April 2006

 

Judiciary Asks Congress to Tread Carefully with Sentencing

Congress was told there is no need for “Booker fix” legislation because federal judges’ practices in sending convicted criminals to prison remain much the same as they were before the Supreme Court invalidated mandatory sentencing guidelines last year. Judge Paul G. Cassell (D. Utah), chair of the Judicial Conference Committee on Criminal Law, told the House Judiciary Subcommittee on Crime, Terrorism, and Homeland Security, that the January 2005 ruling in U.S. v. Booker has not brought about wholesale changes in sentencing.

Cassell testified last month at the subcommittee’s oversight hearing on federal sentencing practices post-Booker. Testifying with Cassell were Judge Ricardo H. Hinojosa (S.D. Tex.), chair of the U.S. Sentencing Commission (USSC), William W. Mercer, Principal Associate Deputy Attorney General at the Department of Justice, and attorney James Felman.

“The most telling statistic is that sentences today are, on average, about the same, if not slightly longer, as compared to sentences before Booker,” Cassell said. Referring to the 2004 Supreme Court decision in Blakely v. Washington, he told the subcommittee that before Blakely the average federal sentence was 57 months; after Booker, the average federal sentence was 58 months.

Cassell added that there also has not been a dramatic change in the percentage of cases falling outside the federal sentencing guidelines, which are now advisory.

Hinojosa appeared before the subcommittee to testify on the Commission’s recently released report on the impact of Booker. The report is available on the USSC website at http://www.ussc.gov/booker_report/Booker_Report.pdf.

“National data show,” he said, “that when within-range sentences and government-sponsored, below-range sentences are combined, sentencing in conformance with the guidelines is 85.9 percent.” The report also found that the average sentence length after Booker has increased nationally.

Nevertheless, in his opening statement, subcommittee chair, Representative Howard Coble (R-NC) said that, “the data demonstrates that the Judiciary has undone, or circumvented, the basic sentencing reform measures passed overwhelmingly by the House and the Senate as part of the PROTECT Act of 2003. Those reforms were critical and the data shows that they were working—the incidents of judicial downward departures declined. Unfortunately, the data shows that once freed from the mandatory guideline system, judges have now returned to sentencing practices, and handed out unwarranted and unjustified downward departures for sex offenders, child pornographers, pedophiles, drug traffickers and career criminal offenders.”

DOJ’s Mercer agreed that while the average length of federal sentences has remained nearly constant, “the Department remains very concerned about the decline in compliance with the federal sentencing guidelines because it is evidence of increasing disparity in federal sentences.” Mercer urged the subcommittee and Congress “to fully examine current sentencing practice as well as the short- and likely long-term impact of Booker and then to act to reinstitute mandatory sentencing in the federal criminal justice system.”

Hinojosa told the subcommittee that any legislative response to Booker should address the appellate review process and standard; require that the proper and uniform sentencing documentation be sent to the Commission; clarify that a sentence reduction for cooperation of substantial assistance is impermissible absent a motion from the government; and include codification of the three-step process for imposing a sentence. In the three-step process, a judge would calculate the guideline for a sentence, adjust the guidelines sentence for departure, either upward or downward, and analyze the variances.

Cassell cautioned that there appeared to be no need for an immediate Booker fix, “. . . especially if the fix carries its own substantial risks and costs,” he said.

He warned in particular that a system of “topless guidelines” in which a defendant generally could be sentenced above a recommended range of years in prison but not below that range, may not survive a constitutional challenge and, if invalidated, might enable every defendant sentenced under it to personally appear before a trial court for resentencing.

“For the Congress to move forward with topless guidelines, at least at this time, would be a giant gamble,” he said. Cassell said lawmakers might instead want to consider other points of discussion for possible legislation. They include:

• Reviewing the consistency of reductions in sentences given for defendants who provide substantial assistance to prosecutors.
• Restoring membership on the seven-member U.S. Sentencing Commission to “at least three judges.” In 2003, Congress changed the membership configuration to "no more than three" judges.

Cassell pointed out that a great source of differences in sentences from one judicial district to another is the rate at which the Justice Department seeks lower sentences because a defendant cooperated with federal prosecutors. For example, 38 percent of defendants’ sentences were lowered for that reason in the Eastern District of Kentucky during a period in which only 3 percent of defendants’ sentences were lowered in the District of New Mexico.

In its Booker decision, the Supreme Court ruled that the sentencing guidelines cannot be mandatory, but can be used by judges in their sentencing decisions. The House subcommittee is studying whether legislation is needed in light of the ruling.

---

Judge Paul Cassell’s testimony is available at http://www.uscourts.gov/testimony/Cassell031606.pdf.