[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
_____
U.S. GOVERNMENT PRINTING OFFICE
70-669 PDF WASHINGTON : 2012
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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.
[The information referred to follows:]
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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.
[The information referred to follows]:
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
__________
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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Material Submitted for the Hearing Record
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