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September 2011

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This article is in the news archives --- for current news go to the Third Branch News.


From the Hill to the Court to the Commission

Judge Patti B. Saris (D. Mass.)

Judge Patti B. Saris (D. Mass.)

Judge Patti B. Saris (D. Mass.) was confirmed by Congress as the new chair of the U.S. Sentencing Commission on December 22, 2010. Commissioner terms run for six years.

Saris has served as a U.S. district judge for the District of Massachusetts since 1994. She was chair of the Judicial Conference Committee on Defender Services from 2002–2005. Previously, she had served as an associate justice for the Massachusetts Superior Court from 1989 to 1993, and as a U.S. magistrate judge for the District of Massachusetts from 1986 to 1989. From 1982 to 1986, she was an attorney in the Civil Division of the Department of Justice, and she held the position of Chief of the Civil Division, Office of the United States Attorney for Massachusetts, from 1984 to 1986. From 1970 until 1981, Saris served as staff counsel to the Senate Judiciary Committee.

What has it been like in your first nine months as chair?

My first nine months have been a whirlwind. I was confirmed in the last minutes of the 111th Congress and began the job in early January, mid-way through the sentencing guideline amendment cycle. We had so much on our plate, including amendments to the guidelines dealing with crack and straw purchasers of firearms. While I have been sentencing defendants for 17 years in federal court (and five more in state court), I had a lot to learn about the structure of the guidelines on a policy level.

Three things have impressed me most. The first is the extent to which the guideline amendment process is evidence-based. The Commission gathers information from court documents, including the judgments and statement of reasons forms, for about 83,000 sentences a year. So before we make guideline decisions, we go into the database with a team of excellent lawyers and statisticians to understand how judges across the country treat an issue. Second, I have been impressed by the other Commissioners. The Commission is bipartisan and consists of members from prosecutorial, defense, and judicial backgrounds. Naturally, we have different points of view on divisive issues, but the culture is to work by consensus and, mostly, that approach is successful. Finally, I have had the pleasure to meet with many members of Congress and have come to further appreciate the deep interest Congress has in sentencing issues. With the help of the excellent Commission staff, I have been brought up to speed and look forward to an interesting and productive six years.

What are some of the highlights of the most recent (2010-2011) amendment cycle?

Our most significant obligation was the permanent implementation of the Fair Sentencing Act of 2010, which increased the crack cocaine quantity thresholds for statutory mandatory minimums. The Commission voted to set the base offense level for the five-year mandatory minimum term of imprisonment and the ten-year mandatory minimum to levels consistent with mandatory minimums for other drugs. On June 30, 2011, the Commission voted unanimously to make the proposed crack guidelines retroactive. We estimate that this amendment may affect as many as 12,000 offenders nationally.

The Commission voted to provide increased penalties for certain straw purchasers of firearms and for offenders who illegally traffic firearms across the United States border.

The Commission voted to provide increased penalties for certain straw purchasers of firearms and for offenders who illegally traffic firearms across the United States border. The administration brought this issue to our attention, particularly in response to the growth of firearm trafficking to Mexico. 

Congress also provided the Commission with two specific directives during this amendment cycle. First, The Patient Protection and Affordable Care Act of 2010 directed the Commission to upwardly adjust penalties for certain fraud offenses involving a "government health care program." The Commission responded by providing tiered enhancements for offenses involving such programs. Second, the Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010 directed the Commission to review the sentencing guidelines applicable to securities fraud and financial and mortgage loan fraud. Both the Department of Justice and the Securities and Exchange Commission agreed that no further amendments were necessary at this time. All parties agreed, however, that the Sentencing Commission should re-examine its guidelines in this area, with particular attention paid to the impact of this type of fraud on financial markets and the general public. 

Is the Commission working on any special reports or projects?

The Commission is hard at work on three comprehensive reports to Congress. The first is a report on mandatory minimum penalties and their role in the federal sentencing system after the Supreme Court's decision in United States v. Booker. It will include, among other things, an assessment of the compatibility of mandatory minimum sentencing provisions with the guidelines system established by the Sentencing Reform Act of 1984 and of the impact of mandatory minimums on unwarranted sentencing disparity. The report also will address broader drug policy issues, including whether to expand the application of the safety valve provision at 18 U.S.C. § 3553(e) that exempts certain offenders from mandatory minimum sentences.

The second report examines child pornography guidelines. The report will likely include the incidence of, and reasons for, departures and variances from the guideline sentencing range; a compilation of studies on, and analysis of, recidivism by child pornography offenders; and possible recommendations to Congress on any statutory changes that may be appropriate. A recent study of federal district judges found that seventy percent felt that penalties for receipt and possession of child pornography were too high—a sentiment likely responsible for a more than forty percent variance rate. Many members of Congress care intensely about this subject and have expressed that concern in directives to the commission. Motivated no doubt by the ongoing debate over child pornography sentencing severity, the Department of Justice also asked for a review of these guidelines. This is a difficult area, to say the least, and the completed report should be of considerable use to the courts and policymakers.

Finally, the Commission is planning to issue a report on the state of federal sentencing since the Supreme Court's Booker decision. Altogether, the Supreme Court has issued seven key cases that collectively generate an advisory guideline system dramatically different from the presumptive guidelines system that preceded it.

Do you have specific goals you'd like to accomplish as chair of the Commission?

My priority is to make the advisory guidelines system as effective as possible in a post-Booker world. Seventy-five percent of district court judges have expressed strong support for this advisory guideline system. While some have criticized this system, over 80 percent of sentences are within the guidelines or based on government sponsored departures and variances. Nonetheless, we must work with Congress, the Executive Branch, and the courts to fix the least-followed guidelines, especially those for child pornography. Economic fraud is another area that needs work.

" … over 80 percent of sentences are within the guidelines or based on government sponsored departures and variances."

I also believe it is important that the Commission study recidivism, re-entry issues, and drug courts in order to better serve the twin goals of public safety and rehabilitation. The Commission's focus has never been limited to incarceration, and it would be a mistake not to seek to address these issues, particularly in light of the impressive innovations percolating in the federal system.

How does the Commission decide on its priorities for a particular amendment cycle?

The Commission's priorities emerge from a diverse set of sources, but they primarily come from Congress, judges, probation officers, prosecutors, defense attorneys, advocacy groups, the Commissioners, and Commission staff. We are statutorily bound to follow Congressional directives, and Congress's priorities are necessarily our priorities as well. The Commission also generates a tremendous amount of empirical research and analysis. This effort allows the Commission to identify guidelines and sentencing practices that require further attention.

What are some of the Commission's priorities for the coming amendment cycle?

We have just published a list of priorities for comment, and many of them flow from our work this past amendment cycle. These include issues like child pornography, human rights offenses, expanding the mandatory minimum safety valve, and evaluating how to calculate loss in fraud cases. We also may consider possible guidelines amendments for drug offenses and for post-sentencing rehabilitation (in light of the Supreme Court's decision in Pepper v. United States). Of course much of our time will be spent on the mandatory minimum, child pornography, and Booker reports.

The Commission has a very strong working relationship with Congress and always looks forward to working closely with it, and other policymakers, on issues related to national sentencing policy.

How do you view the Commission's relationship with Congress? With the federal Judiciary?

I worked as a Hill staffer on the Senate Judiciary Committee when Senator Kennedy was the Chair, and I co-authored a book on Congress with Judge Abner Mikva. Based on this experience, I have enormous respect for the First Branch of government and the important role it plays in the generation and enactment of policy. The Commission has a very strong working relationship with Congress and always looks forward to working closely with it and other policymakers on issues related to national sentencing policy. With respect to the Judiciary, I have been a district judge for 17 years and a magistrate judge for four. We have an outstanding Judiciary. I have enjoyed traveling around the country getting input from judges. The guidelines were always meant to evolve. It would be impossible for the Commission to manage this evolution without the collaboration of Congress and the courts.