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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
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
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
- 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.