Vol. 37, Number 12—December 2005

Sentencing Commission Feels
the Effect of Booker and Blakely

	Judge Ricardo H. Hinojosa (S.D.Tex.)

Judge Ricardo H. Hinojosa (S. D. Tex.) has served as chair of the U.S. Sentencing Commission since August 2004 and as a commissioner since 2003. He was appointed to the U. S. District Court for the Southern District of Texas in 1983.

Q: What is the U.S. Sentencing Commission's relationship with the Judicial Conference of the United States?

A: The United States Sentencing Commission was created by the Sentencing Reform Act of 1984 as an independent agency within the Judiciary. As a result, the Commission enjoys a close working relationship with the Judicial Conference of the United States, as evidenced by its relationship with the Criminal Law Committee. The Commission, which is invited to attend the Criminal Law Committee meetings, solicits the views of and works with the Criminal Law Committee on federal sentencing issues. For example, in January 2005, Judge Sim Lake and I, as Chairs of the Criminal Law Committee and the Commission, issued a joint memorandum after the Booker decision reminding the courts of the continued duty to submit documents required under the PROTECT Act, noting that "[t]he collection and analysis of sentencing data continue to be extremely important aspects of the Commission's work."

In addition, the Commission is consulted by the Criminal Law Committee on matters such as the new Statement of Reasons form, adopted by the Judicial Conference through its Executive Committee, which encompasses changes as a result of the Booker decision. The Commission regularly seeks and receives input from the Judicial Conference through the Criminal Law Committee on a range of issues, including comments on the priorities list for the guidelines amendment cycle. This past August, for example, the Criminal Law Committee submitted comments to the Commission on its proposed priorities for this year's amendment cycle. The Commission appreciates the opportunity to hear from the Judiciary and work with it on national sentencing policy issues.

The Commission appreciates the opportunity it traditionally has been given to report on its work at each meeting of the Judicial Conference. The Commission's relationship with the Judicial Conference is strengthened by the close relationship of the staffs of the Administrative Office and the Commission on issues of mutual interest. The Commission also enjoys a close relationship with the Federal Judicial Center and often makes presentations on federal sentencing issues in training sessions conducted by the Center.

Q: The Feeney Amendment, the Blakely decision, and now the Booker decision have brought a lot of attention to federal sentencing. What has been the impact on the work of the Sentencing Commission and what are the Commission's priorities for the next year?

A: The Commission, much like the Judiciary, has been impacted over the past couple of years by the PROTECT Act, Blakely, and Booker. The Commission, as has the Judiciary, has refined and retooled its operating procedures to meet the challenges set before it. The PROTECT Act, Blakely, and Booker each created issues that required the Commission's immediate attention.

The PROTECT Act, for example, contained numerous directives to the Commission, including among them the directive that the Commission reduce the availability of downward departures from the guidelines, as well as one directing an amendment to the sex offense guidelines. The PROTECT Act also imposed significant new reporting requirements on the Commission, as well as on the Judiciary, that required the Commission to continue to ensure that its data collection efforts resulted in the most useful and accurate data on federal sentencing trends. As a result of the PROTECT Act, the Commission also issued a comprehensive report to Congress entitled Downward Departures from the Federal Sentencing Guidelines.

The Blakely decision resulted in an increase in Commission efforts to meet its statutory requirements to collect and disseminate relevant information concerning federal sentences imposed. In a very short period of time, the Commission began an extensive review of case information being submitted to it, conducted a thorough and extensive review of developing case law in the wake of Blakely, and held a public hearing on the implications of Blakely on the federal sentencing system. In addition, the Commission routinely participated in sentencing seminars and roundtable discussions, held extensive staff-level meetings with various constituencies within the federal criminal justice community, shared its findings with all three branches of government, and testified before Congress on Blakely's impact on sentencing. The uncertainty of the Blakely decision's applicability to the federal guidelines impacted the amount of work that could be done on the priorities list for the 2004-2005 amendment cycle.

The Booker decision did establish that the federal sentencing guidelines, although advisory, remain an important and essential consideration in the imposition of federal sentences and emphasized the Commission's continued statutory responsibilities. As the clearinghouse for federal sentencing statistics, the Commission recognized the unprecedented national interest in how sentencing courts would act under the advisory guideline system created by Booker. The Commission responded almost immediately and started providing post-Booker statistics on a realtime basis.

The Commission post-Booker also has been busy continuing to carry out its statutory responsibilities by conducting training programs for judges, probation officers, prosecutors, defense attorneys, and other interested parties regarding the application of the guidelines and the operation of the federal sentencing system. By the end of fiscal year 2005, the Commission had held training programs in every circuit and nearly three-quarters of the judicial districts. The Commission conducted a two-day public hearing on the impact of Booker which included testimony from a varied group of individuals with interests and expertise in the federal criminal justice system.

In addition to these very resource-intensive efforts, the day-to-day work of the Commission continues in full force. The Commission has adopted a very full agenda for its 2005-2006 amendment cycle. In addition to maintaining its emphasis on realtime data collection and training, the Commission has plans to address issues related to immigration, steroids, firearms, terrorism, and intellectual property offenses as well as legislation enacted during the first session of the 109th Congress. This spring, the Commission also plans to release a report on the impact of Booker on federal sentencing.

Q: The Commission has regularly published data on post-Booker sentencing statistics. How is the Commission keeping up with its realtime reporting efforts?

A: As stated previously, in order to provide the most timely and accurate data on federal sentencing trends, the Sentencing Commission decided to operate its national sentencing dataset in "real time," releasing every few weeks updates on post-Booker sentencing practices. Prior to Booker, and consistent with the majority of federal agencies, the Commission followed an annual reporting cycle, with sentencing data released on a fiscal year schedule as part of an extensive Sourcebook of Federal Sentencing Statistics. Following Booker, however, the Commission immediately geared up and reorganized its data receipt, analysis, editing, and reporting tasks to provide "real time" post-Booker information to the federal criminal justice community.

It is important to note that two factors assist the Commission in its "realtime" data reporting efforts. The first is the standardized use of the new Statement of Reasons form. The more courts use the new form, without modifications or alterations, the more accurate and timely the data becomes. The second is the submission of documents via the Commission's electronic documents submission system. Courts that are online with the Commission can quickly submit all five documents required to be sent to the Commission by the PROTECT Act. This allows the Commission to better track document and case submission rates, which it is required to do under the PROTECT Act.

Q: Based on the available data so far, have there been any dramatic changes in sentencing practices since Booker?

A: The sentencing trends for the post-Booker data have remained relatively stable. Consistently over the last nine months, approximately 62 percent of the over 48,000 cases submitted to the Commission have been sentenced within the guideline range since Booker. This compares to approximately 64-65 percent within the guideline range for cases for FY 2000, 2001, and 2002, 69 percent for FY 2003 and 72 percent for the pre-Blakely portion of FY 2004. A portion of the sentencings in FY 2003 and all of the sentencings in FY 2004 pre-Blakely were after the enactment of the PROTECT Act. Approximately 24 percent of cases the Commission has received post-Booker were sentenced below the applicable guideline range at the request or suggestion of the prosecution, including 5K1.1 substantial assistance departures, 5K3.1 early disposition program departures, or other government-sponsored departures. Consistently since the Booker decision, approximately 1.5 percent of cases were sentenced above the guideline range, and approximately 13 percent of cases were sentenced below the guideline range for non-government sponsored reasons.

Q: At the present time, has the Commission decided to propose or support legislation to change the sentencing policies provided by Booker?

A: At this point, the Commission's statement to Congress on this issue has been that, if Congress decides at some point to pursue legislation, the Commission hopes that it will preserve the core principles of the Sentencing Reform Act and, to the extent possible, avoid a wholesale rewriting of a system that operated well for nearly two decades. The Commission believes the Sentencing Reform Act was a landmark piece of legislation and that the resulting guidelines made significant strides in furthering the goals of the Act.

The Sentencing Commission and its staff continue to closely monitor post-Booker issues. The Commission is dedicated to its mission to carry out the goals of sentencing reform and, as the Booker decision itself says, "to provide certainty and fairness in meeting the purposes of sentencing while avoiding unwarranted disparities . . . [and] maintaining sufficient flexibility to permit individualized sentences when warranted." As the system moves forward in the wake of Booker, the Commission is ready and looks forward to assist Congress, the Judiciary and the executive branches in any way possible.

Q: The Protect Act amended 28 U.S.C. 994(w) to explicitly require the chief judge in each district to ensure that a report of the sentence, including the Statement of Reasons among other documents, be submitted to the Commission within 30 days of judgment. Are the courts submitting the documentation to the Commission in a timely manner?

A: The vast majority of documents received by the Commission are being submitted by the courts within the required time frame, and the chief judges and probation officers have done an excellent job to ensure that the courts are meeting their submission requirements. Working with probation officers and the Administrative Office, the Commission has also instituted a number of measures this year to streamline the process for receiving and accounting for submitted documentation. A more complete report on the submission rates nationally as well as by circuit and by district, is reported in the Commission's annual fiscal year sourcebook report.

Missing court documents, however, continue to pose somewhat of a challenge to data reporting. To further reduce document submission time frames and to better account for submitted documentation, the Commission encourages districts to participate in the previously mentioned electronic document submission program. This program, through which a court submits an electronic version of case documents over the court's secure network, accelerates document receipt and saves the court substantial packaging and mailing costs. Approximately half of all districts now use this system. With the demonstrated success of the electronic submission program and its numerous benefits evident, the Commission urges the remaining districts to contact the Commission to be included in this program.