.............    60
Prepared Statement of the Honorable John Conyers, Jr., a 
  Representative in Congress from the State of Michigan, and 
  Ranking Member, Committee on the Judiciary.....................    61
Prepared Statement of the Honorable Adam B. Schiff, a 
  Representative in Congress from the State of California........    62
Material submitted for the record by Rep. Scott..................    63
Letter from the Association of Corporate Counsel (formerly the 
  American Corporate Counsel Association), the Business Civil 
  Liberties, Inc., the Business Roundtable, the National 
  Association of Manufacturers, and the U.S. Chamber of Commerce.   101
Letter from Keith Darcy, Acting Executive Director, Ethics 
  Officer Association (EOA)......................................   104
Letter from Robert Evans, Director, Governmental Affairs Office, 
  the American Bar Association (ABA), dated February 9, 2005.....   112
Letter from Robert Evans, Director, Governmental Affairs Office, 
  the American Bar Association (ABA), dated February 17, 2005....   115
Letter from Edwin Meese, III, and Philip Heymann, Co-Chairs, 
  Sentencing Initiatives, The Constitution Project...............   131
Prepared Statement of Lawrence Piersol, President, the Federal 
  Judges Association, and Chief Judge of the District of South 
  Dakota.........................................................   140
Letter from Kent Scheidegger, Legal Director and General Counsel, 
  Criminal Justice Legal Foundation..............................   141
Letter from Robert L. Wilkins, and Karl A. Racine, Partners, 
  Veneable LLP...................................................   145

 
IMPLICATIONS OF THE BOOKER/FANFAN DECISIONS FOR THE FEDERAL SENTENCING 
                               GUIDELINES

                              ----------                              


                      THURSDAY, FEBRUARY 10, 2005

                  House of Representatives,
                  Subcommittee on Crime, Terrorism,
                              and Homeland Security
                                Committee on the Judiciary,
                                                    Washington, DC.
    The Subcommittee met, pursuant to notice, at 10 a.m., in 
Room 2141, Rayburn House Office Building, Hon. Howard Coble 
(Chair of the Subcommittee) presiding.
    Mr. Coble. Good morning, ladies and gentlemen. Welcome to 
the Judiciary hearing room.
    Let me think aloud for a moment or two. This sentencing 
guidelines is very significantly important, as all of you know. 
We will have the border security bill, which came from this 
Committee, on the floor for debate around 11:30. I am hoping we 
can finish examining you witnesses by that time. I hate to 
inconvenience you all. If, however, we come to 11:30 and 
additional examination may be done, we may have to have you 
fellows go get a bite to eat and just keep your eye on the TV 
monitor. I am thinking, however, that if luck is with us, we 
can probably finish this on or about the time when we have to 
suspend.
    I want to welcome everyone to this very important oversight 
hearing before the Subcommittee on Crime, Terrorism, and 
Homeland Security to examine the implication of two recent 
Supreme Court decisions in United States v. Booker and United 
States v. Fanfan to the Federal sentencing guidelines.
    The Supreme Court's rulings eliminated two critical 
provisions of the Federal sentencing guidelines. First, the 
Court ruled the sentencing guidelines were no longer mandatory 
but are advisory. Second, the Court eliminated the de novo 
appellate review standard for downward departures which was 
passed by Congress as part of the PROTECT Act in the 108th 
Congress and replaced it with a vague and unspecific 
reasonableness standard for appellate review.
    It is an understatement, in my opinion, to say that the 
Supreme Court's decisions have had a dramatic impact on the 
Federal criminal justice system. Some have characterized the 
impact as resulting in complete disarray, and even other 
characterize the decision as posing a direct and significant 
threat to public safety, thereby jeopardizing dramatic 
reductions in the crime rate in our country.
    As this Committee examines this issue, we must be mindful 
of the fact that the Sentencing Reform Act of 1984 which 
created the mandatory Federal sentencing guideline system was a 
bipartisan 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.
    In the short time since the Supreme Court issued its 
rulings in the Booker and Fanfan decisions, there have been 
reported instances of judges deviating from the guideline 
sentencing ranges, relying on varying rationales for such 
departures.
    It is the Congress's role to ensure that the original 
purposes of the Sentencing Reform Act of 1984 are adhered to by 
the Federal Judiciary. We all can agree that disparities among 
similarly situated defendants are unfair and undermine the 
Federal criminal justice system. Justice Breyer in his majority 
opinion in Booker made it clear as to our institutional 
responsibility when he wrote of the Court's decision, ``Ours, 
of course, is not the last word. The ball lies in Congress's 
court.''
    In order to fulfill our constitutional responsibilities, 
today's hearing is the first step to ensuring that the Federal 
sentencing system continues to promote fairness, eliminate 
disparities, and protect the public safety so that law-abiding 
citizens can live in freedom without fear of crime and 
defendants receive fair and equal treatment in the Federal 
judicial system.
    I am looking forward to hearing from our distinguished 
panel of witnesses, and now I am pleased to recognize the 
distinguished gentleman from Virginia, the Ranking Member of 
this Subcommittee, Mr. Bobby Scott.
    Mr. Scott. Thank you, Mr. Chairman, and I thank you for 
convening this hearing. This is our first Subcommittee meeting 
and I look forward to working with you during this session of 
Congress.
    I am pleased to join you in convening this hearing on the 
implications of the United States Supreme Court's Booker and 
Fanfan decisions and the Federal sentencing guidelines. Since 
the Blakely v. Washington decision last June, the viability of 
the Federal and many State sentencing systems have been in 
jeopardy. That decision made it clear that sentences based on 
facts found by the court after the trial that were not admitted 
by the defendant or established during the trial deprived the 
defendant of their constitutional right to a jury trial.
    We contemplated a range of options or approaches after the 
decision. They ranged from doing nothing to enacting an entire 
system of statutory minimums and maximums. However, we wisely, 
I believe, listened to the Council of Sentencing Experts and 
others suggesting that we give the courts a chance to further 
clarify the impact of the decision on the Federal system.
    That further clarification came in the decision by a 
strangely divided Court in January through the Booker/Fanfan 
decision. That decision clarified that Blakely, indeed, was 
applicable to the Federal sentencing guideline system and found 
the system unconstitutional as applied. However, the Court 
delineated the aspects of the system that caused it to be 
unconstitutional, thereby excising the applicability of those 
factors, leaving the remainder of the system intact. Yet, the 
Court, as it properly tends to do, only answered the questions 
it considered to be properly before it at the time. Therefore, 
we are left with the issue of how the remaining system can 
operate consistent with its aims and purposes and the Court's 
decisions. Again, sentencing experts and others are advising 
that we await further clarification from the courts on the 
impact of Booker/Fanfan.
    The early indications of this post-Booker/Fanfan/Blakely 
context is that the sky is not falling. The criminal defendants 
are being prosecuted and sentenced, and the sentencing 
guideline system is directing those sentences to essentially 
the same extent as it was before. So for those who found the 
sentencing guideline system acceptable as applied before 
Blakely, Booker, and Fanfan should still find the situation 
reasonably acceptable now. There are quirks and imperfections 
before the recent upheavals that required appellate court 
correction or clarification, and that is the situation we have 
today.
    For others, including myself, the Federal sentencing 
guidelines as applied were not satisfactory. I am concerned 
about the growing minority percentage of a rapidly increasing 
Federal prison population serving excessively long sentences 
for minor roles in non-violent crimes due in large part to 
unfair application of mandatory minimums and other reasons. 
These problems are detailed in two recent reports from the 
Sentencing Project entitled ``Racial Disparity in Sentencing: A 
Review of the Literature,'' and ``The Federal Prison 
Population: A Statistical Analysis,'' along with a recently 
completed 15-year study of the U.S. Sentencing Commission, of 
which I have an executive summary and I would ask unanimous 
consent that those be introduced into the record of this 
hearing.
    Mr. Coble. Without exception, it will be done.
    [The material referred to is located in the Appendix.]
    Mr. Scott. All of the credible data shows that minorities 
are less likely than whites to use illegal drugs of virtually 
all types, including crack cocaine, yet a grossly 
disproportionate percentage of the enforcement of the war 
against drugs falls on minorities, many of whom are bit players 
in the end stage of the drug trade whose involvement is based 
more on addiction than profit. Eighty percent of the crack 
prosecutions are against African-American defendants, while 
drug use data reflects that 60 percent of the crack is used by 
whites.
    All of the research and demonstrations show that drug 
treatment and other alternatives to incarceration are much more 
effective and much cheaper than incarceration. Yet we continue 
to greatly increase our resources to lock people up, and more 
of these bit players get locked up for longer and longer 
periods while making no consideration to effective and less 
costly alternatives and only minimally increasing drug 
treatment as compared to the increases in enforcement and 
incarceration.
    Report after report, including these by the Sentencing 
Commission and others, have pointed to these gross disparities 
in application of the drug enforcement and sentencing policies 
against minorities, and while we address the atrocities before 
us in Blakely and Booker and Fanfan, it is certainly time to 
look at these sentencing policies as they affect minorities.
    So, Mr. Chairman, as we carefully contemplate what needs to 
be fixed in the Federal guideline system, I would invite 
consideration of this longstanding and shameful problem in our 
Federal law enforcement and sentencing applications and look 
forward to our witnesses' testimony for any guidance they may 
give us as we contemplate these and other challenges in our 
criminal justice system, particularly as it pertains to 
sentencing.
    I yield back.
    Mr. Coble. I thank the gentleman, and I, too, Mr. Scott, 
look forward to working with you during this 109th Congress.
    We have been joined by the Ranking Member of the full 
Committee, the distinguished gentleman from Michigan, Mr. 
Conyers. Did you have an opening statement you wanted to make?
    Mr. Conyers. Thank you, Mr. Chairman. I wanted to commend 
you and Ranking Member Scott for reviewing Booker/Fanfan, and 
the impact on Federal guidelines. I think it is very timely and 
I am looking forward to the witnesses spelling out some of the 
directions we now may be able to look at.
    The Federal sentencing guidelines weren't originally 
enacted to address many of the problems that are facing us 
today. In fact, their original purpose was simply to make 
sentencing more certain and predictable. One of the things that 
has happened, of course, is the only thing more certain and 
predictable is that racial minorities are disproportionately 
punished under the guidelines, so we have a great challenge 
here in front of us.
    The question might occur, how did this come about? Several 
reasons serve as the source of blame for the current state of 
affairs, but the greatest responsibility lies with those who 
rely stubbornly on mandatory minimums and Congressional 
directives to enact misguided policies all in the name of being 
tougher on crime. The crack-powder disparity has already been 
referred to. So why the disparity, even though experts firmly 
agree that there is no logic about it?
    One look today at these sentencing guidelines provides us 
with a unique opportunity to consider these issues, and here is 
where it starts, in this Subcommittee in this room. I think it 
is a great opportunity for us to move forward.
    We also have some probable suggestions as to really what do 
these new decisions really mean. They are not spelled out with 
any great particularity, and I think this gives us a chance 
with our witnesses and among ourselves to begin this dialogue, 
as well. So I thank you for this opportunity.
    Mr. Coble. I thank the gentleman.
    We are pleased to be joined by the distinguished gentleman 
from Arizona, Mr. Flake, the distinguished gentleman from 
Massachusetts, Mr. Delahunt, and if you all have opening 
statements, gentlemen, they will be put into the record, as is 
the case of the gentlelady from Texas, Ms. Sheila Jackson Lee.
    We have four distinguished witnesses with us today. Our 
first witness is Mr. Christopher Wray, Assistant Attorney 
General at the Criminal Division of the U.S. Department of 
Justice. Prior to this position, Mr. Wray served as the 
Principal Associate Deputy Attorney General and as an Assistant 
U.S. Attorney for the Northern District of Georgia. As a 
prosecutor in Atlanta, he prosecuted cases involving 
racketeering, arson, bank robbery, gun trafficking, 
counterfeiting, and immigration issues, among other things. Mr. 
Wray earned both his undergraduate degree and his J.D. from 
Yale University.
    Our second witness is Judge Ricardo Hinojosa. Judge 
Hinojosa was nominated by Ronald Reagan and serves as the U.S. 
District Court 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, Judge 
Hinojosa served as a law clerk for the Texas Supreme Court as 
well as working in private practice in McAllen, Texas. Judge 
Hinojosa is a graduate of the University of Texas and earned 
his J.D. at Harvard University.
    Third, we have Mr. Daniel Collins, a partner at Munger, 
Tolles, and Olson in Los Angeles. Mr. Collins has represented 
clients in various appellate cases at the Ninth Circuit, the 
United States Supreme Court, and the California appellate 
courts. He served previously at the Department of Justice as an 
Associate Deputy Attorney General and Chief Privacy Officer. 
During his tenure at DOJ, Mr. Collins worked extensively on the 
PROTECT Act, as well as on the establishment of the Terrorist 
Screening Center. Additionally, Mr. Collins was an Assistant 
U.S. Attorney in the Criminal Division in Los Angeles. He 
received his undergraduate degree from Harvard University and 
his J.D. from Stanford University.
    Our final witness today, Mr. Frank O. Bowman III, is a 
professor at the Indiana University School of Law in 
Indianapolis. Prior to serving in his current position, he 
served as an academic advisor to the Criminal Law Committee of 
the U.S. Judicial Conference and as Special Counsel to the U.S. 
Sentencing Commission in Washington, D.C. He further served as 
a Deputy District Attorney for Denver, Colorado, and was Deputy 
Chief of the Southern Criminal Division in the U.S. Attorney's 
Office for the Southern District of Florida. Mr. Bowman 
received his law degree from Harvard University.
    Now, for those in the audience, I apologize for my verbose 
introduction, but I feel that you all, in the event that you 
did not know it, you need to know the credentials that these 
witnesses bring to the table and I think that is significant 
and important for all of us. It is good to have you all with 
us.
    Gentlemen, we operate here under the 5-minute rule. Now, 
you won't be drawn and quartered when that red light appears, 
but when the red light appears, that is your information that 
the ice has become awfully thin on which you are skating. The 
amber light, when the amber light appears, I think that will 
give you about 30 to 60 seconds to wrap it up.
    We have your written testimony. It has been examined and 
will be reexamined. We impose the 5-minute rule against 
ourselves when we question you all, if you could make your 
responses as brief as possible so we can beat the red light, as 
well.
    Mr. Wray, why don't we start with you.

   STATEMENT OF THE HONORABLE CHRISTOPHER A. WRAY, ASSISTANT 
 ATTORNEY GENERAL, CRIMINAL DIVISION, UNITED STATES DEPARTMENT 
                           OF JUSTICE

    Mr. Wray. Thank you, Mr. Chairman, and thank you for 
holding this hearing.
    Mr. Chairman and Ranking Member Scott, distinguished 
members of this Subcommittee, in Booker the Supreme Court held 
that the mandatory nature of the Federal sentencing guidelines 
violated a defendant's sixth amendment right to a jury trial. 
The Court then severed the two provisions that make the 
guidelines mandatory, rendering the guidelines only advisory.
    The Supreme Court, however, did not contemplate that 
advisory guidelines would be a permanent solution and 
anticipated that the Congress would consider legislation in the 
wake of Booker. And Mr. Chairman, as you noted, Justice Breyer 
himself stated that the ball lies in Congress's court.
    In considering Booker's consequences, this Subcommittee has 
the benefit of a substantial body of evidence. The long and 
troubled history of sentencing before the Sentencing Reform Act 
demonstrates the problems of disparity and unfairness that 
resulted from fully discretionary sentencing. Almost two 
decades of experience then under the Sentencing Reform Act have 
also shown that the mandatory system of guidelines enacted by 
Congress led to consistency, transparency, and fairness and 
helped to bring about historic declines in crime.
    Since Booker, the actions of several courts have already 
raised concerns about the consequences of a return to greater 
discretion in sentencing. Based on this record, this Committee 
can predict the long-term implications of Booker and can assess 
the need for legislative action.
    The Justice Department is committed to working with 
Congress, with the Judiciary, with the Sentencing Commission 
and with other interested parties to ensure that the resulting 
sentencing regime is just and lasting and carries out the 
purposes of sentencing.
    Before the passage of the Sentencing Reform Act in 1984, 
our country had experimented with different sentencing schemes: 
early release on parole, rehabilitation in place of 
incarceration, and unfettered judicial discretion. Those 
policies did not work. They failed to prevent crime and promote 
safe streets and they contributed to the high crime periods of 
the 1960's, 1970's, and 1980's. There was no coherent 
sentencing policy and judges enjoyed almost unlimited 
discretion in sentencing. That discretion was largely 
unreviewable and it resulted in unwarranted disparity.
    In the late 1970's and early 1980's, a bipartisan Congress 
passed the Act. It guiding principle was consistency so that 
similar defendants who committed similar crimes and had similar 
records would receive similar sentences. Another guiding 
principle was transparency, so that the parties and the public 
would know the factual and legal basis for a sentence, 
providing accountability.
    As one court has recently noted in a post-Booker opinion, 
it would be startling to discover that while Congress had 
created an expert agency, and--I am quoting now--``approved the 
agency's members, directed the agency to promulgate the 
guidelines, allowed those guidelines to go into effect, and 
adjusted those guidelines over a period of 15 years, that the 
resulting guidelines did not well serve the Congressional 
purposes. On the contrary, the more likely conclusion is that 
the guidelines reflect precisely what Congress believes is the 
punishment that will achieve its purposes in passing criminal 
statutes.'' That is from a recent Utah case decided since 
Booker.
    We believe that the Sentencing Reform Act has been 
successful in achieving Congress's goal of reducing unwarranted 
disparity. Statistical studies bear that out.
    Another significant impact of sentencing reform has been 
the steep decline of crime in the United States, which is 
currently at a 30-year low. Following Congress's lead, many 
States have adopted similar guideline systems and an expanding 
body of literature suggests that incarceration of dangerous 
persons in recent years has demonstrably reduced crime.
    As Congress crafts the policies which will guide Federal 
sentencing, we urge you to keep in mind that the ultimate goals 
are to promote fair sentencing by minimizing unwarranted 
disparity and to ensure the public safety through tough 
sentencing.
    Since Blakely, the Department has closely studied various 
sentencing proposals, and although we are not here today to 
endorse a particular option, we are here to say that the 
resulting system must retain the strengths that existed in the 
mandatory guideline system without suffering from its 
constitutional weakness. We agree with those experts who 
predict that a purely advisory system will undoubtedly lead to 
greater disparity, and that over time, this disparity will 
likely increase. I note that at a Sentencing Commission hearing 
last November that a number of us attended, there was 
widespread agreement from professors to defense attorneys that 
advisory guidelines were not appropriate for the Federal 
justice system.
    My written testimony identifies a number of particular 
vulnerabilities, Mr. Chairman, and I see I am coming up on that 
thin ice period. If I could just beg the chair's indulgence for 
just a minute, briefly, the vulnerabilities that I think are of 
particular note and should be of particular concern to this 
Subcommittee. One, it is essential to have consistent 
sentencing procedures at the hearings themselves. We have 
already seen in the wake of Booker some courts that have 
actually adopted procedures that were rejected in Booker by the 
Supreme Court, and that raises, I think, a very sobering 
thought. If lower courts don't feel constrained by a decision 
of the Supreme Court of the United States, then it is certainly 
fair to ask whether they will ever be constrained by guidelines 
that are merely advisory.
    Also, the guidelines had prohibited factors that were 
deemed by the Sentencing Commission to be inappropriate factors 
upon which to reduce a sentence, for example, and in the wake 
of Booker, some courts have already taken prohibited factors 
into account in sentencing defendants to lower sentences.
    Third, one consequence of the advisory guidelines that we 
are very concerned about is the effect on cooperation. Mr. 
Chairman, Mr. Ranking Member, as you know, in order to make 
cases in terrorism, organized crime, drug cases, corporate 
fraud cases, cooperation of lower-level participants is 
absolutely essential to make those cases and the ability for us 
to control that cooperation credit is critical to be able to 
assure that we get the complete truth from the people who seek 
cooperation. So we would not support any proposal that did not 
adequately address that issue in the appropriate ways.
    Mr. Coble. Your time is about up, Mr. Wray.
    Mr. Wray. Thank you, Mr. Chairman. I would be happy to 
answer any further questions.
    Mr. Coble. Thank you.
    [The prepared statement of Mr. Wray follows:]

        Prepared Statement of the Honorable Christopher A. Wray

                              INTRODUCTION

    Chairman Coble, Ranking Member Scott, distinguished members of the 
Subcommittee--
    On January 12, 2005, the Supreme Court of the United States in 
United States v. Booker \1\ held that the mandatory nature of the 
federal sentencing guidelines, promulgated pursuant to the Sentencing 
Reform Act of 1984, violated defendant's Sixth Amendment right to a 
jury trial. The Court remedied this problem by severing and 
invalidating the two provisions that made the Guidelines mandatory, 
thereby rendering the guidelines advisory. A majority of the Supreme 
Court contemplated that advisory guidelines would not be a permanent 
solution and anticipated that Congress would consider legislation in 
the wake of the Booker decision. Indeed, Justice Breyer stated in his 
majority opinion that ``the ball lies in Congress' court. The National 
Legislature is equipped to devise and install, long-term, the 
sentencing system, compatible with the Constitution, that Congress 
judges best for the federal system of justice.'' \2\
---------------------------------------------------------------------------
    \1\ United States v. Booker, 125 S.Ct. 738 (2005).
    \2\ Id. at 768.
---------------------------------------------------------------------------
    In considering the consequences of Booker for the future of 
sentencing, this Subcommittee has the benefit of a substantial body of 
evidence. The long and troubled history of discretionary sentencing 
prior to the Sentencing Reform Act demonstrates the problems of 
disparity and unfairness that resulted from fully discretionary 
sentencing. Almost two decades of experience under the Sentencing 
Reform Act have shown that the mandatory system of guidelines enacted 
by Congress led to consistency, transparency and fairness, and helped 
to bring about historic declines in crime. In the three weeks since 
Booker, the actions of several federal courts have already raised 
concerns about the consequences of a return to greater discretion in 
sentencing. Based on that record, this Subcommittee can begin to 
predict the long-term implications of the Supreme Court's decisions in 
Booker and Blakely,3 and can begin to assess the need for legislative 
action to address those implications. The Department of Justice is 
committed to working with Congress, the judiciary, and other interested 
parties, to ensure that the resulting sentencing regime is just and 
lasting and carries out the fundamental purposes of sentencing.

                       PRE-SENTENCING REFORM ERA

    Prior to the passage of the Sentencing Reform Act in 1984, the 
United States experimented with different sentencing schemes: early 
release on parole, rehabilitation in place of incarceration, and 
unfettered judicial discretion. Those policies failed to prevent crime 
and promote safe streets, and contributed to the high crime periods of 
the 1960's, 1970's, and 1980's. In spite of ample criminal laws, 
adequate levels of federal investigators, and vigorous prosecutions, 
there was no coherent sentencing policy. Judges enjoyed almost 
unlimited discretion at sentencing. This discretion was largely 
unreviewable and the exercise of it by judges throughout the nation 
resulted in unwarranted disparity in sentencing. Senators Edward 
Kennedy, Dianne Feinstein and Orrin Hatch characterized the disparity 
that existed before the Sentencing Reform Act as ``shameful'' and 
``astounding.'' \3\ This past summer, during Senate hearings, Senator 
Patrick Leahy referred to the time before the Sentencing Reform Act as 
``the bad old days of fully indeterminate sentencing when improper 
factors such as race, geography and the predilections of the sentencing 
judge could drastically affect a defendant's sentence.'' \4\
---------------------------------------------------------------------------
    \3\ Brief of Amici Curiae Senators Kennedy, Feinstein, and Hatch, 
United States v. Booker, 125 S.Ct. 738 (2005) (Nos. 04-104, 04-105).
    \4\ Blakely v. Washington and the Future of Federal Sentencing 
Guidelines: Hearing Before the Senate Judiciary Comm, 108th Cong. 8573 
(2004), available at http://judiciary.senate.gov/
testimony.cfm?id=1260&wit--id=2629.
---------------------------------------------------------------------------
    This disparity is well-known and has been documented in a number of 
studies which demonstrated that sentences varied significantly 
depending on the judge to whom an offender was assigned.\5\ In one 
study, judges in the Second Circuit were sent presentence reports based 
upon 20 actual federal cases and asked what sentences they would 
impose. Judges considering the same offense and the same defendant 
often gave those defendants vastly different sentences. In one case the 
defendant's sentence differed by 9 years, in another by 13 years, and 
in a third case 17 years separated the most severe from the most 
lenient sentence. Data also showed that handfuls of judges were 
consistently more severe or more lenient than their colleagues. This 
fact may not be surprising. But the fact that a defendant's sentence 
could vary by 9, 13, or even 17 years depending solely on the judge 
assigned to the case, or that two defendants with similar 
characteristics who committed the same crime in the same Circuit would 
be sentenced to two such different sentences, underscored the need for 
mandatory guidelines.
---------------------------------------------------------------------------
    \5\ U.S. Sentencing Commission, Fifteen Years of Guidelines 
Sentencing 80 (2004) [hereinafter Fifteen Year Report] (studies cited 
therein).
---------------------------------------------------------------------------
    Another study analyzed the role played by each judge's sentencing 
philosophy by providing 264 judges with hypothetical cases. The study 
found that judges who were oriented toward the goals of incapacitation 
and deterrence gave sentences at least ten months longer on average 
than judges who emphasized other goals.
    This type of disparity, coupled with the fact that many sentences 
were not sufficiently punitive, undermined the public's confidence in 
the federal criminal justice system and had far reaching consequences. 
Congress, the Department, and other analysts recognized that such 
inconsistency and uncertainty in federal sentencing practices was 
incompatible with effective crime control and with a fair system of 
justice. And they demanded change.

                     SENTENCING REFORM ACT OF 1984

    In the late 1970's and early 1980's, policymakers in Washington 
came to a consensus view that a determinate sentencing system was 
necessary. Leaders of both parties came together to pass the Sentencing 
Reform Act of 1984. Its guiding principle was consistency, so that 
defendants who committed similar crimes and had similar criminal 
records would receive similar sentences. Another guiding principle was 
transparency, so that the parties and the public would know the factual 
and legal basis for a sentence, providing accountability. Finally, 
Congress articulated the purposes of punishment, which are codified in 
18 U.S.C. Sec. 3553(a)(2) and in 28 U.S.C. Sec. 991(b), and directed 
the Commission to promulgate policies and practices to assure that they 
be achieved. All sentences must reflect the seriousness of the offense, 
promote respect for the law, provide just punishment for the offense, 
afford adequate deterrence to criminal conduct, protect the public from 
further crimes of the defendant, and provide the defendant with needed 
educational or vocational training, medical care, or other correctional 
treatment in the most effective manner.
    Under this congressional mandate, the Sentencing Commission 
established a uniform system of guidelines, structured to provide 
fairness, predictability, and consistency for similarly situated 
defendants. At the same time, the guidelines require each sentence to 
be individualized to fit the offender and the offense, and require the 
court to state the reasons for each sentence. The guidelines also 
require longer sentences for especially dangerous or recidivist 
criminals. Under this system, sentences no longer depended on the 
district where the offenders committed the offense or the judge who 
imposed the sentence, so the likelihood of unwarranted disparity was 
greatly minimized.
    As directed by Congress, the Commission drafted the original 
guidelines based upon the averages of actual sentences imposed by 
judges throughout the United States and it has continued to refine the 
guidelines based upon actual sentencing practice. In addition to these 
empirical data, the Commission collaborates with all of the major 
stakeholders in the federal criminal justice system, advisory groups, 
interested observers, and the general public. Thus, the Commission 
ensures that the guidelines achieve congressionally-mandated purposes, 
and Congress reviews those guidelines and all proposed amendments to 
them to ensure that those purposes are met before allowing them to take 
on the force and effect of law. On occasion, Congress has directed the 
Sentencing Commission to alter existing punishment levels. Congress has 
also approved legislation which mandates minimum punishments for 
certain offenses. Because Congress and the Sentencing Commission have 
made judgments about the appropriate penalties for federal crimes, part 
of our Executive Branch enforcement responsibility is to ensure that 
this policy is translated into actual sentences for defendants.
    As United States District Judge Paul Cassell of the District of 
Utah recently noted in a post-Booker opinion, ``It would be startling 
to discover that while Congress had created an expert agency, approved 
the agency's members, directed the agency to promulgate the Guidelines, 
allowed those Guidelines to go into effect, and adjusted those 
Guidelines over a period of fifteen years, that the resulting 
Guidelines did not well serve the congressional purposes. The more 
likely conclusion is that the Guidelines reflect precisely what 
Congress believes is the punishment that will achieve its purposes in 
passing criminal statutes.'' \6\ The Department was pleased to see that 
Judge Cassell adopted in that opinion an approach of adhering insofar 
as is possible post-Booker to the Sentencing Guidelines, stating that 
``in all future sentencings, the court will give heavy weight to the 
Guidelines in determining an appropriate sentence. In the exercise of 
its discretion, the court will only depart from those Guidelines in 
unusual cases for clearly identified and persuasive reasons.'' \7\ The 
Department will urge the federal courts to adhere to the guidelines as 
far as possible within the limits of Booker, as we await prompt 
enactment of legislation in response to the Booker decision.
---------------------------------------------------------------------------
    \6\ United States v. Wilson, 2005 WL 78552, at *4 (D. Utah 2005).
    \7\ Id. at *12.
---------------------------------------------------------------------------
                    THE IMPACT OF SENTENCING REFORM

    The Sentencing Reform Act has been successful in achieving 
Congress' goal of reducing unwarranted disparity in sentencing. The 
Sentencing Commission's Fifteen Year Report completed in November noted 
that ``[r]igorous statistical study both inside and outside the 
Commission confirm that the guidelines have succeeded at the job they 
were principally designed to do: reduce unwarranted disparity arising 
from differences among judges.'' \8\ In fact, according to the Fifteen 
Year Report, the reduction of unwarranted judicial disparity has been 
reduced by approximately one third to one half by implementation of the 
Guidelines.\9\
---------------------------------------------------------------------------
    \8\ See Fifteen Year Report, supra note 6, at 140.
    \9\ See id. at 97-98.
---------------------------------------------------------------------------
    Another significant impact of sentencing reform has been the steep 
decline of crime in the United States, currently at a 30-year low. 
Congress, through the Sentencing Reform Act of 1984, instituted 
determinate sentences, the elimination of parole, truth in sentencing, 
limited judicial discretion, and appropriate consistency. Following 
Congress' lead, many states adopted similar guidelines systems. 
Congress also used mandatory minimum sentences such as those contained 
in the Anti-Drug Abuse Act of 1986, to incarcerate drug dealers and 
reduce the violence associated with the drug trade, and once again, 
many states followed suit. Further, in 1994, Congress passed the 
Violent Crime Control and Law Enforcement Act which provided incentives 
to states to pass truth in sentencing laws requiring violent offenders 
to serve at least 85% of their sentences. This also is an example of a 
matter on which the states followed Congress' lead. The new sentencing 
systems adopted by Congress and many states recognized the need to 
place the public's safety from crime first and to further that end 
through adequate deterrence, incapacitation of violent offenders, and 
just punishment. The overall drop in the violent crime rate of 26% in 
the last decade is proof of the success of Congress' policies.
    A few critics have said that our sentencing system has been a 
failure and that our prisons are filled with non-violent first-time 
offenders. But the facts tell us otherwise. Focusing exclusively on the 
federal prison population, approximately 66% of all federal prisoners 
are in prison for violent crimes or had a prior criminal record before 
being incarcerated.\10\ Again looking only at federal inmates, 79% of 
federal inmates classified as non-violent offenders released from 
prison have a prior arrest. The rap sheets of federal prisoners 
incarcerated for non-violent offenses indicate an average of 6.4 prior 
arrests with an average of at least 2.0 prior convictions.\11\ Given 
the active criminal careers and the propensity for recidivism of most 
prisoners, incapacitation works.
---------------------------------------------------------------------------
    \10\ Bureau of Justice Statistics, Correctional Populations in the 
United States (Nov. 1997).
    \11\ Bureau of Prisons, Office of Research and Evaluation (Nov. 
2004).
---------------------------------------------------------------------------
    As noted by Judge Paul Cassell and others, ``an expanding body of 
literature suggests that incarceration of dangerous persons in recent 
years has demonstrably reduced crime, through both incapacitation and 
deterrence.'' \12\ These incapacitative and deterrent effects arise 
from a sentencing guidelines system which is tough, fair, and 
predictable. As Congress crafts the sentencing policies which will 
guide the federal criminal justice system, we urge you to keep in mind 
that the ultimate goals are to promote fair sentencing, by minimizing 
unwarranted disparity, and to ensure the public's safety through tough 
sentencing, especially sentencing that incorporates a person's prior 
criminal history and real offense conduct.
---------------------------------------------------------------------------
    \12\ Wilson, 2005 WL 78552, at *7.
---------------------------------------------------------------------------
                 VULNERABILITIES OF ADVISORY GUIDELINES

    Since Blakely, the Department has closely studied various 
sentencing proposals. Today we reaffirm our commitment to support a 
sentencing regime that advances the principles of consistency, 
fairness, transparency, accountability, and the other statutory 
purposes of punishment. Though we are not here today to endorse a 
particular option, we are here to say that the resulting system must 
retain the strengths of the mandatory guideline system without 
suffering from its constitutional weakness.
    We agree with experts who predict that a purely advisory system 
will undoubtedly lead to greater disparity and that, over time, this 
disparity is likely to increase.\13\ At a hearing before the Sentencing 
Commission last November, there was widespread agreement among all of 
the panelists, from professors to public defenders, that advisory 
guidelines were not appropriate for the federal justice system. For 
example, the Practitioners Advisory Group stated that ``rules that are 
mandatory are valuable in controlling unwarranted disparity, and in 
providing certainty so that defendants can make rational decisions in 
negotiating plea agreements and in trial strategy.'' \14\ Testimony of 
a witness appearing on behalf of the Federal Public Defenders stated: 
``We view advisory guidelines as another means of simply evading rather 
than embracing the principles of Blakely.'' \15\ And a law professor 
testified that ``[g]iven the fact that Congress has repeatedly 
expressed its commitment to uniformity (most recently in the Feeney 
Amendment), these solutions [advisory guidelines] ignore the will of 
the ultimate decision-maker in this area.'' \16\ Further, those who 
would cite to state advisory systems as models for the federal system 
often disregard the fact that, unlike the states, the federal system 
casts a wide net over far flung geographical areas, with diverse legal 
cultures.
---------------------------------------------------------------------------
    \13\ Felman, James, How Should the Congress Respond if the Supreme 
Court Strikes Down the Federal Sentencing Guidelines?, 17 Federal 
Sentencing Reporter 97 (Dec. 2004).
    \14\ Letter from Practitioners Advisory Group to the United States 
Sentencing Commission 12 (Nov. 4, 2004), available at http://
www.usscpag.com/index.asp.
    \15\ Jon Sands, Submitted Testimony before Sentencing Commission 4 
(Nov. 17, 2004), available at http://www.ussc.gov/hearings/11--16--04/
Porter1.pdf.
    \16\ Professor Stephanos Bibas, Submitted Testimony before 
Sentencing Commission 5 (Nov. 17, 2004), available at: http://
www.ussc.gov/hearings/11--16--04/Bibas.pdf.
---------------------------------------------------------------------------
    As we have analyzed an advisory guideline system, we have 
identified vulnerabilities that are inherent in advisory guidelines, 
which we consider serious impediments to law enforcement. We urge you 
to give serious consideration to these vulnerable areas and to ensure 
that they are addressed by whatever legislation is enacted.

                         SENTENCING PROCEEDINGS

    The first area is the sentencing hearing itself. In order to have 
consistent sentences, it is essential that sentencing hearings have 
consistent form and substance. Although there are currently statutes 
and Criminal Rules of Procedure controlling sentencing proceedings 
(e.g., 18 U.S.C. Sec. Sec. 3552, 3553(a); Fed. R. Crim P. 32(d)), these 
procedures don't necessarily ensure that courts ``consult the 
guidelines and take them into account when sentencing'' as explicitly 
required by the Court in Booker. In order to comply with these 
requirements, the Department has issued guidance to the field 
instructing prosecutors to recommend guideline sentences in all but the 
rarest cases, and to recommend guideline departures only when justified 
by the facts and the law. We will also ask the sentencing court to 
consult the guidelines and to calculate a guideline sentence prior to 
any other considerations as several courts, including the Second and 
Fourth Circuits, have directed.\17\
---------------------------------------------------------------------------
    \17\ United States v. Crosby, 2005 WL 240916 (2nd Cir. 2005); 
United States v. Hughes, 2005 WL 147059 (4th Cir. 2005).
---------------------------------------------------------------------------
    We have, however, already encountered judges who have exercised 
their new-found discretion to fashion sentencing procedures which were 
considered and explicitly rejected by Booker. In both Oklahoma and 
Nebraska, courts have declared that the appropriate remedy is that 
suggested by Justice Stevens's dissent in Booker--to require 
prosecutors to charge and prove all sentencing facts to a jury beyond a 
reasonable doubt.\18\ In Nebraska, the court used a system of its own 
making to impose a sentence of 36 months for an aggravated illegal 
reentry after deportation, when the guideline range was 57-71 
months.\19\
---------------------------------------------------------------------------
    \18\ The two remedies considered at length in Booker were whether 
to render the guidelines advisory or to require proof of sentencing 
facts to a jury. The Supreme Court chose the former and the federal 
courts must apply it until the Congress enacts a more appropriate 
remedy. But, in United States v. Barkley, Case No. 04-CR-119-H (N.D. 
Okla. Jan. 24, 2005), the district court did not follow the Booker 
decision on the remedy. In Barkley, the district court said ``for 
purposes of determining the viability of the new, advisory system now 
legislated by the Supreme Court, Congress was never called upon to 
choose between such an advisory system and a modified mandatory system. 
Nevertheless, the Supreme Court amended the federal statute to reflect 
its belief as to what Congress would have done if presented with these 
alternatives. This Court believes that Congress will be motivated to 
reimpose a mandatory sentencing system which, under Booker, must 
reflect such modifications as are necessary to accommodate the Sixth 
Amendment rights described in Blakely.'' Id,. slip op. at 8-9. The 
district court ultimately concluded in Barkley that ``as a matter of 
history, policy and common sense, a mandatory sentencing system that 
accommodates the Sixth Amendment rights described in Blakely and Booker 
is preferable to an advisory application of the Guidelines. The Court 
believes that applying the guidelines, modified to satisfy Blakely, 
will have the additional benefit of contributing to the public debate 
when Congress determines whether to reimpose the mandatory components 
of federal sentencing.'' Id., slip op. at 32. In United States v. Jose 
Huerta-Rodriguez, No. 8:04CR365 (D. Neb. Feb. 1, 2005), the district 
court concluded that ``it will continue to require that facts that 
enhance a sentence are properly pled in an indictment or information, 
and either admitted, or submitted to a jury (or to the court if the 
right to a trial by jury is waived) for determination by proof beyond a 
reasonable doubt. The court finds that although Booker's Sixth 
Amendment holding may not require such a procedure, it is not 
precluded.'' Id., slip op. at 12. These district court opinions cannot 
be squared with the statement of the majority of the Supreme Court in 
Booker that ``we must apply today's holdings--both the Sixth Amendment 
holding and our remedial interpretation of the Sentencing Act--to all 
cases on direct review.'' Booker, 125 S. Ct. at 769.
    \19\ Huerta-Rodriguez, Case No. 8:04 CR365 (D. Neb. Feb. 1 2005); 
United States v. Barkley, Case No. 04-CR-119 (N.D. Okla. Jan. 24, 
2005).
---------------------------------------------------------------------------
    These examples reflect a sobering thought: if lower courts are not 
constrained by a clear and explicit holding of the Supreme Court of the 
United States, it is fair to ask whether they will be constrained by 
guidelines that are merely advisory. Similarly, if lower courts 
exercise their discretion to ignore the law concerning matters as large 
as what sentencing system applies in federal courts, surely courts will 
exercise their discretion even more freely when applying individual 
guidelines.
    The fact is that although the guidelines are now advisory, they are 
still an integral part of federal sentencing. As the Second Circuit 
recently noted, ``the Guidelines are not casual advice, to be consulted 
or overlooked at the whim of the sentencing judge.'' \20\ Although the 
law still requires that courts consider the ``applicable category of 
offense and . . . defendant as set forth in the guidelines,'' and ``any 
pertinent policy statement'' and ``the need to avoid unwarranted 
sentence disparities'' among similarly situated defendants,\21\ these 
requirements may, like the Booker opinion itself, be ignored under a 
purely advisory system.
---------------------------------------------------------------------------
    \20\ Crosby, 2005 WL 240916, at *7.
    \21\ 18 U.S.C. Sec. Sec. 3553(a)(4), (a)(5), and (a)(6).
---------------------------------------------------------------------------
                           PROHIBITED FACTORS

    With the current system of advisory guidelines, courts may believe 
they can consider sentencing factors that are prohibited by the 
guidelines. Under the mandatory guidelines system, courts were 
prohibited from considering certain grounds for departure which were 
considered improper by the Sentencing Commission, and in some cases are 
impermissible under the Constitution. Such grounds include the 
defendant's race, sex, national origin, creed, religion, and socio-
economic status.\22\ The Commission also prohibited consideration of 
other factors--such as the defendant''s dependence on alcohol, drugs, 
or gambling, lack of guidance as a youth, disadvantaged upbringing and 
others--and discouraged consideration of other factors.\23\ Clearly, 
whether under the former mandatory guidelines system, or under the 
post-Booker advisory guidelines system, no court may consider grounds 
for departure that are impermissible under the Constitution.
---------------------------------------------------------------------------
    \22\ USSG Sec. Sec. 5H1.10, 5H.12. See generally USSG Sec. 5K2.0.
    \23\ USSG Sec. 5H1.4
---------------------------------------------------------------------------
    Soon after the Court's decision in Booker, a number of courts 
sentenced defendants to sentences significantly below the applicable 
guideline range, relying on factors that the Sentencing Commission 
considered improper when imposing sentences. In Wisconsin, a judge 
sentenced a white collar bank officer in a bank fraud case to one year 
and one day when the guidelines provided for 36-47 months, explicitly 
basing the sentence on considerations such as the defendant's 
motivation to keep the client's business afloat and the fact that the 
conviction resulted in financial distress for the defendant.\24\ In 
California, a judge sentenced four men, convicted of smuggling more 
than a ton of cocaine from Colombia, to 41 months, when the guidelines 
provided for a sentence of at least 235-293 months. Among the reasons 
the court cited for the sentence was the defendants' poverty. A 
newspaper reporting the case quoted the court as stating that the 
guideline sentence recommended by the government was ``extremely 
harsh'' and that the ``the government is being absolutely and totally 
unfair.'' \25\ Meanwhile, other defendants in the same district in 
California received sentences of 20 and 30 years for the same conduct--
smuggling tons of cocaine from Colombia on the high seas.
---------------------------------------------------------------------------
    \24\ United States v. Ranum, 2005 WL 161223 (E.D. Wis. Jan, 19, 
2005).
    \25\ Soto, Onell R., Four Colombians Get Light Sentences, Judge 
Cites Threats, at http://SignOnSanDiego.com/news/metro/20050128-9999-
7m28fast.html.
---------------------------------------------------------------------------
    As these decisions make clear, there is a need for courts to be 
consistent in their application of what factors are proper to consider 
at sentencing. Failing to do so will result in greater disparity. We 
urge Congress, in whatever sentencing system it implements, to prohibit 
certain factors so that judges may not consider in sentencing grounds 
which would be improper to consider or which would create sentencing 
disparity based upon inappropriate characteristics of a defendant.

              COOPERATION AND ACCEPTANCE OF RESPONSIBILITY

    Another consequence of the advisory guidelines is the reduced 
incentive for defendants to enter early plea agreements or cooperation 
agreements with the government, since defendants may request and obtain 
the same benefit from the court without such an agreement. Under the 
mandatory guideline system, a defendant could obtain an additional 
third point reduction in his guideline range as consideration for an 
early acceptance of responsibility only upon the Department's motion. 
The Department is in the best position to determine whether a 
defendant's early plea has save prosecutorial resources, and should 
retain control of who receives that consideration.
    Similarly, it is essential that the Department retain control over 
whether consideration at sentencing will be given for cooperation. 
Cooperation agreements are an essential component of law enforcement 
and are necessary to penetrate criminal organizations and to obtain 
convictions in court. First, the Department is in the best position to 
evaluate the truthfulness and value of a cooperator's assistance, by 
evaluating it within the context of the entire body of investigative 
information and by determining whether it is consistent and 
corroborated by other evidence. But there is a more important reason--
the Department needs the leverage in order to insist that cooperating 
defendants testify to the complete truth, rather than half-truths. The 
integrity of the judicial system depends upon the prosecutor's ability, 
in good faith, to present only truthful testimony. The Department's 
ability to insist on complete and truthful testimony is undercut if a 
cooperating defendant can tell half-truths and then, himself, seek a 
sentence reduction based upon partial cooperation.
    In a number of circumstances, there will be less of an incentive 
for cooperating defendants to assume the risks of cooperation if they 
can seek sentencing benefits without risk. The implications of the 
status quo are particularly troubling for the Department in those cases 
in which defendants and targets are not charged with an offense 
involving a mandatory minimum sentence. This will have grave effects on 
the Department's ability to prosecute a wide variety of crimes which 
are difficult, if not impossible, to investigate without cooperators, 
such as drug trafficking, gangs, corporate fraud and terrorism 
offenses. Moreover, it may impair the Department's ability to obtain 
timely information. If defendants or targets of an investigation 
believe a district judge will impose minimal punishment or reward the 
defendant's representations regarding his cooperation and its value, 
defendants may defer attempts to cooperate with the Department. This 
could have a very disruptive effect on on-going investigations.
    The potential problem created by these issues is serious enough 
that the Department will not support any proposal that does not 
appropriately address this issue.

                            APPELLATE REVIEW

    The Supreme Court in Booker excised 3742(e), which sets forth the 
standard of review on appeal for departures from the applicable 
guideline range, and announced that henceforth appellate courts would 
review sentences for ``unreasonableness.'' \26\ The Department believes 
that guideline sentences are presumptively reasonable, and that 
sentences outside the guidelines become less reasonable the more they 
vary from the guideline range. It is, however, unclear how courts will 
define ``reasonableness'' and it is foreseeable that courts around the 
country will define it differently, opening another window through 
which disparity can infiltrate the system. Both the majority and 
dissenting opinions in Booker noted point. In response to Justice 
Scalia's dissent that the ``reasonableness'' standard will lead to 
sentencing disparities, the majority noted that ``we cannot claim that 
use of a 'reasonableness' standard will provide the uniformity that 
Congress originally sought to secure.'' \27\
---------------------------------------------------------------------------
    \26\ Booker, 125 S.Ct. at 745.
    \27\ Id. at 767.
---------------------------------------------------------------------------
    The Department is disappointed that the de novo standard 
established by the PROTECT Act for sentences outside the applicable 
guideline range is no longer the law. This standard proved invaluable 
in the re-sentencing of a number of cases. For example, the Fourth 
Circuit reviewed de novo a district courts one-month sentence in a 
cross-burning case, based upon the victim's conduct and the defendant's 
aberrant behavior. The Circuit concluded that the departures were 
unwarranted and clearly erroneous.\28\ The Seventh Circuit reviewed de 
novo a district court's decision to grant a downward departure to a 
defendant convicted of child molestation on the grounds of national 
origin and health. Again, the Circuit court found that the departures 
were not warranted.\29\
---------------------------------------------------------------------------
    \28\ United States v. May, 359 F.3d 683 (4th Cir. 2004).
    \29\ United States v. Mallon, 345 F.3d 943 (7th Cir. 2004). See 
also United States v Tucker, 386 F.3d 273 (DC Cir. 2004); United States 
v. Mandhai, 375 F.3d 1243 (11th Cir. 2004).
---------------------------------------------------------------------------
    We are concerned that the ``reasonableness'' standard may not be 
sufficiently rigorous to reduce unwarranted disparity. A rigorous and 
consistent appellate standard is essential to any guideline system 
since appellate review will be an important means for the parties to 
obtain consistent sentencing.

                       REVIEW OF SENTENCING DATA

    Finally, under any regime, it is important that Congress and the 
Sentencing Commission monitor the sentences being imposed throughout 
the country to determine whether the guidelines are being properly 
considered and applied. The impact of the Supreme Court's ruling can 
only be assessed with accurate, real-time information on sentencing, 
which is necessary to play an appropriate and effective role in the 
public debate. This information remains vital to determine whether it 
is necessary to make adjustments to the guidelines, or to impose 
mandatory minimum sentences for certain types of crimes. This review is 
also necessary to ensure that the sentences imposed in the federal 
system are proportionate to the crime and provide adequate punishment, 
incapacitation and deterrence.

                               CONCLUSION

    The Department of Justice is committed to ensuring that the federal 
criminal justice system continues to impose just and appropriate 
sentences that meet the goals of sentencing reform, which has so well 
served the United States. We look forward to working with Congress and 
others to create a lasting system that advances these goals. We are 
confident that Congress will act in the near term to ensure that 
federal sentencing policy continues to play its vital role in bringing 
justice to the communities of this country.
    I would be happy to try to answer any questions that the 
Subcommittee may have.

    Mr. Coble. And in the sense of equity and fairness, since I 
gave you an extra minute, I will give you all 6 minutes if you 
need it. If you can do it in five, that will make the Chairman 
real happy.
    Judge, good to have you with us. Thank you.

   STATEMENT OF THE HONORABLE RICARDO H. HINOJOSA, CHAIRMAN, 
              UNITED STATES SENTENCING COMMISSION

    Judge Hinojosa. Thank you, Chairman Coble and Ranking 
Member Scott and distinguished Members of the Committee. I 
thank you for this opportunity to be able to address you on the 
aftermath of Booker and its possible effect on the Federal 
sentencing guidelines.
    As you know, the Booker decision leaves the Sentencing 
Reform Act intact with the exception of two excised provisions 
and maintains all of the Sentencing Commission's statutory 
obligations. My statement today presents some initial 
observations regarding Booker, provides early data regarding 
the impact of the decision, and outlines actions we are taking 
to ensure that the guidelines continue to be an effective 
sentencing tool.
    After Booker, the guidelines remain an important and 
essential factor in the imposition of Federal sentences. Under 
the approach set forth by the Court, district courts must 
consult the guidelines and take them into account when 
sentencing, subject to review by the courts of appeal for 
unreasonableness. The Commission believes that the Booker 
decision makes clear that the sentencing court must consider 
the guidelines and that such consideration necessarily requires 
the sentencing court to calculate the guideline sentencing 
range and consider the departure policy statements of the 
Federal sentencing guidelines.
    Significantly, Title 18, U.S. Code Section 3553(a) was left 
wholly intact and still instructs that in determining the 
particular sentence to impose, the court shall consider the 
kinds of sentence and the sentencing range as set forth in the 
guidelines. Of course, sentencing courts cannot consider the 
sentencing guideline range if one is not determined by the 
court. Appellate case law is already developing on this point.
    The Booker decision does not expressly address the question 
of how much weight the guidelines should be accorded by the 
sentencing court. There are a number of district court 
decisions with varying opinions regarding the precise weight 
that should be given to the guidelines. The Commission believes 
that the courts should give substantial weight to the 
guidelines in determining the appropriate sentence because as 
mandated by the Sentencing Reform Act, the Commission has 
considered the factors listed in section 3553(a) during the 
process of promulgating and refining the guidelines.
    The factors the Commission has considered are a virtual 
mirror image of the factors sentencing courts are required to 
consider pursuant to section 3553(a). In addition, 
Congressional action through the history of the Federal 
sentencing guidelines indicates Congress's belief that they 
generally achieve the statutory purposes of sentencing as they 
are submitted for Congressional review before they become 
effective, and Congressional approval can only be interpreted 
as a sign that Congress believes the guidelines have done so. 
Accordingly, sentencing courts should give the guidelines 
substantial weight.
    After Booker, sentencing courts also continue to be 
required by Title 28 U.S. Code Section 994(w) to submit to the 
Commission five specific sentencing documents. Judge Sim Lake, 
Chair of the Criminal Law Committee of the Judicial Conference 
of the United States, and I have issued a joint memorandum to 
all United States district judges and other court personnel 
reminding them of this ongoing statutory obligation. The 
submission of these sentencing documents is of utmost 
importance because without them, the Sentencing Commission 
cannot generate the sentencing data that Congress, the 
Commission, and others need to evaluate the impact of Booker.
    The Commission is sensitive to the need for timely and 
thorough post-Booker data and has prioritized and reconfigured 
its data collection in order to analyze and disseminate post-
Booker data in as close to real time as possible. As of 
February 4, 2005, we have received and analyzed sentencing 
documents from 74 Federal districts for 733 cases sentenced on 
or after January 12, 2005. These courts have been highly 
compliant with their statutory requirements to submit 
sentencing documentation to the Commission. The data we have 
compiled is preliminary in nature and not necessarily 
representative of the nation as a whole. I would urge extreme 
caution in making firm conclusions based on these figures.
    The percent of cases sentenced within the guideline 
sentencing range post-Booker does not appear to be noticeably 
different from previous practice. Of the 692 cases for which 
complete sentencing information was available, 63.9 percent 
were sentenced within the applicable guideline sentencing 
range, which is almost identical to the data we have for the 
last three fiscal years of published data, which range from 64 
to 65 percent.
    One-third of the cases were sentenced below the applicable 
guideline sentencing range, which also is almost identical to 
the data we have for the last three fiscal years of published 
data. Almost two-thirds, 63.2 percent of the sentences below 
the applicable guideline range since Booker were based on an 
agreement with the Government either for substantial 
assistance, an early disposition or fast track program, or 
otherwise pursuant to a plea agreement.
    Also noteworthy is that 2.7 percent of the post-Booker 
cases were sentenced above the sentencing guideline range, 
which is a relatively small number but represents more than a 
three-fold increase above the average upward departure rate of 
0.7 percent for the last three fiscal years.
    This very preliminary post-Booker data indicates that 
courts appear to be sentencing pursuant to the guidelines in 
the overwhelming majority of cases. Only 7.8 percent of cases 
appear to be sentenced below, and only 1.3 percent appear to be 
sentenced above the applicable guideline sentencing range based 
upon sentencing authority established in Booker. Therefore, 
courts sentenced pursuant to the guideline system as a whole, 
including upward and downward departure policy statements 
contained in the guideline manual, in 90.9 percent of the 
cases.
    Next week, we have planned a 2-day hearing to continue 
building a record of informed discussion of Booker and we are 
scheduled to vote to publish for comment proposed guideline 
amendments that would implement Congressional directives and 
other legislation concerning identity theft and antitrust 
offenses. In short, our core work continues uninterrupted.
    In closing, the Commission recognizes that Booker presents 
new potentially significant challenges to Federal sentencing 
and we are aware proposals to respond to the decision are being 
discussed. If Congress decides at some point to pursue 
legislation, we hope that it will preserve the core principles 
of the Sentencing Reform Act, and to the extent possible, avoid 
a wholesale rewriting of the system that has operated well for 
nearly two decades. We believe the Sentencing Reform Act was a 
landmark piece of legislation and the resulting guidelines have 
made significant strides in furthering the goals of the Act.
    As we move forward, the Commission is ready to assist 
Congress in any way it deems appropriate, and I thank you so 
much for giving me the time to be here today and for going over 
my alloted time, Mr. Chairman. As a judge for 22 years, I know 
that bothers the person at the helm, so I appreciate it very 
much.
    Mr. Coble. Thank you, Your Honor. I appreciate that.
    [The prepared statement of Judge Hinojosa follows:]

        Prepared Statement of the Honorable Ricardo H. Hinojosa

    Chairman Coble, Ranking Member Scott, and Distinguished Members of 
the Committee, thank you for inviting me 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 \1\ on the Federal 
Sentencing Guidelines.
---------------------------------------------------------------------------
    \1\ United States v. Booker, 125 S. Ct. 738 (2005).
---------------------------------------------------------------------------
    After the Court's decision in Blakely v. Washington,\2\ the federal 
criminal justice system experienced a period of uncertainty regarding 
whether the Federal Sentencing Guidelines would remain valid. The 
Sentencing Commission, in testimony before Congress and in its own 
amicus brief, vigorously asserted that the holding in Blakely did not 
apply to the Federal Sentencing Guidelines. Although the Court 
ultimately extended Blakely to the Federal Sentencing Guidelines, the 
Booker decision resolved the uncertainty in a manner that leaves the 
Sentencing Reform Act intact with the exception of two excised 
provisions. The opinion maintains all of the Sentencing Commission's 
statutory obligations under the Act. In fact, the Court noted the 
Commission's important role in the federal criminal justice system, 
stating that ``the Sentencing Commission remains in place, writing 
Guidelines, collecting information and actual district court sentencing 
decisions, undertaking research, and revising the Guidelines 
accordingly.'' \3\
---------------------------------------------------------------------------
    \2\ Blakely v. Washington, 542 U.S. (2004) (holding that any fact 
(other than a prior conviction) which is necessary to support a 
sentence exceeding the maximum authorized by the facts established by a 
plea of guilty or a jury verdict must be admitted by the defendant or 
proved to a jury beyond a reasonable doubt).
    \3\ Booker, 125 S. Ct. at 767 (opinion of BREYER, J.).
---------------------------------------------------------------------------
    There is no doubt, however, that the Booker decision is the most 
significant case affecting the federal guidelines system since the 
Supreme Court upheld the Sentencing Reform Act in Mistretta.\4\ While 
it is impossible to evaluate fully the impact of Booker after less than 

---------------------------------------------------------------------------
    \4\ Mistretta v. United States, 488 U.S. 361 (1989).
---------------------------------------------------------------------------
one month, the Sentencing Commission and its staff are committed to 
assisting Congress in any way it deems appropriate as you assess and 
respond to the decision.
    The Sentencing Commission is uniquely positioned to assist all 
three branches of government in ensuring the continued security of the 
public while providing fair and just sentences. An independent agency 
housed in the judicial branch, the Sentencing Commission is an expert 
bipartisan body of federal judges, individuals with varied experience 
in the federal criminal justice system, and ex-officio representatives 
of the Executive branch whose work on sentencing guidelines must be 
reviewed by Congress. In short, the Sentencing Commission is at the 
crossroads where the three branches of government intersect to 
determine federal sentencing policy.
    My testimony today presents some of the Sentencing Commission's 
initial observations regarding Booker, provides early data regarding 
the impact of the decision, and outlines actions we are taking to 
ensure that the guidelines continue to be an effective sentencing tool.
    Guidelines Still Must Be Calculated and Considered
    After Booker the Federal Sentencing Guidelines remain an important 
and essential consideration in the imposition of federal sentences. The 
decision severed and excised two statutory provisions, 18 U.S.C. 
Sec. 3553(b)(1), which made the Federal Guidelines mandatory, and 18 
U.S.C. Sec. 3742(e), an appeals provision. Under the approach set forth 
by the Court, ``district courts, while not bound to apply the 
Guidelines, must consult those Guidelines and take them into account 
when sentencing,'' subject to review by the courts of appeal for 
``unreasonableness.'' \5\
---------------------------------------------------------------------------
    \5\ Booker, 124 S. Ct. at 767 (opinion of BREYER, J.) (emphasis 
added).
---------------------------------------------------------------------------
    The Sentencing Commission firmly believes that the Court's decision 
makes clear that the sentencing court must consider the guidelines and 
that such consideration necessarily requires the sentencing court to 
calculate the guideline sentencing range. It is significant that 18 
U.S.C. Sec. 3553(a), which was left wholly intact by the decision, 
still instructs that sentencing courts
    ``. . . in determining the particular sentence to be imposed, shall 
consider . . . the kinds of sentence and the sentencing range 
established for . . . the applicable category of offense committed by 
the applicable category of defendant as set forth in the guidelines . . 
. issued by the Sentencing Commission . . .''.\6\
---------------------------------------------------------------------------
    \6\ 18 U.S.C. Sec. 3553(a)(4) (emphasis added).
---------------------------------------------------------------------------
    Sentencing courts of course cannot consider the sentencing 
guideline range if one has not been determined. Therefore, probation 
officers should continue preparing presentence reports with
    guideline calculations, pursuant to 18 U.S.C. Sec. 3552 and Rule 32 
of the Federal Rules of Criminal Procedure, both of which were 
unchanged by the decision.
    Appellate case law is already developing on this point. The Second 
Circuit has held that in order to comply with the duty to ``consider'' 
the guidelines:
    A judge cannot satisfy this duty by a general reference to the 
entirety of the Guidelines Manual, followed by a decision to impose a 
``non-Guidelines sentence.'' Subsection 3553(a)(4) contemplates 
consideration of the Guidelines range applicable to the defendant, and 
subsection 3553(a)(5) contemplates consideration of policy statements 
issued by the Sentencing Commission, including departure authority. The 
applicable Guidelines range is normally to be determined in the manner 
as before Booker/Fanfan.\7\
---------------------------------------------------------------------------
    \7\ See, e.g., United States v. Crosby, F.3d , 2005 WL 240916 (2nd 
Cir Feb. 2, 2005), at *5 (emphasis added).
---------------------------------------------------------------------------
    The Fourth Circuit similarly has held that ``[c]onsistent with the 
remedial scheme set forth in Booker, a district court shall first 
calculate (after making the appropriate findings of fact) the range 
prescribed by the guidelines. Then, the court shall consider that range 
as well as other relevant factors set forth in the guidelines and those 
factors set forth in Sec. 3553(a) before imposing the sentence.'' \8\ 
Therefore, prior to imposing a sentence sentencing courts must consider 
the guideline range calculations and departure policy statements, 
pursuant to Booker and 18 U.S.C. Sec. 3553(a).
---------------------------------------------------------------------------
    \8\ United States v. Hughes, F.3d , 2005 WL 147059 (4th Cir. Jan. 
24, 2005), at *3. (emphasis added).
---------------------------------------------------------------------------
    Sentencing Guidelines Should be Given Substantial Weight
    Although the Booker decision makes clear that the guidelines must 
be consulted and taken into account, it does not expressly address the 
question of how much weight they should be accorded by the sentencing 
court. There are a number of district court decisions with varying 
opinions regarding the precise weight that should be given to the 
guidelines. For example, a case in the District of Utah has held that 
the Federal Sentencing Guidelines should be given ``heavy weight'' and 
deviated from only in ``unusual cases for clearly identified and 
persuasive reasons,'' while a case in the Eastern District of Wisconsin 
has held that ``courts must treat the guidelines as just one of a 
number of sentencing factors'' enumerated at 18 U.S.C. Sec. 3553(a).\9\ 
The appellate courts ultimately can be expected to address this issue.
---------------------------------------------------------------------------
    \9\ United States v. Wilson, 2005 WL 78552 (D. Utah Jan 13, 2005); 
United States v. Ranum, 2005 WL 161223 (E.D. Wis. Jan 19, 2005).
---------------------------------------------------------------------------
    The Sentencing Commission firmly believes that sentencing courts 
should give substantial weight to the Federal Sentencing Guidelines in 
determining the appropriate sentence to impose, and that Booker should 
be read as requiring such weight. The Booker sentencing scheme 
``requires a sentencing court to consider Guidelines ranges, see 18 
U.S.C.A. Sec. 3553(a)(4) (Supp. 2004), but it permits the court to 
tailor the sentence in light of other statutory concerns as well, see 
Sec. 3553(a) (Supp. 2004).'' \10\
---------------------------------------------------------------------------
    \10\ Booker, 125 S. Ct. at 757 (opinion of BREYER. J.).
---------------------------------------------------------------------------
    During the process of developing the initial set of guidelines and 
in refining them throughout the ensuing years, the Sentencing 
Commission has considered the factors listed at section 3553(a) and 
cited with approval in Booker. The Sentencing Reform Act, in fact, 
mandates such consideration by the Sentencing Commission. Section 
991(b) of title 28, United States Code, expressly states that the very 
purposes of the Sentencing Commission are, among other things: to 
assure the purposes of sentencing, as set forth in section 3353(a)(2), 
are met; to provide certainty and fairness in sentencing; to avoid 
unwarranted disparities among defendants with similar records who have 
been found guilty of similar conduct; and to maintain sufficient 
flexibility to permit individualized sentences when warranted. In 
short, the factors the Sentencing Commission has been required to 
consider in developing the Sentencing Guidelines are a virtual mirror 
image of the factors sentencing courts are required to consider 
pursuant to 18 U.S.C. Sec. 3553(a) and the Booker decision.\11\ As a 
result, sentencing courts should give the guidelines substantial 
weight.
---------------------------------------------------------------------------
    \11\ There is considerable pre-Booker case law supporting the 
proposition that the Sentencing Guidelines take into account the 
factors set forth at 18 U.S.C. Sec. 3553(a)(2). See, e.g., United 
States v. Davern, 970 F.2d 1490 (6th Cir. 1992); United States v. 
Mogel, 956 F.2d 1555 (5th Cir. 1992); United States v. Hefferman, 43 
F.3d 1144 (7th Cir. 1994); United States v. Breeding, 109 F.3d 308 (6th 
Cir. 1997).
---------------------------------------------------------------------------
    In addition, congressional action throughout the history of the 
Federal Sentencing Guidelines indicates Congress's belief that they 
generally achieve the statutory purposes of sentencing. Pursuant to 28 
U.S.C. Sec. 994(p), the Commission is required to submit all guidelines 
and guideline amendments for congressional review before they become 
effective. To date, the initial set of guidelines and 672 amendments 
have withstood congressional scrutiny, and many guideline amendments 
were promulgated in response to congressional directives. Such 
congressional approval can only be interpreted as a sign that Congress 
believes the Federal Sentencing Guidelines adequately achieve the 
statutory purposes of sentencing, providing further support for the 
Sentencing Commission's position that sentencing courts should give the 
guidelines substantial weight in imposing sentences.

    SENTENCING DOCUMENTATION MUST BE COMPLETED AND SUBMITTED

    Sentencing courts also continue to be required by 18 U.S.C. 
Sec. 3553(c) (statement of reasons for imposing a sentence) and 28 
U.S.C. Sec. 994(w) to submit to the Commission within 30 days of entry 
of judgment five specific sentencing documents: the judgment and 
commitment order, the statement of reasons (including the specific 
reasons for any departure), any plea agreement, the indictment or other 
charging document, and the presentence report. Booker makes no changes 
in the document submission requirements imposed by the PROTECT Act, and 
it is imperative that all districts continue to make these submissions 
to the Commission in a timely and complete manner.
    In order to emphasize this point, on January 21, 2004, Judge Sim 
Lake, Chair of the Criminal Law Committee of the Judicial Conference of 
the United States and I issued a joint memorandum to all United States 
District Judges and other court personnel reminding them of the duty to 
continue fulfilling this ongoing statutory requirement (Attachment A). 
I also appeared earlier this week on a television broadcast to the 
courts sponsored by the Federal Judicial Center and again reiterated 
this point.
    The statutorily required submission of sentencing documents is of 
utmost importance because without these documents the Sentencing 
Commission cannot generate the sentencing data that Congress, the 
Commission, and others need to evaluate the impact of Booker on federal 
sentencing. As a result, we intend to continue coordinating with the 
Criminal Law Committee, the Administrative Office of the United States 
Courts, and the Federal Judicial Center to ensure that the courts 
provide us with the documentation and information we need, and this 
effort could include either revisions or supplements to forms currently 
in use.

    SENTENCING COMMISSION'S ACTIONS IN RESPONSE TO BOOKER

    The Sentencing Commission conducted a two day hearing on November 
16 and 17, 2004, at which it heard testimony from the Department of 
Justice, defense attorneys, and academics, and the Commission and its 
staff have attended various conferences and meetings since the Blakely 
decision. Based on these interactions, the Sentencing Commission is 
aware that a number of proposals to respond to Booker are being 
discussed. These proposals include, among others, a ``wait and see'' 
approach, statutory implementation in some form of the Booker 
sentencing scheme, providing a jury trial mechanism for sentencing 
guideline enhancements, ``simplification'' of the guidelines either by 
reducing the number of guideline adjustments and/or by expanding the 
sentencing guideline ranges, equating the maximum of the guideline 
sentencing ranges with the statutory maximum for the offense of 
conviction, and broader reliance on statutory mandatory minimum 
penalties.
    If Congress decides at some point to pursue legislation, we hope 
that it will preserve the core principles of the Sentencing Reform Act 
and, to the extent possible, avoid a wholesale rewriting of a system 
that has operated well for nearly two decades. We believe the 
Sentencing Reform Act was a landmark piece of legislation and the 
resulting guidelines have made significant strides in furthering the 
goals of the Act.
    The Sentencing Commission will continue fulfilling its many 
statutory duties and in furtherance of its ongoing mission already is 
taking several steps in response to Booker. The Sentencing Commission 
is sensitive to the need for timely and thorough post-Booker data on 
federal sentencing. As stated earlier, the Sentencing Commission 
already has communicated with the courts regarding their continuing 
statutory duties regarding completion and submission of sentencing 
documentation. In addition, the Sentencing Commission has prioritized 
and reconfigured its data collection modules in order to collect, 
analyze, and disseminate post-Booker data in as close to ``real time'' 
as possible.
    As of February 4, 2005, the Sentencing Commission has received and 
analyzed sentencing documents for 733 cases sentenced on or after 
January 12, 2005, the date of the Booker decision. The data we have 
compiled is preliminary in nature and not necessarily representative of 
the nation as whole and, therefore, I would urge extreme caution in 
making firm conclusions based on these figures.
    The Sentencing Commission has received sentencing documents from 74 
of the 94 federal districts, and these courts have been highly 
compliant with the documentation submission requirements of 18 U.S.C. 
Sec. 3553(c) and the PROTECT Act, which remain unchanged by Booker. The 
sentencing documentation for these cases included 99.6% of the Judgment 
and Commitment Orders, 98.8% of the Presentence Reports, 97.3% of the 
Indictments or other charging documents, and 95.8% of the Statements of 
Reasons. These figures indicate that courts are continuing to take 
their statutorily required documentation and submission requirements 
seriously.
    The percent of cases sentenced within the guideline sentencing 
range post-Booker does not appear to differ noticeably from previous 
practice. Of the 692 cases for which complete sentencing information 
was available,\12\ 63.9 percent (442) were sentenced within the 
applicable guideline sentencing range. During the last three fiscal 
years of published data, the proportion of cases sentenced within the 
applicable guideline sentencing range remained between 64 and 65 
percent.\13\
---------------------------------------------------------------------------
    \12\ Of the 733 cases analyzed, in 41 cases the Commission was 
unable to determine whether the sentence was within the guideline 
sentencing range, including for example class A misdemeanors for which 
there was no applicable guideline range or immigration offenses in 
which the presentence report was waived and the sentence imposed was 
``time served.''
    \13\ See, Table 26 of the 2002, 2001, and 2000 Sourcebook of 
Federal Sentencing Statistics.
---------------------------------------------------------------------------
    Also similar to prior sentencing practice, approximately one-third 
of the cases--33.4 percent (231)--were sentenced below the applicable 
guideline sentencing range. Between 33.9 percent and 35.4 percent of 
the federal caseload in fiscal years 2000-2002 were sentenced below the 
applicable guideline sentencing range.\14\
---------------------------------------------------------------------------
    \14\ Id.
---------------------------------------------------------------------------
    The majority of the sentences below the applicable guideline range 
since Booker were based on an agreement with the government. Of the 231 
cases sentenced below the applicable guideline sentencing range, 105 
(45.5%) were pursuant to a substantial assistance motion made by the 
government under USSG 6 5K1.1 (Substantial Assistance), 32 (13.9%) were 
pursuant to an early disposition or fast track motion made by the 
government under USSG Sec. 5K3.1 (Early Disposition Programs), and 9 
(3.9%) were otherwise pursuant to a plea agreement. Therefore, the 
government initiated or plea bargained for almost two thirds (63.2%) of 
the sentences below the applicable guideline sentencing range.
    Downward departures were granted for other reasons identified in 
the Guidelines Manual in 31 cases, which represents 13.4 percent of the 
cases sentenced below the applicable sentencing guideline range. The 
remaining 54 cases sentenced below the applicable guideline sentencing 
range appear to be based upon sentencing authority established in 
Booker, which represents 23.4 percent of the cases sentenced below the 
applicable guideline sentencing range.
    Also noteworthy is the fact that 19 cases were sentenced above the 
applicable guideline sentencing range. These sentences were divided 
almost evenly between sentence increases pursuant to upward departure 
provisions contained in the Guidelines Manual and increases based upon 
sentencing authority established in Booker. Combined they comprise 2.7 
percent of the post-Booker cases, which represents more than a three-
fold increase above the average upward departure rate of 0.7 percent 
for fiscal years 2000-2002.\15\
---------------------------------------------------------------------------
    \15\ Id.
---------------------------------------------------------------------------
    This very early preliminary data since Booker seems to indicate 
that courts are sentencing pursuant to the Federal Sentencing 
Guidelines in the overwhelming majority of cases. Only 7.8 percent of 
the cases appear to be sentenced below, and only 1.3 percent appeal to 
be sentenced above, the applicable guideline sentencing range based 
upon sentencing authority established in Booker. Therefore, courts 
sentenced pursuant to the Federal Sentencing Guidelines system as a 
whole, including upward and downward departure policy statements 
contained in the Guidelines Manual, in 90.9 percent of the cases 
analyzed for this period.
    In addition to its timely data collection and analysis, the 
Commission has scheduled another two-day hearing on February 15 and 16, 
2005, to gauge the impact of Booker and continue building a record of 
informed discussion. We expect several witnesses representing a broad 
spectrum of parties interested in the federal criminal justice system 
to testify.
    As evidenced by our testimony today, the Commission is monitoring 
closely emerging case law to see how district courts rely on the 
Federal Sentencing Guidelines in the post-Booker era, how appellate 
courts interpret what is an ``unreasonable'' sentence,\16\ and whether 
the Sentencing Commission must resolve any new resulting conflicts 
among the circuit courts.\17\
---------------------------------------------------------------------------
    \16\ See, United States v. Crosby, F.3d. , 2005 WL 240916 (2nd 
Cir.) (recognizing that ``reasonableness'' is ``inherently a concept of 
flexible meaning, generally lacking precise boundaries'' and declining 
to establish per se standards of reasonableness).
    \17\ See, Braxton v. United States, 500 U.S. 344 (1991).
---------------------------------------------------------------------------
    The Commission also is continuing to train judges, probation 
officers, prosecutors, and defense attorneys on guideline application 
and the extensive provisions of the Sentencing Reform Act that remain 
in full force and effect.
    As further evidence of the Sentencing Commission's continued 
vitality and our belief in the continued relevance and importance of 
the Sentencing Guidelines, next week the Sentencing Commission is 
scheduled to vote to publish for comment proposed guideline amendments 
that would implement congressional directives and other legislation 
concerning identity theft and antitrust offenses. In short, our core 
work continues uninterrupted.

    CONCLUSION

    In closing, the Sentencing Commission recognizes that the Booker 
decision presents new, potentially significant challenges to federal 
sentencing. The Sentencing Commission concurs with a recent 
admonishment to sentencing courts, however, ``that Booker/Fanfan and 
section 3553(a) do more than render the Guidelines a body of casual 
advice, to be consulted or overlooked at the whim of a sentencing 
judge.'' \18\ The Sentencing Commission firmly believes that Booker 
requires that sentencing courts calculate the applicable guideline 
sentencing range. We are noticing in some case law that different 
sentencing courts are giving the Federal Sentencing Guidelines varying 
weights. In addition, we are unsure of how appellate review for 
``unreasonableness'' will work in practice, or how the courts of appeal 
will resolve the issue of how much weight sentencing courts should 
accord the guidelines.
---------------------------------------------------------------------------
    \18\ Crosby, 2005 WL 240916, at *7.
---------------------------------------------------------------------------
    The Sentencing Commission and its staff are closely monitoring 
these and other issues. We are dedicated to our mission to carry out 
the goals of sentencing reform and, as the Booker decision itself says, 
``to provide certainty and fairness in meeting the purposes of 
sentencing [while] avoiding unwarranted sentencing disparities . . . 
[and] maintaining sufficient flexibility to permit individualized 
sentences when warranted.'' \19\
---------------------------------------------------------------------------
    \19\ Booker, 125 S. Ct. at 767 (opinion of BREYER, J) (quoting 28 
U.S.C. Sec. 991(b)(1)(B)).
---------------------------------------------------------------------------
    As we move forward in the wake of Booker, we are ready to assist 
Congress in any way it deems appropriate. Mr. Chairman, Ranking Member 
Scott, and Members of the Committee, thank you again for holding this 
very important hearing. I will be glad to answer any questions you may 
have.



    Mr. Coble. Mr. Collins?

           STATEMENT OF DANIEL P. COLLINS, PARTNER, 
                 MUNGER, TOLLES, AND OLSON LLP

    Mr. Collins. Good morning, Chairman Coble, Ranking Member 
Scott, and Members of the Subcommittee. I appreciate the 
opportunity to testify here today.
    By declaring the U.S. sentencing guidelines to be merely 
advisory, the United States Supreme Court's decision in Booker 
effectively demolishes in one stroke the entire edifice of 
Federal sentencing reform that had been carefully built over 
the course of the last 20 years. The Court has invited the 
Congress explicitly to rebuild a, quote, ``sentencing system 
compatible with the Constitution that Congress judges best for 
the Federal system of justice.'' I applaud you, Mr. Chairman, 
for moving quickly to hold hearings on this important task.
    I would like to begin my remarks by emphasizing the 
importance of the issue before you. Federal sentencing policy 
is not some abstract matter about the mechanics and details of 
court procedure. It is a grave matter that goes to the heart of 
one of the Government's first and foremost responsibilities, 
the protection of public safety.
    In my view, it is no accident that the unprecedented and 
historic declines in crime rates in America have coincided with 
the rise of determinate sentencing under the Federal sentencing 
guidelines and analogous systems at the State level. Common 
sense suggests that if you lock up criminals for longer periods 
of time and lock up the very worst for very long periods of 
time, there will be less crime.
    We simply cannot be sure that if we heed recent calls for 
less severity, for smaller prison populations, or for greater 
flexibility, we will not again see a spike in crime rates. To 
accede to such measures would be to engage in an irresponsible 
experiment that would literally gamble with the lives of this 
nation's citizens.
    Accordingly, it is my strong recommendation that Congress 
act, and act promptly, to rebuild the Federal sentencing system 
so that it can function most nearly as it did before Booker. If 
Federal sentencing policy wasn't broke before Booker, don't fix 
it into something entirely different. The invalidation of the 
guidelines in Booker does not call into question any of the 
ultimate values or objectives of Federal sentencing policy. It 
simply found fault with the mechanisms by which those values 
were achieved in certain cases.
    What, then, is the source of the flaw that was identified 
in Booker? Blakely and Booker are quite clear on that point. In 
Blakely, the Court stated that the crucial factor that 
distinguished Washington's sentencing system from an admittedly 
constitutional system of complete judicial discretion was the 
fact that in the absence of additional factual findings beyond 
those admitted by the defendant or found by the jury, the 
defendant has a legal right to a lesser sentence, and the word 
``right'' is italicized in the Court's opinion.
    Accordingly, the flaw in the guidelines under Booker and 
Blakely is that in the absence of particular findings, the 
guidelines set a legally enforceable maximum sentence that is 
below the theoretical statutory maximum. By contrast, the 
Supreme Court has squarely held that basing a minimum sentence 
on additional facts found solely by the judge does not violate 
the sixth amendment as construed in Apprendi.
    If the goal is, as I think it should be, to preserve the 
practical substance of the guidelines system to the greatest 
extent possible and with as little alteration as possible, the 
question about what Congress should do almost answers itself. 
If the problem is created only by the guidelines' use of ranges 
with legally enforceable maxima below the statutory maximum, 
then the solution is to get rid of those maxima. In other 
words, the sentencing guidelines would be fully restored 
exactly as they were before with the sole exception that in 
every case, the top of the authorized range would be the 
statutory maximum. Booker leaves little doubt that under 
current Supreme Court doctrine, such a system would be 
perfectly constitutional.
    The only objection that I can perceive to this approach is 
the policy argument that it eliminates the protections the 
guidelines previously conferred against a ``hanging judge,'' 
but this objection is wide of the mark. We now have accumulated 
15 years of empirical data of the experience under the 
sentencing guidelines and that practical experience confirms 
that there is very little need to worry about this sort of 
excessive severity. In the last fiscal year for which data are 
publicly available, upward departures occurred in only 457 out 
of nearly 59,000 cases, a grand total of 0.8 percent. In this 
system, the hanging judge is a myth. We should not make 
fundamental structural changes solely to accommodate a problem 
that does not occur in more than 99 percent of the cases.
    On the contrary, as I have testified in my previous 
appearances before this Committee, the problems with disparity 
have all been in the other direction. With the guidelines now 
being purely advisory, we can only expect these problems to 
reappear and to worsen. We should not abandon a highly 
successful system of guideline sentencing.
    Finally, there is one additional aspect that I think ought 
to be addressed in any legislation. As I have noted, the 
Supreme Court has held in Harris that Apprendi did not apply to 
minima. It has also held in Almendarez/Torres that the Apprendi 
rule does not apply to the mere fact of a prior conviction. 
Those decisions were 5-4 and the Congress may wish to address 
the issue of severability and what should go into effect were 
the Court to reverse itself on those decisions.
    I would be pleased to answer any questions the Committee 
may have.
    Mr. Coble. Thank you, Mr. Collins.
    [The prepared statement of Mr. Collins follows:]

                Prepared Statement of Daniel P. Collins

    Chairman Coble and Members of the Subcommittee, I appreciate the 
opportunity to testify here today. By declaring the U.S. Sentencing 
Guidelines to be mere advisory, the United States Supreme Court's 
decision in United States v. Booker, 125 S. Ct. 738 (2005), effectively 
demolishes in one stroke the entire edifice of federal sentencing 
reform that has been carefully built over the last 20 years. As the 
Court made clear, ``[t]he ball now lies in Congress' court.'' 125 S. 
Ct. at 768. I applaud you, Mr. Chairman, for moving quickly to holding 
hearings on this important issue, so that the Congress can promptly 
move to rebuild a ``sentencing system, compatible with the 
Constitution, that Congress judges best for the federal system of 
justice.'' Id.
    My perspective on federal sentencing policy is informed by my 
service over a total of nearly eight years in various capacities in the 
Justice Department. During the 1990s, I served three and one-half years 
as a federal prosecutor in the U.S. Attorney' Office in Los Angeles. 
More recently, I served from June 2001 until September 2003 as an 
Associate Deputy Attorney General (``ADAG'') in the office of Deputy 
Attorney General Larry Thompson. During my time as an ADAG, I had the 
privilege of testifying before this Committee several times concerning 
a variety of provisions that were ultimately enacted into law in the 
Prosecutorial Remedies and Other Tools to end the Exploitation of 
Children Today (``PROTECT'') Act of 2003. The PROTECT Act enacted some 
of the most significant reforms in federal sentencing policy since the 
original enactment of the Sentencing Reform Act of 1984. I also helped 
to develop the Administration's 2002 proposal to strengthen federal 
sentencing of identity theft crimes, a proposal that I was pleased to 
see ultimately enacted into law as the Identity Theft Penalty 
Enhancement Act. I also helped coordinate the Department's 2003 review 
and revision of its policies on charging of criminal offenses, plea 
bargaining, sentencing recommendations, and sentencing appeals. While 
my views on federal sentencing policy are influenced by my prior 
experiences working on such matters in the Government, I am now back in 
private practice in Los Angeles, and I wish to emphasize that the views 
I offer today are solely my own.

                            WHAT IS AT STAKE

    I would like to begin my remarks by emphasizing the importance of 
the issue before you. Federal sentencing policy is not some abstract 
matter about the mechanics and details of court procedure; it is a 
grave matter that goes to the heart of one of the Government's first 
and foremost responsibilities: the protection of public safety.
    In my view, it is no accident that the unprecedented and historic 
declines in crime rates in America have coincided with the rise of 
determinate sentencing under the federal Sentencing Guidelines and 
analogous systems at the state level. I recognize that correlation does 
not necessarily equal causation, but I do not think it is just a 
coincidence--common sense suggests that if you lock up criminals for 
longer periods of time, and lock up the very worst for very long 
periods of time, there will be less crime.
    In any event, I think the burden of doubt must be cast on the 
critics of the Sentencing Guidelines. We simply cannot be sure that the 
decisive move towards more determinate sentencing at the federal and 
state levels has not been an important factor in lowering crime rates. 
Put another way, we simply cannot be sure that, if we heed recent calls 
for less severity, for smaller prison populations, or for greater 
flexibility, we will not again see a spike in crime rates. To accede to 
such measures would be to engage in an irresponsible experiment that 
would literally gamble with the lives of this Nation's citizens.
    Moreover, the ultimate measure for evaluating sentencing policy is 
not whether individual sentences can be said to meet some pre-conceived 
notion of a ``proportionate'' sentence. Proportionality is an important 
value, to be sure, and it is taken into account in the many gradations 
made within the guidelines system. But the vast diversity of competing 
views as to what constitutes a proportionate sentence is precisely what 
led to the enactment of the Sentencing Reform Act and the creation of 
the Sentencing Guidelines in the first place, and congressional 
consideration about how to rebuild the federal sentencing system should 
not get side-tracked into ultimately irresolvable debates about 
subjective notions of proportionality. Rather, sentencing policy must 
ultimately be evaluated in terms of its ability to accomplish the core 
goal of ensuring public safety and reducing crime. By that measure, the 
Sentencing Guidelines have been a unqualified success. That they have 
done so while simultaneously respecting and fostering important values 
of proportionality, consistency, and fairness, makes them all the more 
worth preserving and restoring.

              REBUILDING THE EDIFICE OF FEDERAL SENTENCING

    Accordingly, it is my strong recommendation that the Congress act--
and act promptly--to rebuild the federal sentencing system so that it 
can function most nearly as it did before Booker. If federal sentencing 
policy wasn't broke before Booker, don't fix it into something entirely 
different. The invalidation of the Guidelines in Booker does not call 
into question any of the ultimate values or objectives of federal 
sentencing policy; it simply found fault with the mechanisms by which 
those values were achieved in certain cases.
    In determining how to go about rebuilding the Guidelines system, it 
is essential to identify precisely what it was about the prior system 
that led to the constitutional defect identified by the Supreme Court. 
In Blakely v. Washington, 124 S. Ct. 2531 (2004), which addressed 
Washington State's sentencing system, the Court was explicit in stating 
that it was not ``find[ing] determinate sentencing schemes 
unconstitutional.'' Id. at 2540. On the contrary, the Court stated that 
the issue was how determinate sentencing ``can be implemented in a way 
that respects the Sixth Amendment'' as construed under the Court's 
landmark decision in Apprendi v. New Jersey, 530 U.S. 466 (2000). See 
Blakely, 124 S. Ct. at 2540.
    What, then, is the source of the flaw? Blakely and Booker are quite 
clear on that point. In Blakely, the Court stated that the crucial 
factor that distinguished Washington's sentencing system from an 
admittedly constitutional system of complete judicial discretion was 
the fact that, in the absence of additional factual findings beyond 
those admitted or found by the jury, ``the defendant has a legal right 
to a lesser sentence.'' 124 S. Ct. at 2540 (emphasis in original). 
Indeed, the Court gave an example in order to illustrate its point:

        ``In a system that says the judge may punish burglary with 10 
        to 40 years, every burglar knows he is risking 40 years in 
        jail. In a system that punishes burglary with a 10-year 
        sentence, with another 30 added for use of a gun, the burglar 
        who enters a home unarmed is entitled to no more than a 10-year 
        sentence--and by reason of the Sixth Amendment the facts 
        bearing upon that entitlement must be found by a jury.''

Id. (emphasis in original). Likewise, in extending Blakely to the 
Sentencing Guidelines, the Booker Court emphasized that the defect in 
the Guidelines is that ``[i]t became the judge, not the jury, that 
determined the upper limits of sentencing, and the facts determined 
were not required to be raised before trial or proved by more than a 
preponderance.'' 125 S. Ct. at 751 (emphasis added).
    Accordingly, the flaw in the Guidelines under Booker and Blakely is 
that, in the absence of particular findings, the Guidelines set a 
legally enforceable maximum sentence that is below the theoretical 
statutory maximum.
    By contrast, the Supreme Court has squarely held that basing a 
minimum sentence on additional facts found solely by the judge does not 
violate the Sixth Amendment as construed in Apprendi. See Harris v. 
United States, 536 U.S. 545, 568 (2002).
    If the goal is, as I think it should be, to preserve the practical 
substance of the Guidelines system to the greatest extent possible and 
with as little alteration as possible, the question about how to do 
that almost answers itself: if the problem is created only by the 
Guideline's use of ranges with legally enforceable maxima below the 
statutory maximum, then the solution is to get rid of those maxima. In 
other words, the Sentencing Guidelines would be fully restored exactly 
as they were before, with the sole exception that, in every case, the 
top of the authorized range would be the statutory maximum. Because 
Booker is unambiguously clear in stating that the Court has ``never 
doubted the authority of a judge to exercise broad discretion in 
imposing a sentence within a statutory range,'' 125 S. Ct. at 750, 
there can be little doubt that this revised system would satisfy Booker 
and Blakely.
    The only objection that I can perceive to this approach is the 
policy argument that the revised system would eliminate the ability to 
ensure sentencing uniformity and fairness at the top as well as at the 
bottom of the Guidelines. Put simply, it eliminates the protection the 
Guidelines had previously conferred against a ``hanging'' judge. For a 
number of reasons, this objection cannot carry the day. As an initial 
matter, this objection ignores the obvious fact that, as matters 
currently stand, a defendant has no protection against a hanging judge 
other than the Court's newly fashioned appellate review of sentences 
for ``reasonableness.'' Booker, 125 S. Ct. at 765-67, But the objection 
is wide of the mark for a more fundamental reason. We now have 
accumulated 15 years of experience under the Sentencing Guidelines, and 
that practical experience confirms that there is very little need to 
worry about this sort of excessive severity. For example, in the last 
fiscal year for which data are publicly available, upward departures 
occurred in only 457 of 58,684 cases sentenced nationwide--a grand 
total of 0.8%. In this system, the hanging judge is a myth. We should 
not make fundamental structural changes solely to accommodate a problem 
that does not occur in 99.2% of the cases.
    On the contrary, as I have testified before in my previous 
appearances before this Committee, the problems with disparity have all 
been in the other direction. With the Guidelines now being purely 
advisory, we can only expect these problems to reappear and to worsen. 
It is therefore urgent that the Congress act promptly to restore the 
Guidelines system so that, as before, judges will at least be bound by 
the highly reticulated and carefully tailored system of minimum 
sentences that it contains. We should not abandon the highly successful 
system of Guidelines sentencing.

                ENSURING THAT A REBUILT SYSTEM SURVIVES

    There is one additional aspect that I think ought to be addressed 
in any legislation that seeks to rebuild the Guidelines system after 
Booker and Blakely.
    As I have noted, the Supreme Court held in Harris that Apprendi 
does not apply to mandatory minima. The Court has also continued to 
state that it does not apply to the mere fact of a prior conviction. 
Blakely, 124 S. Ct. at 2536; cf. Almendarez-Torres v. United States, 
523 U.S. 224 (1998). Both Harris and Almendarez-Torres were 5-4 
decisions, and Justice Breyer's concurrence in Harris and Justice 
Thomas' concurrence in Apprendi are alone enough to raise a question 
whether a future Court might, despite the force of stare decisis, see 
these matters differently. Were the Court to do so, it would be a 
travesty to have a replay of Booker in which a future Court might 
decide, once again, to ``sever'' the mandatory nature of the Guidelines 
so as to eliminate the constitutional difficulty.
    Accordingly, I urge the Congress to give serious consideration to 
adding a title to whatever legislation emerges that would specifically 
address the severability issue. In other words, the Congress should add 
language that would have the effect of providing what system would go 
into effect if either Harris or Almendarez-Torres are overruled. There 
are a variety of options Congress could choose. For example, you might 
provide for a graded system of statutorily prescribed mandatory minima 
for all offenses (if Harris were overruled) or for submission of prior 
convictions to the jury (in the event Apprendi were extended to prior 
convictions). There is recent precedent, in the McCain-Feingold Act, 
for taking a more proactive approach toward the issue of possible 
severability. The Congress should likewise act to ensure that the 
system it puts in place here will survive for the long term. Indeed, 
the case for being proactive on severability is uniquely compelling 
here, because the Ex Post Facto Clause will prevent Congress from 
retroactively fixing the problem for the many thousands of cases 
decided in the interim.
    I would be pleased to answer any questions the Committee may have.

    Mr. Coble. We have been joined by the distinguished 
gentleman from Texas, Mr. Gohmert, and Judge Hinojosa, as you 
know, he is a former judge, so we have two judges in our 
presence today.
    Mr. Bowman, good to have you with us.
    I stand corrected. I didn't see the gentlelady from 
California, Ms. Waters, has joined us, as well.

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

    Mr. Bowman. Thank you, Mr. Chairman, Ranking Member Scott, 
distinguished Members of the Committee. Thank you for giving me 
an opportunity to appear before you today.
    The Federal criminal justice system has been in a state of 
some excitement since the Supreme Court decided Blakely v. 
Washington last summer. Blakely cast the constitutional 
validity of the Federal sentencing guidelines into uncertainty, 
an uncertainty that was resolved, at least sort of, by the 
Court's decision less than a month ago in Booker. We now know 
that the guidelines as they were are unconstitutional, but we 
find, perhaps a little bit to our surprise, that the guidelines 
are with a stilt, albeit in a form that few anticipated and no 
one yet entirely understands. So the questions before us are, 
one, what does Booker mean, and two, what should Congress do 
about it?
    I appear today in a dual capacity. On the one hand, I 
appear on behalf of the Sentencing Initiative of the 
Constitution Project, a bipartisan nonprofit organization that 
seeks solutions to difficult legal and constitutional problems. 
Shortly after Blakely was decided last summer, the Constitution 
Project launched its Sentencing Initiative and drew together a 
remarkably talented, experienced, and bipartisan group to study 
the Federal sentencing system generally and the impact of 
Blakely in particular.
    The group, which is headed by former Attorney General Edwin 
Meese and Harvard Professor Philip Heymann, who is formerly the 
Deputy Attorney General of the United States, has sent a letter 
to the Committee urging that Congress respond to Booker with 
caution. I have the honor to serve along with Professor David 
Yellen as co-reporter of the Constitution Project and I fully 
endorse the call for caution expressed in its letter.
    My personal message today is also a counsel of caution and 
a recommendation against at least immediate major legislation. 
In particular, I recommend that Congress not enact so-called 
``topless guidelines'' as an immediate response to Booker. 
Those who have been aboard the Blakely to Booker roller coaster 
from the beginning will recognize that this recommendation puts 
me as the original author of the topless guidelines proposal, 
ably described by Mr. Collins, in the somewhat peculiar 
position of recommending that you not do now precisely what I 
said you should do last summer. At a minimum, as Ricky used to 
say to Lucy, ``it looks like I've got some 'splaining to do,'' 
so let me do it.
    When Blakely was decided last summer, several things seemed 
clear. First, Blakely was going to create a God-awful mess in 
the Federal courts. On the one hand, the rationale of the 
opinion seemed plainly applicable to the Federal guidelines, 
and on the other hand, the Supreme Court reserved ruling on the 
Federal guidelines, so the lower courts were left in the 
position of some confusion until a new case brought the Federal 
guidelines before the Court.
    Second, if Blakely was found to apply to the Federal 
guidelines, only two remedies seemed available to the Court. 
First, keep the guideline rules intact but require that all 
sentencing-enhancing guidelines facts be tried to juries or 
admitted in a guilty plea, or two, invalidate the guidelines 
rules, thus rendering them either completely void or advisory 
in the ordinary sense of the term, that is to say, a set of 
useful but legally non-binding suggestions.
    The first of these remedies, taking judges out of 
guidelines fact finding and running the guidelines through 
juries and pleas, would be complex to the point of 
unworkability. The second possible remedy, voiding the 
guidelines altogether or making them merely non-binding 
suggestions, would work, but would abandon the accomplishments 
of the Sentencing Reform Act in favor of transferring 
unprecedented, unchecked sentencing power to judges.
    In short, the prospect in July 2004 seemed to be a period 
of turmoil while the question of Blakely's applicability worked 
its way up to the Supreme Court, followed by a Supreme Court 
ruling mandating either an unworkably complex system of 
Blakely-ized guidelines or an intolerable abandonment of 
constraint on judicial setting. In that setting, it seemed 
appropriate to suggest legislation that would restore order to 
the Federal courts and effectively restore the guideline system 
almost unchanged.
    Now, how has the passage of time and the decision in Booker 
changed this assessment? First, the post-Blakely turmoil 
happened. It is water over the dam and no legislation passed 
today can undo it.
    Second, I was wrong about the remedies available to the 
Court. Justice Breyer has crafted a third way. The nature of 
his remedial opinion alters the legislative equation in at 
least two ways. First, advisory guidelines in the Booker sense 
are not unworkable, as running the Federal guidelines through 
juries would have been. Nor are they an intolerable abandonment 
of constraint on judicial discretion in the sense that advisory 
guidelines as mere suggestions would be. Instead, Booker has 
given us a system that is workable in the near term and that 
will meaningfully constrain judicial discretion even though we 
don't yet know by how much.
    I don't suggest that Booker created an ideal system. 
Congress may well want to alter it or replace it. I do suggest 
that the Booker system will work pretty well while we study it 
and consider alternatives.
    Second, though Booker has created a system that will work, 
what Booker means as a constitutional matter is still unclear. 
We still don't yet know exactly what advisory means and we 
don't yet know how binding or presumptive guidelines can be 
before they will offend the Constitution. Thus, we can't be 
certain how much Booker-ized guidelines will differ in practice 
from the old system and we can't be sure how to draft any 
replacement without falling afoul of the undefined limits of 
the Booker doctrine.
    My own sense is that Booker is not simply an application of 
the Blakely doctrine to the Federal guidelines. In this sense, 
Justices Scalia and Stevens are correct, I think, in their 
complaint that the Booker remedy is inconsistent with the 
Blakely principle. It appears that this Court is deeply split 
between Justice Scalia's formalistic emphasis on jury fact 
finding and Justice Breyer's effort to create constitutional 
space for sentencing guidelines based on judicial fact finding. 
Booker creates, but does not resolve, this doctrinal split.
    And the outcome of the settle over the split will turn, in 
part, on unknown, unpredictable factors. Justice Ginsberg's 
reasons for joining the Booker remedial majority, the state of 
the Chief Justice's health, the identity of his successor, 
should he retire, and lots of other things, we cannot know.
    Therefore, in an environment of such profound 
constitutional uncertainty, Congress should exercise the 
greatest caution before legislating. The last thing we need is 
a brand new sentencing regime that will itself be found 
unconstitutional within months of its enactment.
    Thank you, Mr. Chairman.
    Mr. Coble. Mr. Bowman, you do not have a corner on the 
market of having some explaining to do. Each of us finds 
ourselves in that position from time to time.
    [The prepared statement of Mr. Bowman follows:]

              Prepared Statement of Frank O. Bowman, III*
---------------------------------------------------------------------------
    * M. Dale Palmer Professor of Law, Indiana University School of 
Law--Indianapolis. Formerly Trial Attorney for the Criminal Division of 
the U.S. Department of Justice (1979-82); Deputy District Attorney, 
Denver, Colorado (1983-87); Assistant U.S. Attorney for the Southern 
District of Florida (Miami) (1989-96); Special Counsel, U.S. Sentencing 
Commission (1995-96) (on detail from U.S. Department of Justice).
---------------------------------------------------------------------------
                          A COUNSEL OF CAUTION

I. Introduction
    I am grateful to the Subcommittee for the opportunity to testify 
today regarding the impact on the federal sentencing system of the U.S. 
Supreme Court's recent decision in United States v. Booker, __U.S.__, 
125 S.Ct. 738 (Jan. 12, 2005), and the nature of an appropriate 
congressional response to that decision. I appear today primarily in my 
individual capacity, but also as a representative of the Sentencing 
Initiative of the Constitution Project.
    The Constitution Project is a bipartisan, nonprofit organization 
that seeks consensus-based solutions to difficult legal and 
constitutional issues through study, consultation, and policy advocacy. 
Last summer, in response to the Supreme Court's decision in Blakely v. 
Washington, __U.S.__, 124 S.Ct. 2531 (June 24, 2004), the Constitution 
Project created the Sentencing Initiative, a group co-chaired by former 
Attorney General Edwin Meese, now of the Heritage Foundation, and 
Philip Heymann, James Barr Ames Professor of Law at Harvard and former 
Deputy Attorney General of the United States. The members of the group 
represent a broad cross-section of institutional interests and 
political views. Professor David Yellen of Hofstra University and I are 
reporters to the Sentencing Initiative. Attorney General Meese and 
Professor Heymann have already forwarded a letter to Chairman 
Sensenbrenner expressing the consensus of the Constitution Project 
group that Congress should respond to the Booker opinion with caution. 
The Constitution Project anticipates issuing a more detailed report 
addressing the state of the federal sentencing system, the impact of 
Blakely and Booker, and recommendations about how the system might be 
improved.
    I agree wholeheartedly with the position expressed in the 
Constitution Project letter and will be happy to answer any questions 
about the letter and the ongoing work of the Constitution Project's 
Sentencing Initiative. That said, the particulars of the analysis 
contained in the remainder of this testimony represent my personal 
views and not those of the Constitution Project's Sentencing Initiative 
or any of its members.

II. From Blakely to Booker
    This is the second time in the past seven months that I have had 
the honor of appearing before this Subcommittee. On July 6, 2004, I 
testified about H. 4547, a bill involving drug crime, and about the 
impact of the immediate predecessor to the Booker decision, Blakely v. 
Washington, __U.S.__, 124 S.Ct. 2531 (June 24, 2004).\1\ On that 
occasion, and again the following week in the Senate Judiciary 
Committee,\2\ I analyzed the Blakely opinion, concluded that it 
probably rendered the Federal Sentencing Guidelines unconstitutional as 
then applied, and offered a proposal to cure the apparent 
constitutional defect.\3\ That proposal, sometimes referred to 
colloquially as ``topless guidelines,'' and other suggested responses 
to Blakely have been the subject of ongoing debate. Today, in the wake 
of Booker, I find myself in the curious position of recommending that 
Congress not do what I recommended that it should do after Blakely. In 
short, along with the other members of the Constitution Project, I urge 
Congress to be cautious, to monitor the effects of the Booker decision 
on the operation of federal sentencing, and not to legislate unless and 
until it is clear that legislation is absolutely necessary and that any 
proposed legislation will withstand constitutional scrutiny.
---------------------------------------------------------------------------
    \1\ Defending America's Most Vulnerable: Safe Access to Drug 
Treatment and Child Protection Act of 2004, Hearing on H.R. 4547 Before 
the Subcommittee on Crime, Terrorism, and Homeland Security, House 
Comm. on the Judiciary, 108th Cong. (2004) (testimony of Frank O. 
Bowman, III), available at http://www.house.gov/judiciary/
bowman070604.pdf.
    \2\ Blakely v. Washington and the Future of the Federal Sentencing 
Guidelines, Hearing Before the Senate Comm. on the Judiciary, 108th 
Cong. (2004) (testimony of Frank O. Bowman, III), available at http://
judiciary.senate.gov/testimony.cfm?id=1260&wit--id=647.
    \3\ The most completely developed version of the proposal appears 
in my written Senate testimony, id. See also, Frank O. Bowman, III, A 
Proposal for Bringing the Federal Sentencing Guidelines Into Conformity 
with Blakely v. Washington, 16 Fed. Sent. Rep. 364 (2004). For 
critiques of the proposal, see Blakely v. Washington and the Future of 
the Federal Sentencing Guidelines, Hearing Before the Senate Comm. on 
the Judiciary, 108th Cong. (July 13, 2004) (testimony of Rachel 
Barkow), available at http://judiciary.senate.gov/
testimony.cfm?id=1260&wit--id=3684; Id. (testimony of Ronald Weich), 
available at http://judiciary.senate.gov/testimony.cfm?id=1260&wit--
id=3685. See also, Douglas Berman, ``The `Bowman Proposal': White 
Knight or Force of Darkness?,'' available at http://
sentencing.typepad.com/sentencing--law--and--policy/2004/07/white--
knight--or.html, and other critiques posted or referenced on Professor 
Berman's invaluable blog, Sentencing Law & Policy, http://
www.sentencing.typepad.com.
---------------------------------------------------------------------------
    My views on what Congress should do have changed because the Booker 
decision changed the legal landscape in ways that virtually no one 
anticipated. The balance of this testimony is devoted to explaining 
Booker's surprising outcome and its implications for sentencing policy.

            A. Blakely v. Washington
    The legal tempest that brings us here today began on June 24, 2004, 
with Blakely v. Washington. The case involved a challenge to the 
Washington state sentencing guidelines. In Washington, a defendant's 
conviction of a felony produced two immediate sentencing consequences--
first, the conviction made the defendant legally subject to a sentence 
within the upper boundary set by the statutory maximum sentence for the 
crime of conviction, and second, the conviction placed the defendant in 
a presumptive sentencing range set by the state sentencing guidelines. 
This guideline range was within the statutory minimum and maximum 
sentences. Under the Washington state sentencing guidelines, a judge 
was entitled to adjust this range upward, but not beyond the statutory 
maximum, if after conviction the judge found certain additional facts. 
For example, Blakely was convicted of second degree kidnapping with a 
firearm, a crime that carried a statutory maximum sentence of ten 
years. The fact of conviction generated a ``standard range'' of 49-53 
months; however, after conviction, the judge found that Blakely had 
committed the crime with ``deliberate cruelty,'' a statutorily 
enumerated factor that permitted imposition of a sentence above the 
standard range, and imposed a sentence of ninety months. The U.S. 
Supreme Court found that imposition of the enhanced sentence violated 
the defendant's Sixth Amendment right to a trial by jury.
    In reaching its result, the Court relied on a rule it had announced 
four years before in Apprendi v. New Jersey, 530 U.S. 466, 490 (2000): 
``Other than the fact of a prior conviction, any fact that increases 
the penalty for a crime beyond the prescribed statutory maximum must be 
submitted to a jury, and proved beyond a reasonable doubt.'' In the 
years following Apprendi, most observers assumed that Apprendi's rule 
applied only if a post-conviction judicial finding of fact could raise 
the defendant's sentence higher than the maximum sentence allowable by 
statute for the underlying offense of conviction. For example, in 
Apprendi itself, the maximum statutory sentence for the crime of which 
Apprendi was convicted was ten years, but under New Jersey law the 
judge was allowed to raise that sentence to twenty years if, after the 
trial or plea, he found that the defendant's motive in committing the 
offense was racial animus. The Supreme Court held that increasing 
Apprendi's sentence beyond the ten-year statutory maximum based on a 
post-conviction judicial finding of fact was unconstitutional.
    In Blakely, however, the Supreme Court found that the Sixth 
Amendment can be violated even by a sentence below what we had always 
thought of as the statutory maximum. Writing for a five-member 
majority, Justice Scalia held that, ``the `statutory maximum' for 
Apprendi purposes is the maximum sentence a judge may impose solely on 
the basis of the facts reflected in the jury verdict or admitted by the 
defendant.'' \4\ Any fact that had the effect of increasing this newly 
defined ``statutory maximum'' must be found by a jury.
---------------------------------------------------------------------------
    \4\ Blakely v. Washington, 124 S. Ct. 2531, 2537 (2004) (emphasis 
in the original).
---------------------------------------------------------------------------
    Accordingly, the Federal Sentencing Guidelines seemed to violate 
the Blakely rule. A defendant convicted of a federal offense is 
nominally subject to any sentence between the minimum and maximum 
sentences provided by statute; however, under the Guidelines, the 
actual sentence which a judge may impose can only be ascertained after 
a series of post-conviction findings of fact. The maximum guideline 
sentence applicable to a defendant increases as the judge finds more 
facts triggering upward adjustments of the defendant's offense level. 
In their essentials, therefore, the Federal Sentencing Guidelines are 
indistinguishable from the Washington guidelines struck down by the 
Court.
    Although in Blakely the Supreme Court reserved ruling on the 
applicability of its holding to the federal guidelines, the obvious 
implications of the opinion for the guidelines caused immediate 
consternation. Within weeks after Blakely, dozens of federal trial and 
appellate courts issued opinions on whether it affected the federal 
sentencing system, and if so how. A legion of commentators added their 
voices to the conversation.\5\ From this cascade of analysis, three 
basic possibilities seemed to emerge.
---------------------------------------------------------------------------
    \5\ For discussion of the Blakely opinion and lower federal court 
opinions construing it, see Frank O. Bowman, III, Train Wreck? Or Can 
the Federal Sentencing System Be Saved'' A Plea for Rapid Reversal of 
Blakely v. Washington, 41 Amer. Crim. L. Rev. 217 (2004)
---------------------------------------------------------------------------
    First, the Department of Justice and a number of courts of appeals 
contended that the federal sentencing system should survive Blakely 
intact. They attempted to distinguish the federal system from the 
Washington state system at issue in Blakely because Washington's 
guideline sentencing ranges were set by statute while the federal 
guidelines were drafted by a sentencing commission.
    Second, some courts and commentators suggested that the Supreme 
Court could ``Blakely-ize'' the federal guidelines by holding that 
their sentencing rules survive, but requiring substitution of a system 
of jury trials and jury waivers for the structure of post-conviction 
judicial fact-finding and appellate review created by the Sentencing 
Reform Act.
    Third, other courts and commentators argued that the Guidelines' 
sentencing rules cannot be severed from the procedure of post-
conviction judicial fact-finding contemplated by the Sentencing Reform 
Act and formalized in the Guidelines. In this view, Blakely rendered 
the Guidelines unconstitutional in toto. The practical effect of such a 
ruling was thought to be that the Guidelines would become either wholly 
void and legally nugatory or at most advisory.
    My reaction to these three apparent options was that the first was 
logically unsupportable and the latter two were practically 
undesirable. First, it seemed unlikely that the Supreme Court would 
distinguish the federal system from the Washington state system based 
on the institution that drafted the sentencing rules.
    Second, judicial ``Blakely-ization'' of the existing federal 
guidelines was not an attractive prospect. It would require the courts, 
the Sentencing Commission, and Congress to reconfigure the entire 
process of adjudicating and sentencing criminal cases, from the 
Guidelines themselves to indictment and grand jury practice, discovery, 
plea negotiation practice, trial procedure, evidence rules, and 
appellate review. The simple fact is that the current Guidelines were 
never meant to be administered through jury trials. Trying to engraft 
them onto the jury system would be both a practical and theoretical 
nightmare.
    Finally, the possibility that the Court would void the Guidelines 
entirely or declare them in some sense advisory seemed equally 
unattractive. Having no guidelines at all would confer even more 
discretion on sentencing judges than was true before the Sentencing 
Reform Act. Prior to the SRA, judges had largely unconstrained 
discretion to impose sentences, while the Parole Commission retained 
substantial authority over actual release dates. But the SRA abolished 
parole, and in a world with neither sentencing guidelines nor a Parole 
Commission, judicial sentencing authority would be absolute. 
Alternatively, ``advisory guidelines'' produced by constitutional 
invalidation of mandatory guidelines seemed almost indistinguishable 
from no guidelines at all. I, at least, could not see how the 
guidelines, once declared unconstitutional, could be anything more than 
useful, but legally nonbinding, suggestions.

            B. ``Topless Guidelines''
    Faced with these three unappealing possibilities and the prospect 
of a long period of turmoil in the federal criminal courts, I suggested 
an interim legislative alternative. I proposed that the Guidelines 
structure could be brought into compliance with Blakely and preserved 
essentially unchanged by amending the sentencing ranges on the Chapter 
5 Sentencing Table to increase the top of each guideline range to the 
statutory maximum of the offense(s) of conviction.
    This proposal depended on a peculiarity of the constitutional 
structure erected in Blakely. As written, Blakely necessarily affects 
only cases in which post-conviction judicial findings of fact mandate 
or authorize an increase in the maximum of the otherwise applicable 
sentencing range. Prior to Blakely, the Supreme Court had held in 
McMillan v. Pennsylvania, 477 U.S. 79, 89-90 (1986), and reaffirmed in 
Harris v. United States, 536 U.S. 545 (2002), that a post-conviction 
judicial finding of fact could raise the minimum sentence, so long as 
that minimum was itself within the legislatively authorized statutory 
maximum. Therefore, so long as facts found by judges applying the 
sentencing guidelines increase only the minimum sentence to be served 
by a defendant, and not the maximum sentence to which he was exposed, 
there would be no constitutional violation. In effect, the ``topless 
guidelines'' approach would convert the Guidelines into a system of 
permeable mandatory minimums. That is, the Guidelines would continue to 
function exactly in the way they always have, except that the 
sentencing range produced by guidelines calculations in any given case 
would have the same lower value now specified by the Chapter Five 
sentencing table, while the upper value would be set at the statutory 
maximum. Judges would still be able to depart downwards using the 
existing departure mechanism, but would not have to formally ``depart'' 
to impose a sentence higher than the top of the ranges now specified in 
the sentencing table.
    This proposal would require legislation because the expanded 
sentencing ranges produced by the proposal would fall afoul of the so-
called ``25% rule,'' 28 U.S.C. Sec. 994(b)(2), which mandates that the 
top of any guideline range be no more than six months or 25% greater 
than its bottom.\6\
---------------------------------------------------------------------------
    \6\ The proposal in its original form would have made any sentence 
above the guideline minimum appealable on an abuse of discretion 
standard. The fact that a judge imposed a sentence higher than that 
suggested by the policy statement for a typical case would be a factor 
in the determination of whether the judge had abused his or her 
discretion. I also recommended that the legislation creating ``topless 
guidelines'' sunset after eighteen months.
---------------------------------------------------------------------------
    The proposal for ``topless guidelines'' was subject to a number of 
criticisms. The idea suffers from the notable disadvantage to 
defendants of imposing enforceable limits on judges' ability to 
sentence below the bottom of guideline ranges, while removing 
restrictions on judges' power to impose sentences above the top of the 
guideline range. Moreover, whatever its substantive merits, the 
constitutionality of this approach depends on the continued viability 
of Harris v. United States. Following the Blakely decision, many 
observers questioned the continued viability of Harris, a 5-4 decision 
about which even Justice Breyer (a member of the Harris majority) has 
expressed some doubt.
    Thus far, of course, Congress has responded to Blakely with caution 
and has not adopted either ``topless guidelines'' or any other 
legislative approach. The question before the Subcommittee today is 
whether, now that Booker has found the Guidelines unconstitutional as 
formerly applied, Congress should act

            C. Booker v. United States
    The principle thrust of my testimony is that the Booker decision 
has altered the landscape in at least three critical respects, all of 
which suggest that Congress should respond with caution.

            1. The meaning of Booker is not yet clear
    As the Subcommittee is aware, in Booker, a five-member majority 
found that the Guidelines process of post-conviction judicial fact-
finding was unconstitutional under the Sixth Amendment, but an almost 
completely different five-member majority wrote the opinion describing 
the proper remedy for the constitutional violation.\7\ Justice Breyer, 
writing for the remedial majority, did not require juries to find all 
sentencing-enhancing guidelines facts, nor did he invalidate the 
Guidelines in toto. Instead, he merely excised two short sections of 
the Sentencing Reform Act,\8\ leaving the remainder of the SRA intact, 
and thus keeping the guidelines intact but rendering them ``effectively 
advisory.'' \9\ Perhaps even more importantly, the remedial opinion 
found that both the government and defendants retained a right to 
appeal sentences, and that appellate courts should review sentences for 
``reasonableness.''
---------------------------------------------------------------------------
    \7\ Only Justice Ginsburg joined both halves of the Court's 
opinion.
    \8\ 18 U.S.C. Sec. 3553(b)(1) and 18 U.S.C. Sec. 3742(e).
    \9\ Booker, 2005 WL 50108, at *16.
---------------------------------------------------------------------------
    The remedial opinion lends itself to different interpretations. 
Some have read ``advisory'' to mean that the Guidelines are no longer 
legally binding on trial judges and that the Guidelines are now merely 
useful advice to sentencing courts. However, a closer reading of the 
opinion suggests something quite different. First, because the opinion 
leaves virtually the entire SRA and all of the Guidelines intact, the 
requirement that judges find facts and making guideline calculations 
based on those facts survives. Second, because the remedies opinion 
retains a right of appeal of sentences and imposes a reasonableness 
standard of review, appellate courts will have to determine what is 
reasonable. The remedies opinion left undisturbed 18 U.S.C. 
Sec. 3553(a), which lists the factors a judge must consider in imposing 
a sentence and includes on that list the type and length of sentence 
called for by the guidelines. Thus, the determination of 
``reasonableness'' under the statute will necessarily include 
consideration of whether a sentence conforms to the Guidelines. The 
unresolved question is the weight that will be accorded to the 
guidelines sentence--will it be considered at least presumptively 
correct or will it be reduced to the status of only one among many 
other factors?
    We do not know how the courts will resolve this critical question. 
Still, there are good reasons to think that the vast majority of judges 
will accord great weight to the sentencing guidelines. For example, in 
a thoughtful decision issued the day after Booker was announced, Judge 
Paul Cassell examined Booker and concluded that he was obliged to 
continue to sentence within the applicable guidelines range unless 
there were exceptional aggravating or mitigating circumstances.\10\ 
Other judges have concluded that they have more flexibility after 
Booker,\11\ but no court has held that the guidelines could be ignored. 
Appellate courts have just begun addressing Booker, but there is every 
reason to think that they will move expeditiously to resolve the 
questions it presents and that they will give adherence to the 
Guidelines a prominent place in their analysis of sentence 
reasonableness. For example, the United States Court of Appeals for the 
Second Circuit recently held in that judges do not have ``unfettered 
discretion'' after Booker and that the congressionally-mandated factors 
set forth in the Sentencing Reform Act, prominently including the 
Guidelines, still constrain the imposition of criminal sentences.\12\
---------------------------------------------------------------------------
    \10\ United States v. Wilson, Case No. 2:03-CR-00882 PGC (D. Utah).
    \11\ See, e.g., United States v. Nellum, 2005 US Dist LEXIS 1568 
(N.D. Ind. Feb. 3, 2005).
    \12\ United States v. Crosby, 2005 WL 240916 (2d Cir. Feb. 2, 
2005). See also, United States v. Hughes, __F.3d__, 2005 WL 147059 at 
*3 (4th Cir. Jan. 24, 2005) (holding that ``[c]onsistent with the 
remedial scheme set forth in Booker, a district court shall first 
calculate (after making the appropriate findings of fact) the range 
prescribed by the guidelines. Then, the court shall consider that range 
as well as other relevant factors set forth in the guidelines and those 
factors set forth in Sec. 3553(a) before imposing the sentence.'') 
(emphasis added).
---------------------------------------------------------------------------
    In short, we don't yet know what the post-Booker sentencing regime 
will look like. At a minimum, Congress should abstain from legislative 
intervention long enough for the courts to clarify what Booker means in 
practice. If Congress is to legislate, it should have a clear 
understanding of the situation it is setting out to correct.

            2. The post-Booker system may be preferable to the 
                    uncertainties of legislating a new sentencing 
                    system
    If Booker produces a system in which the federal sentencing 
guidelines are strongly presumptive, that may be a satisfactory outcome 
for many, at least in the short to medium term. Such a system would 
operate very much as the Guidelines always have, with the undoubted 
difference that judges would have somewhat greater freedom to sentence 
outside the guideline range. So long as the judges do not employ the 
increased flexibility to excess, and so long as both the Department of 
Justice and Congress are prepared to view some modest increase in 
judicial variance from the guidelines with a wary but tolerant eye, the 
system could work surprisingly well. At a minimum, it could work well 
enough to give all the institutional actors time to study and consider 
thoroughgoing reform of the Guideline system in the post-Booker era.
    With respect to ``topless guidelines'' in particular, I suggested 
them in July 2004 because I was troubled by the prospect of prolonged 
turmoil in the federal courts following Blakely, and because neither of 
the seemingly likely results of applying Blakely to the federal 
system--``Blakely-ized'' guidelines run through juries or purely 
advisory guidelines-as-non-binding-suggestions--was desirable. Both of 
these considerations have altered. First, a good deal of the disruption 
I hoped might be avoided through rapid legislation in July 2004 has 
already happened, cannot be undone, and may be compounded by over-hasty 
legislation. Second, in Booker, the Court adopted neither ``Blakely-
ized'' nor purely advisory guidelines, but a system that in the vast 
majority of cases will probably work just like the pre-Booker 
guidelines. At worst, Booker seems to have created a system that is not 
an obvious disaster in need of immediate legislation, but a workable 
system whose strengths and weaknesses have yet to be determined.

            3. Booker creates tremendous uncertainty about the basic 
                    constitutional rules governing sentencing and thus 
                    raises doubts about the constitutional viability of 
                    legislative responses to that decision.
    As noted in the Constitution Project's letter, ``If Congress 
decides to act, the most basic requirement for a new system is 
reasonable certainty that it will survive constitutional challenge.'' 
Booker throws the basic constitutional rules governing criminal 
sentencing into even greater confusion than did Blakely. Blakely laid 
out a simple, almost mechanical, rule: Any fact that increases a 
defendant's maximum sentencing exposure must be found by a jury. This 
rule seemed so absolute that it would render unconstitutional any 
structured sentencing system in which judicial fact-finding could raise 
the top of a defendant's guideline sentencing range, even if as was the 
case under the Washington guidelines, that range was only strongly 
presumptive.
    However, Booker seems to take an entirely different approach. The 
federal guidelines survive. Judges must find facts and use those fact 
findings to determine guidelines ranges with both tops and bottoms. 
Some courts have interpreted Booker to mean that the guideline ranges--
including their tops--are at least presumptively reasonable. It would 
appear that Justice Breyer is trying to shift this line of cases away 
from Justice Scalia's narrow focus on the role of juries toward a world 
in which guidelines setting presumptive sentencing ranges are 
constitutionally valid. At a minimum, the Court is struggling mightily 
to define its direction and until it speaks more definitively, it will 
be difficult, if not impossible, for Congress to enact any remedial 
legislation with real confidence in its constitutionality.
    Even more particularly, I think the Booker decision casts 
additional doubt on the continued viability of Harris v. United States 
and thus on the desirability of turning immediately to ``topless 
guidelines.'' We know that Booker authorizes guideline ranges, with 
tops, determined by post-conviction judicial fact-finding. If the Court 
ultimately accords those ranges at least some measure of legally 
presumptive effect, then the distinction between constitutional and 
unconstitutional guideline systems becomes the degree of 
presumptiveness of the tops of the guideline ranges. Put another way, 
the constitutional distinction between a ``statutory maximum'' which 
must be determined by a jury under Blakely and the top of a presumptive 
guideline range that can be determined by a judge under Booker can only 
be the degree of discretion afforded the judge to sentence above the 
top of the range. If the Court decides that presumptive limits on 
maximum sentences are constitutionally acceptable, it is hard to see 
why the same reasoning should not apply to minimum sentences.
    Those who doubted the continued viability of Harris have noted that 
Justice Breyer was the fifth vote for preserving statutes that set 
minimum sentences through post-conviction judicial fact-finding, and 
that he expressed doubt about how Harris could be squared with 
Apprendi. Before Booker, it seemed plausible that Justice Breyer and 
other members of the Court who favor keeping the Constitution 
hospitable to structured sentencing systems would hold on to Harris 
because it provided at least one tool of structured sentencing. A 
system that constrains judicial discretion only by setting minimums is 
awkward and asymmetrical, but not wholly useless. After Booker, it is 
no longer clear that the weird asymmetry of Blakely and Harris is 
necessary. It would make far greater sense for the Court to hold that 
real, hard, impermeable statutory maximum and minimum sentences can 
only result from facts found by juries or admitted by plea, while at 
the same time permitting structured sentencing systems that use 
judicial fact-finding to generate sentencing ranges, presumptive at 
both top and bottom, inside the statutory limits. Such an approach 
would appeal to many members of the Court because it treats minimum and 
maximum sentences consistently, gives a meaningful role to juries in 
setting the actual minimum sentences that matter more to defendants 
than theoretical maximums, preserves the accomplishments of the 
structured sentencing movement, and confers constitutional status on 
judicial sentencing discretion.\13\ If this is the direction the Court 
is heading, then Harris is in danger and ``topless guidelines'' could 
be found unconstitutional in short order.
---------------------------------------------------------------------------
    \13\ For a more complete outline of how this constitutional model 
of sentencing might work, see Frank O. Bowman, III, Function Over 
Formalism: A Provisional Theory of the Constitutional Law of Crime and 
Punishment, 17 Federal Sentencing Reporter 1 (October 2004).
---------------------------------------------------------------------------
III. Beyond Booker--the Future of Federal Sentencing
    The Federal Sentencing Guidelines have been immensely controversial 
since their advent in 1987. They have actually enjoyed many successes, 
but the chorus of criticism has grown over the years. As my 
professional biography suggests, I believe that vigorous law 
enforcement and the imposition of meaningful terms of incarceration on 
serious criminal violators are crucial tools in the fight against 
crime. Likewise, I am not a proponent of unchecked judicial sentencing 
discretion. My practice experience, my time with the Sentencing 
Commission, and my subsequent work in the academy have convinced me of 
the importance of sentencing guidelines and other mechanisms of 
structured sentencing in achieving just, equitable, and effective 
criminal sentences. More particularly, I have been a vocal advocate of 
the federal sentencing guidelines.\14\ Nonetheless, even I have 
reluctantly concluded that the federal sentencing system has in recent 
years developed in such unhealthy and dysfunctional ways that serious 
rethinking of the guidelines is now called for.\15\ The Blakely and 
Booker decisions have provided the crisis that public institutions 
sometimes require before they engage in careful self-examination. I 
enlisted as reporter to the Constitution Project because it seemed an 
ideal forum for considering the state of federal sentencing working 
with a remarkably diverse and talented group of people. Our work so far 
has confirmed what I, and I think all of us, suspected--that the 
difficulties with federal sentencing are serious and can be seen and 
agreed upon by well-informed legal professionals of widely divergent 
political and institutional perspectives.
---------------------------------------------------------------------------
    \14\ See, e.g., Id.; Frank O. Bowman, III, Fear of Law: Thoughts on 
`Fear of Judging' and the State of the Federal Sentencing Guidelines, 
44 St. Louis L.J. 299 (2000) (defending the federal sentencing 
guidelines as a beneficial set of constraints on judicial sentencing 
authority).
    \15\ See Frank O. Bowman, III, The Failure of the Federal 
Sentencing Guidelines: A Functional Analysis,--Columbia L. Rev. 
__(forthcoming Spring 2005).
---------------------------------------------------------------------------
    My counsel to the Subcommittee is a counsel of caution. Do not act 
precipitously because doing so may make an uncertain situation worse. 
Instead, study what Booker has wrought. Direct others, notably the 
Sentencing Commission and the Department of Justice, to gather the 
information and perform the analysis that will assist you in your 
study. And take the opportunity created by Blakely and Booker to work 
together with all the many people of goodwill who are eager to work 
with Congress, with the Justice Department, with the judiciary, and 
with the Sentencing Commission to improve the administration of federal 
criminal justice.

    Mr. Coble. Gentlemen, thank you very much for your 
contribution. Keep in mind, the 5-minute rule applies to us, as 
well, so if you could keep your responses as terse as possible, 
we would be appreciative.
    Mr. Wray, from a law enforcement perspective, would you 
outline for the Subcommittee in a little greater depth how an 
advisory system of guidelines will hamper a prosecutor's 
ability to gain cooperation from criminal defendants?
    Mr. Wray. Yes, Mr. Chairman. I think you have put your 
finger on what I would consider one of the most important 
vulnerabilities in the post-Booker environment.
    First, we think that under the guidelines as they existed 
before Booker, a defendant could only obtain consideration for 
his cooperation at sentencing based on a motion by the 
Government. In the post-Booker world, that is no longer the 
case. The reason why that is a problem is because the 
Department is in the best position to evaluate the truthfulness 
and value of the cooperator's assistance, by putting it in the 
context of the entire body of the investigation to determine 
whether it is consistent, corroborated by other evidence. And 
that is critical because we all want to ensure that people who 
cooperate in criminal investigations are telling not half-
truths, but complete truth.
    Second, the Booker environment creates less of an incentive 
for cooperating defendants because they can seek to assume some 
of the benefits of cooperation without the risks. That is, they 
can tell part of the story, but not the whole story, and that 
is particularly troubling for the Government's effort to try to 
secure cooperation in organized criminal cases, terrorism, 
corporate fraud, drugs, gangs, and that sort of thing. That may 
be particularly critical where timeliness of information for 
cooperators, as all the members of this Subcommittee know, can 
be critical to advancing cases against CEOs in corporate fraud 
cases, drug leaders in big drug cartel cases, and so forth.
    Mr. Coble. Thank you, sir.
    Mr. Collins, what impact did the de novo standard of review 
have on judges who granted downward departures after the 
PROTECT Act, and if any, those who imposed enhanced sentences?
    Mr. Collins. Mr. Chairman, the Sentencing Commission's 15-
year report specifically notes that the Department had 
indicated--and it cites a number of cases in the report where 
immediately after the enactment of PROTECT and the application 
of the de novo standard of review--there were a notable 
increase in the number of instances of appellate reversals of 
downward departures, suggesting that the change in the standard 
of review did have a positive effect on curing a problem that 
Congress was concerned with.
    Mr. Coble. Mr. Wray, again I am going to ask you, do you 
have examples of courts that have sentenced defendants to 
unreasonable sentences or based sentences upon factors 
prohibited by the guidelines?
    Mr. Wray. Yes, Mr. Chairman. We have a couple of examples 
that are mentioned a little bit in my written statement. I 
would mention in particular a California case, I think it was 
in Southern California, where four men were convicted of 
smuggling more than a ton of cocaine from Colombia. They were 
sentenced to 41 months when the guidelines provided for a 
sentence of 235 to 293 months. That is a situation where you 
are going to have defendants--in fact, we have had defendants 
in the same State engaged in the same conduct receiving 
sentences of 20 or 30 years, whereas those defendants got 41 
months for no principled reason.
    In Wisconsin, we had a bank fraud involving an officer 
where the guidelines provided for a 36 to 47 month sentence and 
the judge reduced it in the wake of Booker, based on 
considerations like the defendant's motivation to keep the 
client's business afloat and the fact that the conviction 
resulted in financial distress for the defendant. So there are 
examples that are starting to emerge that make that point.
    Mr. Coble. Thank you.
    Judge Hinojosa, in your testimony at page four, you 
indicate you believe that sentencing courts should give 
substantial weight to the Federal sentencing guidelines in 
determining the appropriate sentence to impose. Explain your 
position on whether or not there is support for such a standard 
under Booker.
    Judge Hinojosa. The Court was silent on that issue, as far 
as I can tell. However, I think the support exists, as I 
indicated in the written and the oral statement that I have 
made here, in the fact that the Sentencing Commission in 
promulgating and refining the guidelines has made 
determinations based on statutorily directed factors that are 
used under 3553(a). In fact, the Commission was directed in 
promulgating and refining the guidelines to take those into 
consideration, in addition to the fact that Congress itself has 
the right to review the guidelines as they are presented by the 
Commission and it must indicate to us that Congress' approval 
of the guidelines indicates that Congress itself feels strongly 
that the goals of the Sentencing Reform Act are met by the 
guidelines. Therefore, they should be given substantial weight.
    Mr. Coble. My red light illuminates in my eye. Mr. Bowman, 
I will get to you later.
    Mr. Scott?
    Mr. Scott. Thank you, Mr. Chairman.
    Mr. Wray, I was intrigued by your statement that the 
Federal guidelines have reduced crime. What portion of the 
violent criminals that are sentenced in America today are 
sentenced in Federal court?
    Mr. Wray. Ranking Member Scott, I don't have that 
percentage. I can tell you that--and I believe what I meant to 
say, I am not sure if I said this or not, is that sentencing 
regimes like the Federal sentencing guidelines--in other words, 
I think I pointed out that a number of States have followed 
Congress's lead in adopting similar systems and it is our view 
that the combination of the Federal guidelines in the Federal 
system, and in the State systems which track in many ways the 
Federal system, have resulted in that reduction in violent 
crime.
    Mr. Scott. And do you have some studies that show the 
pattern that those States that actually increase sentences had 
a larger reduction in crime than the general reduction that was 
going on all over the country?
    Mr. Wray. I don't have that information for you today. I 
would be happy to try to provide that in supplemental 
questions. I do think there is information, if I recall 
correctly, that shows, for example, in California that there 
have been significant reductions in the wake of their adoption 
of a system like that.
    Mr. Scott. I am saying I know there are reductions. We had 
Project Exile in Richmond, Virginia. When it went into effect, 
the crime rate went down. When you look at other cities 
similarly situated that didn't have Project Exile, the crime 
rate went down more. So my question is whether or not you see 
any pattern that there is a real effect on longer sentences and 
reduced crime. Just in some States did it go down. But in all 
States, the crime rate went down. There are plenty of studies 
that show there is no pattern at all and I was just wondering, 
in abolishing parole and all that kind of stuff, do you have 
any credible studies that back up what you said?
    Mr. Wray. I do believe we have information that shows that 
the implementation of so-called truth-in-sentencing regimes 
across the country, both in the Federal system and in the 
majority of the States, have contributed to a significant 
reduction in violent crime. I would be happy to respond in 
supplemental written questions to provide more information if 
that would be helpful.
    Mr. Scott. It would be helpful, and I would hope it would 
be in the form that would show a pattern, not just that you did 
it and crime went down, but you did it but crime went down in a 
pattern that suggests that the longer sentences had something 
to do with the reduction. So I look forward to that 
information.
    Judge Hinojosa, you tried a lot of cases and I am sure you 
would recognize that the seriousness of a crime isn't always 
conveyed by the code section that was violated. Some people can 
violate the same code section and common sense tells you that 
one crime was much more serious than the other and that ought 
to be reflected in the sentence.
    You still have the guidelines. In the present system with 
them being advisory and not mandatory, is it more likely or 
less likely that the defendant will get an intelligent sentence 
in the present system or with the mandatory guidelines?
    Judge Hinojosa. I guess Congressman Coble pointed out how 
long I have been on the bench, more or less, by indicating who 
appointed me to the bench, so I have actually done sentencing 
both under pre-guideline system for close to 5 years and after 
the guidelines. I have to say that the guideline system was of 
great benefit to the sentencing process, which is the most 
difficult thing that a judge has to do.
    Prior to the guidelines, you wanted to be consistent, you 
wanted to treat like defendants for like criminal law offenses 
more or less the same, but it was very difficult without having 
a guideline system and you spent a lot of your time trying to 
determine what you had done in a similar case with someone with 
a similar prior history with regard to their particular 
sentence because you wanted to be consistent, you wanted to be 
fair, and you wanted to give the type of sentence you were 
giving on a regular basis, but that was just you individually 
as opposed to all the other judges.
    The guideline system under the Sentencing Reform Act was 
created to try to prevent those kind of problems and it had its 
effect. It is a difficult process, but I do think that the 
Federal guideline system provides the considerations under the 
Sentencing Reform Act. As they are now, as advisory, the 
Commission's position as well as my position continues to be 
that the Booker decision, and I may have misspoken with regard 
to Congressman Coble's question, does indicate that the 
guidelines have to be consulted and considered with regard to 
every sentence, which would therefore mean substantial weight 
should be given to them, and I do think that it is important to 
do that.
    As a judge, you have to make the findings on the record 
within the guideline system, or if not, you cannot just 
generally say, I have considered the guidelines but I have 
decided to proceed with this sentence because we will go right 
back to the situation we were beforehand.
    Mr. Scott. The present situation gives you flexibility. Is 
that helpful in assessing an intelligent situation? I mean, 
some people similarly situated actually come into your court 
charged under different code sections, and you look at it and 
it is exactly the same behavior.
    Judge Hinojosa. There is flexibility, obviously, under the 
Booker decision, but I strongly believe after the number of 
years that I have sentenced individuals under the guidelines 
system that there was flexibility within the guidelines system. 
I did not have to proceed with relevant conduct unless I made a 
finding that I was convinced that that was the individual's 
relevant conduct. With regard to role in the offense, I can 
make adjustments upward or downward depending on what I saw the 
evidence is like with regard to every single finding under the 
guidelines.
    I do have to say those were decisions I would make without 
ever telling an individual when I would sentence somebody 
before the guidelines system whether there was a firearm 
involved, what kind of drugs were involved, the amount of the 
drugs involved. Those were all factors with no transparency in 
the pre-guidelines system. But I do think there was some 
discretion within the guidelines system that we have failed to 
state within the past in the system itself because the judge 
still had to make those findings.
    Mr. Coble. The gentleman's time has expired.
    The gentleman from Arizona, Mr. Flake, is recognized for 5 
minutes.
    Mr. Flake. Thank you, Mr. Chairman, and I thank the 
witnesses.
    While this hearing is focusing on sentencing, that is kind 
of the tail end of the criminal justice system. Some argue that 
we need to look much broader, at the front end, the criminal 
laws that we have on the books. I think Attorney Generals Meese 
and Thornburg have criticized the rapid expansion of the code. 
Last year, the Federalist Society published a study noting 
there are more than 4,000 Federal offenses that carry criminal 
penalties.
    My question is this, and I will go to Mr. Wray first. Why 
does it not make sense to take a year and to see how Booker 
plays out, and during that time, have a commission to look at 
the code itself and then come back, if we need to, and make 
changes to both the code and the sentencing guidelines?
    Mr. Wray. Congressman, I think we believe that while 
Congress should certainly not act rashly, that we do believe 
that there are certain vulnerabilities that exist in the post-
Booker world that we already know are there and that are 
already problematic and that already require attention. We also 
know, with a considerable body of experience, we have the 
landscape that existed in the years before the Sentencing 
Reform Act as well as the experience under the sentencing 
guidelines under the Sentencing Reform Act, as Judge Hinojosa 
has described, and I think that tells us certain things about 
how judicial discretion works in our system.
    So I think that is a reason why we think there are certain 
things that Congress ought to tend to in a prompt fashion.
    Mr. Flake. I understand, and I don't think anybody is 
looking to return to a pre-guideline period. You have mentioned 
there are certain problematic things already. What are those?
    Mr. Wray. The ones that I would point to in particular are 
the ability for courts to consider prohibited factors that they 
couldn't consider under the guidelines as they existed before 
Booker, factors that the Commission, based on its diversified 
experience and so forth over the years have already identified 
as things that shouldn't be considered as a basis in this, so 
that is one.
    The second is its effect on cooperation, which is 
absolutely a critical tool for law enforcement in everything 
from terrorism to corporate fraud to any kind of organized 
criminal activity.
    The third would be the appellate standard, this 
reasonableness standard that we have already talked about a 
little bit. We are very concerned that this will produce 
greater disparity because different courts are going to have 
different definitions of what reasonableness means and that 
won't provide the kind of rigorous, consistent review that the 
Congress, I think, intended with the Sentencing Reform Act and 
that we so badly need to keep in the system.
    Mr. Flake. Judge Hinojosa, returning to the code, 4,000 
Federal offenses, do you see a need to go into that?
    Judge Hinojosa. I think for a long time, people have seen a 
need for that, Congressman. Whether that can be done quickly 
with all the policy issues that that brings up, it would be 
something you would be better equipped to answer than a Federal 
judge or a Chair of the Sentencing Commission.
    I will say that if there was an interest on the part of 
Congress to do so, the Commission, with the diversity of the 
members of the Commission, from our experience standpoint, and 
the staff, would be willing to help in any way that we could 
and to provide any information or service to the Congress that 
you would be interested in us doing.
    Mr. Flake. Judge, I take from your testimony that you think 
that we could go a year and gather some evidence and see where 
we are after Booker to be better informed about what we need to 
do in the future. Is that the case?
    Judge Hinojosa. That is ultimately your decision, but I 
will say that if you are going to wait a year in order to 
gather this information, what would be important during this 
period of a year is that we make sure that the sentencing 
courts during this period of time, so we can compare apples and 
apples rather than apples and oranges, are still making the 
findings on the record with regard to the sentencing guidelines 
and departure policy within the guidelines, and then if they 
are sentencing varying from the guidelines, stating the reasons 
for varying from the guidelines, because if not, if we are just 
paying lip service to, ``I considered the guidelines,'' but 
without going through the findings, we will not be able to 
compare that data to the previous years' data when the 
guidelines were actually mandatory.
    And I think also it would be important with regard to this 
potential weight that is given, or the weight that is given to 
the guidelines, for that to be uniform across the country in 
order for you and for the Commission and every other interested 
party to have valuable information to be able to compare the 
system, because if not, during that 1-year period, we will be 
comparing apples and oranges with different situations possibly 
in different parts of the country, or depending on the 
appellate decisions or sentencing court decisions.
    Mr. Flake. Thank you, Mr. Chairman.
    Mr. Coble. The gentleman's time has been expired.
    We have been joined by the distinguished gentleman from 
Ohio, Mr. Chabot.
    The chair recognizes the gentlelady from Texas, Ms. Jackson 
Lee, for 5 minutes.
    Ms. Jackson Lee. Thank you very much, Mr. Chairman. Let me 
thank both you and the Ranking Member for both a timely and 
what I believe to be a crucial hearing that I hope will lead us 
to answering the call of Mr. Wray, which is that the Congress 
acts in a reasonable, responsible manner that takes into 
account what I think is a very concise and, as well, very clear 
mandate from the United States Supreme Court.
    I am not sure what arguments one would make to thwart a 
pronouncement that says that the sentencing guidelines violate 
a constitutional amendment. So, therefore, I believe it is 
imperative that we act and I welcome your advice and counsel.
    Let me have you succinctly state the position of the 
Department of Justice at this time, in light of the recent 
Supreme Court decision. Mr. Wray, I am sorry.
    Mr. Wray. Congresswoman, I just want to be sure that in 
order to be succinct that I am clear on our position on which 
aspect of the entire----
    Ms. Jackson Lee. The sixth amendment aspect, the mandatory 
sentencing violating the sixth amendment.
    Mr. Wray. Well, we obviously argued to the Supreme Court 
that the Federal sentencing guidelines were distinct and 
different--distinguishable and different from the Washington 
State system, but in the wake of the decision, the Supreme 
Court obviously disagreed with us on that point.
    We do think it is possible to have, for example, a system, 
the so-called topless system that a couple of the other 
witnesses have described, we do think that would be 
constitutional even after Booker.
    Ms. Jackson Lee. The topless system?
    Mr. Wray. The proposal that Professor Bowman would no 
longer like to have his name attached to, but that Mr. Collins 
described, and that is a system where the minimum, if you will, 
the floor can be set by the judge, but the top is determined by 
the statutory maximum that the Congress has imposed and the 
judge has discretion in that range. So, therefore, you no 
longer have to acquire jury findings----
    Ms. Jackson Lee. You would be open to that?
    Mr. Wray. We would be open to the topless system, yes.
    Ms. Jackson Lee. Mr. Collins, I know you have seen the 
numbers, excessive numbers of minorities in State and Federal 
prisons. In fact, I am looking at a number in the State of 
Texas, and we are talking about Federal prisons, Federal law 
now, 70 percent of the inmate population in the State of Texas 
happens to be African Americans.
    The system that we had before, or the concept that many of 
us in Congress had thought would be reasonable, is giving well-
qualified judges, a well-qualified judiciary the bare 
opportunity of using discretion in some cases. The ones that 
come to mind in particular are the so-called conspiracy drug 
cases where you are standing on the street corner with another 
person and you are caught up in a conspiracy. Your mandatory is 
25 years.
    What is your interpretation of the latitude the Congress 
now has under Booker?
    Mr. Collins. Well, obviously you have very wide latitude 
under Booker.
    Ms. Jackson Lee. And I hope it is wise latitude.
    Mr. Collins. And hopefully it is wise. The Sentencing 
Commission--you raise a very serious question. The Sentencing 
Commission carefully looked at this issue in its 15-year 
report, had an entire chapter on the subject. Its conclusion 
was that very little of the racial disparity that exists in 
terms of outcomes and results in the Federal system is 
attributable to the guidelines itself. Some of it may be due to 
disparate impacts of particular provisions of law, particularly 
with respect to drug amount, et cetera. Also, the Commission 
cited in its report studies that indicated that introducing 
discretion actually had the effect of introducing racial 
disparity----
    Ms. Jackson Lee. That was some original thought, you are 
right. I think that was one of the basis of mandatory 
sentencing, but go ahead. It is turned around on the wrong end 
because of the impact on certain sentencing in certain 
populations being in those certain offenses.
    Mr. Collins. Well, one of the goals of the Sentencing 
Reform Act, and I think the Commission's 15-year report shows 
that it was achieved, is to try and do as much as you could to 
take out improper and irrelevant facts that had no business 
being a part of sentencing, having even an implicit role in it, 
and I think the report indicates that with respect to the issue 
of racial disparities that the guidelines are not a source of 
racial disparity and, indeed, probably----
    Ms. Jackson Lee. Mr. Bowman--thank you. Mr. Bowman, would 
you comment, and as I do that, Mr. Chairman, I would like to 
submit into the record H.R. 256, which is a bill entitled ``A 
Good Time Relief Bill'' and a letter from Mr. Burton I. Cohen 
\1\ writing in support of that bill. It was filed last year, an 
individual that has sat on several disciplinary committees. But 
it deals with numbers of individuals incarcerated for long 
periods of time under the mandatory and the release of those 
individuals for good time behavior. I would ask unanimous 
consent to have these submitted into the record.
---------------------------------------------------------------------------
    \1\ The letter from Burton I. Cohen was not available at the time 
this hearing was printed.
---------------------------------------------------------------------------
    Mr. Coble. Without objection, they will be received.
    [The bill, H.R. 256, follows.]
    
    
    
    Ms. Jackson Lee. May I allow Mr. Bowman just to answer what 
his interpretation of Booker is in terms of the latitude that 
we now have in Congress?
    Mr. Coble. If you will do that as quickly as you can, Mr. 
Bowman.
    Mr. Bowman. I confess, Congresswoman, I am not entirely 
sure of your question. I think that----
    Ms. Jackson Lee. Let me be clear. Just give me your 
assessment of the Booker case with respect to the latitude of 
Congress in mandatory sentencing.
    Mr. Bowman. I think that that is pretty unclear. I think 
that, as I said in my testimony, I think that Booker casts the 
rationale of Blakely into some doubt and that it is somewhat 
unclear exactly what the Court, a majority of the Court thinks 
about the proper constitutional limits on structured 
sentencing. And it is for precisely that reason that I have 
suggested--inconsistently, frankly, with what I had said 7 
months ago when I didn't anticipate Booker--that we need some 
time to figure out--let the courts help us find out what they 
need.
    Mr. Coble. The gentlelady's time has expired.
    Ms. Jackson Lee. Thank you very much, Mr. Chairman.
    Mr. Coble. You are welcome.
    I overlooked the gentleman from California. We have been 
joined by Mr. Lungren. It is good to have you with us, sir.
    I recognize the gentleman from Texas, Mr. Gohmert, for 5 
minutes.
    Mr. Gohmert. Thank you, Mr. Chairman.
    If you will pardon me, I read the Booker opinion in total 
last night for the first time and it seemed to me that was a 
muddled mass of murky malarkey, I am telling you.
    Judge, you had indicated at one point in your opening 
statement that one thing that seemed clear, I am telling you, I 
didn't see anything that looked real clear. And when you have 
judges that come out with the Blakely decision, give 
indications of one thing, and then come back with a decision in 
which Stevens delivers the opinion for himself, Scalia, Souter, 
Thomas, Breyer delivers the opinion for O'Connor, Kennedy, 
Ginsberg, and himself, then Stevens delivers a dissenting 
opinion for himself and Souter and Scalia, and then Scalia 
gives a dissenting opinion, Thomas gives a dissenting opinion, 
and then Breyer gives a dissenting opinion in part for himself 
and Chief Justices O'Connor and Kennedy, it seems to me that if 
they wake up on a different side of the bed one morning, we 
have got a whole new decision come 6 months or a year from now 
and that is rather disappointing that Justices come down that 
way.
    Obviously, you are in favor--you say you appreciate the 
guidelines, in effect. Is there any polling data of where the 
Federal judges, the district judges stand on their support for 
the guidelines or wish they would go away back like they were 
20 years ago when you first started?
    Judge Hinojosa. Well, I guess that is a subject of 
discussion among judges on a pretty regular basis. Yes, I guess 
there have been studies in the past, and the support varies, I 
guess. But I will say that privately, judges probably express 
more support for a guidelines system than is the public aspect 
of the discussion, for the same reasons that I have stated. It 
is the most difficult part, as you know, that a judge does with 
regard to their job and you do want to be consistent. You want 
to be transparent with regard to due process and having the 
defendant, as well as the public, know what factors are being 
considered with regard to sentencing.
    And a guidelines system, whether it is a State or Federal 
system, provides that guidance and that public discussion with 
regard to the issues that are being considered by the judge in 
making the determination.
    You have mentioned something about the Booker case and I 
will say that there has been a quote of Ricky Ricardo, and I 
will say that sometime when I first read the Booker decision, I 
guess one comment I would have made would have been, ``Ay 
carramba,'' to quote Ricky Ricardo. But as you read it more, 
you do see the themes that come across with regard to at least 
that the guidelines need to be considered and certainly 
consulted with and determinations made in order for a judge to 
make the ultimate sentencing decision on a 3553(a).
    But as you well know, any decision--as a judge, the system, 
when it first came into effect, probably did not have 
widespread judicial support. But I do feel that there is more 
support for it than is sometimes evident in the public.
    Mr. Gohmert. Dealing with the murkiness as we have it, or 
at least I see it in this opinion, I was curious, with regard 
to the guidelines and their apparent position that if it is a 
factor that takes it outside the range, then it has to be found 
beyond a reasonable doubt by a jury or agreed by the defendant, 
do you see the possibility of a system in which, like some 
States, like Texas has a bifurcated system. The defendant can 
waive a jury on sentencing so that that is when judges 
sentence, but not necessarily having a jury assess the 
sentence, but if there are factors of which the prosecutor is 
aware that may push it up beyond the guidelines, then as soon 
as a jury finding came back finding the defendant guilty, 
immediately move into a bifurcated portion in which the jury 
would determine then beyond a reasonable doubt any of those 
factors the prosecutor wished to pursue? Do you feel like that 
would be too troublesome?
    Judge Hinojosa. Actually, some judges were doing this post-
Blakely but pre-Booker and there were some judges who were 
supportive of this. Judge Sven Holmes in Oklahoma is a prime 
example of that. And some judges felt that they could work with 
that.
    It is more cumbersome, as you know, Judge, having practiced 
in the State courts of Texas, to have the guilty-not guilty 
phase and then also the sentencing phase. It is something that 
could be worked with. Obviously, it would require rule changes 
with regard to the rules of criminal procedure. It would 
require changes with regard to how we do business on a daily 
basis. It would, in some cases where you have a heavy criminal 
load, maybe present some issues with regard to resources, 
including time resources.
    It does also create some other possibilities, which would 
mean that prosecutors and defense attorneys could probably 
control the sentences a lot more because they could make 
stipulations with regard to what they had agreed on, and then 
the judges and/or juries would have less to say about 
sentencing because there would be more stipulations between the 
prosecution and the defense attorneys.
    Mr. Coble. The gentleman's time----
    Mr. Gohmert. May I do one follow-up?
    Mr. Coble. Very quickly, if you will, Mr. Gohmert.
    Mr. Gohmert. To Mr. Wray, what the Judge got to was 
something I was wondering about, if you did have that threat of 
an additional part of the trial, if that might not lead to more 
agreements immediately after a finding of guilty, an agreement 
to waive the jury on the additional issue and give prosecutors 
yet another tool to bring about an agreement prior to 
sentencing. Do you see that as a possibility?
    Mr. Wray. Congressman, I think we believe that the sort of 
bifurcated system that you are describing, as Judge Hinojosa 
mentioned, some judges were doing that and our offices were 
having to deal with that in some districts, is likely to, in a 
way, generate more disparity, because as he indicated, it puts 
control in the hands of the parties and you are having people 
making calculations about whether or not they want to run a 
risk with a jury pool in this State versus that State, and so I 
think you would probably end up with significant geographic 
disparities and major logistical and resource nightmares.
    Mr. Gohmert. But would you support it or not?
    Mr. Wray. Well, I am not in a position here today to be 
able to endorse a specific legislative proposal----
    Mr. Gohmert. Not on behalf of your office, but you 
personally. [Laughter.]
    Mr. Coble. The gentleman's time has expired. I will bail 
you out, Mr. Wray. [Laughter.]
    Mr. Gohmert. Thank you, Mr. Chairman.
    Mr. Coble. The gentleman from Michigan is recognized for 5 
minutes.
    Mr. Conyers. Thank you, Mr. Chairman.
    I wanted to extend a personal welcome to our newest 
colleague from Texas, Mr. Gohmert, who is reviewing the 
murkiness of Supreme Court decisions. But, sir, you are going 
to have a much bigger job in the Judiciary Committee trying to 
separate out what we are doing here, not only among the 
witnesses but among the members of this Committee, as well. So 
I wanted to extend my personal welcome to you and look forward 
to working with you in that regard.
    Mr. Gohmert. Thank you.
    Mr. Conyers. Now, in some respects, notwithstanding the 
very distinctive and well thought-out presentations that have 
been made this morning, we are further away from any agreement 
than we were before this hearing was called, gentlemen. We now 
have even larger schools of thought, wider ranges of disparity, 
and it is curious to me, and I didn't hear all of the opening 
statements, but there hasn't been one word mentioned throughout 
a couple of hours here about the crack cocaine-powder 
disparity. It is like--and we have mentioned it and none of you 
have even acknowledged that it exists. And then the whole 
question of racial disparity and the sentencing process.
    Now, I don't know which legal literature you are reading, 
but the kind that my staff and I are looking at say that it is 
horrendous. And now I am treated this morning to all of the 
phrases and the support of the Sentencing Commission and that 
crime has gone down as a result of it, things are--we don't 
want to rock the boat too much, we don't want to override these 
decisions.
    But can you, Mr. Bowman, give me some clue as to why there 
is such a wide gulf that apparently exists between many members 
of this Committee and many in the criminal justice arena and 
what we are talking about today?
    Mr. Bowman. I am not sure I can attempt to plumb the minds 
of the Members of the Committee, but perhaps I can try to 
respond and connect the concern expressed by a number of 
members about crack-powder and racial disparity with the 
conversation that we are having here today.
    One of the--as I listened to my fellow witnesses, to a 
certain extent, the picture that emerges here is one in which 
the current guideline sentences, or for that matter, the 
statutory sentences for things like crack, are taken to a 
certain extent as a given and as a desirable one and any 
deviations from guideline levels or perhaps statutory ones are 
expressly or impliedly labeled as being undesirable, somehow 
disruptive or even undermining the system.
    I think that is probably the wrong approach to take. I 
think an approach that we should consider over the whatever 
period of time the Booker system of advisory or presumptive 
guidelines is allowed to persist, whether it is a short time or 
a long one, I think this Committee, and indeed Congress in 
general, should not look at what judges do when they deviate 
from the guidelines as some sort of weird aberration but 
consider and study whether or not there are some patterns in 
those deviations that suggest that some of the rules could be 
revised.
    And thus, if it were to happen that a good many of the 
deviations from the guidelines that appear post-Booker were in 
crack cases, this might strongly suggest that Congress should, 
as the Commission has often recommended, revisit the question 
of the crack-powder disparity. In short, I am suggesting----
    Mr. Conyers. The light just turned red and the bells are 
ringing. Let me just rudely interrupt you. This hearing, in my 
view, is non-relevant to the most--the two most important 
issues that are bedeviling the criminal justice system in 
America for decades. I mean, these are interesting asides about 
the two decisions that have just come out and what they mean to 
discretion, but for us in this Committee, in this room, to hold 
a hearing for this long a period and not talk about the racial 
disparity and the crack cocaine-powder disparity means to me 
that they do not occupy a very important level of concern for 
discussion before the one Committee that has jurisdiction in 
the House of Representatives.
    I thank the Chairman for his----
    Mr. Coble. The gentleman's time has expired.
    Let me think aloud for a minute. Mr. Lungren, I think you 
can be recognized for 5 minutes, and Ms. Waters, if you want to 
examine these witnesses, we will come back after the vote. Do 
you have a preference?
    Ms. Waters. No, I don't want you to have to come back for 
me.
    Mr. Coble. I don't mind doing it.
    Ms. Waters. I don't need to examine them, but I need to 
tell them something.
    Mr. Coble. Let us go with Mr. Lungren first and then I will 
recognize you.
    Ms. Waters. All right. Thank you.
    Mr. Coble. Mr. Lungren, 5 minutes.
    Mr. Lungren. Thank you, Mr. Chairman.
    It is a pleasure to be here with these distinguished 
panelists. As one of the fathers of the sentencing guidelines, 
I originally got involved in the process when I was visited by 
a young woman who was a constituent of mine in my previous 
district who had been sentenced by a Federal judge to an 
extraordinary sentence for certain marijuana possession which 
was so out of sorts with what other people were getting and so 
out of sorts with what violent criminals were getting that I 
began to investigate this and worked with others to set up the 
sentencing guidelines system, which until the Supreme Court 
gave us its very clear decision, I thought was working 
relatively well, certainly in comparison to what we had before. 
The great disparities we saw in the Federal system were largely 
eliminated. There was some consistency.
    I just remarked to my friend from Michigan that the problem 
with respect to crack cocaine-powder disparity is really not 
one of the Sentencing Commission, it is complete direction by 
this Congress. I can recall when we made that decision brought 
to us by, with all due respect, members of the other side of 
the aisle, Congressman Bill Hughes of New Jersey and 
Congressman Rangel, who came together and said that crack 
cocaine was killing their communities, was a scourge on their 
communities, and we needed to do something about it and we 
needed to create far greater penalties for crack cocaine than 
we did for powder cocaine.
    We reacted in response to that direction given to us by 
Representatives in this institution who were representing 
people from those communities and listening to the cries of the 
people in those communities which were being devastated by it. 
So it ought to be Congress that revisits it after 15 years 
rather than putting this on the Sentencing Commission and any 
suggestion that that is one reason why the Sentencing 
Commission decision by the Supreme Court was a good thing, I 
think ought to be recalculated.
    Here is my question to the panel and it is a very simple 
one. The Sentencing Commission was specifically established for 
purposes, and the guidelines, for purposes of getting rid of 
disparity, giving a certainty to the system, giving some 
expectations that would be realized by those in the system, 
both those charged with crimes and the victims of crime.
    Given what we have now, that is, the result of the Supreme 
Court decision, other than the bifurcated system that we have 
dealt with in California and other States in capital cases, how 
are we really going to deal with this? The way I take it from 
the Supreme Court, they have said that we want the Federal 
judges to take the guidelines seriously, but not that 
seriously, because if they consider it that seriously, it is 
unconstitutional. So long as it is an 80 percent seriousness, 
it is constitutional, but if it is 100 percent seriousness, it 
is unconstitutional.
    Am I wrong on that? What do we have left? It reminds me of 
some people who--well, I won't go into that.
    Let me just ask the four of you, and I know we have a short 
period of time, what can we do? I know you gave us time 
constraints or time imperatives, but essentially, in very short 
order, what can we in Congress do, or do we need to do anything 
now that the courts are at least trying to react to this?
    Mr. Bowman. Mr. Lungren, if I might respond to that, I 
don't know if perhaps you are addressing it to someone else.
    Mr. Lungren. All four of you.
    Mr. Bowman. Congressman, I think that, in fact, there are a 
lot of smart people out there trying to figure out how to 
respond to this and I think that there are--including the folks 
on the Constitution Project, Attorney General Meese, Professor 
Heymann, and the judges and other folks on that group, and 
there are a lot of other groups out there thinking very hard 
about this. And I can tell you, although I can't go into the 
details because of time, but there are a number of proposals 
being worked through that would combine the concerns--
addressing the concerns of Congressman Flake about simplifying 
the Federal sentencing system and Federal criminal laws with 
meeting some of the concerns expressed by Justice Scalia in 
Blakely and also addressing the alternative constitutional 
model put forward in Booker.
    There are some folks out there working very hard who I 
think, if given some time, can actually present to you some 
reasonable proposals that can try to bring together and address 
a number of these problems.
    Mr. Collins. Congressman, I think the case for delay is a 
weak one. If we think of the Sentencing Commission and the 
sentencing guidelines as the vehicle for Congress's 
accomplishing the goals of Federal sentencing policy, Booker is 
the equivalent of a flat tire. And while we stand by the side 
of the road, it is not time to argue about reupholstering the 
interior, painting the vehicle. We need to get it moving again, 
and it is very simple what to do. You simply remove the caps--
that would make the system constitutional. If other issues want 
to be revisited, people can revisit those. But this system 
needs to get moving again in the direction of accomplishing 
what we all know from the pre-Booker period it was 
accomplishing what Congress wanted it to do.
    Judge Hinojosa. Congressman Lungren, I guess in some ways 
Professor Bowman has been more successful than he thinks he is, 
because to a certain extent, the Booker decision gives us 
topless guidelines.
    Mr. Coble. Judge, if you will suspend just one moment--
again, I am thinking aloud. Ms. Waters, how long will it take 
you to make your comment?
    Ms. Waters. Just a few minutes.
    Mr. Coble. How long?
    Ms. Waters. Just a couple of minutes.
    Mr. Coble. I am just thinking, folks, in the interest of 
time, to give Ms. Waters due time and to let Mr. Lungren 
finish, the time is running down. Why don't we suspend very 
briefly. We will go vote and then we will come back and Mr. 
Lungren can finish his line of questioning, and then we will 
recognize Ms. Waters.
    Ms. Waters. Well, no, if you are going to come back anyway, 
I will just come back and take my whole 5 minutes.
    Mr. Coble. That would be fine.
    Ms. Waters. I was trying to do it out of consideration to 
the Committee. I think they had answered basically Mr. 
Lungren's question in their presentations and talking about 
what they thought we could do. I have heard it over and over 
again. But if you want to do that----
    Mr. Coble. Well, to be sure none of us miss the vote, let 
us suspend and we will come back after the vote and then we 
will wrap it up with Mr. Lungren and then Ms. Waters.
    [Recess.]
    Mr. Coble. We will resume our activity here.
    Mr. Lungren, I think you had the floor and you were 
examining the witnesses. You may continue.
    Mr. Lungren. The Chairman is very generous in his use of 
the word ``examining.'' I am being very nice. I am just asking. 
I think the Judge was responding.
    Judge Hinojosa. That is correct, Congressman. What I was 
saying was that Professor Bowman has probably been more 
successful than he would like to admit in that under an 
advisory guideline system, if you consider the Sentencing 
Reform Act factors, you could go to the top, the statutory 
maximum. We also can go to the bottom.
    The Commission's position has been that in considering and 
consulting the guidelines as Booker requires and as certainly 
the Sentencing Reform Act itself states, you should consider 
the guideline ranges, applicable guideline ranges, the policy 
statements as the Act itself requires, then make determinations 
under the guidelines system, and then determine in 
consideration of the Sentencing Reform Act 3553(a) factors if 
you are going to stay within the guidelines system, including 
the policy statements, or going outside of the system.
    But in many ways, we do have topless guidelines for those 
that are interested in that. The issue then becomes with regard 
to whether appellate review should be the same for guideline 
sentences versus non-guideline sentences since it is above the 
guidelines, below the guidelines, departures within the 
guidelines system, and that is certainly something that 
Congress will eventually decide. If not, the appellate courts 
are also going through that at the present time and we are 
already seeing some decisions at the appellate court level with 
regard to the review that is being used with regard to the 
sentence.
    Mr. Wray. Congressman, I think, if I remember correctly, 
the question as you had posed it was sort of what can you do in 
the wake of Booker, and I think what I would say, in addition 
to what the other witnesses have already said, is a couple of 
things.
    You could address the courts' ability that they now seem to 
have in the wake of Booker to consider what would otherwise be 
prohibited factors in sentencing, something I mentioned earlier 
in my testimony. You could address the cooperation issue, which 
is so important to areas of criminal enforcement that are very 
important to every member of this Committee and every member of 
this country. You could address the appellate review standard, 
this reasonableness issue which we think will result in less 
rigorous and less consistent appellate review. You could--and I 
think that is a very important issue to cover.
    I think there are some other variations that have been 
discussed already by some of the other members of the panel. 
There are things that can be done like a topless guideline 
system, but that may not be the only way. There may be things 
that can be done as long as we work collaboratively together 
and the Department would like to work with the Congress on that 
in a way to come up with something that would lead to the best 
interest of the public.
    Mr. Lungren. Thank you very much. Mr. Chairman, my concern 
is that I thought that the guidelines within the large ranges 
that we gave from Congress were the best way to address the 
situation. Now the Court has put us in the situation where a 
response by Congress may be to increase the minimum ranges that 
we have statutorily as a way of making sure that the Federal 
system doesn't do what we feared before, which I don't think is 
a good thing. And so we are sort of in a dilemma now where I 
thought we had a system that worked pretty well to ensure that 
we had consistency but yet, with maybe some exceptions that 
ought to be examined by the Congress on due penalties attached. 
I am not sure the Supreme Court thinks about those things, that 
the reaction of Congress might be just exactly the opposite of 
what they are concerned about. Thanks very much.
    Mr. Coble. I thank the gentleman.
    The gentlelady from California, Ms. Waters, is recognized 
for 5 minutes.
    Ms. Waters. Thank you very much, Mr. Chairman. I appreciate 
the opportunity to have this platform today to talk about an 
issue that troubles me and others on this Committee and 
obviously Mr. Conyers so much.
    Even though we are here to talk about Booker and to talk 
about the guidelines becoming advisory, that is not the major 
issue for me. As a matter of fact, I would submit to you 
without having talked to all of my colleagues, those of us who 
understand what racism and discrimination are all about, we 
would like to have clear rules that everybody would have to 
abide by. I think we are served better by that.
    So when you talk about the sentencing guidelines being 
advisory and you have the opportunity for judges to go up or 
down, et cetera, that is a little bit troubling because we know 
that we will suffer under that kind of discretion, for the most 
part. History has proven that and I don't think it is going to 
change.
    So for me, it is not a big issue, but here is the issue for 
me: Mandatory minimum sentencing. As my colleague said on the 
opposite side of the aisle, that is our fault. What happened in 
the Congress of the United States led by two of the gentlemen 
that he identified, and I just asked Mr. Regula about it and he 
didn't quite remember it, is what I am concerned about.
    Now, what do you have to do with that? I mean, you didn't 
come here to talk about mandatory minimum sentencing as it 
relates to crack cocaine, et cetera. But we are watching all of 
these low-level drug persons with five grams of crack cocaine 
be sentenced to 5 years in prison or more and the judge has no 
discretion in the issue. They are filling up the prisons and 
lives are being destroyed. Nineteen-year-olds, 20-year-olds are 
going to prison, some of them in college. They are not 
criminals, they are just stupid. They are not criminals and 
their lives should not be shut off in that manner.
    So here is what we are saying. While we are discussing 
these kinds of issues, can we use this as an opportunity to 
talk about not only what the Congress should be considering as 
we take a look at Booker, but what we should be thinking about 
and how we can encourage the Congress of the United States to 
look at these mandatory minimum sentences.
    I believe that the Sentencing Commission, and I have to--we 
have to accept blame for that on both sides of the aisle. I can 
recall when the Sentencing Commission came up with different 
guidelines and Bill Clinton vetoed it, as I remember, or didn't 
do something which caused it to go into effect.
    So because you are listened to, because you are in the 
Justice Department, because you are people who deal with these 
issues, let us couple our discussion about mandatory minimum 
sentencing as we talk about these sentencing guidelines. Let me 
tell you, under these mandatory minimum sentences, not only do 
we have people being sentenced more harshly than we have people 
who commit real crimes being sentenced, we have people who are 
committing crimes of robbery and rape and other kinds of 
serious felonies who are not sentenced as harshly as a 19-year-
old who is stupid enough to try to have five grams of crack 
cocaine in their possession. And they are disproportionately 
minority, even though the greater number who are involved with 
crack cocaine are not minority.
    So when you hear us talk about this, it is not because we 
are blaming you. It is not because we think you can fix it. But 
we think that you can couple the discussion so that we can try 
and move the Congress of the United States to correct mandatory 
minimum sentencing. I disagreed with all mandatory minimum 
sentences. I think judges should have some discretion. I think 
they should have the ability to look at the individual, to look 
at their past history, to look at the intent, everything. 
However, I am focused on mandatory minimum sentences as it 
relates to crack cocaine sentencing.
    So if you heard my colleague John Conyers today, what he is 
saying to you is, why aren't any of you interested in 
discussing mandatory minimum sentencing, particularly as it 
relates to these drug offenses? You know in your heart that 
these sentences are excessive and that they are detrimental and 
that they are doing nothing to deter crime. As a matter of 
fact, criminals, real criminals, are getting away with much 
lighter sentencing.
    Having said that, I told my Chairman I had no questions, 
but I had something I wanted to tell you. I have told you. That 
is it. Thank you. I yield back the balance of my time.
    Mr. Coble. I thank the gentlelady.
    Ladies and gentlemen, our border security bill is now on 
the floor and we need to adjourn, but I think the gentleman 
from Virginia may have a question or two. Mr. Scott, if you 
could, and then we will wrap it up.
    Mr. Scott. Thanks, Mr. Chairman.
    I had just a couple of technical questions if we do 
something. There is an old adage, slightly rephrased, that we 
might abide by and that is don't just do something, stand 
there. [Laughter.]
    If we do something, what would happen to a pre-sentence 
report. Pre-sentence reports, under mandatory guidelines, would 
be useless, I would imagine. Is that right, Judge?
    Judge Hinojosa. Well, under the present system, the pre-
sentence report still, according to the rules, needs to be 
prepared as it was being prepared beforehand.
    Mr. Scott. And under the voluntary guidelines, you could 
still consider the pre-sentence report today. But if we had 
mandatory guidelines, it would be--the findings in the pre-
sentence report, since they were not found by a judge, could 
not be used.
    Judge Hinojosa. Well, they would always be found by a 
judge, Congressman, because these are just recommendations from 
our probation officers. The advantage to that system, when it 
was created, was we have always had pre-sentence reports. After 
the guidelines, obviously, they were geared toward 
recommendations of the guidelines findings. But eventually, it 
is the judge's decision.
    The advantage to the present system is there is a report 
that is given to the prosecution and the defense. There is a 
period of time within which they can object to it. Then there 
is a period within which the probation office responds to it. 
And then there is an actual hearing before the court. But as 
most probation officers find out, it is the judge who makes the 
decision, not the probation officer.
    Mr. Scott. If the guidelines were made somehow mandatory, 
you couldn't use the pre-sentence report without a finding by a 
jury along with the facts in the pre-sentence report.
    Judge Hinojosa. It would depend on what the defendant had 
admitted at the time of the guilty plea or what the jury 
verdict had been with regard to the charge and the way it was 
worded in the instructions to the jury at the time of the 
conviction. And so it might very well be that the 
determinations would be made under Blakely and under Booker 
constitutionally.
    Mr. Scott. But if we don't do anything, you can consider 
the information in a pre-sentence report today, if we don't do 
anything?
    Judge Hinojosa. Well, what it appears to me that Justice 
Breyer and the five members of that majority were doing was 
saying, yes, you the other majority have said Blakely applies 
to the Federal guidelines with regard to sixth amendment 
rights, but since they are now advisory, the judges can 
continue making the findings under the standards of proof that 
they have used in the past and under the same methods of 
determining the guidelines system without having to have a jury 
determine these because these are now advisory and are being 
considered as one of the factors within 3553(a), although a 
very strong factor and one obviously that the Commission feels 
deserves substantial weight.
    Mr. Scott. If there is a guilty plea, obviously, you didn't 
find anything by a jury beyond a reasonable doubt. How do you 
consider the various factors today without any findings?
    Judge Hinojosa. In my case, as to what procedure I am 
following, I am following the same procedure and making the 
findings in the same fashion as I did beforehand. It is open. 
It is a discussion of the factors that need to be considered, 
opportunity for both sides to come forward with whatever 
information they have so that the court can make the decision 
here.
    And I do have to say that under the old system, I made 
those decisions without ever having to tell a soul that I was 
doing that, and there was no standard with regard to beyond a 
reasonable doubt or a preponderance and those factors were all 
being considered.
    Mr. Scott. Mr. Bowman, did you want to comment on that, or 
on both of those questions, what do you do with the pre-
sentence report and a guilty plea?
    Mr. Coble. And, Mr. Bowman, if you would as quickly as you 
can because we do need to adjourn, but go ahead, Mr. Bowman.
    Mr. Bowman. Another way of putting what Judge Hinojosa is 
saying, which may help clarify this, is at least my 
understanding of what Booker has held, and I think this is what 
Judge Hinojosa is saying, as well, is that after Booker, 
everything essentially remains--in terms of procedure in the 
courts--everything remains exactly as it was before Booker. 
Factual determinations must be made. A sentencing hearing must 
be held. A guidelines determination must be made. Everything 
remains exactly as it was up to the point at which the 
guideline determination is made and the judge then has to 
decide whether to sentence inside that range or outside that 
range.
    So procedurally, if you leave things exactly as they are, 
if you don't disturb Booker, the Booker mechanism seems to be 
one in which the fact-finding process is exactly the same as it 
was before.
    Mr. Scott. Mr. Chairman, could I ask one other quick 
question, and that is to Mr. Wray on the cooperation credit. 
Can you say a word about the policy implications of requiring 
defendants to waive attorney-client and other privileges?
    Mr. Wray. Sure, Ranking Member Scott. The issue of 
attorney-client privilege waiver comes up most typically, at 
least in my experience, in the context of corporate fraud 
cases. I am not aware of very many instances that I have seen 
where anyone is asking for such a waiver in the context of an 
individual defendant. But has not been the Department's policy 
to insist on such a wavier.
    It is, however--there are cases where a defendant, 
typically a corporate defendant, that is, a company that is 
under investigation, will choose to do that to demonstrate how 
cooperative they are being and how helpful they are being, and 
we want to make sure that when companies and institutions do 
that, they get appropriate credit for doing that, because we 
recognize that is a very significant step that is not to be 
taken lightly.
    Mr. Scott. May I have unanimous consent to request 
documents be added to the record?
    Mr. Coble. Without objection.
    I would also like unanimous consent with a number of 
documents, as well.
    Ladies and gentlemen, this has been a very productive 
hearing.
    I want to apologize for some of the Members of the 
Subcommittee who were not here. Their absence does not indicate 
lack of interest in this subject. We had other hearings and 
other Committee meetings that were in conflict, so I assure 
you, we will keep our eye on the ball on this.
    But I do thank you all for your testimony and your 
contribution. In order to ensure a full record and adequate 
consideration of this important issue, the record will be left 
open for an additional 7 days for subsequent submissions if you 
all want to submit something further. Any written questions 
that a member wants to submit should be submitted within the 
same 7-day period.
    This concludes the oversight hearing on the ``Implication 
of the Booker/Fanfan Decisions for the Federal Sentencing 
Guidelines.'' Thank you all for your cooperation. The 
Subcommittee stands adjourned.
    [Whereupon, at 12:05 p.m., the Subcommittee was adjourned.]


                            A P P E N D I X

                              ----------                              


               Material Submitted for the Hearing Record

 Prepared Statement of 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 implications of two recent Supreme 
Court decisions, in United States v. Booker, and United States v. 
Fanfan, to the federal Sentencing Guidelines.
    The Supreme Court's rulings eviscerated two critical aspects of the 
federal Sentencing Guidelines: first, the Court ruled the Sentencing 
Guidelines are no longer mandatory but are ``advisory;'' second, the 
Court eliminated the de novo appellate review standard for downward 
departures, which was passed by Congress as part of the PROTECT Act in 
the 108th Congress, and replaced it with a vague and unspecific 
``reasonableness'' standard for appellate review.
    It is an understatement to say that the Supreme Court's decisions 
have had a dramatic impact on the federal criminal justice system. Some 
have characterized the impact as resulting in complete disarray, and 
even others characterize the decisions as posing a direct and 
significant threat to public safety, thereby jeopardizing dramatic 
reductions in the crime rate in our country.
    As this Committee examines this issue, we must be mindful of the 
fact that the Sentencing Reform Act of 1984, which created the 
mandatory federal Sentencing Guideline system 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.''
    In the short time since the Supreme Court issued its rulings in the 
Booker/Fanfan decisions, there already have been reported instances of 
judges deviating from the guideline sentencing ranges, relying on 
varying rationales for such departures. It is Congress' role to ensure 
that the original purposes of the Sentencing Reform Act of 1984 are 
adhered to by the federal judiciary--we all can agree that disparities 
among similarly situated defendants are unfair and undermine the 
federal criminal justice system.
    Justice Breyer in his majority opinion in Booker made it clear as 
to our institutional responsibility when he wrote of the Court's 
decision, ``Ours, of course, is not the last word: The ball now lies in 
Congress' court.''
    In order to fulfill our Constitutional responsibility, today's 
hearing is the first step to ensuring that the federal sentencing 
system continues to promote fairness, eliminate disparities, and 
protect the public safety--so that law-abiding citizens can live in 
freedom without fear of crime, and defendants receive fair and equal 
treatment in the federal judicial system.
    I am anxious to hear from our distinguished panel of witnesses and 
now yield to the ranking Member of this Subcommittee, the gentleman 
from Virginia, Mr. Bobby Scott.

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

    Thank you, Mr. Chairman. I am pleased to join you in convening this 
hearing on the implications of the U.S. Supreme Court's Booker/Fanfan 
decision on the federal sentencing guidelines. Since the Blakely v. 
Washington decision last June, the viability of the federal, and many 
state, sentencing systems have been in jeopardy. That decision made it 
clear that sentences based on facts found by the court after the trial, 
that were not admitted by the defendant or established during the 
trial, deprived the defendant of the constitutional right to a jury 
trial. We contemplated a range of options or approaches after the 
decision. They ranged from do nothing to enacting an entire system of 
statutory minimums and maximums. However, we wisely, I believe, 
listened to the counsel of sentencing experts, and others, suggesting 
that we give the courts a chance to further clarify the impact of the 
decision on the federal system.
    That further clarification came in a decision by a strangely 
divided Court in January through the Booker/Fanfan decision. That 
decision clarified that Blakely, indeed was applicable to the federal 
sentencing guidelines system, and found the system unconstitutional as 
applied. However, the court delineated the aspects of the system that 
caused it to be unconstitutional, thereby excising the applicability of 
those factors, leaving the remainder of the system intact. Yet, the 
Court, as it properly tends to do, only answered the questions it 
considered to be properly before it at the time. Therefore, we are left 
with the issue of how the remaining system can operate consistent with 
its aims and purposes and the Court's decisions. And, again, sentencing 
experts and others are advising that we await further clarification 
from the courts on the impact of Booker/Fanfan.
    The early indications in this post Blakely/Booker/Fanfan context is 
that the sky is not falling; that criminal defendants are being 
prosecuted and sentenced and that the sentencing guidelines system is 
directing those sentences to essentially the same extent as it was 
before. So, for those who found the sentencing guidelines system 
acceptable as applied before Blakely and Booker/Fanfan should find it 
acceptable now. There were quirks and imperfections before the recent 
upheavals that required appellant court correction or clarification, 
and that's the situation today.
    For others of us, including myself, the federal sentencing 
guidelines system as applied was not satisfactory. I am very concerned 
about the growing minority percentage of a rapidly increasing federal 
prison population serving excessively long sentences for minor roles in 
non-violent crimes, due in large part to unfair applications of 
mandatory minimum sentences and prosecutorial concentrations. These 
problems are detailed in these 2 recent reports from the Sentencing 
Project entitled ``Racial Disparity in Sentencing: A Review of the 
Literature,'' ``The Federal Prison Population: A Statistical 
Analysis,'' and the recently completed 15-year study report by the U.S. 
Sentencing Commission, of which I have the executive summary here.
    All the credible data shows that minorities are less likely than 
whites to use illegal drugs of virtually all types, including crack 
cocaine. Yet, a grossly disproportionate percentage of the enforcement 
war against drugs falls upon minorities, many of whom are bit players 
at the end stage of the drug trade whose involvement is based more on 
addiction than profit. For example over 80% of the crack prosecutions 
are against African American offenders while drug use data reflects 
that 60% of the use of crack is by Whites.
    And all the research and all the demonstrations show that drug 
treatment, and other alternatives to incarceration are much more 
effective and much cheaper than incarceration. Yet, we continue to 
greatly increase our resources to lock up more and more of these bit 
players for longer and longer periods while making no consideration to 
effective and less costly alternatives and only minimally increasing 
drug treatment as compared to the increases in enforcement. Report 
after report, including these by the Sentencing Commission and others, 
have pointed to these gross disparities in application of our drug 
enforcement and sentencing policies against minorities. It was high 
time that we addressed these atrocities before Blakely and Booker/
Fanfan, and it is certainly time to do so now.
    So, Mr. Chairman, as we carefully contemplate what needs to be 
fixed in the federal sentencing guidelines system, I would invite 
consideration to this longstanding and shameful problem in our federal 
law enforcement and sentencing applications. I look forward to the 
testimony of our witnesses for any guidance they give us as we 
contemplate these and other challenges in our criminal justice system, 
and to working with you to meet the challenges. Thank you.

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

    Chairman Coble and Ranking Member Scott, thank you for the 
opportunity that this body will have today to exercise oversight in 
such an important area of the criminal justice system that has so many 
stakeholders. The holding of the high court in U.S. v. Booker v. Fanfan 
\1\ has given the Federal Sentencing Guidelines advisory weight rather 
than mandatory.
---------------------------------------------------------------------------
    \1\ 125 S. Ct. 738, 73 USLW 4056 (2005).
---------------------------------------------------------------------------
    Mr. Chairman, I agree with many of my colleagues as well as a good 
number of federal trial court judges that the guidelines are an 
instrument created by the United States Sentencing Commission to reduce 
negative trends and disparities in sentencing--on their face.
    However, my experience as Ranking Democrat of the Subcommittee on 
Immigration, Border Security, and Claims has shown me that strict 
application of the guidelines on a mandatory basis can preclude judges 
from exercising discretion as to whether or not to consider ``history 
and characteristics of the defendant'' under 18 U.S.C. 3553, the 
Federal Sentencing Act. The Booker case that was decided on January 12 
has the force and effect of severing the Federal Sentencing Act to 
excise the provision that makes the Sentencing Guidelines mandatory.
    While I am a proponent of making federal sentencing more uniform 
and consistent, I am not yet convinced that the Guidelines achieve this 
end. To date, certain serious crimes have led to minor sentences while 
more minor crimes have led to numerous years in prison. We must 
carefully balance the need to instill order, uniformity, and judicial 
efficiency into the criminal justice system while preserving judicial 
discretion.
    Application of the Guidelines in strict form has contributed to the 
exponential growth of the federal prison and justice systems. Since 
1980, the number of federal prisoners has increased nearly seven-fold, 
rising from 24,000 in 1980 to 106,000 in 1996 and to over 170,000 in 
2003.
    Because of this rise in incarcerations, we have seen a rise in the 
number of federal nonviolent offenders who may have been victims of 
excessive sentencing under the Guidelines.
    This was the impetus for my introduction of the Federal Prison 
Bureau Nonviolent Offender Relief Act of 2005 which calls for the early 
release of nonviolent offenders under certain circumstances.
    Mr. Chairman, this body must explore this matter thoroughly and 
follow the path that has been made by the jurisprudence of Booker.

                               __________
Prepared Statement of the Honorable John Conyers, Jr., a Representative 
 in Congress from the State of Michigan, and Ranking Member, Committee 
                            on the Judiciary

    Let me begin by thanking Chairman Coble and Ranking Member Scott 
for convening this timely hearing on the Booker/FanFan decisions and 
their impact on the federal sentencing guidelines.
    With more than 2.1 million Americans currently in jail or prison--
roughly quadruple the number of individuals incarcerated in 1985--it's 
hard to deny that our criminal justice is facing a real crisis.
    Today, this country incarcerates its citizens at a rate 14 times 
that of Japan, 8 times the rate of France and 6 times the rate of 
Canada.
    We spend an estimated $40 billion a year to imprison criminal 
offenders, we choose to build prisons over schools and we fail to 
provide inmates released from prison with the necessary tools and 
assistance for a successful re-entry into society.
    In short, we have turned a nation of peace-loving people who have 
come to this country in search of nothing more than freedom and 
equality into a nation of convicts.
    Admittedly, the federal sentencing guidelines were not originally 
enacted to address many of these problems. In fact, their primary 
purpose was to simply make sentencing more certain and predictable. 
Regrettably, two decades later, it's sad to say that the only thing 
more ``certain and predictable'' is that the current system targets and 
punishes racial minorities in a disproportionately harsher manner.
    For instance, while the majority of federal offenders in the pre-
guidelines era were White (60%), minorities dominate the federal 
criminal docket today. Moreover, while the gap in average sentences 
between White and Black offenders was relatively small in the 
preguidelines era, Blacks now receive sentences that are approximately 
70% longer than Whites.
    On average, Blacks now serve virtually as much time in prison for a 
drug offense (57.2 months) as Whites do for a violent offense (58.8 
months).
    The current system may be certainly predictable, but it is 
undeniably unfair.
    Several reasons serve as the source of blame for our current state 
of affairs. However, the greatest responsibility lies with those who 
stubbornly rely on mandatory minimums and congressional directives to 
enact misguided and ineffective policies all in the name of appearing 
tough on crime.
    For example, there currently exists a 1 to 100 disparity in the 
ratio in sentencing powder versus crack cocaine, even though all 
experts agree that the harms associated with the use of crack cocaine 
do not justify substantially harsher treatment. So, why the disparity?
    Our look today at the federal sentencing guidelines provides us 
with a unique opportunity to consider some of these issues and debate 
ways to bring about meaningful reform.
    Such reform has already taken place at the state level. For 
example, over the past couple of years, more than 25 states have passed 
laws eliminating some of their lengthy mandatory minimum sentences and 
have begun to divert non-violent drug offenders to treatment programs 
instead of incarceration. The day has come for us to follow their lead.
    Again, I would like to thank the Chairman and Ranking Member for 
convening this important hearing. And, I look forward to hearing the 
testimony of the witnesses.

                               __________
Prepared Statement of the Honorable Adam B. Schiff, a Representative in 
                 Congress from the State of California

    I would like to thank the distinguished Chairman, Mr. Coble and 
Ranking Member Scott for holding this important hearing on the 
implications of the recent Supreme Court decision in Booker/Fanfan on 
the Federal Sentencing Guidelines.
    The Booker/Fanfan decision brought about a far-reaching, if poorly 
reasoned result. The sentencing guidelines are no longer mandatory, but 
advisory, and yet they are still subject to a test of reasonableness. 
Justice Breyer noted that the ball now lies in Congress' court. This is 
an understatement.
    Although the merits of the Court's opinions are subject to 
legitimate criticism, Congress should use the opportunity to carefully 
consider the strengths and weaknesses of the sentencing guidelines and 
determine the best method of ensuring a sentencing regime that is 
tough, fair, and promotes public safety.
    As a former federal prosecutor, I had the opportunity to work in 
the criminal justice system both before and after the sentencing 
guidelines originally went into effect. The guidelines, although 
certainly imperfect, did have the laudable effect of eliminating some 
of the greatest disparities in sentencing. At the same time, they 
eliminated judicial discretion to an unprecedented degree.
    The challenge for the Congress is to revise the sentencing regime 
consistent with the Court's opinion, establish a completely new 
process, or allow time to evaluate the effects of the advisory system 
and reasonableness standard.
    I look forward to working with Chairman Sensenbrenner and Chairman 
Coble and our other Judiciary Committee colleagues, the Department of 
Justice, federal judges, defense attorneys, the Sentencing Commission, 
and other experts and practitioners as we face this challenge.
            Material submitted for the record by Rep. Scott



Letter from the Association of Corporate Counsel (formerly the American 
Corporate Counsel Association), the Business Civil Liberties, Inc., the 
Business Roundtable, the National Association of Manufacturers, and the 

                        U.S. Chamber of Commerce



          Letter from Keith Darcy, Acting Executive Director, 
                    Ethics Officer Association (EOA)



   Letter from Robert Evans, Director, Governmental Affairs Office, 
       the American Bar Association (ABA), dated February 9, 2005



   Letter from Robert Evans, Director, Governmental Affairs Office, 
      the American Bar Association (ABA), dated February 17, 2005



Letter from Edwin Meese, III, and Philip Heymann, Co-Chairs, Sentencing 
                 Initiatives, The Constitution Project



 Prepared Statement of Lawrence Piersol, President, the Federal Judges 
      Association, and Chief Judge of the District of South Dakota



   Letter from Kent Scheidegger, Legal Director and General Counsel, 
                   Criminal Justice Legal Foundation



 Letter from Robert L. Wilkins, and Karl A. Racine, Partners, Veneable 
                                  LLP


