[Congressional Record (Bound Edition), Volume 155 (2009), Part 23]
[Senate]
[Pages 31680-31683]
[From the U.S. Government Publishing Office, www.gpo.gov]




                          CRIMINAL SENTENCING

  Mr. HARKIN. Mr. President, with over 2 million inmates, many who are 
in prison for nonviolent drug offenses, the United States has the 
highest rate of incarceration in the world. In recent years, we have 
rightly begun to question how our criminal justice system can better 
ensure our communities are safe and free of drugs and violence, while 
fostering healthy families and communities through drug treatment and 
rehabilitation for those who are not violent or a danger to society. 
That is why I cosponsored the Second Chance Act, which became law last 
Congress. It is also why I am a proud cosponsor of S. 714, the National 
Criminal Justice Commission Act of 2009, introduced by Senator Webb.
  As we engage in a dialogue regarding the criminal justice system, I 
strongly recommend to my colleagues recent remarks Chief Judge Robert 
W. Pratt of the Southern District of Iowa made before the U.S. 
Sentencing Commission. Chief Judge Pratt authored the trial court 
decision in Gall v. United States, where the Supreme Court provided for 
greater discretion for Federal court judges in imposing criminal 
sentences,

[[Page 31681]]

and he has become one of the leading legal thinkers in our country on 
criminal sentencing. While I do not necessarily endorse every idea 
Chief Judge Pratt discusses, I commend to my colleagues his incredibly 
thought-provoking speech on this complex and challenging topic.
  Mr. President, I ask unanimous consent that the entire text of Chief 
Judge Pratt's statement be printed in the Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

                    Sentencing Commission Testimony

                           Judge Robert Pratt

       Thank you for the invitation to testify regarding the work 
     of the Sentencing Commission. Like almost every district 
     judge with whom I have discussed the matter, I believe that 
     sentencing is the single most important task performed by 
     district court judges. According to the Sentencing 
     Commission, federal district judges sentenced 72,865 criminal 
     defendants in 2007. I would be remiss in my testimony if I 
     did not remark upon the difficult emotional toll that 
     sentencing places on a judge. Even when sentences are fair 
     and appropriate, and even when a defendant ``deserves'' the 
     particular term of imprisonment, it is not a pleasant task to 
     pronounce the judgment of the law. I am not complaining about 
     the job. Rather, I am just stating my personal belief, shared 
     by many judges, that it is impossible for any human being to 
     be confident that he or she has imposed the ``correct'' 
     sentence. It is important to state this fact from the outset 
     of my testimony because we too often lapse into a recounting 
     of judicial statistics that fail to capture the enormity of 
     the single act of pronouncing a sentence.
       I want to begin by remarking that these hearings are very 
     much in keeping with the Sentencing Reform Act of 1984, which 
     advised that one of the purposes of the Sentencing Commission 
     was to ``establish sentencing policies and practices for the 
     federal criminal justice system that'' assure that the 
     purposes of sentencing set forth in Title 18, United States 
     Code, Sec. 3553(a)(2) are met. Section 991 of Title 28, which 
     established the Sentencing Commission, goes on to state that 
     the Commission was also intended to ``provide certainty and 
     fairness in meeting the purposes of sentencing, avoiding 
     unwarranted sentencing disparities among defendants with 
     similar records who have been found guilty of similar 
     criminal conduct while maintaining sufficient flexibility to 
     permit individualized sentences when warranted by mitigating 
     or aggravating factors not taken into account in the 
     establishment of general sentencing practices'' and to 
     ``reflect, to the extent practicable, advancement in 
     knowledge of human behavior as it relates to the criminal 
     justice process.'' The Commission is further charged with 
     ``develop[ing] means of measuring the degree to which the 
     sentencing, penal, and correctional practices are effective 
     in meeting the purposes of sentencing as set forth in section 
     3553(a)(2) of title 18, United States Code.''
       I will try and follow the questions that were posed to me 
     when I was asked to come and testify, so as to properly limit 
     the scope of my presentation. The federal sentencing system 
     is not working well. Sentences are routinely more harsh and 
     punitive than they need to be, especially in run-of-the-mill 
     narcotics and pornography cases. The starting point for this 
     result, of course, is with the United States Attorneys and 
     their general charging authority. ``Prosecutors decide 
     whether and how to charge an individual. They decide whether 
     to offer a plea to a lesser charge, set the terms of the 
     plea, and assess whether the conditions have been met.'' 
     Angela Davis, The American Prosecutor: Independence, Power, 
     and the Threat of Tyranny, 86 Iowa L. Rev. 393, 408 (2001); 
     see also Kenneth Culp Davis, Discretionary Justice: A 
     Preliminary Inquiry 188 (1969) (``Viewed in broad 
     perspective, the American legal system seems to be shot 
     through with many excessive and uncontrolled discretionary 
     powers but the one that stands out above all others is the 
     power to prosecute or not to prosecute.''). While 
     ``disparities,'' both warranted and unwarranted, are often 
     discussed in the context of sentencing, the reality of 
     federal sentencing today is that federal sentences are 
     dramatically longer than state sentences for similar 
     offenses. As well, the time that offenders actually serve is 
     substantially longer in the federal system than in the state 
     system. While federal sentences are categorically harsher, 
     the unanswered question that remains is: What legitimate 
     penological reasons exist that can account for the 
     difference? With few exceptions, the Sentencing Guidelines 
     advise sentences that are simply too punitive. The very first 
     thing the Sentencing Commission should do is to advise 
     Congress to eliminate all mandatory sentences. Mandatory 
     sentences come in two types--the mandatory minimum, which 
     requires a sentence of ``x years'' upon a plea of guilty or a 
     conviction, and the sentencing enhancement, where a plea or 
     conviction will trigger a specific sentence. The overly 
     punitive Sentencing Guidelines and the mandatory minimum 
     sentences (which include the enhancement statutes) all have 
     their origins in the mistrust of judges. This mistrust of 
     life-tenured judges does not find a similar mistrust of 
     executive branch actions by politically appointed United 
     States Attorneys serving at the pleasure of the President. 
     Mandatory minimum sentences have the effect of letting the 
     prosecutor determine the sentence. This is simply untenable 
     in a sentencing regime that advises judges to render 
     sentences that are ``sufficient but not greater than 
     necessary.'' For the very first time in our legal history, we 
     now have a regime under the Booker advisory guideline system 
     where the United States Attorney will be involved in 
     sentencing justice. Under the pre-mandatory guideline system, 
     the United States Attorney played virtually no part in the 
     determination of the appropriate sentence. Indeed, in the 
     indeterminate sentencing system, judges had almost unfettered 
     discretion to individualize sentences for particular 
     defendants. While prosecutors cared about what the ultimate 
     sentence was, questions of sentencing justice could be left 
     to the judge and to the parole board. With the advent of the 
     Sentencing Reform Act and the mandatory Sentencing 
     Guidelines, prosecutors merely needed to ``prove up'' 
     sentencing facts and argue Guideline law in order to 
     effectively restrain judicial discretion. The prosecutors, 
     however, still were not concerned with the justice of the 
     sentence--a matter left to the Sentencing Commission and, to 
     a much lesser extent, to the judge. To quote from Professor 
     Simons' article:
       ``Superficially, this limiting of the prosecutor's 
     involvement at sentencing made sense and was consistent with 
     traditional institutional roles: the prosecutor decided the 
     charge, the jury decided guilt or innocence, and the judge 
     decided the sentence. This division of roles, however, had 
     one major exception: mandatory sentences. At the same time it 
     created the Sentencing Guidelines, Congress also began 
     creating a variety of crimes that carried mandatory minimum 
     sentences, typically for offenses involving drugs and guns. 
     Because these mandatory sentences ``trump'' the Sentencing 
     Guidelines, the charge often determined the sentence. In 
     other words, by charging (or not charging) an offense with a 
     mandatory minimum sentence, the prosecutor effectively became 
     the sentencer. In a system in which sentencing is viewed as a 
     judicial function and in which prosecutors are typically not 
     asked to engage with questions of sentencing justice, this 
     ``sentencing by charge'' increases the risk of unjust 
     sentences.''
       Michael A. Simons, Prosecutors as Punishment Theorists: 
     Seeking Sentencing Justice, 16 Geo. Mason L. Rev. 303, 305-06 
     (Winter 2009).
       As a result of Booker, the Supreme Court has created a 
     third system that merges some of the elements of the pre-
     Guidelines and post-Guidelines systems. The Supreme Court has 
     decided that sentences should be decided based not only on 
     the ``advice'' a judge receives from the Sentencing 
     Commission, but also on the traditional purposes of 
     punishment: retribution, deterrence, incapacitation, and 
     rehabilitation. The Court also announced that a trial judge's 
     decision would be reviewed based upon a concept of 
     ``reasonableness.'' Now, prosecutors not only prove up 
     sentencing facts and argue guidelines law, but also are in 
     the unfamiliar role of arguing both at sentencing and on 
     appeal that a particular sentence is or is not reasonable. 
     Within this framework, the Government and the Court, as well 
     as defense counsel, should remember what the Supreme Court 
     said about the role of the United States Attorney in Berger 
     v. United States, 295 U.S. 78, 88 (1935):
       ``The United States Attorney is the representative not of 
     an ordinary party to a controversy, but of a sovereignty 
     whose obligation to govern impartially is as compelling as 
     its obligation to govern at all; and whose interest, 
     therefore, in a criminal prosecution is not that it shall win 
     a case, but that justice shall be done. As such, he is in a 
     peculiar and very definite sense the servant of the law, the 
     twofold aim of which is that guilt shall not escape or 
     innocence suffer. He may prosecute with earnestness and 
     vigor--indeed, he should do so. But, while he may strike hard 
     blows, he is not at liberty to strike foul ones. It is as 
     much his duty to refrain from improper methods calculated to 
     produce a wrongful conviction as it is to use every 
     legitimate means to bring about a just one.''
       If prosecutors thought and acted this way about sentencing, 
     it would animate their charging decisions with respect to 
     mandatory minimums, sentencing enhancements, and arguments 
     about sentences that are considered to be ``sufficient but 
     not greater than necessary.'' The end result of a 
     prosecution--``substantive justice'' regarding the sentence--
     should be considered an integral part of the United States 
     Attorney's job. This is the indirect result of Booker and its 
     progeny. An oft-quoted inscription on the walls of the 
     Department of Justice states: ``The United States wins its 
     point whenever justice is done its citizens.'' (quoting Brady 
     v. Maryland, 373 U.S. 83, 87 (1963)). Simply asking these 
     questions before charging decisions are made can truly 
     improve the sentencing system under the post-Booker advisory 
     regime.

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       There is no question in my view that the now-advisory 
     system of guideline sentencing has improved the quality of 
     sentences that I have rendered. The entitlement that the 
     defendant has at sentencing is to an ``individualized 
     assessment'' based upon the facts presented has improved the 
     ability of judges to consider factors that were not permitted 
     to be taken into account pre-Booker. See Gall v. United 
     States, 522 U.S. 38 (2007). This rationale, of course, built 
     upon what the Supreme Court has called ``the uniqueness of 
     the individual case,'' as well as the following practice of 
     the federal courts that Justice Kennedy referred to in Koon: 
     ```It has been uniform and constant in the federal judicial 
     tradition for the sentencing judge to consider every 
     convicted person as an individual and every case as a unique 
     study in the human failings that sometimes mitigate, 
     sometimes magnify, the crime and the punishment to ensue.''' 
     Gall, 552 U.S. at 598 (quoting Koon v. United States, 518 
     U.S. 81, 113 (1996)). Prior to Booker, federal district court 
     judges were almost always prevented from considering the 
     defendant's age, see U.S.S.G. 5H1.1, education and vocational 
     skills, id. 5H1.2, mental and emotional condition, id. 5H1.3, 
     physical condition, including drug or alcohol dependence, id. 
     5H1.4, employment record, id. 5H1.5, family ties and 
     responsibilities, id. 5H1.6, socio-economic status, id. 
     5H1.10, civic and military contributions, id. 5H1.11, or lack 
     of guidance as a youth, id. 5H1.12. These guideline 
     prohibitions are directly at odds with many of the sentencing 
     statute's directives contained in 18 U.S.C. Sec. 3553(a). 
     While sentencing is now more complex and demanding than it 
     was when courts merely had to plug in the numbers that Rule 
     32 required and impose the mandatory provisions of the 
     Sentencing Guidelines severed in Booker, it now leads more 
     frequently to a sentence that is ``sufficient but not greater 
     than necessary.'' Post-Booker sentencing has also led to more 
     innovative and imaginative advocacy on the part of many 
     defense lawyers. Courts are now presented with sentencing 
     alternatives that can better suit offenders' needs and that 
     will lead to more community based solutions. Such 
     alternatives in sentencing are sometimes far more appropriate 
     than imposing sentences of incarceration, where offenders are 
     commonly deprived of familial and other support mechanisms. 
     Breaking the cycle of parentless children, many of whom will 
     fail in the same way as their parents, must be inculcated 
     into sentencing practices.
       The Sentencing Guidelines should continue to be advisory 
     and should play a role in helping judges achieve the goals of 
     sentencing. The preference of the Guidelines, however, for 
     custodial sentences as opposed to non-custodial sentences 
     should be eliminated by promulgating guidelines that 
     encourage non-custodial sentences--particularly for first 
     time and non-violent offenders. These new guidelines should 
     be based upon empirical research into such emerging topics as 
     the effects of brain maturity and should encourage analyzing 
     the ``whole person,'' which would include psychological and 
     vocational evaluations, intelligence tests, and risk factor 
     identification. This would require judges to look at the 
     sentencing goal of rehabilitation, rather than mere 
     retribution. The current preference in the Guidelines for 
     custodial sentences also does not appropriately permit the 
     sentencing judge to employ the ``institutional advantages'' 
     that Justice Stevens referred to in Gall. Many times, a judge 
     can ``feel'' or sense the sincerity of a defendant during 
     allocution, and such a factor can never be properly 
     ``conveyed by the record'' of the proceedings. Some 
     acknowledgment should be made in an advisory guideline or in 
     a policy statement regarding the importance of a defendant's 
     right of allocution, as well as to the right of allocution of 
     any victims of the offense. Such an acknowledgment will add 
     to the record available to counsel, to the sentencing judge, 
     and to any reviewing court that must determine the 
     reasonableness of a sentence. Indeed, it seems to me that 
     offering this type of advice to sentencing judges would keep 
     with the initial Congressional intent in passing the 
     Sentencing Reform Act of 1984, which delegated to the 
     Commission the responsibility of developing sentencing 
     policies and practices that achieve certainty and assure 
     fairness.
       Another suggested advisory guideline or policy statement 
     that could be added to the sentencing practices is one that I 
     have used in my post-sentencing work. The opportunity to talk 
     with ex-offenders about their incarceration experience, 
     rehabilitative efforts, educational programs, and attitudes 
     about their upcoming supervised release term is an 
     ``institutional advantage'' that can only add to a judge's 
     sentencing expertise. Seeing what a probationary sentence or 
     a short or long sentence does to a defendant is a useful tool 
     in knowing what sentence to give in a similar case. At a 
     minimum, it provides insight to the sentencing judge that no 
     one else has. These changes with respect to sentencing, while 
     not mandatory, could certainly be useful to judges on some 
     level. The Sentencing Commission currently issues reports 
     that relate a statistical approach to sentencing and that 
     continues to center judges' attentions on the Sentencing 
     Guidelines, as if a certain percentage of ``within 
     Guidelines'' sentences can be determinative of the quality of 
     those sentences. While I do believe that these reports are 
     helpful to judges in that they tell us something about 
     sentencing, I also believe that these reports tend to 
     erroneously ``anchor'' a judge into thinking that a guideline 
     sentence is preferred or even that an unwritten presumption 
     for the guideline sentence exists.
       A final set of suggestions for the Sentencing Commission 
     would be, first, to reconsider aforementioned Guideline 
     provisions that all but dismiss an offender's family and 
     community contributions. Our law should recognize and value 
     those rare offenders who consistently provide financial 
     support for their children, participate positively in their 
     children's lives, and benefit the community through 
     consistent charitable or public service. These traits speak 
     not only to an offender's overall character but also to their 
     ability to reintegrate into society. Moreover, the Sentencing 
     Commission should reconsider the sheer number of enhancements 
     that are applicable in many drug, firearm, and pornography 
     cases, as they place many offenders' guideline ranges near 
     the statutory maximum, despite the dramatic differences in 
     culpability among the offenders. Perhaps, the Sentencing 
     Commission should also reconsider utilizing a higher standard 
     of proof, more in tune with other criminal law principles, 
     for all enhancements. Indeed, the use of acquitted conduct, 
     for example, proven only by a preponderance of the evidence, 
     to dramatically increase an offender's guideline range serves 
     to functionally undercut the jury system and discredit the 
     Sentencing Commission and the larger criminal justice system 
     in the eyes of the public.
       With respect to the balance between uniformity and 
     discretion, I believe that any system that allows judges to 
     individually assess a defendant within the broad parameters 
     of the sentencing statute will necessarily sometimes appear 
     to be ``non-uniform or disparate'' in terms of the ultimate 
     sentence. This ``unwarranted disparity'' is a price worth 
     paying because sentencing is inherently fact based and 
     because human beings (including judges) are unique. Thus, any 
     appearance of disparity, and indeed, any actual disparity, 
     should be viewed as a necessary consequence of an 
     appropriately individualized process. As in many arenas of 
     the law where ``discretion'' is the rule, there will always 
     be different results in different cases. While we should 
     attempt to limit unequal results where all other factors are 
     equal, no system can ever truly and adequately account for 
     the disparate acts of police, prosecutors, probation 
     officers, and judges--all players that interact in a system 
     that will eventually result in an offender's conviction. The 
     current perception in working-class and poor-America is that 
     society has one set of rules that apply to well-to-do people, 
     and another set of rules that impacts on them. Certainly, any 
     statistical analysis of the impact of the Sentencing Reform 
     Act on the federal prison population would show that 
     incarceration rates have doubled or even tripled for poor 
     people and minorities, but have remained steady for well-to-
     do people and non-minorities. The Supreme Court in Gall made 
     reference to my own comment in the underlying sentencing of 
     Mr. Gall that ``respect for the law'' has to mean something 
     more than long sentences. Indeed, in sentencing Mr. Gall to 
     36 months of probation, I specifically found that ``a 
     sentence of imprisonment may work to promote not respect, but 
     derision, of the law if the law is viewed as merely a means 
     to dispense harsh punishment without taking into account the 
     real conduct and circumstances involved in sentencing.'' 
     Gall, 552 U.S. at 599 (quoting the district court decision). 
     The current law overlooks, or at least gives less weight to, 
     the collateral consequences of conviction in our country and 
     in the majority of our states. The offender is deprived of 
     the right to vote in most states, the right to serve on a 
     jury, the right to run for elective office, and the right to 
     possess firearms (whatever the eventual Supreme Court view of 
     that right entails). Moreover, a conviction will inevitably 
     forever harm an offender's employment opportunities, and in 
     turn, the chances the offender's children will have to get an 
     education and succeed on their own merits. The fact is that, 
     unlike most, if not all, democracies, we condemn more than 
     the conduct of the offender. We also condemn the convicted 
     individual personally, telling them, in effect, that society 
     no longer wants their contributions or values their 
     existence. Limiting the stigma of conviction after a sentence 
     is completed should be one of the primary goals of the 
     sentencing commission.
       With respect to analyzing a sentence within or outside the 
     Sentencing Guideline range, I think determining a sentence 
     with the Guideline as the ``norm'' gives too much weight to 
     the Sentencing Guidelines which, after all, are just one of 
     the Sec. 3553(a) factors to be considered. The Supreme Court 
     has instructed us that the ``overarching'' provision of the 
     Sentencing Reform Act that must be given effect is the 
     ``parsimony provision''--that is, the Court is charged with 
     arriving at a sentence that is ``sufficient but not greater 
     than necessary.'' This provision has a long pedigree. As 
     early as 1748, Baron Charles de Montesquieu wrote in The 
     Spirit of the Laws, Bk. XIX. 14 (G. Bell & Sons 1914): ``All

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     punishment which is not derived from necessity is 
     tyrannical.'' I think a better approach is the sentencing 
     statute itself, which allows the sentencing judge to gather 
     evidence on each of the Sec. 3553(a) factors and to determine 
     what, if any, incarceration is necessary, and then to 
     determine, if the circumstances warrant, the length of 
     confinement that would best serve the purposes set forth in 
     the statute. While the Gall Court properly instructed 
     sentencing judges to start with correctly calculating the 
     advisory Sentencing Guideline range, it employed this 
     starting point to aid in ``secur[ing] nationwide 
     consistency'' in sentencing, not because Guideline 
     calculations are entitled to greater weight than any other 
     sentencing factor. While the Sentencing Guidelines attempt to 
     render a ``wholesale'' overview to the sentencing 
     considerations outlined in Sec. 3553(a), the Rita Court 
     explained that guidelines certainly cannot routinely provide 
     a ``sufficient but not greater than necessary'' sentence if 
     the district court is engaged in an individualized assessment 
     of the offender and the offense. See Rita v. United States, 
     551 U.S. 338 (2007). Accordingly, a sentencing judge must use 
     his or her experience and common sense when determining what 
     value the ``starting point'' should have in the final 
     analysis. As Judge Cabranes and Professor Stith point out in 
     their book, ``the explosion of case law on federal sentencing 
     contains almost no discussion of the purposes of sentencing 
     generally or in the specific case--almost no articulated 
     concern as to whether a particular defendant should be 
     sentenced in the interest of general deterrence, 
     rehabilitation, retribution, and/or incapacitation.'' Kate 
     Stith & Jose Cabranes, Fear of Judging: Sentencing Guidelines 
     in the Federal Courts (Univ. of Chicago Press 1998). Now that 
     judges are free to discuss these purposes of sentencing 
     within the context of the individualized facts of the 
     offender and the case, an exchange among the courts, 
     defenders, prosecutors, probation officers, victims, and the 
     Sentencing Commission can take place and a ``common law'' of 
     sentencing can and should emerge. A great example of this 
     ``common law'' of sentencing that actually addresses the 
     purposes of sentencing can be found in United States v. Cole, 
     622 F. Supp. 2d 632 (N.D. Ohio 2008), where the trial court 
     discussed the purposes of sentencing in the following manner:
       ``We have long understood that sentencing serves the 
     purposes of retribution, deterrence, incapacitation, and 
     rehabilitation. Deterrence, incapacitation, and 
     rehabilitation are prospective and societal--each looks 
     forwards and asks: What amount and kind of punishment will 
     help make society safe? In contrast, retribution imposes 
     punishment based upon moral culpability and asks: What 
     penalty is needed to restore the offender to moral standing 
     within the community?''
       The Cole court went on to describe how each of these 
     purposes was consistent with the sentencing statute found at 
     Sec. 3553, and how the law and the facts (which involved a 
     financial crime) should be analyzed given these sentencing 
     concerns.
       With respect to appellate review, I believe that the 
     ``abuse of discretion'' standard has worked well and will 
     continue to do so. District court judges ``live with a case'' 
     for a substantial period of time and have face-to-face 
     interactions with the offender. Appellate courts do not have 
     these advantages available to district judges in formulating 
     an appropriate sentence, making a less deferential, ``de 
     novo'' standard of review inappropriate. While district 
     judges can and do get it wrong from time to time, I believe 
     the current ``abuse of discretion'' standard adequately 
     allows appellate courts to determine the point at which the 
     latitude afforded district court judges has been 
     transgressed. If a Court of Appeals canvasses the entire 
     record and is left with a ``firm and abiding'' conviction 
     that the sentence is not ``reasonable,'' then the Court of 
     Appeals can and should intervene and reverse the district 
     judge. I am not certain that this is a test which ``shocks 
     the judicial conscience,'' but I am confident that Court of 
     Appeals judges will be able to identify an unreasonable 
     sentence when they see it and articulate the reasons why the 
     sentence is unreasonable in the context of the particular 
     facts of a case.
       Lastly, with respect to changes in either the sentencing 
     statutes or the Federal Rules of Criminal Procedure, I would 
     emphasize the necessity of eliminating all mandatory minimum 
     statutes and sentencing enhancement statutes. These statutes 
     unfairly and improperly shift the sentencing function of 
     government from the judicial branch to the executive branch. 
     With respect to Federal Rule of Criminal Procedure 32, it 
     should be expanded to permit a broader exchange of 
     information in advance of the actual sentencing proceedings. 
     Additional authority should be provided within the Rules to 
     allow medical, psychological, or vocational testing when such 
     testing would aid the sentencing judge in formulating an 
     appropriate sentence.
       Thank you for the invitation to submit testimony before the 
     commission. I look forward to the opportunity to verbally 
     address any concerns or questions you may have about my 
     testimony.

                          ____________________