[House Hearing, 112 Congress]
[From the U.S. Government Publishing Office]




    UNCERTAIN JUSTICE: THE STATUS OF FEDERAL SENTENCING AND THE U.S. 
          SENTENCING COMMISSION SIX YEARS AFTER U.S. V. BOOKER

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

                                HEARING

                               BEFORE THE

                   SUBCOMMITTEE ON CRIME, TERRORISM,
                         AND HOMELAND SECURITY

                                 OF THE

                       COMMITTEE ON THE JUDICIARY
                        HOUSE OF REPRESENTATIVES

                      ONE HUNDRED TWELFTH CONGRESS

                             FIRST SESSION

                               ----------                              

                            OCTOBER 12, 2011

                               ----------                              

                           Serial No. 112-142

                               ----------                              

         Printed for the use of the Committee on the Judiciary






[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]




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










   UNCERTAIN JUSTICE: THE STATUS OF FEDERAL SENTENCING AND THE U.S. 
          SENTENCING COMMISSION SIX YEARS AFTER U.S. V. BOOKER

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

                                HEARING

                               BEFORE THE

                   SUBCOMMITTEE ON CRIME, TERRORISM,
                         AND HOMELAND SECURITY

                                 OF THE

                       COMMITTEE ON THE JUDICIARY
                        HOUSE OF REPRESENTATIVES

                      ONE HUNDRED TWELFTH CONGRESS

                             FIRST SESSION

                               __________

                            OCTOBER 12, 2011

                               __________

                           Serial No. 112-142

                               __________

         Printed for the use of the Committee on the Judiciary




[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]






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

                                _____

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                       COMMITTEE ON THE JUDICIARY

                      LAMAR SMITH, Texas, Chairman
F. JAMES SENSENBRENNER, Jr.,         JOHN CONYERS, Jr., Michigan
    Wisconsin                        HOWARD L. BERMAN, California
HOWARD COBLE, North Carolina         JERROLD NADLER, New York
ELTON GALLEGLY, California           ROBERT C. ``BOBBY'' SCOTT, 
BOB GOODLATTE, Virginia                  Virginia
DANIEL E. LUNGREN, California        MELVIN L. WATT, North Carolina
STEVE CHABOT, Ohio                   ZOE LOFGREN, California
DARRELL E. ISSA, California          SHEILA JACKSON LEE, Texas
MIKE PENCE, Indiana                  MAXINE WATERS, California
J. RANDY FORBES, Virginia            STEVE COHEN, Tennessee
STEVE KING, Iowa                     HENRY C. ``HANK'' JOHNSON, Jr.,
TRENT FRANKS, Arizona                  Georgia
LOUIE GOHMERT, Texas                 PEDRO R. PIERLUISI, Puerto Rico
JIM JORDAN, Ohio                     MIKE QUIGLEY, Illinois
TED POE, Texas                       JUDY CHU, California
JASON CHAFFETZ, Utah                 TED DEUTCH, Florida
TIM GRIFFIN, Arkansas                LINDA T. SANCHEZ, California
TOM MARINO, Pennsylvania             [Vacant]
TREY GOWDY, South Carolina
DENNIS ROSS, Florida
SANDY ADAMS, Florida
BEN QUAYLE, Arizona
MARK AMODEI, Nevada

      Sean McLaughlin, Majority Chief of Staff and General Counsel
       Perry Apelbaum, Minority Staff Director and Chief Counsel
                                 ------                                

        Subcommittee on Crime, Terrorism, and Homeland Security

            F. JAMES SENSENBRENNER, Jr., Wisconsin, Chairman

                  LOUIE GOHMERT, Texas, Vice-Chairman

BOB GOODLATTE, Virginia              ROBERT C. ``BOBBY'' SCOTT, 
DANIEL E. LUNGREN, California        Virginia
J. RANDY FORBES, Virginia            STEVE COHEN, Tennessee
TED POE, Texas                       HENRY C. ``HANK'' JOHNSON, Jr.,
JASON CHAFFETZ, Utah                   Georgia
TIM GRIFFIN, Arkansas                PEDRO R. PIERLUISI, Puerto Rico
TOM MARINO, Pennsylvania             JUDY CHU, California
TREY GOWDY, South Carolina           TED DEUTCH, Florida
SANDY ADAMS, Florida                 SHEILA JACKSON LEE, Texas
MARK AMODEI, Nevada                  MIKE QUIGLEY, Illinois
                                     [Vacant]

                     Caroline Lynch, Chief Counsel

                     Bobby Vassar, Minority Counsel













                            C O N T E N T S

                              ----------                              

                            OCTOBER 12, 2011

                                                                   Page

                           OPENING STATEMENTS

The Honorable F. James Sensenbrenner, Jr., a Representative in 
  Congress from the State of Wisconsin, and Chairman, 
  Subcommittee on Crime, Terrorism, and Homeland Security........     1

The Honorable Robert C. ``Bobby'' 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

Honorable Patti B. Saris, Chair, United States Sentencing 
  Commission
  Oral Testimony.................................................    10
  Prepared Statement.............................................    12

Matthew S. Miner, Partner, White & Case, LLP
  Oral Testimony.................................................   100
  Prepared Statement.............................................   103

William G. Otis, Adjunct Professor, Georgetown Law
  Oral Testimony.................................................   112
  Prepared Statement.............................................   115

James E. Felman, Kynes, Markman & Felman, P.A.
  Oral Testimony.................................................   125
  Prepared Statement.............................................   128

          LETTERS, STATEMENTS, ETC., SUBMITTED FOR THE HEARING

Prepared Statement of the Honorable F. James Sensenbrenner, Jr., 
  a Representative in Congress from the State of Wisconsin, and 
  Chairman, Subcommittee on Crime, Terrorism, and Homeland 
  Security.......................................................     5

Prepared Statement of the Honorable Robert C. ``Bobby'' Scott, a 
  Representative in Congress from the State of Virginia, and 
  Ranking Member, Subcommittee on Crime, Terrorism, and Homeland 
  Security.......................................................     6

Prepared Statement of the Honorable John Conyers, Jr., a 
  Representative in Congress from the State of Michigan, and 
  Ranking Member, Committee on the Judiciary.....................     7

Material submitted by the Honorable Robert C. ``Bobby'' Scott, a 
  Representative in Congress from the State of Virginia, and 
  Ranking Member, Subcommittee on Crime, Terrorism, and Homeland 
  Security.......................................................   225

                                APPENDIX
               Material Submitted for the Hearing Record

Prepared Statement of the American Civil Liberties Union.........   331

Executive Summary on Racial Disparity in Wake of the Booker/
  Fanfan Decision, published by the American Society of 
  Criminology....................................................   350

Research Article on Racial Disparity in Wake of the Booker/Fanfan 
  Decision, published by the American Society of Criminology.....   353

Response to Questions for the Record from the United States 
  Sentencing Commission..........................................   395
  Response to Question 7.........................................   442

 
   UNCERTAIN JUSTICE: THE STATUS OF FEDERAL SENTENCING AND THE U.S. 
          SENTENCING COMMISSION SIX YEARS AFTER U.S. V. BOOKER

                              ----------                              


                      WEDNESDAY, OCTOBER 12, 2011

              House of Representatives,    
              Subcommittee on Crime, Terrorism,    
                             and Homeland Security,
                                Committee on the Judiciary,
                                                    Washington, DC.

    The Subcommittee met, pursuant to call, at 10 a.m., in room 
2141, Rayburn Office Building, the Honorable F. James 
Sensenbrenner, Jr. (Chairman of the Subcommittee) presiding.
    Present: Representatives Sensenbrenner, Goodlatte, Marino, 
Griffin, Adams, Quayle, Scott, Conyers, Johnson, Deutch, 
Jackson Lee, Quigley, and Amodei.
    Staff present: (Majority) Caroline Lynch, Subcommittee 
Chief Counsel; Sam Ramer, Counsel; Lindsay Hamilton, Clerk; 
(Minority) Bobby Vassar, Subcommittee Chief Counsel; Liliana 
Coranado, Counsel; Veronica Eligan, Professional Staff Member.
    Mr. Sensenbrenner. The Subcommittee will come to order.
    Without objection, the Subcommittee will be allowed to 
recess during votes on the Floor, which we do not anticipate 
this morning. I yield myself 5 minutes for an opening 
statement.
    I want to welcome everyone to today's hearing on the status 
of Federal sentencing in the U.S. Sentencing Commission 6 years 
after the Supreme Court decided U.S. v. Booker.
    Well, here we are again. It seems only yesterday that 
Congress passed the PROTECT Act in an attempt to bring fairness 
and consistency to Federal sentences across the country.
    I said it then and I will say it again. It is because it is 
still true.
    A criminal committing a Federal crime should receive 
similar punishment regardless of whether the crime was 
committed in Richmond, Virginia, or Richmond, California, and 
that is why I am deeply concerned about what is happening to 
Federal sentencing.
    It is also why Congress passed the Sentencing Reform Act in 
1984, reflecting Congress' original intent for fair and equal 
justice throughout the Federal judiciary. That year, there were 
wide disparities in Federal sentencing nationwide.
    Experts on criminal law, including many Federal judges, 
pushed Congress for an answer. So Congress created the 
sentencing guidelines--a mandatory sentencing regime that took 
various factors into account in crafting criminal sentences 
that would serve the interests of society and of justice.
    And we created the U.S. Sentencing Commission to analyze 
the judiciary, collect data and to occasionally make small 
changes to the guidelines under congressional oversight, of 
course.
    In 2005, the Supreme Court in U.S. v. Booker undermined the 
sentencing guidelines, making them advisory. I would say they 
destroyed the guidelines. In subsequent decisions, the Supreme 
Court reduced the ability of appellate courts to review and 
correct sentences made at the district court level.
    Over the last 6 years, the justices wrested back most if 
not all of the old discretion Federal judges used to have--a 
discretion that Congress found was abused in 1984 when it 
passed the sentencing guidelines law. And the results of this 
discretion are becoming clear. The increasing frequency of 
downward departures is undermining sentencing fairness 
throughout the Federal system.
    As we have learned from the Chairwoman's written testimony, 
a convicted criminal in the Western District of Wisconsin now 
has a 40 percent chance of getting a sentence below the 
guidelines while a convicted criminal in the Middle District of 
Georgia has a 4 percent chance of getting a sentence below the 
guidelines.
    In New York City, almost half the sentences being handed 
out are below the guidelines. This is not the way we would 
expect justice to be delivered in the United States in the 21st 
century.
    The unfairness doesn't stop with region. There are wide 
sentencing disparity depending upon what crime the defendant 
commits.
    If the defendant is a convicted child porn possessor, he is 
in luck. Federal judges now lower sentences for child porn 
professors at the highest rate--30 percent are below the 
guidelines.
    It is better--a better time also to be convicted of fraud, 
which has the lower than guideline rate of 17 percent. I would 
expect my colleagues across the aisle to be deeply concerned 
with these developments because they also involve racial 
disparities, something we hear a lot about in this Committee.
    In the period before we passed the PROTECT Act in 2003, a 
Black man in the U.S. received a sentence on average of 11.2 
percent greater than that of a White man. After we passed the 
PROTECT Act, that number dropped to 5.5 percent.
    Now, however, since the Supreme Court has decided these 
cases, the Black man receives on average a sentence of 20 
percent higher than that of a White man.
    These numbers should be chilling to the friends to my left 
and I expect vigorous questions from them on why these 
guidelines which protect all Americans regardless of ethnic 
identity have not been reestablished.
    In the last 6 years, as the judiciary has untethered itself 
from the checks and balances of the legislative branch, one 
would expect the Sentencing Commission to come up with a plan 
of action to make the guidelines relevant again.
    Yet, we have not received any proposal from the Commission 
for 6 years. It is as if the Commission is satisfied that the 
regulations they promulgate can be routinely ignored.
    In addition, we have watched with alarm some of the changes 
to the guidelines the Commission has made. These changes seem 
to have one effect overall on Federal sentences--reductions 
across the board.
    Recently, the Commission ordered that the new, more lenient 
crack cocaine sentencing ratio be made retroactive, leading to 
the release of some 12,000 crack cocaine offenders. This has 
been done over the strenuous objection of many of us in the 
majority.
    The Commission, however, cost just as much or more to 
operate than it ever did. Ironically, since 2005 when the 
guidelines became ephemeral, the budget of the Sentencing 
Commission has gone up by about 20 percent.
    This is another disparity that Congress should look at. I 
anticipate an open line of communication with the members of 
the Federal judiciary in the upcoming year on issues of 
interest such as improving our justice system, the Federal 
sentencing guidelines and judicial pay.
    I look forward to hearing more about this issue and thank 
all of our witnesses for participating in today's hearing. It 
is now my pleasure to recognize for his opening statement the 
Ranking Member of the Subcommittee, the gentleman from 
Virginia, Mr. Scott?
    Mr. Scott. Thank you, Mr. Chairman.
    Six years ago, the Supreme Court decided in U.S. v. Booker 
in which it held that the mandatory sentencing guideline system 
was unconstitutional.
    This is the third hearing the Subcommittee has held about 
that case since it was decided and I have the same position I 
had in 2005 shortly after the decision and 2006, 1 year after 
the decision, and that is that the decision did not create a 
problem that needs fixing--that Booker in fact was the fix, not 
the problem, and our response should be don't just do 
something, stand there.
    Six years after the decision, it is even clear to me that--
it is clear to me that it was the time Booker was decided and 
the reason I can say that without hesitation is that the 
Commission's own statistics bear this out.
    Now, let's get to the heart of the matter and the impetus 
for this hearing--how often are judges following the sentencing 
guidelines. And the answer is over 80 percent of the time, and 
the compliance rate, in fact, is trending upward.
    Notably, the rate of nongovernment-sponsored below range 
sentencing dropped to 16.9 percent in the third quarter of 
2011, down from 18.7 in the fourth quarter of 2010, and this 
rate is only 4.2 percentage points lower than the rate within 
the first year after Booker when many courts were continuing to 
treat the guidelines as mandatory pending further clarification 
from the Supreme Court.
    The government-sponsored below range rate is approximately 
27 percent. The drop in the below range sentencing during the 
first three quarters of 2011 corresponds with the reduction in 
the crack guidelines from November 1, 2010, as a direction--as 
a consequence of the Fair Sentencing Act of 2010.
    A 16.9 percent variance from sentencing guidelines by 
judging--by judges is hardly cause for alarm. Indeed, it shows 
that the judges are sentencing within the guideline range or 
following the prosecutors' recommendations 83.1 percent of the 
time.
    It is also notable that the government does not object to 
at least half of the judicial variances even though it wins 60 
percent of the time it appeals those cases.
    When judges do not follow the guidelines, the extent of 
variance and departure is less than 13 months and that has 
remained stable since Booker was decided.
    Furthermore, judges are following the guideline 
recommendations for the kind of sentence to impose whether 
prison, probation or an intermediate sentence such as home 
detention even more than they were before Booker.
    Now, this underscores what we should draw as a distinction 
between warranted and unwarranted disparities. The Sentencing 
Reform Act was concerned only with eliminating unwarranted 
sentencing disparities. Simply focusing on the rate of 
disparities obscures the truth.
    All of this tells us two things. First, it tells us the 
judges are following the guidelines over 80 percent of the 
time. Although when surveyed many judges disagree with certain 
parts of the guidelines, judges have shown a great deal of 
restraint in imposing sentences outside the recommended range. 
Second, it tells us that the system is working and shows how 
the system is supposed to function.
    When Sentencing Commission amends the guidelines to better 
reflect statutory purposes and the factors enumerated in the 
Sentencing Reform Act, judges followed them more frequently. 
Nothing that I have seen to date demonstrates a need to curtail 
the limited judicial discretion that Booker restored. In fact, 
it shows just the opposite.
    The attack on judicial discretion suggests that Congress or 
the Commission, who know nothing about the specific offense or 
the circumstances surrounding it or the prosecutors who play an 
adversarial role in administering criminal justice, are in a 
better position to determine a fair sentence than judges who 
hear all of the facts and the circumstances from both sides.
    Now, this defies common sense. And to the extent that equal 
justice around the country is important, if some prosecutors in 
one district overcharge as a matter of policy compared to other 
districts, the judge is in a position to compensate.
    So I look forward to hearing testimony of the witnesses and 
I hope that we can have a productive conversation about 
sentencing--federal sentencing that is rooted in what the data 
and research indicates.
    So I thank you, Mr. Chairman, and look forward to hearing 
from our witnesses.
    Mr. Sensenbrenner. Thank you.
    The Chairman Emeritus of the Committee, the gentleman from 
Michigan, Mr. Conyers, is recognized for 5 minutes.
    Mr. Conyers. Thank you, Chairman Sensenbrenner, and Members 
of the Committee.
    We welcome our panel. This is an important discussion and I 
am glad we have a variety of former lawyers, prosecutor and 
others thrown in here--judges. I have some ambivalence and I 
have been talking it over with my staff.
    The bottom line is whether we need the Sentencing 
Commission--although it has done some good things--or not, and 
I am--that, to me, is in the back of my mind as we discuss 
this. I know there are a variety of views and I am going to ask 
the witnesses to tell me what they think about the continued 
role of the Sentencing Commission.
    But Congress has a role to play in setting sentencing 
policy but it is limited. The next thing we should talk about 
is that the Booker decision reflects the original intent of the 
guidelines.
    We find 80--some tell me 83 percent--of the decisions go 
outside--are within the range, and third, I don't think the 
sentencing guidelines need to be revised. I am surprised that 
my Chairman still believes firmly that Booker destroyed the 
guidelines.
    That is one I am going to study very carefully after this 
hearing to determine the degree of accuracy in that statement.
    But it seems to me that our Ranking Member, Bobby Scott, 
the former Chairman of this Subcommittee, has paid so much 
attention to the matter that it is pretty clear that we have a 
system which a lot of--a lot of factors play into it, and 
Chairman Sensenbrenner mentioned race in terms of the criminal 
justice sentencing process.
    I compliment him for acknowledging that and I look forward 
to working with him on developing that part of his presentation 
as well. So I will ask that my entire statement be included and 
I thank the Chairman for allowing me to speak.
    Mr. Sensenbrenner. Without objection, and without objection 
all Members' statements will appear in the record at this 
point.
    [The prepared statement of Mr. Sensenbrenner follows:]
  Prepared Statement of the Honorable F. James Sensenbrenner, Jr., a 
 Representative in Congress from the State of Wisconsin, and Chairman, 
        Subcommittee on Crime, Terrorism, and Homeland Security
    I want to welcome everyone to today's hearing on the status of 
Federal sentencing and the U.S. Sentencing Commission six years after 
U.S. v. Booker.
    Well, here we are again. It seems only yesterday that Congress 
passed the PROTECT Act, in an attempt to bring fairness and consistency 
to Federal sentences across the country. I said it then, and I will say 
it again, because it is still true: A criminal committing a federal 
crime should receive a similar punishment regardless of whether the 
crime was committed in Richmond, Virginia or Richmond, California. And 
that is why I am deeply concerned about what is happening to Federal 
sentencing.
    And that's also why Congress passed the Sentencing Reform Act in 
1984, reflecting Congress's original intent for fair and equal justice 
throughout the federal judiciary.
    In 1984, there were wide disparities in Federal sentencing 
nationwide. Experts on criminal law, including many Federal judges, 
pushed Congress for an answer. So Congress created the Sentencing 
Guidelines, a mandatory sentencing regime that took various factors 
into account in crafting criminal sentences that would serve the 
interests of society, and of justice. And we created the U.S. 
Sentencing Commission to analyze the Judiciary, collect data, and to 
occasionally make small changes to the Guidelines, under Congressional 
oversight, of course.
    In 2005, the Supreme Court, in U.S. v. Booker, undermined the 
Sentencing Guidelines, by making them advisory. In subsequent 
decisions, the Supreme Court reduced the ability of appellate courts to 
review and correct sentences made at the District Court level. Over the 
last six years, the Justices wrested back most, if not all, the old 
discretion Federal judges used to have.
    And the results of this discretion are becoming clear. The 
increasing frequency of downward departures is undermining sentencing 
fairness throughout the federal system. As we have learned from the 
Chairwoman's written testimony, a convicted criminal in the Western 
District of Wisconsin now has a 40% chance of getting a sentence below 
the Guidelines, while a convicted criminal in the Middle District of 
Georgia has a 4% chance of getting a sentence below the Guidelines. In 
New York City, almost half the sentences being handed out are below the 
Guidelines. That is not the way you expect justice to be delivered in 
the United States in the 21st century.
    The unfairness doesn't stop with region; there are wide sentencing 
disparities depending on what crime you commit. If you are a convicted 
child porn possessor, you're in luck: Federal judges now lower 
sentences for child porn possessors at the highest rate, nearly 30% are 
below Guidelines. It's also a better time to be convicted of fraud, 
which has a lower-than-guideline rate of 17%.
    I would expect my colleagues across the aisle to be deeply 
concerned with these developments, because they also involve racial 
disparities, something we hear a lot about in this Committee. In the 
period before we passed the PROTECT Act in 2003, a black man in the 
U.S. received a sentence, on average, 11.2% greater than that of a 
white man. After we passed the PROTECT Act, that number dropped to 
5.5%. Now, however, since the recent Supreme Court decisions, a black 
man receives, on average, a sentence 20% higher than that of a white 
man. These numbers should be chilling to Democrats, and I expect 
vigorous questions from them on why these guidelines, which protect all 
Americans regardless of ethnic identity, have not been reestablished.
    In the last six years, as the Judiciary has untethered itself from 
the checks and balances of the legislative branch, one would expect the 
Sentencing Commission to come up with a plan of action to make the 
Guidelines relevant again. Yet, we have not received any proposal from 
the Commission for six years. It is as if the Commission is satisfied 
that the regulations they promulgate can be routinely ignored.
    In addition, we have watched with alarm some of the changes to the 
Guidelines that the Commission has made. The changes seem to have one 
effect, overall, on Federal sentences: reduction, across the board. 
Just recently, the Commission ordered that the new, more lenient crack 
cocaine sentencing ratio be made retroactive, leading to the release of 
some 12,000 crack cocaine offenders. They have done this over the 
strenuous objection of many of us in the Majority.
    The Commission however, costs just as much, or more, to operate, 
than in ever did. Ironically, since 2005, when the Guidelines became 
ephemeral, the budget of the Sentencing Commission has gone up by about 
20%. That's another disparity Congress may want to look at.
    I anticipate an open line of communication with the members of the 
Federal Judiciary in the upcoming year on issues of interest such as 
improving our justice system, the Federal sentencing guidelines, and 
judicial pay.
    I look forward to hearing more about this issue and thank all of 
our witnesses for participating in today's hearing.
                               __________

    [The prepared statement of Mr. Scott follows:]
   Prepared Statement of the Honorable Robert C. ``Bobby'' Scott, a 
  Representative in Congress from the State of Virginia, and Member, 
                       Committee on the Judiciary
    Thank you, Mr. Chairman. Six years ago the Supreme Court decided 
U.S. v. Booker, in which it held that the mandatory sentencing 
guidelines system was unconstitutional. This is the third hearing that 
the subcommittee has held about this case since it was decided. I have 
the same position that I had in 2005, shortly after the decision, and 
in 2006, one year after the decision. The decision did not create a 
problem that needs fixing. Booker WAS the fix--not the problem. Six 
years after the decision, this is even clearer to me today than it was 
at the time Booker was decided.
    The reason that I can say this without hesitation is that the 
Commission's own statistics bear this out. Let's get right to what 
seems to be the heart of the matter and the impetus for the hearing. 
How often are judges following the sentencing guidelines? The answer is 
in over 80% of the time. And the compliance rate is trending upward. 
Notably, the rate of non-government sponsored below-range sentences 
dropped to 16.9% in the third quarter of 2011, down from 18.7% in the 
fourth quarter of 2010. This rate is only 4.2 percentage points lower 
than the rate within the first year after Booker when many courts were 
continuing to treat the guidelines as mandatory pending further 
clarification from the Supreme Court. The government sponsored below 
range rate is approximately 27%.
    The drop in below-range sentences during the first three quarters 
of 2011 corresponds with the reduction in the crack guidelines on 
November 1, 2010 as directed by the Fair Sentencing Act of 2010. A 
16.9% variance rate from sentencing guidelines by judges is hardly 
cause for alarm. Indeed, it shows that judges are sentencing within the 
guideline range or following the prosecutor's recommendation 83.1% of 
the time.
    It is also notable that the government does not object to at least 
half of the judicial variances, even though it wins 60% of the appeals 
on 3553(a) factors.
    And when judges do not follow the guidelines, the extent of 
variances and departures is less than 13 months, and that has remained 
stable since Booker was decided. Furthermore, judges are following the 
guidelines' recommendations for the kind of sentence to impose, whether 
prison, probation, or an intermediate sentence such as home detention, 
even more than they were before Booker.
    This underscores that we should draw a distinction between 
warranted and unwarranted disparities; the Sentencing Reform Act was 
concerned only with eliminating unwarranted sentencing disparities. 
Simply focusing on the rate of disparities obscures this truth.
    All of this data tell us two things: First, it tells us that judges 
are still following the guidelines over 80% of the time. Although when 
surveyed many judges disagree with certain parts of the Guidelines, 
judges have shown a great deal of restraint in imposing sentences 
outside the recommended range.
    Second, it tells us that the system is working and shows how the 
system is supposed to function. When the Sentencing Commission amends 
the guidelines to better reflect the statutory purposes and factors 
enumerated in the Sentencing Reform Act, judges follow them more 
frequently.
    Nothing that I have seen to date demonstrates a need to curtail the 
limited judicial discretion that Booker restored. In fact, it shows the 
exact opposite.
    The attack on judicial discretion suggests that Congress, or the 
Commission, who know nothing about the offense or the circumstances 
surrounding it, or prosecutors, who play an adversarial role in 
administering criminal justice, are in a better position to determine a 
fair sentence than the judges who hear all of the facts and 
circumstances from all sides. This defies common sense.
    I look forward to hearing the testimony of the witnesses and hope 
that we can have a productive conversation about federal sentencing 
that is rooted in what the data and research indicates.
    Thank you for attending today's hearing.
                               __________

    [The prepared statement of Mr. Conyers follows:]
Prepared Statement of the Honorable John Conyers, Jr., a Representative 
 in Congress from the State of Michigan, and Ranking Member, Committee 
                            on the Judiciary
    While today's hearing provides an important opportunity to have a 
conversation about federal sentencing policy, I am concerned that the 
title of this hearing--Uncertain Justice: The Status of Federal 
Sentencing and the U.S. Sentencing Commission Six Years after U.S. v. 
Booker--is misleading.
    It suggests that the Supreme Court's decision in Booker created 
some type of uncertainty in federal sentencing, which is neither 
accurate nor supported by the data.
    In reality, the Booker decision did not have as much of an impact 
on our Nation's sentencing system as was predicted.
    For the most part, our current system is very similar to the 
mandatory sentencing guidelines system that existed before Booker. To 
some, including myself, this is disappointing.
    Yet others, including the Majority's witnesses, are sounding an 
alarm--this hearing is part of that--that would make one believe that 
there is some type of crisis with the system, namely, that judges have 
gone rogue after Booker. That is simply not the case.
    I would like to share three critical principles about federal 
sentencing that should inform our conversation here today. First, 
Congress clearly has an important role to play in setting sentencing 
policy, but it is a limited role.
    Although there is no proposal on the table as of yet, I understand 
that the majority's witnesses, including the Chair of the Sentencing 
Commission, recommend Congressional action.
    Given the fact that the data indicate judges are sentencing within 
the sentencing guideline range over 80% of the time, I fail to see a 
need for such action.
    Congress should decline the invitation to act to change federal 
sentencing policy. The proper role of Congress is to set the outer 
limits of a sentence, known as the statutory maximum, under the statute 
that criminalizes the conduct, which we do each time we create a new 
criminal offense.
    Limiting Congress' role in this way is consistent with the original 
intent of the Sentencing Reform Act, which was passed as a part of the 
1984 Comprehensive Crime Control Act.
    This Act was possibly the most comprehensive change in sentencing 
law and practice in American history.
    The legislation created two of the most important components of 
federal sentencing policy in this country: the United States Sentencing 
Commission and the Federal Sentencing Guidelines.
    Twenty-five years ago there was considerable debate about whether 
the Federal Sentencing Guidelines as created under the Sentencing 
Reform Act should be mandatory or advisory.
    However, the U.S. Supreme Court 6 years ago decided in the case of 
United States v. Booker that the guidelines should no longer be 
mandatory. In the Booker decision, the Court held that federal district 
courts must consult the sentencing guidelines, but were not bound by 
them.
    This brings me to my second point, namely, that the Booker decision 
was the right decision by the Court, and it reflects the original 
intent of the guidelines.
    As Senator Ted Kenney, the author of the Sentencing Reform Act, 
envisioned the sentencing system, he did not intend for judges to be 
bound by the guidelines. So it seems that we have come full circle.
    Perhaps more importantly, the Booker decision was firmly rooted in 
the Constitution, in that the high court held that a mandatory 
guidelines system violated a defendant's Sixth Amendment right to 
trial.
    The current advisory system established by Booker gives judges the 
discretion to set a sentence outside of the guideline range, when 
appropriate.
    This limited discretion allows judges to impose a sentence that 
fits the crime and the offender, and provides the Sentencing Commission 
important feedback, as contemplated by the Sentencing Reform Act and 
the Supreme Court, all of which was eviscerated in the mandatory 
guideline era.
    We should not be afraid of judicial discretion, because federal 
judges play the most important and most neutral role in the sentencing 
process.
    Sentences outside of the guideline range will decrease, and have 
already done so this year as compared to last, as the Commission heeds 
judges and researchers and incorporates both of these important pieces 
into the guidelines.
    This is how fair sentencing policies are set and fair sentences are 
achieved. Thus, any efforts to alter the current advisory nature of the 
guidelines are wrong and unnecessary.
    Third, while I do not believe that the sentencing guidelines need 
to be revised, there remain several obstacles to fairness in criminal 
justice sentencing, and to fulfilling the original intent of the 
sentencing guidelines, that must be addressed.
    One of the biggest obstacles is mandatory minimum sentences. 
Mandatory minimum sentences in the federal system began to be enacted 
around the same time as the sentencing guidelines. As a result, we have 
never had a chance to understand how the guidelines would work without 
the overarching shadow of mandatory minimums.
    It is time to give the federal sentencing guidelines an opportunity 
to work without being linked to mandatory minimums.
    Mandatory minimums have resulted in a perception of unfairness in 
our justice system.
    One of the most glaring examples of injustice in our sentencing 
policy, and where mandatory minimums have had the most pernicious 
effect, is the federal crack cocaine law.
    The message I have today is primarily for my colleagues in 
Congress--stop interfering in the important work of the Commission and 
our judges in ways that perpetuate and exacerbate inequities in the 
criminal justice system.
    Our role now should be to undo the damage that we have done with 
the creation of so many mandatory minimums and directives to the 
Sentencing Commission. And, we should provide appropriate guidance to 
the Commission and judges.
    It is only through this delicate dance between the three Cs--
Congress, the Commission, and Courts--that we can ever hope to achieve 
fair and just sentencing policies.
    Thank you for attending today's hearing. I thank the witnesses in 
advance and look forward to hearing from each of you.
                               __________

    Mr. Sensenbrenner. It is now my pleasure to introduce 
today's witnesses. Judge Patti B. Saris was confirmed as a 
member and chair of the United States Sentencing Commission in 
2010. Judge Saris has served as a U.S. district judge for the 
district of Massachusetts since 1994.
    Prior to her appointment to the district court, Judge Saris 
served as an associate justice for the Massachusetts Superior 
Court from 1989 to 1993.
    From 1986 to 1989, Judge Saris served as a Federal 
magistrate judge for the United States District Court for the 
District of Massachusetts. She was an attorney in the Civil 
Division of the Justice Department from 1982 to 1986 and held 
the position of chief of the Civil Division Office of the 
United States Attorney for Massachusetts from 1984 to 1986.
    From 1989 until 1981 Judge Saris served as a counsel to the 
United States Senate Committee on the Judiciary. She received 
her Bachelor of Arts from Radcliffe College in 1973 and her 
J.D. from Harvard Law School in 1976.
    Matthew Miner is a partner at White & Case in Washington, 
D.C. Prior to joining the firm, Mr. Miner was minority staff 
director at the Senate Judiciary Committee. During his tenure 
with the Senate, Mr. Miner served in many other senior roles 
such as majority chief counsel of the Subcommittee on 
Administrative Oversight and the Courts.
    He has also held the positions of majority chief counsel 
for Crime, Terrorism and Oversight for the Senate Judiciary 
Committee and majority counsel for the Senate Permanent 
Committee on Investigations.
    Prior to his Senate committee service, Mr. Miner was an 
assistant U.S. attorney in the Middle District of Alabama. He 
also worked in private practice in Philadelphia handling civil 
litigation and compliance matters. He received a Bachelor of 
Arts degree from the University of Cincinnati in 1992 and his 
J.D. from the University of Michigan Law School in 1997.
    Mr. William Otis is presently an adjunct professor of law 
at Georgetown Law School. Prior to his current position, he was 
a counselor to the head of the Drug Enforcement Administration 
from 2003 to 2007. From 2002 to 2003, Mr. Otis was the special 
assistant to the secretary of Energy.
    Previously, Mr. Otis worked as head of the Appellate 
Division of U.S. Attorneys Office for the Eastern District of 
Virginia from 1981 through 1999.
    In 1992, he was detailed to the White House as a special 
counsel for President George H. W. Bush. He received his 
Bachelor of Arts degree from the University of North Carolina 
in 1968 and his J.D. degree from Stanford Law School in 1974.
    Mr. James E. Felman is a partner at Kynes, Markman and 
Felman in Tampa, Florida, and has been with the firm since 
1991.
    Prior to joining the firm, he was an associate at Winkles, 
Trombley, Kynes & Markman, P.A., from 1989 to 1981. He taught 
as an adjunct professor at Stetson University College Law from 
1990 to 1993. He was a member of the Practitioners Advisory 
Group to the Sentencing Commission from 1994 to 2009 and served 
as co-chair of the group from 1998 to 2002.
    He is the co-chair of the Committee on Sentencing of the 
American Bar Association and has served as a member of the 
Governing Counsel of the ABA Criminal Justice section since 
2008. He received his B.A. from Wake Forest in 1984 and his 
M.A. in philosophy and juris doctor from Duke University in 
1987.
    All of the witnesses' written statements will be entered 
into the record in their entirety and I ask that each witness 
summarize his or her testimony in 5 minutes or less.
    I now recognize Judge Saris. Could you pull the microphone 
a little closer and make sure that it is on so the reporter can 
hear you?

              TESTIMONY OF PATTI B. SARIS, CHAIR, 
              UNITED STATES SENTENCING COMMISSION

    Judge Saris. Is that on? [Laughter.]
    Mr. Sensenbrenner. Yes.
    Judge Saris. Yes. All right. Chairman Sensenbrenner, 
Ranking Member Scott, and Members of the Subcommittee, thank 
you for inviting me to testify today on behalf of the United 
States Sentencing Commission.
    The Commission is an independent bipartisan agency in the 
judicial branch. In the Sentencing Reform Act of 1984, Congress 
charged the Commission with ensuring that the purposes of 
sentencing--certainty, fairness, transparency, consistency, and 
proportionality--be met.
    Commissioners come from judicial, prosecutorial and defense 
backgrounds and we work by consensus wherever possible. As you 
know, in its landmark decision Booker in 2005, the Supreme 
Court held that the mandatory guidelines violated the Sixth 
Amendment. Since then, the Federal sentencing scheme has 
changed dramatically.
    After making the guidelines advisory, the Supreme Court has 
issued seven additional sentencing decisions that have, one, 
changed the appellate standard from de novo to a more 
deferential standard of reasonableness; two, informed 
sentencing courts that a guideline sentence may not be presumed 
reasonable; three, instructed sentencing courts to consider all 
of the statutory factors in 3553(a) including individual 
offender characteristics; and four, indicated to sentencing 
courts that they may sentence outside the guidelines for policy 
reasons.
    Under this Supreme Court case law, the guidelines remain 
the starting point and baseline for all sentences. There were 
more than 80,000 felony and Class A misdemeanor sentences 
issued last year and in approximately 80 percent of those cases 
judges issued a sentence within the guideline range or below 
that range at the government's request.
    The guidelines exert a demonstrable gravitational pull on 
nonguideline sentences and many believe an advisory Booker 
system best serves the goals of sentencing in the SRA.
    The Commission believes that the status quo has some 
weaknesses. Statistically, the Commission has observed an 
increase in nongovernment-sponsored below range sentences from 
12.5 percent in 2006 to 17.8 percent in 2010.
    The Commission also found differences among different 
districts and for certain demographic groups. For example, in 
fiscal year 2010, the variance rate ranged from below 5 percent 
in one district to nearly 50 percent in another district.
    Further, the difference between sentences for Black and 
White male offenders nationally has increased since Booker and 
Black males now receive more than 20 percent longer sentences 
than White males.
    As the Supreme Court put it in Booker, the ball now lies in 
Congress' court and the Commission proposes the following 
legislative changes.
    First, Congress should enact a more robust appellate review 
standard that requires appellate courts to apply a presumption 
of reasonableness to sentences within the properly calculated 
guideline range.
    The Commission also believes that Congress should require 
that the greater the variance from a guideline the greater 
should be the sentencing court's justification for the 
variance.
    Congress also should create a heightened standard of review 
for sentences imposed as a result of a policy disagreement with 
the guidelines.
    Second, the Commission recommends that Congress clarify the 
statutory directives to the courts and the Commission that are 
currently in tension. Section 994 instructs the Commission not 
to incorporate certain offender characteristics--for example, 
family ties--into the guidelines but Section 3553(a) directs 
courts to consider the same characteristics.
    Accordingly, judges often determine that the guidelines 
have not sufficiently addressed offender characteristics and 
impose a sentence outside the guidelines.
    Third, as the Commission testified in 2005 and 2006, 
Congress should require that sentencing courts give substantial 
weight to the guidelines at sentencing and codify the three-
part sentencing process.
    I would like to briefly mention what we have been doing in 
the last year and what we have on our plate for the future.
    In the last 9 months, the Commission has issued amendments 
that will take effect on November 1st absent congressional 
action. These amendments implemented the Fair Sentencing Act of 
2010, which reduced crack cocaine penalties.
    The Commission also increased penalties for certain straw 
purchases of firearms and for offenders who illegally traffic 
firearms across the border, and we addressed health care fraud. 
Mortgage fraud is one of our priorities for the next year.
    We also hope to focus on recidivism upon reentry after 
prison. The Commission is also preparing three major reports--
first, a report on statutory mandatory minimums, which should 
come out soon; second, a report on child pornography offenses; 
and finally, a report that incorporates today's testimony on 
the impact of Booker on the Federal system.
    The Commission continues to code, analyze and report record 
numbers of cases--in fact, 11,000 more cases a year than when 
Booker issued. In fact, today's hearing is based on that work.
    We train people in all the districts. I want to conclude by 
saying--I am catching the gavel--in conclusion, the sentencing 
system is different than that envisaged by Congress in 1984 and 
we think the proposals we offer today will make the guideline 
system even more effective. Thank you.
    [The prepared statement of Judge Saris follows:]


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                               __________

    Mr. Sensenbrenner. Thank you, Judge.
    Mr. Miner?

            TESTIMONY OF MATTHEW S. MINER, PARTNER, 
                       WHITE & CASE, LLP

    Mr. Miner. Chairman Sensenbrenner, Ranking Member Scott and 
Members of the Subcommittee, thank you for holding this 
important hearing and inviting me to testify.
    By all objective measures, the Federal sentencing system is 
drifting from a guideline-based system to one determined 
increasingly by the judge a defendant draws. A review of the 
district-by-district data from the U.S. Sentencing Commission 
reveals just how far we have strayed from the goal of relative 
consistency among similar sentences for similar crimes.
    To cite just one example from the most recent quarterly 
data from the Commission, a defendant is more than twice as 
likely to receive a below guideline sentence based solely on 
the judge's discretion if he is arrested in the Southern 
District of New York rather than the Northern District of New 
York.
    These two districts are clearly not on opposite sides of 
the country or even on opposite sides of a state. You are 
talking about county lines here and you are talking about very 
different views among the Federal judges in terms of how they 
should sentence defendants. In terms of many crimes, you are 
talking about which side of a road you are arrested on and 
where you are lucky enough or unlucky enough to have been 
picked up. That is not what was intended by Congress in the 
Sentencing Reform Act, I don't suspect.
    To sum up the current state of Federal sentencing, let me 
read a short quote from a congressional report.
    ``Every day, Federal judges mete out an unjustifiably wide 
range of sentences to offenders with similar histories, 
convicted of similar crimes committed under similar 
circumstances. One offender may receive a sentence of probation 
while another, convicted of the very same crime and possessing 
a similar or comparable criminal history, may be sentenced to a 
lengthy term of imprisonment. Even two such offenders who are 
sentenced to terms of imprisonment for similar offenses may 
receive wildly different prison release dates.'' End quote.
    Although this description applies very well to current 
Federal sentencing practices under the advisory guideline 
system, it comes from the 1984 Conference Report on the 
Sentencing Reform Act and describes the dysfunctional system 
that existed at that time--a system that Congress, in a very 
bipartisan effort, sought to and did repair.
    The fact that a 1984 description of the pre-guideline 
system could arguably be applied to current sentencing practice 
speaks volumes about just how far the Federal system has 
drifted from the goals of the SRA.
    It also speaks to how another strong legislative and policy 
effort is needed to restore greater order and consistency to 
this generation of variable discretionary sentencing.
    At the outset, let me state that I am in favor of the 
guidelines and determinant and semi-determinant sentencing as 
appropriate. I believe the Commission and Congress should work 
toward a system where the guidelines are once again 
presumptively applicable in all cases.
    According to Supreme Court case law, one of the only ways 
that such presumptive effect can be achieved is through a 
greater reliance on when charging aggravating factors and 
having those factors put to a jury via a special verdict form 
or, in the case of a guilty plea, having facts admitted by the 
defendant.
    Although some, naturally, question whether or how well such 
a system would work, including whether juries could make such 
complex determinations, I am not sure there is that much cause 
for doubt.
    Taking, for example, fraud cases in determining the amount 
of loss, juries in civil cases do this across the country every 
single day in determining damage amounts and in filling out 
special verdict forms to calculate the loss.
    In terms of aggravating factors, capital juries do this in 
questions dealing with whether life or death is appropriate in 
an individual case.
    If we can trust juries to do this in such significant 
cases, we can surely trust juries to find aggravators in cases 
where we are talking about a guideline range being increased or 
decreased by two or three levels.
    Although this is the reform I prefer, to be clear, such a 
reform would require more components than I just described.
    I think Congress should consider and the Commission should 
recommend a more modest reform in the near term. Just as the 
SRA was not achieved within a decade of the first proposal of a 
guideline system, it could be a while before comprehensive 
reform could be studied, assessed, enacted and implemented.
    Accordingly, there are some things that can and should be 
done now. In deciding Booker, the Supreme Court struck down two 
provisions in the Sentencing Reform Act that still stand as 
nullities in the statute books and the Federal judiciary must 
function without a statutory appellate standard or 
congressional guidance on how to apply the guidelines. This 
should be addressed immediately.
    Given all that needs fixing, to use a football analogy, 
Congress may want to look for a first down rather than a 
touchdown here. If nothing else happen in this Congress other 
than the passing of an appellate standard with the presumption 
of reasonableness for within guideline sentences, as allowed by 
United States v. Rita, greater uniformity would follow.
    If Congress could agree to go farther, consistent with Gall 
v. United States, and require a heightened showing for major 
departures from the guidelines with increased scrutiny on 
appeal, even greater uniformity would likely follow.
    At this point, 6 years after Booker struck down those 
provisions of the Federal sentencing statutes, even these 
modest reforms could go a long way.
    I submit the full statement that I or I request that my 
full statement be put in the record and I stand ready to answer 
the Committee's questions. Thank you.
    [The prepared statement of Mr. Miner follows:]


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                               __________

    Mr. Sensenbrenner. Without objection.
    Mr. Otis?

TESTIMONY OF WILLIAM G. OTIS, ADJUNCT PROFESSOR, GEORGETOWN LAW

    Mr. Otis. Thank you, Chairman Sensenbrenner and Ranking 
Member----
    Mr. Sensenbrenner. Could you turn the mike on?
    Mr. Otis. Thank you, Chairman Sensenbrenner, Ranking Member 
Scott and Members of the Subcommittee.
    Let's say you were in court suing the fellow who rammed 
your car. He wants to introduce hearsay statements. You object, 
citing the rule against them.
    But Judge Jones, who is hearing the case, says, ``The 
Supreme Court has made the hearsay rule merely advisory and 
admonished that I, as a trial judge, can't even presume it is 
reasonable. I get to do what I think best. Objection 
overruled.''
    You respond, ``But Judge Smith down the hall doesn't allow 
hearsay statements,'' to which the Court replies, ``That is 
true, and he can do that. But you are not before Judge Smith. 
You are before me and I think differently.''
    The motto inscribed above the Supreme Court is ``Equal 
Justice Under Law.'' Is that what anyone would think you had 
just received?
    Not exactly. But that is the system we have today in 
Federal sentencing.
    We pride ourselves on being a nation of law, not of men. 
The whole purpose of law is to--is to provide consistent and 
predictable rules to protect litigants from the idiosyncrasies 
of judges who, like all human beings, are subject to the 
temptations of ideology, temperament and taste.
    But sentencing is now the opposite of law. It is a lottery. 
It wasn't always this way. In 1984, Congress adopted the 
Sentencing Reform Act. The principal aim of the act and the 
single purpose of the Sentencing Commission it created was to 
rein in irrational disparity and sentencing by establishing 
mandatory guidelines.
    It did and they succeeded. In the early years, judges 
followed them more than 75 percent of the time. But when the 
Supreme Court decided Booker it declared that the guidelines 
were to be viewed as, quote, ``advisory only.''
    The result has been predictable. Within guideline sentences 
are now given a bit more than half the time. In 3 years at the 
present rate of decay, the majority of sentences will be 
outside the guidelines' range and--and this is something the 
public should know--guideline departures are anything but 
evenhanded. Downward departures--those favoring the criminal--
outnumber upward departures by more than 20 to 1.
    Many such departures are sought by the government--true. 
But even discounting for that, departures remain almost 
exclusively the defendant's playground. It doesn't need to be 
like this.
    The Supreme Court all but said in Booker that Congress 
could redesign the sentencing system to restore its mandatory 
character and Justice Souter recommended exactly that in his 
concurring opinion in Gall.
    Congress could act this afternoon to restore mandatory 
guidelines and the rule of law in sentencing.
    But it won't because the Sentencing Commission has given it 
no guidance. Instead, for more than 6 years, while sentencing 
has increasingly slouched back toward luck of the draw 
disparity, the Commission has ignored the principal purpose for 
which Congress created it.
    But it has not been idle. It has, with all respect, 
compounded the problem by encouraging sentencing courts to 
consider dubious offender characteristics, like voluntary drug 
use, that, precisely to avoid disparity, every previous 
commission had discouraged or forbidden. It has also used its 
time to urge Congress to lower crack cocaine sentences to equal 
those given for a less dangerous drug, powder cocaine--a 
proposal so radical that the most liberal Congress in decades 
overwhelmingly rejected it.
    No one has argued or plausibly could argue that the 
Commission would have been created to begin with if it were 
going so steadfastly to ignore its central purpose--
establishing mandatory guidelines--and so breezily to accept a 
system as random and watered down as it is now.
    As the Supreme Court reminded us in Nelson, it has come to 
the point that trial judges no longer can presume a sentence 
suggested under the Commission's guidelines is even reasonable, 
much less correct.
    It is incomprehensible that the taxpayer should continue to 
provide millions for the promulgation of mere sentencing 
suggestions--suggestions the high court itself views with 
skepticism. The Commission should either return to its main 
job--creating mandatory guidelines--or give the taxpayers a 
refund.
    [The prepared statement of Mr. Otis follows:]


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                               __________

    Mr. Sensenbrenner. Mr. Felman?

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

    Mr. Felman. Mr. Chairman, Ranking Member Scott, Ranking 
Member Conyers, distinguished Members of the Subcommittee, it 
is my pleasure and honor to appear before the Subcommittee 
today on behalf of the American Bar Association for which I 
serve as the liaison to the United States Sentencing Commission 
and as a co-chair of its committee on sentencing.
    The advisory guideline system best achieves the goals of 
the Sentencing Reform Act. With continued commitment by the 
Sentencing Commission to the promulgation and revision of 
guidelines based on empirical data and research, advisory 
guidelines can best advance the purposes of sentencing and 
reduce both unwarranted disparity and its equally problematic 
inverse--unwarranted uniformity.
    There is no need for a complete overhaul of the advisory 
system in favor of binding guidelines driven by jury findings. 
I, personally, was the first to advocate such an approach after 
Blakely but before Booker.
    I think I have spent as much time studying that option than 
anyone. I do not endorse the use of that alternative. I instead 
believe that the continued use of the advisory guideline system 
driven by research and experience is the best option.
    The notion that somehow defendants are getting a break 
under the advisory guideline system is false. We still lead the 
world in incarceration and average sentence lengths have not 
dropped at all under the advisory guideline system.
    The average sentence before Booker was 46 months, and 
although nearly 7 years later the average is 43.3 months, the 
reason for that drop is directly attributable to two things--
the increased number of less serious immigration offenses 
charged and the reduction in the crack cocaine guideline.
    Average sentences for all other major categories of 
offenses are either unchanged or higher today than they were 
when Booker was decided except for two things. In white-collar 
offenses, the average sentence for serious fraud offenses has 
skyrocketed from 89 months before Booker to 123 months today.
    Mr. Chairman, this is not a good time to be convicted of a 
fraud offense. In child pornography offenses, although they 
consist of only 2 percent of Federal cases, the average 
sentence length just since Booker has increased from 75 months 
to 119 months.
    Since its inception, the penalties for child pornography 
have increased by 1,500 percent--an increase in penalties 
unprecedented in human existence. Child pornographers are not 
in luck to be sentenced today.
    But in any event, the advisory guideline regime is a 
continuation of the status quo in terms of average sentence 
length. What has changed is that we can be smarter about who 
goes to jail for how long because the judges now have the 
opportunity to meaningfully consider individual differences and 
individual aggregating and mitigating aspects of offenses and 
offenders.
    As should be expected, under any system that embraces such 
meaningful consideration of individualized considerations, 
there has been a slight increase in the percentage of 
nongovernment-sponsored downward departures. But what is missed 
by this Committee and every member of this panel is that that 
percentage is dropping.
    It was 12.7 percent before Booker or a year after Booker. 
It is true that it went up to 18.7 percent at the end of last 
year but so far this year it has dropped 2 percentage points, 
down to 16.9 percent.
    Mr. Otis is simply incorrect when he says at its present 
trajectory--at its present trajectory more judges will be 
sentencing within the guideline range, and that range has 
stabilized.
    The reason is that the Commission is now promulgating 
amendments that are responsive to empirical data and judicial 
feedback. As the guidelines make more sense, judges follow them 
more frequently.
    Also, focusing only on the percentage of variances ignores 
the fact that the extent of them is quite modest and unchanged 
since Booker. This is why average sentence lengths have not 
dropped. The average variance before Booker was about a year. 
It is now somewhere between 12 months and 13 months. So 
focusing on percentages is really quite misleading.
    Even if there were a modest increase in interjudge or 
interdistrict disparity, that would not outweigh the enormous 
benefits of an advisory system nor is there an obviously 
superior alternative.
    The jury-driven system that Mr. Miner has described and 
that I have previously described would require ranges that are 
much wider than the present one such that all existing 
variances would actually be within-range sentences.
    Thank you, Mr. Chairman.
    [The prepared statement of Mr. Felman follows:]


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                               __________

    Mr. Sensenbrenner. Thank you very much.
    The Chair yields himself 5 minutes for purposes of 
questions and a comment or two.
    The whole business of the sentencing guidelines and 
mandatory minimum of sentences has been extremely frustrating 
to Members of the Committee on both sides of the aisle.
    During my tenure as Chairman, I was very critical of judges 
that did not follow the law in explaining downward departures 
on the record and had difficulty with one judge in Minnesota 
who sealed the record when he announced a downward departure.
    Now, we got that opened up. It required a threat of an 
impeachment proceeding in order to do that. I think that there 
is a lack of appreciation on the Federal judiciary and a lot of 
the Bar that Congress' oversight responsibility extends to the 
judicial branch of government as well as to the executive 
branch of government.
    We don't hear a lot about that but anytime oversight has 
been extended to the judicial branch of government, those who 
try to do it get accused of threatening judicial independence, 
and I reject that emphatically.
    It is our job to look at how these laws operate and make 
changes as we see necessary.
    Now, Judge Saris, the downward departure rate in the 
District of Massachusetts is 35.7 percent. In the Middle 
District of Georgia, it is 4.7 percent.
    Now, why should somebody who is convicted of a similar 
crime in Massachusetts be about nine times more likely to 
receive a downward departure than one who is convicted in 
Georgia?
    Judge Saris. Thank you, and it is an important question 
that goes to the heart of this hearing.
    Out of the Sentencing Reform Act--Oh. Is it on--yeah. It 
provides and it is a key provision in there, which is the 
purpose of the Sentencing Reform Act is to eliminate 
unwarranted disparities but to create sufficient flexibility to 
take into account aggravating and mitigating circumstances not 
otherwise taken into account in the guidelines.
    Post-Booker, the Supreme Court said not once but seven 
times that judges not--should start with the guidelines as your 
initial baseline and starting point and then what you do is you 
must look at the statutory factors in 3553(a).
    And so what I am saying is when you look at the caseloads 
in different districts they may be different.
    Mr. Sensenbrenner. Has the Commission made any analysis of 
the statements that the law requires the sentencing judge to 
make when there is either an upward or downward departure and 
had some kind of a statistical comparison of the reasons the 
sentencing judge gave that explanation?
    Judge Saris. There is a form--a Statement of Reasons--that 
a judge must fill in stating what the guideline range is and 
whether they departed under a traditional departure----
    Mr. Sensenbrenner. Yeah.
    Judge Saris [continuing]. And whether they varied. And so 
that what they are supposed to do and one of the things we----
    Mr. Sensenbrenner. But the question is has there been any 
comparison made by the Sentencing Commission on why there is 
such a great disparity between downward departures in your 
district, for example, as compared to the Middle District of 
Georgia.
    Judge Saris. Well, as I have mentioned, it is very caseload 
specific and also there are differences between regions that 
have always existed. So some of it is perhaps what you are 
worried about. But some of it is, for example, if you have more 
crack cases or, for example, if you have different 
prosecutorial practices.
    Some of it varies by district and we have not--we have done 
a very detailed statistical analysis of the comparison and, as 
you know, we came in here today with certain legislative 
proposals----
    Mr. Sensenbrenner. We will look at them.
    Judge Saris [continuing]. To make sure that the guidelines 
are effective----
    Mr. Sensenbrenner. Okay.
    Judge Saris [continuing]. And we are responding to this 
concern.
    Mr. Sensenbrenner. A couple of questions on how the 
Commission operates. One is the--with the unmandatory 
guidelines the money expended by the Commission has increased 
20 percent since the Booker decision and the Commission has two 
full-time commissioners at full Federal salaries, whereas the 
other commissioners do not receive a full Federal salary. Can 
you explain those two issues?
    Judge Saris. Well, part of this is historic. When the 
Commission was first set up, everyone was full time because 
people were writing the guidelines. Now, we have three full-
time commissioners who get salaries. One of those spots isn't 
filled.
    Typically, sometimes in the past those were filled by 
judges so that the judge was just getting the increment in the 
salary. But right now, we have two full-time commissioners and 
they do what the rest of us do--they work hard, they go--they 
train and are involved in the--in the writing of the 
guidelines.
    If what--if what you are asking is do--is that still 
justified in today's world, I think the Commission would feel--
we actually have three full-time spots, not two--I think the 
Commission would feel at this point----
    Mr. Sensenbrenner. Okay.
    Judge Saris [continuing]. We do not need the three full-
time.
    Mr. Sensenbrenner. Could you please send us the salary 
qualifications and duty description of each employee you have 
hired since you became chair?
    Judge Saris. Yes.
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    Mr. Sensenbrenner. Okay. Thank you.
    Gentleman from Virginia, Mr. Scott?
    Mr. Scott. Thank you, Mr. Chairman.
    Mr. Felman, the question of racial disparities has come up. 
Can you tell us the situation of racial disparities before the 
guidelines while the guidelines were mandatory and now that 
they are advisory?
    Mr. Felman. Of course, Mr. Scott.
    The evidence shows that before the guidelines and mandatory 
minimums were passed in 1984 there was no gap in racial 
sentencing trends. So there is no evidence that--and this is in 
the Commission's own data--there was no evidence that judges 
are inherently racist.
    The gap between mostly Black males and White males took 
place when the guidelines were binding and when the mandatory 
minimums were enacted, most notably, of course, the famous 100-
to-1 crack disparity.
    We don't know what the disparity is now. Although the 
Commission's study suggests that there has been an increase in 
racial disparity, they have made it very clear that they have 
not considered all of the relevant factors.
    They don't gather the data that is necessary to do a 
complete multivariate analysis and that is why their analysis, 
when they first put it out, contained such extreme disclaimers 
in it.
    There is another group of researchers at Penn State 
University that looked at the same data with a more nuanced 
analysis and came to the opposite conclusion.
    The suggestion that somehow African Americans would be 
better off under a binding harsher system is somewhat perverse. 
This is the best system that they could hope for because all 
defendants are treated more fairly when there is an opportunity 
to consider their individual characteristics----
    Mr. Scott. Thank----
    Mr. Felman [continuing]. And the data show--I am sorry.
    Mr. Scott. Thank you. I just have 5 minutes. I wanted to 
get in a lot of different questions.
    On downward departures, what portion of downward departures 
are a result of prosecutorial recommendations and what portion 
are judicial decisions without a prosecutorial recommendation?
    Mr. Felman. Well, the prosecutorial--expressly encouraged 
ones outnumber the judge-driven ones significantly. That is 
almost 28 percent.
    The 16.7 percent or 16.9 percent of nongovernment-sponsored 
gets credited to the judges but it is also important to 
remember that at least half the time or roughly half the time 
the government is not even objecting to those.
    Mr. Scott. Thank you.
    Judge Saris, we have been blaming the judges for the 
disparity. Has there been any study of charging policies 
varying from district to district where some prosecutors 
overcharge and the judges justifiably adjust for that by 
downward departures?
    Judge Saris. Well, we are in the process of finalizing the 
mandatory minimum report which Congress has asked us for. 
Actually, we are hoping it will come out within the next month, 
and we did just that kind of study where we took various 
districts at random and we looked at charging practices across 
the districts to compare, particularly in the context of 
mandatory minimum sentencing, and we will be providing that 
information directly to the Congress.
    Mr. Scott. In this--the whole guideline system is based on 
violation of specific code sections. Many times a code section 
itself does not give an indication of the seriousness of the 
offense.
    For example, a 19-year-old high school student having 
consensual sex with a 15-year-old high school student is the 
same code section with a 45-year-old having sex with a 13-year-
old.
    How would the guidelines deal with what is obviously a 
differential in seriousness?
    Judge Saris. Yes. I think you point out a very serious 
issue, which is that our guidelines piggyback on, if you will, 
the state laws where sometimes those differences are huge.
    One of the departure sections that we have is if the 
criminal history category either seriously----
    Mr. Scott. If you have--if you have two criminal history 
and everything else the same--the only difference is one is 45 
and 13, the other is 19 and 15--do the guidelines allow a 
significant departure downward to account for the obvious 
lack--lesser of seriousness of the offense?
    Judge Saris. Well, obviously, in some--it depends if there 
is a mandatory minimum. We typically don't get those kinds of 
cases involving that. But if your general question is can you--
it is can you downwardly depart if you feel that a sentence 
is----
    Mr. Scott. You have--you have----
    Judge Saris [continuing]. You have to provide--yes, you can 
in some circumstances.
    Mr. Scott. You have to depart. The guidelines would not 
adjust. Is that right?
    Judge Saris. Right. But there are some sanctioned 
departures where that is the case.
    Mr. Scott. Now, Mr. Felman, what are some--you have upward 
departure and downward departure but you also have factors that 
increase the guidelines and reduce the guidelines.
    Are the--what factors are there that would cause an upward 
departure and are they part of the guidelines, and what factors 
would cause a downward departure and are they part of the 
guidelines?
    And if you have a case where there is obviously less 
seriousness, how much of a downward departure can you get? We 
have been talking about the differential between upward and 
downward. Is that part of the guidelines?
    Mr. Felman. Am I allowed to answer it? Well, the 
guidelines, obviously, contain extraordinarily more aggravators 
than mitigators and that is why there are very few upward 
departures.
    Most judges find the guideline range to be significantly 
high enough to accommodate the purposes of sentencing and that 
is why most of the departures are downward.
    Of course, most of them are at the government's request. 
There are very few mitigators in the guidelines. There is role. 
There is pleading guilty. Other than that, that is about it. 
And so that is----
    Mr. Scott. Seriousness--seriousness of the offense?
    Mr. Sensenbrenner. The gentleman's time has expired.
    Mr. Scott. Mr. Chairman, can I have 30 seconds so he can 
answer this question--finish this question?
    Mr. Felman. The only way to accommodate different----
    Mr. Sensenbrenner. Without objection.
    Mr. Scott. Thank you.
    Mr. Felman. The only way to accommodate seriousness--
differences in seriousness of the offense is frequently through 
a downward departure.
    Mr. Scott. Thank you, Mr. Chairman.
    Mr. Sensenbrenner. The gentleman from South Carolina, Mr. 
Gowdy?
    Mr. Gowdy. Thank you, Mr. Chairman.
    Your Honor, I listened as carefully as I can when Chairman 
Sensenbrenner asked you to explain, if you could, why there 
would be a nine-fold increase in downward departures in your 
district as opposed to Georgia, and I didn't hear a response.
    Can you tell me why there would be nine times more downward 
departures in your district than there would be in another 
district?
    Judge Saris. Well, I think there probably are two reasons.
    First, I don't know Georgia's caseload but in our caseload 
we were a very crack-heavy caseload so we had a lot of crack 
cases, and I would say most of the judges in our area probably 
varied on that.
    The second thing is--I would say is I think that there are 
different philosophies of different judges toward variances and 
some judges varied more than others.
    Mr. Gowdy. How many upward departures were there in the 
district of Massachusetts?
    Judge Saris. I don't know that but I can--I will provide 
that data to you but I----
    Mr. Gowdy. Well, do you think it would be similar to the 
20-to-1 disparity--20 times more downward departures than 
upward departures that is true nationwide? Do you think 
Massachusetts would be an anomaly?
    Judge Saris. It probably--it probably would be consistent 
with that but I would have to look it up and provide it for 
you.
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                               __________
    Mr. Gowdy. Well, let me ask you this. You will--and I don't 
mean this to be a disrespectful question. How can we convince 
the public that the guidelines should be taken seriously when 
they are not taken seriously in your own courthouse?
    Judge Saris. Well, I disagree that they are not taken 
seriously in our own courthouse.
    Mr. Gowdy. You are in the top ten in downward departures.
    Judge Saris. There are approximately 25 percent of the 
courthouses that vary 26 percent or over and we are in that 
group.
    In our courthouse, we start with the guidelines. We--at 
that point, some--as I said, we had a lot of crack cases. But 
there were other reasons too. I am not trying to--I am not 
trying to----
    Mr. Gowdy. You and I both know that there would be a lot of 
cocaine-based cases in Georgia as well. That is not just 
Massachusetts.
    Judge Saris. I don't know that district in Georgia. 
Districts vary.
    But what I can say is that the Georgia's--the judges in our 
district do take the guidelines seriously, and if you look 
nationally even when you look at the rate of variances that 
there is a close gravitational pull in terms of the----
    Mr. Gowdy. But the variances are always downward. They are 
never upward. So I guess what the public's having a hard time 
understanding is you don't ever think someone's criminal 
history is understated? There is never a reason to go higher 
with a sentence than lower?
    Judge Saris. Well, of course, sometimes there is.
    Mr. Gowdy. But 20 to 1--20 times more downward departures--
not Rule 35s, not 5K 1.1s, but judicial departures 20 times 
more than there would be upward departures?
    Judge Saris. Not to get too much into the weeds of 
Massachusetts law but in our state, for example, a misdemeanor 
is any offense that carries up to 2.5 years of imprisonment 
where in many states it is 1 year.
    So sometimes what happens is something that would be a 
misdemeanor and not counted in one state is in our state. So 
people downwardly vary because of that.
    So as--so that is basically there is--you have to look at 
the caseload, you have to look at the kinds of cases and also 
there is a difference in perspective. There is no doubt about 
it, and that is why--let me--can I--can I come back?
    Mr. Gowdy. Well, that is what we are trying to get away 
from.
    Judge Saris. That is why we are proposing this.
    Mr. Gowdy. But that is what we are trying to get away from 
is a difference in perspective.
    The gentleman, Mr. Miner, mentioned the Southern and 
Northern Districts of New York and he was careful to say we are 
not talking about different parts of the country. Well, we 
ought to be talking about different parts of the country.
    That is why you have a uniform Federal system--so you won't 
have wide disparities in Nevada and Massachusetts.
    But let me ask you--I have only got a couple minutes.
    Judge Saris. Can I just say--I agree with that.
    Mr. Gowdy. Do you believe Congress has the authority to set 
statutory maximums?
    Judge Saris. Congress?
    Mr. Gowdy. Yes.
    Judge Saris. Yes. Of course.
    Mr. Gowdy. Do you think Congress has the authority to set 
mandatory minimums?
    Judge Saris. The authority? Yes.
    Mr. Gowdy. Do you believe Congress has the ability to limit 
the jurisdiction of the Federal courts, as we have done in the 
past, I hasten to add?
    Judge Saris. I think it has been done. I don't know whether 
that would----
    Mr. Gowdy. Do you agree that----
    Judge Saris [continuing]. Be the case in sentencing. I 
actually would prefer not to take a position on that until I 
knew which context you were talking about.
    Mr. Gowdy. Well, what I am asking you is do you agree with 
me that Congress should codify the guidelines, they should be 
mandatory and we should go back to the good old days where you 
had upward and downward departures, where judges had to explain 
them and where you actually didn't have these wide variances in 
sentences?
    Should Congress codify the guidelines and they have the 
force of law instead of just being suggestions, which is all 
they are now?
    Judge Saris. No. What we are fighting for--we put a lot of 
thought into this. We are, as you know, bipartisan. We have 
Democrats and Republicans.
    Mr. Gowdy. Congress is bipartisan too, your Honor.
    Judge Saris. Yes, that is right. And what we are proposing 
are a series of legislative adjustments to make sure that the 
guidelines remain strong and effective. We think they are 
important----
    Mr. Gowdy. Do you think sentences----
    Judge Saris [continuing]. And we think they are better.
    Mr. Gowdy. Should sentences reflect the will of the public?
    Judge Saris. The will of the public?
    Mr. Gowdy. Yes.
    Judge Saris. In part. It should reflect congressional 
intent. I mean----
    Mr. Gowdy. Well, you have--you have some states where the 
juries actually do the sentencing, right?
    Judge Saris. Sure. Certainly, in death penalty cases.
    Mr. Gowdy. Well----
    Mr. Sensenbrenner. The time of the gentleman has expired.
    The gentleman from Michigan, Mr. Conyers?
    Mr. Conyers. Thank you, Chairman.
    Judge Saris, did you want to finish explaining to our 
esteemed former prosecutor what you were trying to get at?
    Judge Saris. Thank you very much.
    Yes, it is good to--obviously, the congressman knows 
something about criminal law. He was a former AUSA, I guess. 
But what I was trying to say is we have looked at this data. We 
haven't sat silently by after Booker.
    We have been actively monitoring what has been going on. 
There have been seven Supreme Court cases. In a bipartisan way, 
we have come together after monitoring the data actively and we 
have come up with these proposals which we believe will make an 
effective guideline system.
    And so when you say can you make them mandatory I suppose 
you can. The Commission hasn't taken a position on it.
    But right now, we believe that this is what would be 
appropriate. Thank you.
    Mr. Conyers. All right. You know, we are at a hearing here. 
It is important, but the title is a little--I think should be 
reviewed. The title of this hearing today is ``Uncertain 
Justice: The Status of Federal Sentencing and the U.S. 
Sentencing Commission Six Years After U.S. v. Booker.''
    Now, let me ask you, what is the uncertainty about justice? 
Mr. Sensenbrenner, our Chairman, raised the question of the 
racial factor in the American criminal justice system, which is 
pretty critical and is still pretty large.
    We have had the Sentencing Project director, Mark Mauer, 
before this Committee many times and has pointed out that 
people of color are more likely to get arrested, more likely to 
be charged more, more likely to get longer sentences, more 
likely to be incarcerated.
    So how do you react to our title versus this work I have 
been on and apparently Sensenbrenner too about the racial 
factor in criminal justice sentencing?
    Mr. Felman. If this Subcommittee is truly concerned about 
addressing the disparate treatment of racial minorities, there 
are some very clear ways it can do that.
    The real problems are things like the criminal--the career 
offender guideline that disproportionately impacts minorities--
the way in which criminal history is handled--the crack/powder 
disparity remains at 18 to 1.
    Many of the mandatory minimums have a disparate impact on 
minorities. Making the guidelines binding would do nothing to 
address those issues and the suggestion that justice is 
uncertain because of differences in district data is 
extraordinarily complex.
    You have to look at the caseloads of these districts. In 
many of these districts with the high compliance rates they are 
border districts where you are talking about mostly immigration 
cases that are not very serious and the people are detained. So 
they are pleading out to time served.
    There is no need for a variance. They are getting time 
served. There are differences in procedures. There are some 
jurisdictions in which the probation officer and the government 
and the court fact bargain and they fit the guideline to the 
agreement of the parties.
    I believe the Middle District of Georgia to be one of those 
districts. So there isn't any need for a variance because they 
crank the guidelines down to fit the agreement of the parties.
    In other districts, like Massachusetts, the prosecutors 
probably know that the judges may very well vary. So they 
overcharge. They charge the most serious thing. They go for 
every upward adjustment they can find because they probably 
know it is going to come down.
    That is why if you really want to get serious about looking 
at the reality of inter-district disparity what you have to 
look at is average sentence lengths, and my understanding--and 
there is a study and I cite it in my testimony--is that average 
sentence lengths in terms of variations among districts is 
actually lower now than it was when Booker was decided.
    Mr. Conyers. Well, then I want the professor--Professor 
Otis to know that we are not this afternoon going to reimpose 
mandatory sentencing. I have had a very unpleasant experience 
with all of the mandatory sentencing that goes on in this 
country.
    Mr. Sensenbrenner. Gentleman's time as expired.
    The gentlewoman from Florida, Ms. Adams?
    Mrs. Adams. Thank you, Mr. Chair.
    Mr. Miner, I was just reading and I noticed that Judge Copp 
of Nebraska has publicly suggested on Doug Berman's sentencing 
website that the individual sentencing statistics for judges be 
published.
    And it says although it has the data and although it 
releases data by a court-by-court basis, the Commission has 
never publicly released information on the extent to which an 
individual Federal judge sentences within or outside the 
guidelines.
    It is important to note, you know, according to Judge 
Copp--in short, it is time for Federal sentencing judges like 
me to pay the piper.
    Do you agree and do you support the Sentencing Commission 
publishing sentencing data for individual judges?
    Mr. Miner. I do think that that should be done, whether 
there is a desire perhaps to not name the judge but to identify 
that within a particular courthouse in one corridor somebody is 
going below the guidelines consistently and around the corner 
on the exact same floor you are more likely to get a more 
serious sentence every single time where you have similarly 
situated defendants and similar crimes.
    Where you are arrested and the judge that you draw should 
not be a mitigating or an aggravating factor. We have a Federal 
system. There should be consistency not just in the same 
courthouse and on the same floor or district by district but 
across the country, and we are failing in that.
    Mrs. Adams. Mr. Otis, child porn variances are the largest 
compared with other crimes, apparently. Do you have any 
evidence or theories on why this is?
    Mr. Otis. I am sorry. Could you repeat the question? I 
didn't hear it.
    Mrs. Adams. The child--child porn variances are the largest 
compared to with other crimes. Do you have any evidence or 
theories on why this is?
    Mr. Otis. What is that----
    Mrs. Adams. Child pornography.
    Mr. Otis. Child porn. I am actually--it has been years 
since I have been in the U.S. Attorneys Office and I am no 
longer conversant with particular categories of sentencing. The 
thing that I am conversant with is that in my district, the 
Eastern District of Virginia, is apparently quite unlike Judge 
Saris' district.
    We continue to follow the guidelines about 74 percent of 
the time and I am happy to say there is equal justice going 
there. But I don't know the answer to your specific question.
    Mrs. Adams. Judge Saris, I listened intently as my 
colleague did when our Chairman was asking you but I never 
heard the answer.
    Have you looked into why there is the disparity between you 
and Georgia--your district and Georgia's district? Have you 
looked at the variances and do you have that data and have you 
compiled it and do you have an answer?
    Judge Saris. Yes, we do have the data of the differences 
between all the districts.
    Mrs. Adams. Have you looked into it?
    Judge Saris. We have looked into it. We believe--well, we 
haven't gone--coded for each individual judge but we have 
looked at it and we are concerned and, you know, part of--this 
is the judge--it is nothing that the judge is doing wrong. This 
is what the judge is doing in response to the Supreme Court 
case law. They must look at this data and some of it----
    Mrs. Adams. Okay. Let me ask you this.
    Would you share--publish your data on sentencing for 
individual judges?
    Judge Saris. The Commission has a policy not to release 
identifying----
    Mrs. Adams. Why not?
    Judge Saris [continuing]. Information with respect to 
individual judges. The judicial--I think at this point the 
Judicial Conference has that policy and we do as well.
    Mrs. Adams. You were recently interviewed and that 
interview was published on the Third Branch, the website of the 
U.S. courts.
    In the interview, you revealed that a recent study of 
Federal district judges found that 70 percent felt that the 
penalties for receipt and possession of child pornography were 
too high--a sentiment likely responsible, and I quote, ``a 
sentiment likely responsible for a more than 40 percent 
variance rate.''
    Do you believe or have cause to believe that the enormous 
variance is due to a policy objection over the sentences for 
child pornography by the U.S. judges in question?
    Judge Saris. Yes. I think that in child pornography what we 
have seen is a rate of variance of about 40 percent and an 
extent of variance of about 40 percent. Widespread 
dissatisfaction----
    Mrs. Adams. Well, let me ask you this then. Do you believe 
that law enforcement of the United States as it applies to 
child pornography should depend on the sentiment of the U.S. 
judges about the severity of the sentences?
    Judge Saris. Well, we have concerns----
    Mrs. Adams. Yes or no.
    Judge Saris [continuing]. About the policy. We have 
advocated that there be stricter review for policy 
disagreements. But also, I have to say, that if you see that 
level--that groundswell of people unhappy that is the 
obligation of the Commission to come back and we are doing a 
report on child pornography. We are going to drill down on 
that, yes.
    Mrs. Adams. Do you believe that child pornography is a 
dangerous thing for children?
    Judge Saris. Yes.
    Mrs. Adams. So I think that we need something looking into 
this if you have got a 40 percent variance----
    Judge Saris. Yes. We agree totally.
    Mrs. Adams [continuing]. On sentiment. On sentiment. That 
really worries me as a former law enforcement officer.
    Judge Saris. I agree.
    Mrs. Adams. My time is short.
    Mr. Felman, you state that the Commission should collect 
more data. You also say that the advisory system we have now 
does not need to change. Then why do we need more data?
    Mr. Felman. Well, the reason for more data is to make the 
advisory system better so that we can study what we are doing 
and see what actually works.
    Mrs. Adams. Well, you wanted----
    Mr. Sensenbrenner. The time of the gentlewoman has expired.
    The gentleman from Florida, Mr. Deutch?
    Mr. Deutch. Thank you, Chairman.
    Mr. Felman, we have learned in this series of questions in 
this hearing this morning that the--that Georgia, apparently, 
is the gold standard. Massachusetts--Massachusetts, apparently, 
leaves much to be desired.
    In your testimony, you asserted that the ABA has been 
opposed to mandatory minimums for 40 years and one of the goals 
of the sentencing guidelines was to reduce unwarranted 
disparity in sentencing and treat similar offenders and 
offenses similarly.
    But, and this gets to the point of Georgia and 
Massachusetts which has seemed to come front and center here, 
you also argue there exists an equally important objective 
treating dissimilar offenders and offenses differently and 
avoiding unwarranted uniformity.
    Can you talk about the negative effect that unwarranted 
uniformity in sentencing has on the justice system in this 
country?
    Mr. Felman. That was the principal defect in the binding 
guidelines--the failure to distinguish different offenders 
differently and to treat them differently.
    It is inherent in the nature of sentencing. The mix of 
factors that could justify a sentencing outcome is as rich as 
human experience itself. It is not simply possible to write 
down in advance all of the things that you might want to look 
at or consider and weigh them.
    This was recognized by the Congress in the Sentencing 
Reform Act. This was recognized by the Commission in their 
promulgation of their guidelines. They did the best they could.
    But even the best system of binding guidelines is going to 
suffer from an inability to effectively distinguish between 
differently situated offenders. That, of course, is the 
principal flaw of mandatory minimums and the reason why the ABA 
has opposed them for 40 years, the Judicial Conference and the 
American Law Institute for 50 years.
    It is the logical equivalent of sentencing by temper 
tantrum. It is like we are going to look at one consideration 
and one consideration only, one that usually bears little 
resemblance or rationality to the culpability of the offender 
and base the entire sentence on one thing.
    The beauty of the advisory system----
    Mr. Deutch. Let me--Mr. Felman, let me stop----
    Mr. Felman [continuing]. Is that Massachusetts may be 
better is because they may be more accurately and more fairly 
distinguishing different offenders and treating them 
differently.
    Mr. Deutch. Let me--let me just go back to that previous 
point that you made. Can you--can you give us some examples?
    When you talk about--when you talk about sentencing by 
temper tantrum there is a sentiment among some on this 
Committee that we ought to go back to what had previously been 
referred as the good old days where we set the sentences and 
judge them and so there is no leeway.
    Can you give us some examples--specific examples of why 
that--why that is problematic?
    Mr. Felman. Well, I think the crack cocaine example is the 
perfect example. There was a sort of a hysteria over the death 
of a basketball player that led to basically an auction where 
you all were bidding against each other on who could raise the 
highest sentences.
    It is sentencing by sound bite, and what we see is just a 
relentless upward ratchet--you know, what is the crime du 
jour--what does the American people want us to look like we are 
serious about today.
    And so the result was penalties for crack--for crack 
defendants where a handful of a substance would get you 10 
years. It was absolutely wrong. Everyone recognized it and yet 
it took us almost 20 years to fix it.
    Mr. Deutch. Judge Saris, proponents of mandatory guidelines 
often don't realize that sentencing judges are giving the 
Commission feedback every time--every time there is a variance 
from the guidelines, and exercises of reasonable discretion in 
cases that warrant it.
    What happens with that feedback?
    Judge Saris. Yes. We have 83,000 judgments last year which 
we coded, analyzed and reported on. So we start to see when 
there are variances or regional differences. Part of that goes 
into our guidelines. That is how we--how we implement and 
change guidelines. It also goes into the reports which we give 
to Congress, and we also respond to requests from all of you.
    So we look at absolutely every sentence, code it, analyze 
it and get it back to the public either in terms of policy or 
in terms of reports.
    Mr. Deutch. How do you use it to modify guidelines?
    Judge Saris. How do we----
    Mr. Deutch. How do you use it to modify guidelines?
    Judge Saris. Well, one big area right now is when we were 
looking at the issue of straw purchases last year, for example. 
We looked at what exactly--we really went right into what 
people were doing for straw purchases of guns.
    Were they going across the border--we could find out that 
about a third of the guns were going across the border to 
Mexico in our straw purchasing cases. We were able to look at 
what was going on with--why were judges varying.
    Well, sometimes it was because the girlfriend who bought 
the gun for the boyfriend. So we were able to actually use that 
in pegging what--pegging the guideline.
    Mr. Deutch. I appreciate the thoughtful response. Thank 
you. I yield back, Mr. Chairman.
    Mr. Sensenbrenner. The gentleman from Pennsylvania, Mr. 
Marino?
    Mr. Marino. Thank you, Chairman.
    Good morning, ladies and gentlemen. Mr. Felman, I take 
issue with your statement about prosecutors overcharging.
    I was a district attorney for 12 years and I was a United 
States Attorney for over 6 years, and one of the main goals 
that I tried to achieve and my staff tried to achieve was to 
seek justice--not to put people in prison but to seek justice.
    And I can't remember any time in those 18 years as a 
prosecutor my staff or myself intentionally overcharging 
someone because of sentencing.
    Do you have some statistics? Do you have some information 
of which I am not aware that that is occurring?
    Mr. Felman. Well, and maybe I overstate the case.
    The point I was trying to make is that there are 
differences in regional practices, and maybe overcharging is 
the wrong word. They know the justice they seek and I am not 
suggesting that they are seeking results that are unjust.
    What I am suggesting is that they know in the various 
procedures in which they are working with how to get to that 
sentence and they know in some instances that it is necessary 
to push for a guideline range that is higher than what is just 
because they know the end result will be just because they have 
judges that are likely to vary.
    Mr. Marino. Let me share this with you--that, again, in my 
18 years and with my staff, which was--we were in the Middle 
District of Pennsylvania--a top notch staff, and actually I 
have to say most if not all of the judges, I think, were 
perfect examples of what Federal judges should be.
    I know there is a variance across the country. But our 
specific goal was if we charged someone we believed that there 
was enough evidence for a conviction and that is where it 
ended. The judging--the sentencing was up to the judge with 
recommendations from the prosecutors.
    Judge Saris, you indicated in your testimony that the 
Commission is thinking about proposing presumptive guidelines, 
maybe like a hybrid, which would be something of a cross 
between advisory and mandatory guidelines.
    I have some questions about whether the presumptive 
guidelines would work or if they would satisfy the court's 
concerns in light of Booker. But for now, when the Commission 
produces a plan for presumptive guidelines could you 
simultaneously produce a plan for mandatory guidelines as well?
    Judge Saris. Well, what we have encouraged is that the 
guidelines be given great weight--substantial weight. We have 
taken that language out of some of the Supreme Court cases--
respectful weight. So your--if Congress asks us to try and come 
up with such a plan we, of course, are going to work with 
Congress.
    We view ourselves as at the intersection of Congress, the 
executive and the judiciary. You--if you ask us to work with 
you we are going to work with you.
    Mr. Marino. Do you--I am asking for an opinion or your 
experience, not an opinion--what you have--what you have heard 
from other judges.
    It is the consensus, at least among prosecutors, that many 
judges do not like mandatory sentencing. Could you expand on 
that a little bit? And if your answer is yes, explain to me.
    Judge Saris. I think many judges don't like mandatory 
sentences but the Commission will be coming out with a report, 
and I keep saying that--it is actually sort of imminent but not 
yet final--on the whole range of mandatory sentencing in the 
Federal system.
    And so we are going to be coming out--we are going to 
actually study, if you look at the separate mandatories, how 
they affect different people, how--what their effect is 
racially as well as inconsistencies in applications across the 
country.
    And then, I think, that everyone will have the data 
necessary to see as a policy matter what people want to do. But 
I think you are right to say most judges don't like them.
    Mr. Marino. How about--what is your position on Congress 
taking on its responsibility of enacting legislation 
particularly concerning mandatories?
    Judge Saris. What we think--and this is, as I say, it is a 
unanimous set of proposals--what we want at this point a strong 
and effective advisory guideline system and that is why we came 
up with these proposals which--it is a difficult area.
    The Supreme Court keeps ruling. But we have come up with 
language right from the Supreme Court case law which we think, 
like the presumption of reasonableness across the appellate 
courts, which we think will provide an effective system. So it 
is what we want you to do.
    Mr. Marino. Chairman--Chairman, may I have 10 seconds?
    Mr. Sensenbrenner. Without objection.
    Mr. Marino. Thank you. If there are mandatories why is the 
Commission needed?
    Judge Saris. If there are----
    Mr. Marino. If there are mandatory sentencing why is the 
Commission needed?
    Judge Saris. Well, let me--at least the way they are 
functioning right now----
    Mr. Marino. Quickly, please.
    Judge Saris [continuing]. It is a mandatory floor and so 
what we do which is make proportional sentences and we also 
take into account, you know, did you have a gun, were you a 
minor, a major role--all that.
    Mr. Marino. Okay. Got it.
    Judge Saris. We sort of take into account the individual 
characteristics of the crime, and we are asking you to help us 
on offender characteristics.
    That is a one-size-fits-all on my----
    Mr. Marino. Well, what I was----
    Mr. Sensenbrenner. Okay. Gentleman's time has expired.
    Mr. Marino. Thank you, Chair.
    Mr. Sensenbrenner. Gentleman from Georgia, Mr. Johnson?
    Mr. Johnson. Thank you.
    Is it just one of you all who have actually served as a 
judge, on our panel? Have either three of you served as a 
judge? Okay. And then----
    Mr. Sensenbrenner. Let the record show the other three 
witnesses shook their heads in the----
    Mr. Johnson. In the negative. Thank you, Mr. Chairman, for 
the purposes of the record.
    And I will say that it is interesting. We have these 
oversight hearings and we come in to examine the various issues 
that the judiciary is confronted with and each of us have 5 
minutes to raise our parochial concern be it child molestation 
or drug cases or, you know, whatever the case might be--
disparities between circuits or districts, and we don't enable 
you to enlighten us because we don't have time to listen to 
you.
    We are just simply trying to get out our sound bites. And 
then based on that inexact process, we on this Committee then 
formulate the rules and even get to the point of micromanaging 
the affairs of Federal judges--people who have been to school, 
practiced law, become judges, heard numerous cases, have 
developed judicial wisdom, see the defendants coming before 
them.
    They have an opportunity to size them up in addition to all 
of the other factors that are on paper that are presented to 
the court. The court is then, because it has been directed to 
by people who are interested in sound bites and parochial 
concerns and who have never served as judges, never even tried 
a case, many of them. Some of them are not even lawyers, and 
they tie the hands of the judges, and make the judges into 
mechanical slaves to apply a rigid set of guidelines that often 
make absolutely no sense in practical reality and often result 
in gross miscarriages of justice.
    And some of that is due to the prosecutorial decisions that 
are made in terms of what to charge people with and, you know, 
I mean, that is just the bottom line.
    So we are going to have some disparities in terms of 
sentencing regardless of whether or not there is a rigid setup 
or whether or not we go back to allowing judges to do what they 
do, which is to, based on all of the factors involved, make a 
wise and just decision.
    Can anyone tell me why is it that our current mechanical 
system is better than the one that we had prior to 1997 where 
we--where we allowed judges to, within broad parameters set by 
the legislature in terms of range of punishment, sentences--
when we allowed judges to exercise judicial discretion why is 
it--why is what we are doing now better or is it better than 
what we were doing back then? We had a sentence--we had a 
parole board that could make decisions on early release. What 
was wrong with that set-up that most states still follow?
    If I could hear from Judge Saris first and then Mr. Felman.
    Judge Saris. Thank you. I was actually a staff member like 
a lot of the folks here on the Senate side when the Sentencing 
Reform Act first started coming through and I remember that the 
concerns were not just about regional disparities but judge 
disparities.
    And so this was viewed--no sentencing system is a perfect 
system--this was viewed as the compromise system to take 
sentencing out of politics and to try and come up with 
guidelines which both eliminated the unwarranted disparities 
and differences but also to allow some flexibility to take into 
account the individuals, and this is supposed--and I think----
    Mr. Johnson. Does it work better?
    Judge Saris. Excuse me?
    Mr. Johnson. Does it work better?
    Judge Saris. I wasn't a judge before then. I was--I was--
but I think at this point most judges are--believe that the 
current system is working.
    Mr. Johnson. Okay. All right. Let me ask Mr. Felman.
    Mr. Felman. I think a lot of what you have just articulated 
is the explanation for why the United States Sentencing 
Commission is more important now than ever. We have an advisory 
system and we need somebody to be giving these judges advice.
    The Sentencing Commission has the expertise and the 
resources to study that and to do it. In theory, at least, they 
should be removed from the political process.
    That is why I think this body ought to minimize its 
directives to them. And we may have achieved the perfect 
balance of allowing judges to be judges but be guided by the 
advice and empirical data that can be provided by an agency 
such as the Sentencing Commission.
    Mr. Johnson. Thank you. I will yield back.
    Mr. Sensenbrenner. The gentleman from Arkansas, Mr. 
Griffin?
    Mr. Griffin. Thank you, Mr. Chairman.
    Judge Saris, I wanted to ask you what your view is of 
mandatory guidelines as opposed to presumptive, and what if 
anything has the Sentencing Commission been doing to put out a 
proposal or some guidelines for the Congress--your view on 
mandatory guidelines?
    Judge Saris. Thank you. As I mentioned in my testimony, we 
are about to put out a major report on mandatory minimum 
sentencing.
    We are looking at it in the drug area. We are looking at it 
in the gun area. We are looking at it in the child pornography 
area and in aggravated identity theft. Probably left one out.
    And we are going to look at how it has been applied across 
the districts--whether they are been consistently applied, 
whether they are too serious, whether they are not too serious.
    As you know, we have a strong data collection section and 
we are going to be providing Congress with the data to evaluate 
it and it should be out in the immediate future.
    Right now, we are here to talk about at least, you know, 
strengthening the guideline system and making sure that it is 
as effective as we can make it and providing advisory 
guidelines for the judges and sort of working up the area of 
appellate review.
    Mr. Griffin. Just to clarify, you talked earlier about a 
plan that you on the Sentencing Commission have put out. That 
relates to the presumptive guidelines primarily, not mandatory, 
correct?
    Judge Saris. Yes, that is correct. And I wouldn't--I am not 
even sure I actually would describe it as presumptive because 
the Supreme Court has said that that is unlawful. The Supreme 
Court has been so active in this area.
    What we are trying to do--and it is sort of the questions 
that have been coming to me about why these districts 
variations--is we are trying to sort of--right now, courts are 
supposed to look at individual characteristics of an offender 
as well as guideline characteristics. There is a whole array of 
things that you look at, and what we want to make sure is that 
judges are still giving strength--respectful weight, whatever 
word you want to give--to the--to the guidelines.
    Mr. Griffin. So in terms of the Commission's work, is it 
fair to say that you have--well, you tell me. Have you spent a 
lot of time looking for a way for a mandatory system to pass 
constitutional muster or have you been focused more on the 
advisory side?
    I am just trying to figure out behind the scenes where your 
focus is and whether mandatory is a part of the conversation 
there.
    Judge Saris. Let me start with--of course, it is part of 
the conversation because Congress told us to be. And so we have 
been studying it as hard as we can and you are going to get 
this massive tome pretty soon.
    Mr. Griffith. That is the right answer. No, I am kidding.
    Judge Saris. But in terms of right now, our focus has been 
trying to examine, study, code all the judgments that come 
through, respond where judges are varying a lot to see if we 
can--we can make it better but also what we want to do is make 
sure that judges are giving sufficient weight to the guidelines 
and that is why right now our focus is on the guideline 
system--the advisory guideline system.
    Mr. Griffin. Thank you.
    Ms. Adams, would you like a little bit of time that I have 
left to follow up with Mr. Felman? I yield to Mrs. Adams.
    Mrs. Adams. Thank you.
    Mr. Felman, the last question I asked you was about the 
data collection. You said you were for the data collection--
that you needed more data. Well, in particular, you know, you 
state, you know--you want to know more about the exact reasons 
why a judge decides to give the sentence. Is that correct?
    Mr. Felman. Yeah. I think that--as I say in my testimony, 
my experience has been frivolous people don't get appointed to 
the Federal bench in this country. They have valid and serious 
reasons for doing what they are doing, and I think we could 
benefit from studying that and learning from that.
    So if there are consistent problems with a----
    Mrs. Adams. Let me ask you something. What kind of law do 
you practice? Is it defense?
    Mr. Felman. Primarily, yes, ma'am.
    Mrs. Adams. So as a defense attorney knowing how--exactly 
how and what criteria a judge needs or uses to impose lenient 
sentences could possibly help one of your clients, correct?
    Mr. Felman. Well, let me clarify first that----
    Mrs. Adams. Because there is disparity and then we don't 
have a good understanding as to why these judges are doing 
other than their own personal preferences at this point. So I 
just wonder would that help in deciding which courts or what 
judges you would want to be in front of.
    Mr. Felman. Well, I happen----
    Mrs. Adams. Judge shopping.
    Mr. Felman. I happen to be a practicing criminal defense 
attorney but my testimony today is on behalf of the American 
Bar Association.
    Mrs. Adams. But the question I asked was would it help in 
judge shopping?
    Mr. Felman. Would it help in judge shopping?
    Mrs. Adams. Yes.
    Mr. Felman. I don't get to shop for my judges. They are 
assigned. What----
    Mrs. Adams. But if you have certain cases would you not be 
better in that courtroom than others knowing how they decide 
their verdicts?
    Mr. Felman. Well, there isn't any question that there are 
some judges that are more sympathetic to arguments that the 
guideline sentence is not a reasonable one.
    Mrs. Adams. Thank you.
    Mr. Sensenbrenner. The time of the gentleman from Arkansas 
has expired.
    The gentlewoman from Texas, Ms. Jackson Lee?
    Ms. Jackson Lee. Thank you, Mr. Chairman, and thank the 
Ranking Member for this important review and I would like to 
yield 30 seconds to the gentleman from Virginia, Mr. Scott, the 
Ranking Member.
    Mr. Scott. Thank you, and I thank the gentlelady for 
yielding. Just ask Judge Saris, you have been asked several 
times about the desirability of mandatory guidelines.
    Isn't that exactly what Booker and the line of cases found 
unconstitutional?
    Judge Saris. Well, I think what Booker found is that you 
can't have judge-found facts to increase the maximum sentence 
that a defendant can face and at first it started with Apprendi 
and then it moved on to Booker in terms of the guideline range.
    Right now, there is, I think, a 5-4 split on the United 
States v. Harris that mandatory minimums are still 
constitution. So it is the maximum we can't----
    Mr. Scott. Mandatory guidelines----
    Judge Saris. In terms of mandatory guidelines they are 
unconstitutional.
    Mr. Scott. Thank you. I yield back.
    Ms. Jackson Lee. I thank you very much, and I guess, Mr. 
Felder, I want to raise up the banner of defense lawyers and 
prosecutors.
    I think they all are tools of a justice system that we want 
to be proud of and I know on the Federal cases in particular, 
at least in the Southern District, you are assigned your judges 
and I assume from the location that you come you are assigned 
as well.
    So I want to focus on the 5-4 decision. We are glad to cite 
5-4 decisions in many, many cases. That is the nature of the 
Supreme Court.
    There are nine members and so a 5-4 decision is the 
majority, and the majority made a decision specifically to 
indicate, if I might, that the--under the sentencing guidelines 
the provision making the guidelines mandatory was excised--
deleted.
    And I think in the wisdom of the Supreme Court that do not 
undertake a review of facts--they assess the arguments on the 
law and whether there was a violation of such, made a decision 
that the arbiters of the law--judges, the Federal judges, you 
know, in this particular instance--have the wherewithal to make 
decisions based upon the presentation in the courtroom.
    I am going to pose a question to you but let me--as I 
acknowledge the new chairwoman of the Sentencing Commission, I 
have to acknowledge my fellow Texan, Judge Hinojosa, who is 
here and thank him so very much for his service.
    We have our meetings on airplanes and so we get a lot of 
work done but it is all above board though, of course. But let 
me just pose to you that question.
    Isn't that a very strong statement that constitutionally, 
legally, the Supreme Court made a decision to excise that 
mandatory provision under the SRA?
    Mr. Felman. Based on the principle that the Sixth Amendment 
entitles you to a jury trial, and if there is going to be a 
fact found that is going to mandate an additional penalty you 
have to have the jury decide that.
    So these discussions that we have been having today about a 
binding or mandatory guideline system, in order to be 
constitutional, presuppose that the facts that would be used to 
drive that guideline range would be put to a jury. And what I 
think there needs to be an understanding about is the 
complexity of a system like that and the difficulty of solving 
what has been presented here to be one of undue and unwarranted 
disparity.
    You are only going to be able to put a certain number of 
facts to a jury in order to keep a jury from getting completely 
bogged down while at the same time having a system that bears 
some resemblance to fairness.
    And so as much as I have studied that, you are going to 
have to simplify it, and when you simplify it it means that the 
ranges that result from that verdict are wider.
    And when you consider that the average variance is 12 
months what that means is you could overhaul the system 
completely--go through all of that complexity--and at the end 
of the day end up with a cluster of sentencing results that is 
no tighter and, indeed, may even be broader.
    Ms. Jackson Lee. Well, let me--as I go to Judge----
    Judge Saris. Saris.
    Ms. Jackson Lee [continuing]. Saris--I am so sorry--there 
are mandatory sentencing such as when a jury rules or if in a 
mandatory context when the jury ruled and they might have a 
bunch of facts and maybe they just get something, they give a 
rendering--a judgment--and then that mandatory comes in.
    There is also a sentencing part of the trial. Is that not 
correct, Judge Saris?
    Judge Saris. No. But there usually isn't although it is 
true that----
    Ms. Jackson Lee. Well, let me--let me just say this because 
I do want to be corrected on that. What I am saying is there is 
an opportunity to present testimony by the defense on 
mitigating circumstances--religion, family, didn't do it, 
whatever. I am talking about in terms of the character of the 
defendant but the defendant not testify. Is that correct?
    Judge Saris. Yes, that is--that----
    Ms. Jackson Lee. Okay. So what I am saying is----
    Mr. Sensenbrenner. Time of the gentlewoman has expired. The 
gentleman from----
    Ms. Jackson Lee. Can I have an additional 10 seconds for 
her to answer the question?
    Mr. Sensenbrenner [continuing]. Nevada, Mr. Amodei.
    Ms. Jackson Lee. Mr. Chairman, you are so rude. Thank you 
very much.
    Mr. Amodei. Thank you, Mr. Chairman. I have nothing at this 
time.
    Ms. Jackson Lee. You are so rude.
    Mr. Sensenbrenner. Mr. Amodei.
    Ms. Jackson Lee. We are trying to get something 
accomplished here and you won't even allow--yield a Member an 
extra 10 seconds or 15 seconds. Let the record indicate how 
rude you are. We are in the middle of engaging and getting 
facts.
    Mr. Sensenbrenner. The Chair--the Chair recognized the 
gentleman----
    Ms. Jackson Lee. We are getting facts, Mr. Chairman, and I 
was----
    Mr. Sensenbrenner. Well----
    Ms. Jackson Lee [continuing]. Posing a question to Judge 
Saris.
    Mr. Sensenbrenner. Well, if----
    Ms. Jackson Lee. And I was not that much over my time and 
you have allowed other Members to go over their time.
    Mr. Sensenbrenner. If the gentlewoman would bother to show 
up on time then maybe she would get all the facts. The 
gentleman from----
    Ms. Jackson Lee. I come on time when I am not doing 
anything.
    Mr. Sensenbrenner [continuing]. Nevada, Mr. Amodei, is 
recognized.
    Ms. Jackson Lee. I am in a Homeland Security Committee 
marking up to make this country safer. So don't instruct me 
about being on time. I am glad to be here.
    Mr. Sensenbrenner. The gentlewoman is out of order.
    Ms. Jackson Lee. That is how responsible I am. I come to a 
Committee hearing----
    Mr. Sensenbrenner. The gentlewoman is out of order. The 
gentlewoman will sit down.
    Ms. Jackson Lee [continuing]. When I come when I have 
another markup going on. You are rude and insulting when we are 
trying to get information.
    Mr. Sensenbrenner. The gentleman from Nevada, Mr. Amodei?
    Ms. Jackson Lee. Thank you, Mr. Chairman. You are only here 
because you are in the majority. May not last long.
    Mr. Amodei. Thank you, Mr. Chairman. I have nothing at this 
time.
    Mr. Sensenbrenner. Does the gentlewoman from Texas, Ms. 
Jackson Lee, wish to ask more questions?
    Ms. Jackson Lee. I am sorry. Pardon me?
    Mr. Sensenbrenner. Does the gentlewoman from Texas, Ms. 
Jackson Lee, wish to ask more questions?
    Ms. Jackson Lee. Thank you for your courtesy, Mr. Chairman.
    Judge Saris, as I was posing the question to get 
information before I move back to the Homeland Security 
Committee, which delayed me from coming to this meeting and 
they are still continuing, in the course of the defendant 
putting forward information that might impact a sentencing, 
under the advisory standards there is the ability of the court 
to assess that as well as the facts that the jury has assessed 
already.
    Is that not the case?
    Judge Saris. Yes. That is absolutely the case in the 
sentencing portion of it.
    Ms. Jackson Lee. So there can be, if you will, the 
disparities that would come about through mandatory sentencing 
that would not allow that kind of view from the integrity of 
the court. Is that not correct?
    Judge Saris. Yes, that is correct. And----
    Ms. Jackson Lee. So why would we want to argue for putting 
in place a mandatory in light of or making these particular 
regulations stronger in light of Booker instead of taking 
advantage of Booker and yielding to the judgment of the court 
looking at the whole of the facts?
    Judge Saris. Right now under Booker, you are absolutely 
correct that a judge must not--may not--may look at it and must 
look at the--all the statutory factors so that it--right now, 
what we are trying to propose is to make sure that judges take 
the guidelines seriously and then still have the flexibility to 
vary when appropriate.
    Ms. Jackson Lee. You need to expand on that a little bit.
    Judge Saris. I think what I am trying to say is right now 
under the advisory guidelines system judges start--it is a 
three-part system. You start with the guidelines. Then you can 
depart under guideline-sanctioned departures and then you can 
vary if you choose.
    The Supreme Court has said you must look at the statutory 
factors in 3553(a) and judges will look at individual offender 
characteristics. What we have urged the Congress to do as one 
of our proposals is the sentencing courts are directed to look 
at individual characteristics. The Commission has been 
instructed in its guidelines at least for some of the factors 
that those aren't ordinarily relevant or they shouldn't be 
considered.
    And so what we are trying to do is--I think some of the 
disconnect that we have been talking about and the differences 
between the districts is that some judges are--that many judges 
are looking at those guidelines because that is what the 
Supreme Court tells them to do and that they are doing their 
job.
    But the flip side is the Commission, and we have been 
instructed that certain things like employment and education 
and vocation and family ties and community ties shouldn't 
generally be considered. So----
    Ms. Jackson Lee. And you have been instructed by whom?
    Judge Saris. The Congress. It is part of our enabling 
statute in Section 994.
    Ms. Jackson Lee. Well, and now that you have the authority 
to recommend on advisory, would you not be able to recommend 
countering the Congress--when I say countering, recommending 
that we should--there should be an expanse to include those 
particular points?
    Judge Saris. Well, there is a strong doctrinal tension 
between these two provisions and that is why we are encouraging 
Congress to take a look at that and basically call that.
    Ms. Jackson Lee. But I think what confuses me is the fact 
that you are also suggesting a mandatory approach. You want us 
to mandate that don't forget to look at character, job, 
associating with the community. Is that what you are 
suggesting?
    Judge Saris. No. No. What we want people to do is take 
seriously the guidelines and provide for robust appellate 
review.
    In terms of the offender characteristics, all we are saying 
is that judges are routinely taking them into account because 
the Supreme Court told them to.
    But there is this other statute that says to us, the 
Commission, don't promulgate guidelines based on them and that 
is why we are saying that there is this tension which may be 
accounting for some of these statistics that various people 
have flagged here.
    Ms. Jackson Lee. Well, let me finish on this side of the 
Chairman's now courtesy. Let me just finish on this.
    Aren't you seeing in the crack cocaine and the letters and 
the review that is going on that you are able now to impact on 
the disparities that occurred in terms of the high numbers of 
African Americans and other minorities under that--are you 
seeing as this process is going forward, letters are going out, 
that you are lessening the disparity at this time?
    Judge Saris. Yes. The Sentencing Commission took a 
leadership role on this for, I think, over 15 years and we were 
very gratified when the Congress passed the Fair Sentence Act.
    The amendment actually doesn't go into effect until 
November 1st because----
    Ms. Jackson Lee. But you are reviewing now, are you not? 
Are you not reviewing?
    Judge Saris. It doesn't go into effect until November 1st 
because you, the Congress, have the right to reject it. So that 
becomes the effective date. And if that goes into effect, it 
can affect as many as 12,000 people but it first has to go 
through a judge who then must do a public safety review--in 
other words, to make sure that we are not releasing somebody 
who is inappropriate to be released and that is how it worked 
last time.
    Mr. Sensenbrenner. The gentlewoman's time has----
    Ms. Jackson Lee. Thank you, Mr. Chairman.
    Mr. Sensenbrenner [continuing]. Again expired. Does the 
gentleman from Nevada wish to ask a question or two?
    Mr. Amodei. No thanks, Mr. Chairman.
    Mr. Sensenbrenner. Okay. The Chair recognizes the gentleman 
from Virginia for a unanimous consent request.
    Mr. Scott. Mr. Chairman, I ask unanimous consent to enter 
into the record letters from FAMM (Families Against Mandatory 
Minimums), the NACDL (National Association of Criminal Defense 
Lawyers), Federal Defenders, and the Constitution Project, all 
in support of the advisory system.
    Mr. Sensenbrenner. Without objection.
    [The information referred to follows:]


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    Mr. Sensenbrenner. There will be no further business to 
come before the Subcommittee and by unanimous consent the 
Subcommittee stands adjourned.
    [Whereupon, at 11:43 a.m., the Subcommittee was adjourned.]

                            A P P E N D I X

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