Interview—Committee Dealing with Criticism, Austere Budget

Vol. 36, Number 3—March 2004

I N T E R V I E W

Committee Dealing with Criticism, Austere Budget

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: As chair of the Judicial Conference Committee on Criminal Law, what are the major issues your Committee will face?

A: The Judiciary budget will continue to face a very austere environment. Probation and pretrial services comprise a significant part of the Judiciary budget. The Criminal Law Committee is seeking ways for probation and pretrial services officers to deliver the same quality of service that they have in the past, notwithstanding an ever-increasing workload and no real growth in the budget in sight. The other major issue facing the Criminal Law Committee involves efforts by some members of Congress and some federal prosecutors to limit judges' independence in sentencing decisions.

Q: There has been considerable publicity about the PROTECT Act provisions that limit judicial discretion in the federal sentencing process. What was the Committee's reaction to the Feeney amendment?

A: My term as chair of the Criminal Law Committee began on April 1, 2003. The Child Abduction (Amber Alert) Bill had been introduced in Congress on March 5, 2003. On the evening of March 26 the Judiciary learned of the Feeney amendment, which contained significant changes to federal sentencing laws, including restrictions on the courts' ability to depart downward from the sentencing guideline range. The Criminal Law Committee, working closely with the Executive Committee, moved quickly to express the Judiciary's opposition to the Feeney Amendment. We voiced our concerns to congressional leaders, but unfortunately, many of the provisions of the Feeney amendment were included in the final version of the bill, which was entitled, the Prosecutorial Remedies and Other Tools to End the Exploitation of Children Today Act of 2003, commonly known as the PROTECT Act.

The Committee members, like most judges, opposed these provisions and are concerned about the lack of meaningful consultation with the Judiciary before they were enacted. The Committee urged, and the Judicial Conference agreed to support, the proposed Judicial Use of Discretion To Guarantee Equity in Sentencing Act of 2003, commonly known as the JUDGES Act, which was introduced by Senator Edward Kennedy (D-MA) and Representative John Conyers (D-IL). This legislation would repeal certain provisions of the PROTECT Act that do not relate to child kidnapping or child sex abuse.

Q: What do the statistics show about departures from the sentencing guidelines?

A: The U.S. Sentencing Commission publishes data on the percentage of defendants who receive downward departures. Currently, however, the Commission only publishes this information in two broad categories: defendants who receive substantial assistance departures and defendants who receive "other" downward departures. Both the Sentencing Commission's own report to Congress on downward departures and the GAO's 2003 report on departures reflect that a large number of the "other" downward departures result from plea agreements, deportation actions, and from early disposition or "fast-track" programs. Neither report supports the idea that judges depart downward on their own in a large number of cases.

The GAO report also confirmed that substantial assistance agreements are currently offered by federal prosecutors to defendants in drug cases who have high sentencing guideline ranges, possess weapons, and who have serious prior criminal records. These are the defendants who often have information that is useful to the government. But many times the least culpable, first-time offenders, who often have a greater potential for rehabilitation, have nothing to offer the government in return for a substantial assistance motion. Stripping federal judges of the needed flexibility to sentence defendants often requires judges to give harsher sentences to the least culpable defendants, thereby resulting in the very disparity that the Sentencing Reform Act was intended to eliminate.

Q: What is the Committee doing to avoid further assaults on judicial discretion in sentencing?

A: First, we hope Congress will enact the JUDGES Act. Then, to avoid further assaults on judicial discretion, we are working to improve the gathering and reporting of sentencing data by the Sentencing Commission. In meeting with the GAO and in commenting on the GAO draft report, it became apparent that some courts were not using the standard criminal judgment form prepared by the Administrative Office and that many judges were not routinely explaining either their guideline determinations or their reasons for departures. The absence of this information can have a severe negative impact on the way our sentencing decisions are reported by the Sentencing Commission because without such information the Commission often cannot determine whether there has been a departure, and if so, the basis for that departure.

Although five different documents are submitted to the Commission—the presentence report, the statement of reasons, the judgment and conviction, any plea agreement, and the indictment or charging document—the Commission relies almost exclusively on the statement of reasons to obtain all data about the basis for the sentence, and in particular whether the sentence falls within the guideline range, and the reasons for any departures.

For example, if a defendant is charged with possession with intent to distribute five grams or more of crack cocaine, which requires a statutory minimum sentence of 60 months, and if he is sentenced to less than 60 months, the Sentencing Commission may code this sentence as a judge-initiated downward departure unless there is some explanation in the statement of reasons. Obviously, one explanation may be that the court found at the time of sentencing that the defendant was responsible for less than 5 grams and that the statutory minimum therefore did not apply. A lower sentence may also be based on a formal or informal plea agreement. But unless the statement of reasons explains how the judge arrived at the sentence, what seems to be a below-guideline and below-statutory minimum sentence will be attributed to the judge, not to a plea agreement or based on findings by the judge that made the statutory minimum inapplicable in that case.

For this reason the Criminal Law Committee in consultation with the Sentencing Commission proposed, and the Judicial Conference adopted last fall, a number of changes to the Statement of Reasons. The Committee strongly believes that the use of this new Statement of Reasons form will allow us to defend against criticism that judges unreasonably depart downward from guideline ranges and statutory minimums in many cases. We know that the facts do not support this criticism, but without accurate data to support us, we are subject to continued criticism.

Q: The Fiscal Year 2004 budget is extremely tight and will remain so for the foreseeable future. Meanwhile, the workload of probation and pretrial services officers is growing. What can be done to make ends meet?

A: We are faced with the stark reality that even though the number of people under supervision is projected to continue to increase, Congress is unlikely to increase the Judiciary's budget. This means that the same number of pretrial services and probation officers will have to write more pretrial services and presentence investigation reports, and supervise more people in the community.

The Committee members are well aware of the seriousness of this situation. I recently created a budget subcommittee of the Criminal Law Committee to look at further ways to stretch the scarce dollars that are available to Probation and Pretrial Services. With the AO's Chief Probation and Pretrial Services Officers Advisory Group, we have developed criteria for terminating supervision cases early and removing eligible defendants from the supervision rolls.

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The Committee also supports the better practices efforts of the Judicial Resources Committee and has encouraged the AO's Office of Probation and Pretrial Services to continue to identify local practices that provide effective drug and mental health treatment at lower costs. For example, we are encouraging probation officers to use less expensive local or regional drug testing laboratories, and to require defendants to pay for a part of their treatment. Copayments not only help the budget, but make defendants more committed to the treatment process.

Judges can also take steps to help with these cost-saving efforts. I encourage judges to confer with Chief Probation and Pretrial Services Officers about their particular budget situations. We also must become educated about the cost of conditions imposed for pretrial release and at sentencing. For example, judges may consider placing defendants in halfway houses only as a short-term alternative to pretrial detention and not for the duration of the pretrial period. Because the time of probation and pretrial services officers is a valuable asset, judges who now require officers to sit through hours of hearings, and even trials in some cases, may wish to use the officers' time more efficiently so that they can be interviewing defendants, supervising them, and writing reports. I also encourage my colleagues to accept transfers of jurisdiction from other courts because transfers can greatly reduce the need for officers to travel from one district to another to participate in violation hearings.

We also need to appreciate that the longer a defendant awaits trial on pretrial supervision, the greater the impact on our budget, both in officer time and in treatment costs. Although the average length of supervision nationally has remained virtually unchanged over the last few years, the national average marks considerable variance at the circuit and district levels. Local rules and procedures impact the amount of time a defendant serves on pretrial supervision.

In one circuit, the average is 350 days of pretrial supervision, while in another circuit the average is only 170 days. This disparity is even greater at the district court level. Although there are many reasons for delaying a trial, the point I'd like to make is that granting repeated continuances not only delays the defendant's right to a final adjudication, but it has a serious negative impact on the budget of the court's pretrial services offices.