April 2006

Judiciary Committee to Pursue Legislative Solution to Booker

Representative F. James Sensenbrenner, Jr. (R-WI) says sentencing data a year after the Supreme Court decision in U.S. v. Booker show federal judges “have not embraced, and in many cases, have undermined, Congress’ specific intent” in increasing the applicable sentencing range for crimes such as identity theft, terrorism, cybercrime and sex offenses. His comments were in response to the release of the U.S. Sentencing Commission’s Report on the Impact of United States v. Booker on Federal Sentencing.

According to Sensenbrenner, the report shows, among other particulars, a six-fold increase in below-guideline-range sentences for defendants convicted of sexual abuse of a minor; a five-fold increase in below-guideline-range sentences for defendants convicted of sexual exploitation of a child, and a 50 percent increase in below-guidelines-range sentences for defendants convicted of sexual contact with a minor, trafficking in child pornography, and possession of child pornography.

“In response to the problems described in this report,” Sensenbrenner stated, “the Judiciary Committee intends to pursue legislative solutions to restore America’s confidence in a fair and equal federal criminal justice system.”

Judge Paul Cassell (D-Utah), in his testimony before the House Judiciary Subcommittee on Crime, Terrorism, and Homeland Security, offered a different view on the significance of the statistics cited by Sensenbrenner.

“Judges have exercised their newfound discretion responsibly in all categories of offenses including that tiny sliver of the Federal docket. . .the sex offense area,” Cassell testified. “It has been said that there has been a five-fold increase in the cases in which judges have [departed] down for sexual exploitation of a minor. What that means in the Nation’s Federal courtrooms is that in 2004, there were two such cases; in 2005, there were 11 such cases, hardly a dramatic increase given that the system prosecutes 65,000 offenders every year.”

Cassell noted that a half to two-thirds of these cases involve Native American defendants, who have committed state law crimes that end up being prosecuted in the federal system solely because the defendants live within federal jurisdiction.

“And indeed,” Cassell said, “if one looks at the big picture of all sex offenses, one finds that the overall situation has not changed much since Booker for criminal sexual abuse, sexual abuse of a minor, exploitation of a minor, trafficking in child pornography and possession of child pornography—sentences all went up after Booker.”