Vol. 37, Number 2 —February 2005

Interview: Criminal Law Committee Analyzing Impact Of Booker

Judge Sim Lake was appointed to the U.S. District Court for the Southern District of Texas in 1988. He was named chair of the Judicial Conference Committee on Criminal Law in 2003.

Q: Were you surprised by the Supreme Court decision in Booker?

A: Many commentators anticipated that the Supreme Court’s Sixth Amendment analysis in Blakely would also apply to the federal Sentencing Guidelines. But I don’t know of anyone who predicted the Supreme Court’s remedy.

Q: How much of an impact do you believe the Supreme Court’s Booker decision will have on the way in which federal judges now impose sentences?

A: The Criminal Law Committee is still analyzing the potential impact of the decision. In Booker, the Supreme Court severed and excised two provisions of the Sentencing Reform Act—18 U.S.C. § 3553(b)(1) and 3742(e)—effectively making the Sentencing Guidelines advisory. Writing for the majority, Justice Breyer explained that even though Guidelines are advisory, they nonetheless continue to promote the goals of certainty and fairness that Congress sought to achieve with the Sentencing Reform Act. Although judges should also consider the other factors set forth in 18 U.S.C. § 3553(a), I believe that the Sentencing Guidelines remain the starting point in determining a sentence in every case. In many cases the Guidelines already reflect the Sentencing Commission’s consideration of the other § 3553(a) factors.

Q: Courts already are questioning the appropriateness of the Statement of Reasons form. Will the Committee issue any guidance or will it change the Statement of Reasons requirement?

A: Judge Ricardo Hinojosa, chair of the United States Sentencing Commission, and I issued a joint memorandum to all judges on January 21, 2005, emphasizing the importance of continuing to submit sentencing documents to the Sentencing Commission in accordance with the statutory requirement to state the reasons for a sentence in open court and to assist the Sentencing Commission with its data collection responsibilities. The Statement of Reasons form allows Commission staff to collect information about a judge’s reasons for imposing a sentence without obtaining and reviewing transcripts.

Judge Hinojosa and I also encouraged all courts to use the most current version of the Statement of Reasons form (Rev. 12/03) adopted by the Judicial Conference in September of 2003. It is important to refrain from revising the Statement of Reasons form by creating various “local forms.” Use of different local versions of the Statement of Reasons seriously hampers the Commission’s ability to analyze data.

In the Government Accountability Office’s (GAO) October 2003 report entitled “Federal Drug Offenses: Departures from Sentencing Guidelines and Mandatory Minimum Sentences, Fiscal Year 1999-2001,” the GAO evaluators concluded that the Sentencing Commission’s data on departures and reasons why sentences fell below an applicable mandatory minimum could be improved by reducing the number of missing, incomplete, or difficult to interpret Statement of Reasons forms. The GAO noted that while the Judicial Conference has endorsed the Statement of Reasons form, the Conference does not have the authority to require judges to use it. Since the Statement of Reasons form is not mandatory, there have been suggestions from observers outside the Judiciary that legislation should be introduced to mandate the use of a particular form, perhaps even one not authorized by the Judiciary, to ensure that meaningful sentencing data is made available to the Sentencing Commission. To the extent that judges consistently only use forms that have been approved by the Judicial Conference we will be better able to defend against such initiatives.

The Committee is working with the Sentencing Commission to determine what revisions should be made to the Judgment in a Criminal Case and Statement of Reasons forms. I encourage judges, probation officers, and deputy clerks to send their suggestions to us for consideration.

Q: What impact do you think Booker’s “reasonableness” standard for appellate review will have on sentencing decisions?

A: Judges and commentators have raised a number of questions concerning appellate review after Booker. These questions will be answered by the courts of appeals as they apply the standard in individual cases.

Although the Committee does not provide advice on substantive legal issues, some observers have predicted that courts will apply a presumption that a sentence within the advisory guideline range is reasonable, and that to the extent a judge relies on the other factors enumerated in § 3553(a) to announce a different sentence, the judge must explain the rationale for that sentence.

Q: Do you anticipate immediate efforts by Congress to introduce new sentencing legislation?

A: I cannot predict what Congress might do. I understand that Congress may be examining a number of legislative proposals with respect to federal sentencing policies. The Committee believes that any legislation should be the product of study and deliberation. Accordingly, the Committee has provided and will continue to provide assistance and input to Congress as it examines these issues.

Q: Do you foresee either short-or long-term increases post-Booker in appeals or in motions to vacate sentence?

A: Sentencing decisions by the Supreme Court are often followed by an increase in the number of criminal appeals and collateral
review proceedings. The post-Booker era will probably be no exception. As circuit precedent is developed, however, direct appeals and collateral
attacks should subside to normal
levels.

Q: Will the Criminal Law Committee involve other Judicial Conference committees or the U.S. Sentencing Commission in discussions of changes in the post-Booker period?

A: Yes. In anticipation of the Court’s decision, the Committee sought input from representatives from the Conference Committee on Rules of Practice and Procedure and the Advisory Committee on Evidence Rules. We will seek the views of other Conference committees as needed. The Committee met on February 14-15, 2005, to discuss the implications of Booker. We invited representatives from the Committee on Rules and the Advisory Committee on Evidence Rules to join us. We also invited members of the Sentencing Commission and the Department of Justice to attend the meeting.