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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.

U.S. District Judge Paul Cassell of Utah, who chairs the Criminal Law Committee of the policy-making Judicial Conference of the United States, said the January 12, 2005, ruling in U.S. v. Booker has not brought about wholesale changes in sentencing.

"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 in testimony March 16 before the House Subcommittee on Crime, Terrorism, and Homeland Security. "Before Blakely (v. Washington, a precursor Supreme Court ruling in 2004), the average federal sentence was 57 months; after Booker, the average federal sentence was 58 months."

He 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.

"It appears that there is no need for an immediate Booker fix, especially if the fix carries its own substantial risks and costs," Cassell said on behalf of the Judicial Conference.

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.
• Giving judges authority to prevent profiteering by criminals, such as signing lucrative book deals.

Cassell pointed out that the 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.