Vol. 36, Number 10—October 2004

I N T E R V I E W

New Chair Talks About U.S. Sentencing Commission Post-Blakely

In July 2004, Judge Ricardo H. Hinojosa (S. D. Tex.) was appointed by President George W. Bush to chair the U.S. Sentencing Commission, succeeding Judge Diana E. Murphy (8th Cir.). Hinojosa became a member of the Sentencing Commission in May 2003.

Q: You have served as a member of the Commission since May 2003, but only recently as chair. What does the job of chair entail?

A: By statute, the chair calls and presides over meetings of the Commission, directs the preparation of requests for appropriations, and directs the use of funds made available to the Commission. Traditionally, the chair also assumes liaison responsibilities with the federal judiciary, including relations with the Judicial Conference of the United States, the Criminal Law Committee, and the Federal Judicial Center, as well as with Congress and the media.

Of course, a primary role of the chair is being a commissioner. As a Commission, we promulgate and distribute sentencing guidelines, guideline amendments, and policy statements to the federal courts. The chair also works closely with the Commission’s staff director, who, in turn, oversees the extensive day-to-day functions of the Commission. Some of these functions include collecting and analyzing federal sentencing data; providing guideline application training to all the members of the court family; maintaining a clearinghouse of federal sentencing information and statistics; and monitoring district and circuit court application and interpretation of the guidelines.

I am honored to be working alongside a group of commissioners and staff who, with the knowledge, experience, and collegiality that they bring to the table, make the job of chair much easier.

Q: First the Feeney amendment and then the Blakely decision have brought a lot of attention to federal sentencing. What has been the impact on the Commission, its work and the sentencing guidelines?

A: Responding to the directives contained in the PROTECT Act and addressing issues raised by Blakely, Booker and Fanfan have affected the Commission’s resources. Even before this legislation and these court cases came about, the Commission was dealing with a burgeoning caseload. To put this in perspective, in fiscal year 1990, the Commission received documentation for 29,000 cases sentenced under the guidelines. Ten years later, in FY 2000, without any increase in allotted staff, the Commission logged in 59,846 cases. In FY 2004, the projected total number of cases filed is hovering at 70,000.

The PROTECT Act imposed several new sentencing data collection and reporting requirements. The Act requires that the applicable sentencing documents be submitted to the Commission within thirty days of the entry of judgment, contributing to a surge in the volume of documents received by the Commission. Statutory changes made by the Act, subsequent guideline amendments, and a significantly more detailed Statement of Reasons form adopted by the Judicial Conference following the passage of the Act all require courts to document sentencing decisions with greater specificity. As a result, the Commission must glean from the documents more individualized sentencing information and must enhance its data quality assurance. This has made necessary new mechanisms and document management systems to ensure that the Commission’s records accurately reflect district submission rates.

The uncertainty caused by Blakely has also had an effect on the Commission’s allocation of resources. The Commission is actively monitoring case law, collecting data and conducting analyses to estimate the impact of Blakely on the federal system.

Q: The U.S.S.C. filed a friend of the court brief in the cases of Booker and Fanfan which seek to clarify the reach of Blakely. What was the Commission’s argument?

A: The Commission’s amicus brief recited the history and reasons for the passage of the Sentencing Reform Act of 1984, the Supreme Court precedent on the federal sentencing guidelines, and argued that the Washington state statutory sentencing scheme at issue in Blakely is different from the federal sentencing guidelines. Unlike the Washington sentencing scheme, the federal sentencing guidelines do not alter the statutorily prescribed range of penalties to which a criminal defendant is exposed. Rather, the federal guidelines assign weights to sentencing factors that judges have traditionally considered and serve to channel the court’s discretion within the congressionally prescribed sentencing maximums and minimums.

Q: The Commission has seven voting commissioners, but the appointments of two commissioners soon will expire. What are the circumstances under which they will expire?

A: By statute, the Sentencing Commission is composed of seven voting members and two nonvoting ex-officio members. As of now, the Commission has one vacancy among its voting members. However, to fill this vacancy, the President has sent the nomination of Washington, D.C., attorney Beryl A. Howell to the Senate. The appointments of Vice-Chair Judge Ruben Castillo and Commissioner Michael E. O’Neill expired October 31, 2003, but both have been nominated by the President for a second term and continue to serve under the governing statute until Congress adjourns sine die or they are confirmed by the Senate.

Q: Originally, at least three com-missioners were to be federal judges. Recently, this requirement was changed. How and to what did it change? Do federal judges bring to the job of commissioner any unique or helpful qualifications?

A: The PROTECT Act amended the Sentencing Reform Act to change the composition of the Commission from at least to no more than three federal judges serving at a given time.

For judges who preside over criminal cases, sentencing is a difficult aspect of the job as it is the judge upon whose shoulders rests the weight of making the ultimate sentencing decision. The experiences and perspectives that judges bring to the Commission are invaluable. The contributions that non-judge commissioners bring to the table are also of great value. Over the years, the Commission has benefited from the varied backgrounds and perspectives commissioners have brought to their service on the Commission.

Q: The U.S. Sentencing Commission makes available a large number of publications, documents and educational and training resources, both in print and on the web. What is the Commission’s target audience for these resources?

A: Clearly, the Guidelines Manual is the most crucial of our publications as it contains the sentencing guidelines, policy statements, and commentary on the guidelines along with selected sentencing statutes and a compendium of amendments to the guidelines. The Commission’s Annual Report and Sourcebook of Federal Sentencing Statistics are presented as a two-volume set. The Annual Report presents an overview of the Commission’s activities of the prior year. The Sourcebook contains demographic data on individual defendants, guideline application, organizational sentencing practices and sentencing appeals. The Commission issues numerous other publications each year, including its periodic newsletter, Guidelines, its Publication and Resource Guide, and a variety of training materials.

The Commission’s numerous publications and educational resources are made available and designed to provide information useful to judges, criminal justice practitioners, probation officers, academics, and others who have an interest in the criminal justice system. As part of its clearinghouse function, the Commission makes available on its web site the vast majority of its publications. As always, the Commission welcomes comments and suggestions regarding our publications and their accessibility.