[Congressional Record Volume 140, Number 44 (Wednesday, April 20, 1994)]
[Senate]
[Page S]
From the Congressional Record Online through the Government Printing Office [www.gpo.gov]


[Congressional Record: April 20, 1994]
From the Congressional Record Online via GPO Access [wais.access.gpo.gov]

 
JUDGE WILLIAM W. WILKINS, JR., ADDRESSES THE NEED FOR SENTENCING REFORM 
                           AT THE STATE LEVEL

  Mr. HOLLINGS. Mr. President, Judge William W. Wilkins, Jr., is a 
member of the Fourth Circuit U.S. Court of Appeals and also serves as 
chairman of the U.S. Sentencing Commission. In a lengthy and insightful 
article in the April 17 edition of the Greenville News, he discusses 
the anticrime legislation now working its way through Congress, and he 
makes a strong case for better coordination and partnership between the 
Federal and State Governments.
  Specifically, while praising the Federal sentencing framework for its 
toughness and predictability, Judge Wilkins notes that sentencing 
guidelines at the State level are in urgent need to reform. He urges 
that current State parole systems be abolished and replaced with a 
truth-in-sentencing system similar to the Federal model. He also 
advocates uniform and restrictive policies regarding plea bargaining in 
order to assure more equal treatment.
  Mr. President, Judge Wilkins addresses this issue with common sense 
and genuine wisdom. He is one of our Nation's foremost authorities in 
the field of sentencing reform. For the benefit of our colleagues, I 
request unanimous consent that Judge Wilkin's article, ``State, Federal 
criminal justice systems must work in tandem,'' be printed in the 
Record.
  There being no objection, the article was ordered to be printed in 
the Record, as follows:

      State, Federal Criminal Justice Systems Must Work in Tandem

                   (By Judge William W. Wilkins, Jr.)

       According to recent opinion polls, crime tops the list of 
     public concerns. Although the Bureau of Justice Statistics 
     reports that crime rates remained stable or declined in the 
     most recent year of measurement (1992), the public perception 
     is that crimes are occurring more frequently and closer to 
     home. Understandably, as public concern about crime grows, 
     there also is increased skepticism about the effectiveness of 
     our criminal justice system.
       Responding to these concerns, Congress is soon expected to 
     pass major anti-crime legislation. My hope is that the this 
     bill, as it addresses sentencing policy within our federal 
     court system, will build on the important, demonstrably 
     effective reforms already in place. At the same time, because 
     95 percent of all crimes committed necessarily are state 
     violations, a truly effective, nationwide crime control 
     strategy requires a coordinated effort between federal and 
     state governments working as partners.
       My firm conviction is that the ultimate goal of any 
     criminal justice system should be crime control. For a 
     criminal justice system to maximize crime control, sentences 
     meted out by judges need to be both appropriately tough and 
     fair.
       Sentences need to be tough because society, through its 
     criminal justice system, must be allowed to express its moral 
     outrage at criminal conduct.
       In addition, sentences must be fair in order for the 
     justice system to earn the respect and support of those it 
     serves, including those who are punished by it. Fairness, in 
     this context, is more than perception. It embodies the 
     specific characteristics of proportionality, evenhandedness 
     and certainty.
       Unwarranted disparity in sentencing--the opposite of 
     evenhandedness--breeds disrespect for the law and undermines 
     public confidence. Until a few years ago, unwarranted 
     disparity in sentencing was one of the principal problems 
     that plagued our federal system, and it remains a problem 
     today in most state systems.
       Finally, certainty of punishment is essential for a fair 
     and effective crime control system. In fact, crime control 
     research demonstrates that certainty of punishment produces 
     more effective results than severe sentences imposed on a 
     hit-and-miss basis.
       A tough but fair criminal justice system is now in place in 
     our federal courts. This new system was created a few years 
     ago after Congress enacted sentencing reform legislation and 
     created the United States Sentencing Commission which issued 
     sentencing guidelines for use in our federal courts. Under 
     this system, offenders convicted of federal crimes are 
     sentenced pursuant to guidelines that structure the federal 
     judge's discretion by requiring that offenders convicted of 
     the same crime, under similar circumstances, with comparable 
     criminal records, are sentenced alike.
       Importantly, federal prison sentences are now imposed 
     without the availability of parole. A sentence of five years 
     means five years, ten means ten, and life means life, without 
     parole. Consequently, many of the perceived problems of the 
     criminal justice system--``revolving door'' prisons; early 
     release through parole or release of some offenders to make 
     room for more; overly generous ``good time'' credit; and 
     unduly lenient or unequal sentencing by individual judges--
     are not present in the federal system.
       Will this make a difference to all of us and our families 
     in our homes, places of business and communities? Will we as 
     citizens begin to see the positive results of a federal 
     criminal justice system based on crime control? The answer, I 
     believe, is a qualified ``yes.''
       My answer is qualified because the federal criminal justice 
     system has a limited reach. Under our constitutional system 
     the individual states retain the bulk of ``police powers.'' 
     For example, generally in order for an offense to fall within 
     federal jurisdiction, it must have some connection to 
     interstate or foreign commerce or be committed on federal 
     lands.
       Except for a few offenses that simultaneously violate both 
     federal and state law, such as drug trafficking, most 
     offenses fall into one category or the other. Thus, burglary 
     of a residence in Greenville County, robbery of a 
     neighborhood store, a mugging on a city street or the 
     abduction and rape of a customer at a local mall, violate 
     only state law and must be prosecuted in state court.
       In fact, violent crimes in general are almost entirely 
     within the exclusive jurisdiction of the states with only one 
     percent involving violations of federal law. Thus, while 
     offenders who commit violent acts that implicate federal law 
     are sentenced to lengthy prison terms without parole under 
     federal sentencing guidelines, our state courts by law must 
     deal with the remaining 99 percent.
       This may seem to suggest that the answer to our continuing 
     crime problem is for the federal government to assume a 
     greater share of the law enforcement, prosecution, sentencing 
     and imprisonment efforts. Indeed, Congress appears to be 
     moving in that direction.
       Provisions in the proposed crime legislation now being 
     considered by Congress would expand federal criminal 
     jurisdiction to include the use of a firearm in connection 
     with any state drug or violent crime, street gang offenses, 
     drive-by shootings and possession of a firearm by a juvenile.
       Whether state offenses should be brought within the 
     jurisdiction of federal courts is ultimately a policy 
     judgment for Congress, taking into account a number of 
     concerns. Even if all of these proposals are adopted, 
     however, most crimes, especially violent crimes, still will--
     indeed must--be handled in our state courts.
       Last year, working at a capacity level that prevented many 
     federal district courts from handling any significant number 
     of civil cases, approximately 42,000 criminal offenders were 
     sentenced in federal courts under the sentencing guidelines. 
     At the same time, state courts in our 50 states processed 
     over one million felony criminal cases. Clearly, even with 
     some resource increases provided in the crime bill, there 
     simply will not be enough federal law enforcement agencies, 
     assistant U.S. attorneys, federal public defenders, federal 
     judges, U.S. probation officers, and federal prison officials 
     to handle any massive shift of criminal prosecutions from 
     state to federal courts.
       Nor is such a shift necessarily good policy, for other 
     reasons. Traditionally, the federal law enforcement effort 
     has focused on large-scale and/or sophisticated crimes such 
     as interstate drug conspiracies, money laundering, organized 
     crime, major frauds, terrorism, treason and immigration 
     offenses.
       Diverting federal law enforcement resources to directly 
     fight local street crime may prove short-sighted if it 
     results in curtailing crime fighting efforts in those 
     important areas of traditional federal responsibility. 
     Consequently, Congress should move cautiously in expanding 
     federal criminal jurisdiction.
       Another current effort by Congress to address the crime 
     problem is to require the imposition of severe penalties on 
     violent recidivists who commit federal offenses. Commonly 
     referred to as a ``three-time loser'' or ``three strikes and 
     you're out'' provision, these proposals in the legislation 
     now being considered in Washington would mandate life 
     imprisonment without parole for offenders convicted of a 
     serious violent or under some versions, drug trafficking 
     felony who have two prior violent (or drug trafficking-- 
     felony convictions. The concept of this proposed legislation 
     is generally sound.
       Realistically, however, enactment of this legislation at 
     the federal level will add little to the total crime control 
     effort. Why? First, a ``three-strikes'' career offender 
     provision under the federal sentencing guidelines already 
     ensures that offenders convicted of a third violent or drug 
     trafficking crime will be sentenced at or near the statutory 
     maximum. Thus, career offenders are already sentenced to an 
     average of 17.4 years without parole. And, the most dangerous 
     of these offenders now receive actual life sentences or 
     sentences equaling or exceeding life expectancy.
       The second reason that federal enactment of the ``three-
     strikes'' proposal will not significantly advance crime 
     control is its limited impact on the total population of 
     violent criminals. Using its extensive database, the 
     Sentencing Commission estimates that the ``three-strikes'' 
     proposal will apply to less than 200 federal offenders each 
     year.
       Finally, the proposed ``three-strikes'' federal statue will 
     apply infrequently to those convicted of crimes of actual 
     personal violence. In fact, according to the Sentencing 
     Commission's analysis of the proposal. It appears likely that 
     60 percent of the affected offenders will be those convicted 
     of robbing a federally insured bank where no personal injury 
     occurred.
       Consequently, as a device to incapacitate for life those 
     who are violent predators, the proposal, unfortunately but 
     realistically, makes a negligible contribution to crime 
     control efforts.
       If federalizing traditional state crimes and a federal 
     ``three-strikes'' proposal are not effective answers to our 
     continuing crime problems, what are? In my view, until the 
     state systems uniformly work in tandem with the federal 
     system, crime control in America will never be fully 
     achieved.
       Before my appointment to the federal bench, I worked for 
     many years in our state justice system. Just as the federal 
     system needed comprehensive sentencing reform, so too do many 
     of our states.
       So where do we go from here? I suggest that each state 
     should comprehensively re-examine its justice system and ask 
     whether it is designed to achieve crime control. If not, 
     change the system and adopt one that is built around the 
     following essential characteristics:
       The system of parole as we know it should be abolished. In 
     its place, a truth-in-sentencing system should be instituted. 
     The sentence imposed in the public courtroom will be the 
     sentence served, less a modest reduction for good behavior 
     while in prison.
       Sentences must be based on specific guidelines that are 
     uniformly applied so that similar offenders who commit 
     similar crimes are all fed from the same spoon.
       Uniform and restrictive policies regarding plea bargaining 
     should be adopted to minimize unequal treatment.
       Sentences should be very tough for violent and repeat 
     offenders.
       Meaningful prison alternatives or short prison sentences 
     should be available for first-time nonviolent offenders.
       Even these steps by no means will eradicate crime problems 
     whose root causes are complex. While working toward longer 
     range solutions, however, we can and should achieve more 
     effective crime control by implementing sentencing reforms 
     wherever they are needed.

                          ____________________