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UNITED STATES SENTENCING COMMISSION
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PUBLIC HEARING
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Wednesday, May 27, 2009
The United States Sentencing Commission met at the University of Stanford Law School, Stanford, California, at 9:00 a.m., Ricardo H. Hinojosa, Acting Chair, presiding.
MEMBERS PRESENT:
RICARDO H. HINOJOSA, Acting Chair WILLIAM K. SESSIONS III, Vice Chair WILLIAM B. CARR, JR., Vice Chair BERYL A. HOWELL DABNEY L. FRIEDRICH JONATHAN J. WROBLEWSKI
ALSO PRESENT:
JUDITH W. SCHOEN, Staff Director GLENN R. SCHMITT, Director, Office of Research and Data LOUIS REEDT, Acting Deputy Director, Office of Research and Data
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T A B L E O F C O N T E N T S
Opening remarks ...... 3
Panel I. View from the Appellate Bench ...... 21
Panel II. View from the District Court Bench ...... 80
Panel III. View from the Probation Office ...... 150
Panel IV. View from the Executive Branch ...... 220
Panel V. View from the Defense Bar ...... 276
Recess for the day ...... 376
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1 P-R-O-C-E-E-D-I-N-G-S
2 (8:53 a.m.)
3 ACTING CHAIR HINOJOSA: Good
4 morning. It's my honor on behalf of the
5 United States Sentencing Commission to welcome
6 you to this public hearing which is the second
7 of a series of public hearings the Sentencing
8 Commission is having across the country with
9 regards to federal sentencing policy. The
10 first one that we had was in Atlanta this past
11 February, and this is our second one.
12 We want to especially thank the
13 Stanford Law School for making this venue
14 available. And we especially want to thank
15 Dean Larry Kramer, as well as Ms. Kara Dansky,
16 who is the Executive Director of the Stanford
17 Criminal Justice Center, for their help and
18 the time that they have devoted to this
19 particular effort. And we certainly thank
20 them for their hospitality and welcome
21 everyone from the Stanford Law School
22 community who may be present.
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1 On behalf of the Commission also a
2 very special thank you to all of you who have
3 taken the time to be here and share your
4 thoughts with regards to the federal
5 sentencing system. We realize that each one
6 of you has a very busy schedule and that
7 you're giving some of the time that you
8 normally devote to your practice and to your
9 work and to the different endeavors that you
10 all pursue on a daily basis to be here and
11 share your thoughts, and it is very much
12 appreciated.
13 As everyone knows, 2009 is the
14 twenty-fifth anniversary of the passage of the
15 Sentencing Reform Act of 1984. It seems like
16 a long time ago, but for some of us who were
17 on the bench, it seemed like only yesterday.
18 And I will say that for those of us who were
19 on the bench at the time, it was a long time
20 coming because, as you well know, the
21 Sentencing Reform Act was discussed and
22 debated in Congress for many, many years, for
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1 several years at least. And I will say that
2 it was nice to see the passage of the bill as
3 a bipartisan bill. And after much discussion
4 and debate it was obviously passed by Congress
5 and signed by the President.
6 And for those of us who were around
7 under the prior system, it was something that
8 came about as a result of the feeling of many
9 that there were problems with regards to the
10 sentencing system as it existed at that
11 particular point.
12 One of the things that we all know
13 that the Sentencing Reform Act established was
14 the bipartisan United States Sentencing
15 Commission which, of course, is a seven-member
16 commission and then two ex officio members,
17 one representative of the attorney general,
18 and then the chair of the Parole Commission
19 serving as ex officio members.
20 And the principal purposes of the
21 Commission, of course, were to establish
22 policies and principles in the federal
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1 criminal justice system with regards to
2 sentencing that would assure the statutory
3 purposes of the Sentencing Reform Act. Of
4 course the guidelines themselves have been in
5 effect now for over 20 years, the very first
6 set going into effect on November 1st of 1987.
7 In those 20-some years the
8 Commission has continued to promulgate
9 guidelines and amendments throughout the
10 process on a yearly basis with regards to
11 things that need to be changed, also with
12 regards to reactions to changes in the system,
13 whether they be Supreme Court cases or changes
14 in the criminal legislation by Congress with
15 regards to creation of new criminal violations
16 and changes to criminal statutes.
17 So the Commission has continued to
18 strive to satisfy statutory requirements with
19 regards to changes that it makes and that it
20 responds to with regards to the system. I
21 will say that some of the changes also come
22 about as a result of input, obviously very
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1 important input, from the federal judiciary
2 itself through the sentencing practices that
3 they conduct and the information that the
4 Commission receives.
5 I will indicate that when the
6 Commission changes guidelines or promulgates
7 guidelines, it certainly acts within the
8 conformity of its statutory responsibilities
9 which include considering the Title 18 U.S.
10 Code Section 3553(a) factors with regards to
11 the promulgation of guidelines and/or
12 amendments to guidelines.
13 And it is true that a lot has
14 changed since November 1st of 1987. For
15 example, the number of federal defendants
16 being sentenced in federal court has doubled
17 since 1987. It continues to be about 80
18 percent of the federal sentencing occurs with
19 regards to four types of crimes: Drugs,
20 immigration, firearms, and fraud.
21 There has been some change with
22 regards to the makeup of the docket itself.
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1 Drugs have gone lower on a yearly basis and
2 immigration has risen on a yearly basis
3 certainly in the last several years. There
4 has been a change in the makeup of the
5 defendants in federal court.
6 In fiscal year 2008, 40.5 percent
7 of the defendants that were sentenced in the
8 federal system with regards to the information
9 that was sent to the Commission, which would
10 be felony cases and certain types of
11 misdemeanor cases, were noncitizens of the
12 United States. Forty-two percent were
13 Hispanic.
14 It's also interesting to note that
15 in the first quarter of fiscal year 2009 the
16 Hispanic percentage has risen to 45.4 percent
17 and the noncitizens has risen to about 44
18 percent. Also in fiscal year 2009, the first
19 quarter, is the first time that immigration
20 cases have gone to a higher percentage than
21 the drug cases. So there is a change in the
22 type of docket that is appearing in the
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1 federal courts.
2 There are some changes that have
3 not occurred. Men continue to be the vast
4 majority of the defendants. The age makeup
5 has not changed during this period of time.
6 More than half of the federal defendants are
7 between the ages of 21 and 35.
8 The sentencing courts, a lot of
9 questions are asked after Booker what are
10 courts doing. And I will see that, as Booker
11 made it quite clear, the sentencing courts
12 continue to use the federal sentencing
13 guidelines as the initial benchmark. They
14 have to be determined and they have to be
15 started with, with regards to every federal
16 sentencing. And that is certainly what the
17 Supreme Court has said and that's certainly
18 what the judges have continued to do.
19 I will also indicate that it
20 appears that the vast majority of cases
21 continue to be sentenced within the federal
22 sentencing guidelines either within the
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1 guidelines themselves or as government-
2 sponsored departures.
3 We talk a lot about the
4 Commission's work with regards to the
5 sentencing guidelines. I will also say that
6 there are some very other important functions
7 of the Commission, including data collection,
8 research projects, training, information that
9 is put out by the Commission, and those form
10 an important basis of what we do.
11 With regards to that, I will say
12 that we appreciate the fact, as I have already
13 said, that so many of you have taken the time
14 to come and share your thoughts, because the
15 basis and the reason for these hearings is to
16 hear from people that we normally might not
17 hear from on a one-to-one basis with regards
18 to your thoughts and suggestions with regards
19 to the Federal sentencing process and where we
20 are and where we should be.
21 I am going to continue this by
22 introducing the other members of this
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1 Commission. And I have to say that it has
2 been a pleasure for me to work with the
3 Commissioners and to see how hard they take
4 from their schedules to do the work of the
5 Commission. And it really does act in a
6 bipartisan fashion. And we're very fortunate
7 that we all work together and have continued
8 with the work of what Commissions have done in
9 the past.
10 To my left is Vice Chair William
11 Sessions who has served as Vice Chair of the
12 Commission since 1999 and has served as a
13 United States district judge for the District
14 of Vermont since 1995, and he is presently the
15 chief judge of that District. There are two
16 judges in that district, and so he is the
17 chief judge of the other chiefs -- of the
18 other judge.
19 VICE CHAIR SESSIONS: It's a big
20 job, but somebody's...
21 (Laughter.)
22 ACTING CHAIR HINOJOSA: And I would
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1 say it's probably a fun job.
2 To my right is Vice Chair William
3 Carr, who is the most recent addition to the
4 Commission. He has been a member of the
5 Commission since 2008. He served as an
6 Assistant United States Attorney in the
7 Eastern District of Pennsylvania from 1981
8 until his retirement in 2004, although he
9 doesn't look old enough to have retired. In
10 1987 he was designated as the Justice
11 Department contact person for the U.S.
12 Attorney's Office's sentencing guideline
13 training.
14 To my right also is Commissioner
15 Beryl Howell who has been a member of the
16 Commission since 2004. She was the Executive
17 Managing Director and General Counsel of the
18 Washington, D.C. Office of Stroz Friedberg.
19 Prior to that she was General Counsel for the
20 Senate Committee on the Judiciary, working for
21 Senator Leahy, both in his hat as the chairman
22 as well as the ranking member when he was a
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1 ranking member of the full committee. And she
2 also has served as an Assistant U.S. Attorney
3 and Deputy Chief of the Narcotics Section of
4 the U.S. Attorney's Office in the Eastern
5 District of New York.
6 And to my left is Commissioner
7 Dabney Friedrich who has been a member of the
8 Commission since the year 2006. She has
9 previously served as Associate Counsel at the
10 White House, counsel to Chairman Orrin Hatch
11 on the Senate Committee on the Judiciary, and
12 she has also been an Assistant U.S. Attorney,
13 having worked both in San Diego in the
14 Southern District of California as well as in
15 the Eastern District of Virginia.
16 And to my left is also Commissioner
17 Jonathan Wroblewski who is the ex officio
18 member representing the Attorney General. He
19 serves as Director of the Office of Policy and
20 Legislation in the Criminal Division of the
21 Department. And, in addition to that, he is a
22 graduate of the Stanford Law School. So he
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1 can tell us where to go.
2 Two members of the Commission are
3 not present today:
4 Vice Chair Ruben Castillo, who is a
5 judge, U.S. district judge in Chicago,
6 Illinois. He is in the midst of a trial; as
7 well as the brand-new ex officio member Isaac
8 Fulwood, who was just named late last week as
9 Chair of the United States Parole Commission,
10 and he is the ex officio member.
11 At this point I would like to ask
12 if any of the other members of the Commission
13 would like to say anything.
14 Yes.
15 COMMISSIONER WROBLEWSKI: Mr.
16 Chairman, if I might. It's a special honor
17 and privilege and joy for me to be here today.
18 As you said, I'm a graduate of this law
19 school. Twenty-five years ago this month I
20 was completing the first year of study here at
21 this school. And I remember vividly a class
22 that was part of that study that was taught by
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1 Professor Miguel Mendez in criminal law. And
2 in that class --
3 ACTING CHAIR HINOJOSA: From Texas?
4 MR. WROBLEWSKI: From South Texas.
5 And we studied in that class cases
6 like In re Winship and Patterson versus New
7 York and other cases where the Supreme Court
8 tried to figure out what elements need to be
9 proven beyond a reasonable doubt to a jury
10 before a particular range of sentence could be
11 meted out to a defendant. And, as you said,
12 at that same time the Senate Judiciary
13 Committee was putting the final touches on the
14 Sentencing Reform Act some 2500 miles from
15 here.
16 And here we are 25 years later.
17 And we're here looking at cases Apprendi
18 versus New Jersey and Blakely versus
19 Washington, Booker versus United States where
20 the Supreme Court again was struggling to
21 figure out what elements need to be proven to
22 a jury beyond a reasonable doubt to trigger a
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1 particular range of sentencing. And here we
2 are as a Commission struggling to find -- to
3 create a sentencing system that reduces
4 unwarranted disparities and brings about
5 justice and fairness in every sentence.
6 For some I guess this might be
7 frustration. But I think I take my lead from
8 our new President who talks about the virtue
9 of struggling to form a more perfect union.
10 And I think that's really what we're all here
11 today for. And, again, it's an honor for me
12 to be here. I'm looking forward to the next
13 couple of days. And I, too, want to thank
14 both the law school and also all of the
15 witnesses who have traveled from near and far
16 to be here and to share their views.
17 And, again, thank you, Mr.
18 Chairman.
19 ACTING CHAIR HINOJOSA: Judge
20 Sessions.
21 VICE CHAIR SESSIONS: Well, let me
22 begin just thanking you with the comments that
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1 you made and the fact that we're here. But
2 before I actually expand upon that I will have
3 to say that I went outside and I looked at the
4 picture of Chief Justice Rehnquist, and
5 Justice O'Connor, the graduates of Stanford
6 Law School. And I didn't see Jonathan
7 Wroblewski's picture there. Perhaps as a
8 Commission we should move that your picture
9 actually be placed next to those folks.
10 I think it's really special that --
11 not only that we're here today, but that we're
12 going around the country. I would like to
13 talk about its purpose. We're here to review
14 the guidelines, the guideline system, but
15 we're also here to review the sentencing
16 structure of the country, because the
17 guidelines are, in fact, just one part of the
18 sentencing system.
19 And it seems to me that this is the
20 perfect opportunity for us to sit back and to
21 listen, to listen to people who participate at
22 the heart of the system, who are the main
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1 contributors to the guidelines -- in fact,
2 judges are the main contributors, as well as
3 other persons who have a stakehold in the
4 process -- and for us to sit back and open up
5 the door so that we can listen freely with the
6 idea of what is right and what is wrong, and
7 what can we do and what can we recommend, et
8 cetera, and just open up a dialogue around the
9 country.
10 This is a part of a series of these
11 kinds of hearings. And I, for one, find them
12 to be incredibly exciting. The first one we
13 went to in Atlanta, and the comments were just
14 very interesting and thought-provoking. And I
15 hope that we continue this dialogue among all
16 of the participants in the criminal justice
17 system with the idea of honestly reflecting
18 upon the sentencing structure of the country,
19 not just the guidelines, but the sentencing
20 structure of the country so that if there are
21 changes to be made, you know, we can be a
22 participant in that system, a participant --
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1 and I say "participant," not necessarily a
2 leader -- a participant among all of the other
3 groups to try to develop a system which is
4 fair and just.
5 ACTING CHAIR HINOJOSA: Thanks.
6 Commissioner Howell.
7 COMMISSIONER HOWELL: Yes. And I
8 want to welcome all of our witnesses who are
9 here waiting for us to finish talking. And
10 I'm just going to be brief and to echo some of
11 the things that both our Chairman and Judge
12 Sessions have said.
13 This is, I think, an incredibly
14 exciting time to be dealing with sentencing
15 policy. All three branches of government are
16 engaged very actively in looking at how our
17 sentencing system, at least at the federal
18 level, is working. We are getting new
19 developments in Supreme Court jurisprudence
20 dealing with sentencing that are revealing
21 some of the fault lines in our guideline
22 system.
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1 Our Chairman has spent the past
2 three weeks testifying at both sides of the
3 Hill on sentencing policy, so Congress is very
4 engaged. The Department of Justice has a task
5 force that's looking at -- taking a
6 comprehensive look at federal sentencing
7 policy.
8 And I think it is our hope on the
9 Commission that the hearings that we're
10 holding around the country will help inform
11 these debates that are going on in all three
12 branches of government. And I think, as Judge
13 Sessions said, we're approaching these
14 hearings with an open mind. We don't know
15 exactly what we're going to do with all the
16 important criticisms of the guidelines that
17 we're hearing, as well as what the guidelines
18 are doing right, and I think that's also very
19 important because, as I said, you know
20 everybody's looking at sentencing --
21 policymakers are looking at sentencing policy
22 right now. And these hearings, I think, could
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1 help inform those debates at the federal
2 level.
3 And I think the Sentencing
4 Commission has a very important role to be the
5 fair, nonpartisan -- because we're bipartisan
6 -- listeners from all the different
7 stakeholders in the process. So I just want
8 to express my appreciation for everybody who
9 is participating in that whole process. Thank
10 you.
11 ACTING CHAIR HINOJOSA: Thank you,
12 Commissioner Howell.
13 I will then introduce our first
14 panel which is a "View from the Appellate
15 Bench." And I will not introduce them in the
16 order in which they will be speaking since,
17 Judge Tallman, Judge Kozinski informed me that
18 you were going first. He has that
19 prerogative, and he's the Chief, so I guess
20 that's the way it's going to be.
21 We have the Honorable Alex Kozinski
22 who has been a judge on the U.S. Court of
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1 Appeals for the Ninth Circuit since 1985. And
2 he has been chief judge of that circuit since
3 2007. The Ninth Circuit, I have to say, other
4 than the Fifth Circuit, has the most federal
5 sentencing in the entire country. Before
6 serving on the Ninth Circuit he was the chief
7 judge of the U.S. Court of Federal Claims from
8 1982 to 1985. He did clerk for two judges,
9 Judge Anthony Kennedy, when he was on the
10 Ninth Circuit, and then Chief Justice Warren
11 Burger on the Supreme Court. And he received
12 his degrees, both undergraduate and law
13 school, from the University of California Los
14 Angeles.
15 And we're also very fortunate to
16 also have the Honorable Richard Tallman who
17 has served as a circuit judge on the Ninth
18 Circuit since the year 2000. He did clerk for
19 a real judge on the U.S. District Court in the
20 Western District of Washington, for Judge
21 Sharp. And thereafter he served as an
22 attorney in the Criminal Division of the U.S.
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1 Department of Justice and subsequently as an
2 Assistant U.S. Attorney in the Western
3 District of Washington. He received his
4 degrees from the University of Santa Clara and
5 his law degree from Northwestern.
6 And, Judge Tallman, the Chief has
7 informed me that you're going first.
8 JUDGE TALLMAN: Thank you, Mr.
9 Chairman, other distinguished members of the
10 Commission. My name is Richard C. Tallman,
11 and I am a United States circuit judge on the
12 U.S. Court of Appeals for the Ninth Circuit.
13 I also serve as Chair of the Advisory
14 Committee on the Federal Rules of Criminal
15 Procedure for the Judicial Conference of the
16 United States. Before becoming a judge, as
17 the Chair has indicated, I practiced both as a
18 federal prosecutor and as a white-collar
19 criminal defense attorney.
20 I am pleased to appear before you
21 to discuss a few issues we currently face that
22 arise from the major changes in sentencing law
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1 over the last 25 years.
2 The first issue I would like to
3 discuss arises from the changes in the case
4 law that the drafters of the guidelines did
5 not foresee. The guidelines were drafted to
6 be a comprehensive set of binding rules. The
7 United States versus Booker, as we all know,
8 invalidated the provisions that make them
9 mandatory. The series of cases that have
10 followed Booker have addressed how to apply
11 the now advisory guidelines.
12 I will take one small example. For
13 instance, in Irizarry versus the United
14 States, the Supreme Court held post-Booker a
15 judge is not required to give both parties
16 advance notice before imposing a sentence that
17 departs from the guidelines. One question
18 that now arises is whether the Irizarry
19 decision applies to variances as well as
20 departures.
21 Many scholars, judges, and
22 practitioners doubt that the departure
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1 variance distinction is still a meaningful
2 one. Irizarry, however, treated the two as
3 distinct. However, the Supreme Court relied
4 on the language of Federal Rule of Criminal
5 Procedure 32(h), which only includes the word
6 "departure." I understand a "departure" to be
7 a change to the final sentencing range
8 determined by factors set forth within the
9 guidelines themselves. It was frequently said
10 to apply to criminal conduct outside the
11 heartland contemplated by the Sentencing
12 Commission when it drafted the guidelines for
13 a typical offense.
14 A "variance," by contrast, occurs
15 when a court goes above or below the
16 otherwise-properly calculated final sentencing
17 range, based on the application of the
18 statutory factors found in Title 18, United
19 States Code, Section 3553(a). The Criminal
20 Rules Committee is now considering changes to
21 Rule 32(h) that would require notice before
22 making any change from the suggested guideline
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1 sentence, regardless of whether the change
2 would have been categorized as a departure or
3 as a variance under the former mandatory
4 guidelines. However, the committee recently
5 decided to defer final action on this proposal
6 until the courts have had more time to address
7 the issue.
8 The second issue we are currently
9 confronting is how much disclosure parties are
10 entitled to have during the preparation of
11 presentence reports which, as you all know,
12 are relied upon heavily by district judges in
13 formulating an appropriate sentence.
14 Probation officers process an extraordinary
15 amount of information in creating the final
16 presentence report that is submitted to the
17 court. The district court typically relies on
18 the end product in fashioning the sentence.
19 Under a discretionary sentencing
20 regime, the inclusion or exclusion of certain
21 information may well influence the sentencing
22 judge to go above or below the advisory
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1 guideline range. Both parties want more
2 influence -- or at least more notice -- before
3 information is memorialized in the final
4 report. Providing more notice and more
5 access, however, would create significant
6 challenges.
7 First, it would result in even
8 greater burden on our probation officers to
9 disclose and memorialize every bit of
10 information that comes into their possession
11 during the investigation and preparation of
12 the presentence report. These probation
13 officers sift through huge amounts of
14 information, much of which turns out to be
15 either irrelevant background information or
16 insignificant in driving the final sentence
17 that is imposed. Disclosing all of this
18 information or even providing access to it
19 would multiply their burden.
20 Second, creating and enforcing
21 workable rules for who gets access, what
22 notice must be provided, and when would
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1 require active and continued oversight by the
2 sentencing court. District judges could well
3 be placed in the position of overseeing a
4 second round of discovery. In addition to the
5 administrative burden this would impose, it
6 would place the judge in the odd position of
7 reviewing the information and determining its
8 significance before he or she receives the
9 final presentence report. The report would no
10 longer arrive as a clean document from a
11 neutral third party because the judge would
12 have played umpire during its creation.
13 The shift to discretionary
14 sentencing has added a new dimension to the
15 ongoing debate about the crack/powder cocaine
16 sentencing disparity. For years, [] we saw
17 Eighth Amendment and Equal Protection
18 challenges to the 100-to-one ratio mandated by
19 the guidelines. In Kimbrough versus the
20 United States and Spears versus the United
21 States, the Supreme Court explicitly permitted
22 judges the discretion to reduce that
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1 disparity. Now a judge may impose a sentence
2 lower than the suggested guideline range,
3 either because he finds it unnecessary in a
4 particular case or because he generally
5 disagrees with the crack/powder disparity.
6 Now, instead of seeing challenges
7 to the mandatory ratio, at the appellate level
8 [we’re] seeing more challenges to a district
9 court's exercise of discretion on that subject
10 or complaints that the district court did not
11 know it could exercise discretion.
12 We also see many cases indicating
13 ongoing confusion over the Supreme Court's
14 holding in Kimbrough. For instance, we hear
15 arguments that a judge should have departed
16 even below the statutory minimum. Statutory
17 minimums, unlike guideline-range minimums,
18 remain mandatory. And Kimbrough provides no
19 relief in such cases.
20 We are also beginning to see many
21 inmates seeking to reduce their sentences
22 under the Commission's Amendment 706 to the
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1 sentencing guidelines, which decrease[s] the
2 base offense levels for crack cocaine
3 offenses. The amendment applies
4 retroactively, but the challenge is
5 determining whether application is
6 appropriate.
7 Another interesting question is
8 whether a sentence-modification proceeding
9 under 18 U.S.C. Section 3582(c)(2) is an
10 appeal pursuant to Section 3742, a collateral
11 attack, or something else entirely.
12 Prosecutors are taking innovative action in
13 this arena, as well. The U.S. Attorney's
14 Office for the Central District of California
15 recently announced a new policy permitting
16 AUSAs to agree to downward variances in crack
17 cocaine stipulations. This would presumably
18 make crack sentences equal to the more lenient
19 sentences imposed for the same amount of
20 powder cocaine. We will see how that policy
21 plays out in practice and how it affects the
22 claims raised before the appellate courts.
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1 The last sentencing issue I would
2 like to address appears in several contexts.
3 In Taylor versus the United States, the
4 Supreme Court set forth the categorical
5 analysis for evaluating prior offenses. The
6 approach is employed in cases involving the
7 Armed Career Criminal Act, in immigration
8 cases, and the sentencing guidelines
9 themselves. The question in each context
10 should be the same: Does the state offense
11 reach conduct beyond the generic federal
12 definition.
13 Now the Ninth Circuit takes a
14 highly academic approach to the question,
15 asking whether it is hypothetically possible
16 that a state court could convict someone for
17 conduct that would not fit within the generic
18 definition of the crime. This often requires
19 a healthy dose of legal conjecture, nevermind
20 the difficulty of determining what the generic
21 definition is in some cases.
22 We often get results that, while
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1 technically correct under Taylor, seem utterly
2 absurd in a sentencing system based on
3 principles of recognizing real conduct. By
4 contrast, the Fifth Circuit employs a common-
5 sense approach. I personally believe that the
6 Fifth Circuit's approach is more faithful to
7 congressional intent in enumerating certain
8 crimes of violence worthy of enhanced
9 punishment when sentencing recidivists. My
10 hope is that the Supreme Court will revisit
11 Taylor to give us additional guidance in
12 carrying out congressional policy toward
13 repeat offenders.
14 Perhaps the Commission might
15 contemplate clarifying the guidelines or
16 seeking action from Congress to clarify and
17 address recidivism enhancements. In the last
18 year or so I have personally sat on panels
19 involving cases alleging that our application
20 of Taylor is too rigid, that it is too loose,
21 and that the enhancement analysis should
22 operate differently in certain contexts.
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1 Multiply my own experience by the 50 judges on
2 our court alone and you get some idea of how
3 pervasive and frequently litigated these
4 Taylor issues are.
5 I would like to conclude with one
6 observation. For many years after the
7 guidelines were adopted we heard tireless
8 complaints that sentencing was too rigid. It
9 was argued that no formula could capture the
10 subtle questions of guilt, repentance, and
11 recidivism that a judge must weigh in crafting
12 a just sentence. The result was Booker and
13 its progeny. And we now have more
14 discretionary power invested with the district
15 courts.
16 Now we're seeing a new wave of
17 complaints. Defendants who look the same on
18 paper are receiving inconsistent sentences.
19 It is said that judges fail to consider a
20 particular factor the defense thinks is
21 important, or judges are accused of
22 inadequately considering factors that the
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1 prosecutor thinks significant. In short, some
2 say judges now have too much discretion. I
3 predict with some confidence that this
4 continuing swing of the sentencing pendulum
5 will keep us all in business a while longer.
6 Mr. Chairman, I look forward to
7 your questions.
8 ACTING CHAIR HINOJOSA: Thank you,
9 Judge Tallman. And I appreciate your
10 mentioning the Fifth Circuit. I believe their
11 first case where they came up with the common-
12 sense approach was quoting a district judge
13 who was doing a sentencing who said: Common
14 sense tell you it was such-and such, and I
15 think that was my case.
16 JUDGE TALLMAN: And he recently had
17 one where we said common sense is out in the
18 Ninth Circuit.
19 COMMISSIONER WROBLEWSKI: And you
20 were affirmed?
21 ACTING CHAIR HINOJOSA: Yes, I was
22 affirmed. And that's how the common-sense
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1 approach started. It is a very difficult
2 process with regards to the categorical
3 approach to the prior -- way of looking at a
4 prior sentence.
5 Judge Kozinski. There's nobody
6 else that you can say is going to go next, so
7 it's your turn.
8 JUDGE KOZINSKI: I'm afraid so.
9 I'm certainly glad Judge Tallman came and had
10 this very philosophical statement. My view is
11 a subject on a little bit more stream of
12 consciousness.
13 But, first of all, I want to
14 welcome you to the Ninth Circuit. It's good
15 to have you here. Of course, you didn't have
16 much choice. We're not only the northernmost
17 circuit and the westernmost circuit, but we
18 are also the easternmost circuit since we are
19 on the other side of the international date
20 line. And the southernmost --
21 ACTING CHAIR HINOJOSA: Where the
22 American day begins.
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1 JUDGE KOZINSKI: That's right.
2 -- and the southernmost circuit
3 because the southern part of Hawaii actually
4 issues farther down than Puerto Rico or the
5 Virgin Islands, so we have you surrounded.
6 You really didn't have no choice but to come
7 to here.
8 Being a large circuit we also get,
9 as was pointed out, more than our share of --
10 more sentencing appeals than any other court.
11 So I have seen my share in the years since
12 the guidelines were done. But I must say over
13 the years I've had sort of a love-hate
14 relationship with the guidelines -- so I
15 should maybe say hate-love relationship to the
16 guideline. It's now swinging in the other
17 direction.
18 Many years ago in a now long-
19 forgotten case by the name of Gubiensio-Ortiz
20 versus Kanahele, I wrote on behalf of a panel
21 of the Ninth Circuit that the guidelines were
22 unconstitutional, it took the Supreme Court
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1 another 20 years to recognize that conclusion,
2 but they finally came around.
3 But in the meantime -- I do
4 remember. Judge Hinojosa and I, and maybe
5 some of these -- I don't know who actually
6 have sentenced people prior to the guidelines,
7 and I remember those days fondly. I thought
8 it was a great weight of responsibility. And
9 I must say I, along with many other district
10 judges, resented the imposition of the
11 guidelines, which I saw as a constraint on the
12 power of trial judges, of district judges who
13 are on the cutting edge and actually are able
14 to see the case or are able to see the full
15 texture of the case before them, this was just
16 tying their hands in a way that would lead
17 sometimes to an unjust result.
18 I mean if the guidelines would have
19 put no restraints on judges then they would
20 have increased the result anyway. So in those
21 cases where the judge was forced to sentence a
22 defendant in a way that went against his own
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1 better judgment, I thought led to an
2 injustice.
3 But I came around to a view that
4 the guidelines were actually a pretty good
5 thing. And ten years ago in the Federal
6 Sentencing Report of the issue of -- the
7 September-October 1999 issue, almost exactly
8 ten years ago, where I wrote a piece actually
9 extolling the virtues of the guidelines. The
10 piece is called "Carthage Must be Destroyed,"
11 but I wasn't talking about the guidelines. I
12 was talking about Koon versus the United
13 States. That was the case where the Supreme
14 Court unshackled district judges to a great
15 degree and allowed for departures. And where
16 I come around to the view in the intervening
17 years that actually the guidelines were a good
18 thing, so long as they were mandatory, so long
19 as they were really constant.
20 But judges, because of the
21 tendency, I concluded when you are a judge is
22 to be a little too close to the case, you see
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1 a little too much of the suffering of the
2 parties, the defendant, sometimes others as
3 well in the case, and you can't always tell
4 what's going on from another perspective. And
5 I came around to thinking that it's a good
6 thing to have that kind of a constraint on
7 judges so they are not swept away by the
8 particularly compelling facts of a case.
9 And that led me to another
10 important value in our legal system and that
11 is not simply sort of individual justice which
12 is a value, but there's also the value of
13 equality, the idea that, you know, "I may be
14 suffering, I may be punished, I may be off to
15 prison, but at least I know what the guy in
16 the next courtroom, down the hall, who
17 happened to have a different judge or, you
18 know, is in Vermont or somewhere in Texas,
19 they will get more of the same sentence." The
20 fact that they appear before a different judge
21 in a different part of the country will not
22 make them better or worse off. We're all in
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1 this together. It's a very important value in
2 a society in having not simply individual
3 justice but simply having equality.
4 Koon sort of, as I said in my
5 article, threw a monkey wrench into that
6 machinery because it greatly freed the
7 sentencing judges to depart. And in "Carthage
8 Must be Destroyed" I pointed out to the
9 Sentencing Commission that Koon interpretation
10 of the statute and the Commission having a
11 great deal of discretion in shaping the
12 guidelines, and I thought it was a good
13 possibility, one doesn't lightly take on the
14 Supreme Court and try to overrule a Supreme
15 Court case, but I thought this one was worth
16 trying. It was worth trying to take back some
17 of the flexibility in the system and go back
18 to a another system.
19 Well, of course we know what's
20 happened in the meantime. The guidelines are
21 now entirely discretionary in an opinion that,
22 I must say, I've read a number of times, I
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1 still don't get it, but it is in the U.S.
2 Reports so it must be true. So we all live by
3 it. But the reality is that what this has
4 done is to, I believe, and this is something
5 that the Commission probably has a wider view
6 on, that the guidelines no longer constrain
7 any judges who do not want to be constrained.
8 You know, I, as Judge Tallman, I
9 sit on district court on a regular basis. And
10 I do it because, I must say, I have learned a
11 great deal every time I sit as a district
12 judge or, as Judge Hinojosa says, as a real
13 judge. And I always learn something new and
14 important about juries, about cases, about
15 defendants, about victims, a great deal.
16 And my guess, I guess based on my
17 own experience in talking to other district
18 judges, is that most judges do want to do what
19 other judges are doing. You're there in
20 court, you're there by yourself. You really
21 have no one to consult. At least in the court
22 of appeals you've got two colleagues. You may
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1 disagree violently, but at least you can talk
2 with them and have contrasting views.
3 When you are a district judge and
4 particularly in a sentence it is the loneliest
5 job in the world. I think -- there's a
6 district judge present, I don't think I'm
7 saying anything new. And it is good to know
8 what other judges are doing across the
9 country. It is good to have a constraint.
10 And most judges want to fall within the
11 mainstream. They can want to take -- but to
12 the extent that was the case, we didn't need
13 the sentencing guidelines at all. We could
14 have studies about what -- what other judges
15 are doing. There are statistics. We can have
16 research in, you know, analyzing cases and
17 letting -- giving judges information.
18 But the question really is is the
19 problem with the sentencing guidelines were
20 designed to deal with and that is the outlier
21 judges. And I'm not convinced that there were
22 that many outlier judges there to begin with
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1 in 1986 or '85, when the guidelines were being
2 considered. But there were a few. And those
3 are the ones to -- everybody pointed when they
4 said, "Look, you know, here are the outlier
5 judges and these are the judges that are
6 creating the disparity and the disparity is
7 unfair and call into question our justice
8 system."
9 The reality is at this point
10 there's nothing that I have figured out on
11 appeal that we can really do to constrain the
12 outlier judges. And as they learn their power
13 more with the passage of time, the outlier
14 judges will become more frequent outliers.
15 Most judges will still sentence within the
16 guidelines, the sentencing guidelines range
17 within the main, because that's what they were
18 going to do. But I don't believe that it will
19 provide any constraint on judges who want to
20 find a way to sentence high or low.
21 We went through a period where we
22 kept reversing and sending cases back and
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1 considering, because the judges didn't say the
2 catch was quite -- you know, obtain the
3 formula quite the right way and didn't say,
4 "Yes, I've considered all the sentencing
5 factors, yes, I did. I know I could sentence
6 higher, I know I could sentence lower." They
7 didn't say the magic words. And you send it
8 back and then they say the magic words.
9 And now a few judges made that
10 mistake anymore. We get very few cases where
11 judges really mess up on procedure. They're
12 pretty good about it. If they stumble, one of
13 the government lawyers will point this out in
14 open court and they will have a chance to
15 correct it.
16 So what we wind up -- I had a case
17 myself that was remanded to me four times on a
18 six-year sentence that I gave. And finally
19 the last time I wrote an order saying: Look,
20 I know I can sentence high, I know I can
21 sentence low, I think this defendant deserves
22 six years. I know nothing -- quite sure of
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1 the fact that's what he deserves. And if the
2 court of appeals will prefer to give him a
3 different sentence, they should just remand to
4 a different judge because this is what I'm
5 going to give him. Well, you have time, the
6 sentence time expired, so that was the end of
7 that case.
8 But we have struggled in our
9 circuit to try to find substantive constraints
10 on sentences and it's a very -- it's a highly
11 difficult standard to apply and maybe the
12 Sentencing Commission can give us some help
13 with that. Because what we have now is a
14 situation that the judge looks at the
15 presentence report, says all the right things,
16 takes into account, okay, he says everything
17 into account all of the factors, and then
18 comes up with a sentence of, say, probation or
19 less or more rarely somewhere much higher than
20 the sentencing range. And we are struggling
21 with trying to figure out where that becomes
22 substantively, substantively unreasonable.
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1 And we have disagreements in our
2 court with this. We've had it in bank
3 [inaudible], we've had the [inaudible] bank,
4 we've had -- you know, we've struggled with it
5 a great deal. But the reality is it's very
6 hard to come up with a formula for when a
7 sentence will be substantively, substantively
8 unreasonable. Any sort of attempt to try to
9 deduct a good formula, that's exactly the kind
10 of thing we're not supposed to do on the book,
11 and just provide some hard constraints,
12 because at that point those things become
13 mandatory and they become constitutional.
14 So what we have here now is a
15 situation where according to the statistics of
16 the Sentencing Commission extracted by some on
17 our staff we have just about 1200 total
18 criminal appeals in FY 2008, of those 56.6
19 were sentence-only appeals and 202 have
20 sentencing conviction, so almost three quarter
21 -- just about three quarters of our appeals
22 involve sentencing issues. More than half
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1 involve sentencing issues. It doesn't amount
2 to anything.
3 The reality is these briefs are
4 filed. Perhaps a defendant, usually the
5 defendant is the one who appeals, has his hope
6 that something will happen, but the reality is
7 that nothing much happens. The sentence
8 imposed by the district court is the sentence
9 that winds up being imposed.
10 So Booker has made things worse.
11 Not only has it significantly increased the
12 ability of the discretion of district judges
13 and significantly decreased the ability of
14 courts of appeals to provide any kind of
15 substantive review of the sentence, but -- we
16 used to have a class of cases, and I believe
17 that this was never done by the Supreme Court
18 [but] I believe every circuit came on the same
19 way, what they held was that -- what we had
20 held was if the sentence fell within the
21 guidelines range, within the range, that we
22 had no jurisdiction to the review it. So
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1 there are a whole bunch of cases that were
2 never brought or could be dismissed on that
3 basis.
4 Of course that mode has no ability
5 anymore, so there is no mandatory guidelines
6 range, and we've now held that that line of
7 cases no longer exists. So while hearing --
8 while looking at more cases with fewer tools
9 to do anything about it. And so I -- this
10 makes me go back to my original view and I say
11 why are we doing this. Is this as good as we
12 can.
13 And let me just finish by just
14 reading a paragraph from my article of
15 September of 2002 where it explained the
16 problem of Koon and the problem of disparate
17 sentences and why giv[ing] this additional
18 discretion of district courts really took away
19 the most important aspect of the guideline[s].
20 And I said that -- this was supposed to be an
21 article written to the incoming commissioners
22 at the time, the 1999 commissions.
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1 I said: the incoming commissioners
2 might want to consider whether the frequency
3 with which departures are now being granted by
4 district courts is consistent with the basic
5 premise of consistency in uniformity, which is
6 supposed to be the backbone of the sentencing
7 guidelines. Or, to put it another way, if
8 we're going to have a -- want sentencing
9 disparities anyway, what's the point of
10 keeping the sentencing guidelines and the
11 sentencing range.
12 I leave you with that question.
13 Thank you.
14 ACTING CHAIR HINOJOSA: Thank you,
15 Judge.
16 Open for questions. Commissioner
17 Howell.
18 COMMISSIONER HOWELL: Thank you
19 very much. Those are very interesting
20 comments, and I have a number of different
21 questions. First, to go to your point, Judge
22 Kozinski, about substantive versus procedural
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1 review. I think in the Booker case, the
2 Supreme Court basically supplanted the de novo
3 appellate review with a reasonableness review.
4 The Supreme Court acknowledged that they did
5 not think that that would produce the
6 uniformity in sentencing that the Sentencing
7 Reform Act [intended]. But I think the
8 Supreme Court has said that -- you know, a
9 remedial majority opinion -- that the
10 reasonableness review would still tend to iron
11 sentencing differences.
12 Do you think that the
13 reasonableness review is working the way the
14 Supreme Court thought it would in terms of
15 ironing out differences given what you've
16 acknowledged to be the struggle even within
17 the Ninth Circuit alone as to what that means?
18 JUDGE KOZINSKI: What they gave in
19 Booker they took back in Gall. I mean look at
20 that case. The district judge gave the guy
21 straight probation after he -- they took --
22 you know, he was perfectly nice guy. You
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1 know, the kind of guy I'd want for my son-in-
2 law if I had a daughter.
3 (Laughter.)
4 JUDGE KOZINSKI: He turned it
5 around and the district judge, they gave a
6 straight probation sentence. And I looked at
7 that case and I say -- and the Eighth Circuit
8 in a struggle to try to find the meaning of
9 the case said: No, that's too much of a
10 departure. If you did do drug dealing it
11 doesn't matter how much you recant, you've got
12 to spend some time in the poky, which again
13 I'm not expressing any personal view about
14 whether it's good or how heavy a drug run to
15 be, your sentences aren't enough, I'm just
16 talking about your generic crime. And it
17 seems to be drug dealing, which is one of the
18 four categories of most common crimes and
19 perhaps the most common crime or the most
20 frequently sentenced in the federal system,
21 and an extremely dangerous -- I mean drug
22 dealing is really, big serious stuff.
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1 And if a court of appeals cannot
2 say to a district judge, "You can give
3 straight probation for drug dealing," it
4 doesn't matter what the facts are, if you --
5 courts obviously can't do that, I don't know
6 what court of appeals can't do about it for
7 review.
8 So I agree with you, with the
9 implication you questioned. And if you look
10 at the remedial opinion in Booker you would be
11 able to extract that, but Gall throws
12 everything in the back --
13 COMMISSIONER HOWELL: Well, --
14 JUDGE KOZINSKI: -- throw the baby
15 out with the bath water, so --
16 COMMISSIONER HOWELL: I think
17 perhaps substantive reasonableness at the
18 appellate level is basically just to pay, you
19 know, some acknowledgement to the issue of
20 transparency in sentencing and whether there
21 is sufficient reasons given and explanations
22 so that people looking at the sentence
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1 understand the reason it was given. That may
2 be all a substantive, reasonableness review
3 turns out to be, which was one of the goals of
4 the Sentencing Reform Act as well, to provide
5 transparency as to what was going and the
6 thought processes of the sentencing court.
7 But --
8 JUDGE KOZINSKI: But then it's a
9 misnomer. It's a misnomer. That is not
10 substantive review, saying you've got to show
11 your hand, show what you're doing is
12 procedural review, and that's perfectly fine.
13 I don't have any problem with that. And we
14 can certainly -- are very good and look to
15 that for making sure that procedures are
16 followed. That we can do. But after Gall, I
17 mean I just feel like I think has a somewhat
18 different view --
19 VICE CHAIR SESSIONS: Well, I'm not
20 sure --
21 JUDGE KOZINSKI: You're constrained
22 by Ninth Circuit law.
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1 VICE CHAIR SESSIONS: By Ninth
2 Circuit law, yeah.
3 JUDGE KOZINSKI: Maybe in the past
4 I've said, but putting that aside.
5 VICE CHAIR SESSIONS: Well, you
6 know, our en banc opinion that followed Booker
7 was Carty and Zavala, and in that case we told
8 district judges that in this circuit it's a
9 two-step process. The first thing you must do
10 is that you must correctly compute the actual
11 guideline, the final guideline offense level
12 and the Criminal History category, and we will
13 review that for procedural correctness.
14 That's step one.
15 Step two, which your question
16 addresses, is we then look at the sentence
17 that's ultimately announced and determine
18 whether it is substantively reasonable. And I
19 have to agree with the Chief, I think that so
20 long as the judge articulates some reason
21 supporting the sentence imposed, it's very
22 difficult for the appellate court to declare
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1 it as substantively unreasonable.
2 After all, Congress has specified
3 the maximum statutory penalty for almost all
4 criminal statutes. And as long as the
5 district court sentences somewhere between
6 probation and the statutory maximum and the
7 judge explains why she imposed that sentence,
8 I think it's very difficult for the court of
9 appeals to declare it substantively
10 unreasonable.
11 COMMISSIONER HOWELL: Let me just
12 talk a little bit about, Judge Tallman, about
13 your discussion of departures versus
14 variances. In Irizarry, as you mentioned, the
15 court certainly drew a distinction between
16 departures and variances and, you know, said
17 that Rule 32(h) only applies to departures,
18 requiring notice for departures and not for
19 variances. There have been some courts that
20 have said that departures are now obsolete and
21 some of our statistics actually sort of
22 indicate they're not obsolete, they're
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1 certainly less used by courts when they're
2 departing -- when they're sentencing below a
3 guidelines offense level and even our recent
4 statistics show that courts are relying upon
5 manual departures for below-guideline
6 sentences not sponsored by the government. In
7 about three percent of the downward -- the
8 below-guideline sentence and in about 12
9 percent of the cases they're relying on
10 3553(a) variances.
11 Do you think that's a problem? Do
12 you think the Commission should be concerned
13 about that decreasing reliance on manual
14 departures for reasons set forth in the
15 Guidelines Manual versus variances? And if
16 you think we should be concerned about it, do
17 you have any recommendations to us about what
18 we should -- we could or shouldn't do about
19 it?
20 JUDGE TALLMAN: I think that it is
21 an inevitable consequence from the switch from
22 mandatory to advisory guidelines. And the
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1 Supreme Court was pretty clear in Booker, it
2 said what it meant, and the follow-on cases
3 have pretty clearly announced that we are
4 giving more discretion to sentencing courts.
5 And that means that in departures or
6 variances, rather, under 3553(a), if the
7 district court decides that one of the
8 statutory factors applies and should be given
9 greater weight than what the guidelines
10 advises and the judge announces that that is
11 the basis for a lower sentence imposed, I
12 think that's what Booker is all about.
13 ACTING CHAIR HINOJOSA: Do you
14 think there's any value with the fact that one
15 of the seven factors, which is (a)(5), is a
16 consideration of the policy statements?
17 Should I as a district judge then look at
18 Chapter 5 when I'm trying to decide, and I
19 decide that the range is not appropriate,
20 shouldn't I then also have to look at Chapter
21 5 to determine within the Guideline Manual do
22 I have grounds for a departure because that's
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1 one of the seven factors that I'm supposed to
2 consider, the policy statements, which
3 includes departures?
4 And I realize that's another step,
5 but shouldn't I have to also consider that
6 before I then decide that, when I look at all
7 the 3553(a) factors, I find this not
8 acceptable or what I think is the appropriate
9 sentence?
10 JUDGE TALLMAN: In a perfect world
11 the answer is yes. From an appellate judge's
12 standpoint, because we have language and
13 Supreme Court opinions that tell us that the
14 district courts do not have to articulate each
15 step in the thought process in order to
16 formulate a sentence that is ultimately
17 reasonable under the current regime, I don't
18 think that there is any requirement that the
19 district court specifically say on the record,
20 "I have also considered the policy statements
21 of the Commission in formulating the
22 sentence."
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1 I guess good sentencing judges, if
2 they're keeping an eye on the record for
3 appeal will have a little checklist in front
4 of them. And they'll go down and tick off
5 each of those factors and specifically say, 'I
6 have considered the policy statement.' But
7 from an appellate judge's standpoint, I don't
8 think we can reverse a district judge because
9 he forgot to say, 'Oh, by the way, I also
10 looked at the policy statement before I
11 decided.'
12 JUDGE KOZINSKI: Especially if he
13 says, 'And I have considered all the factors.'
14 JUDGE TALLMAN: Yes, that's good
15 enough.
16 JUDGE KOZINSKI: I mean he talks
17 about a couple of them and said, "I have
18 considered the rest of them."
19 VICE CHAIR SESSIONS: This is a
20 very significant issue to us, really. And I
21 will say that I've been told by a district
22 court judge, "Well, let's see, if I decide to
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1 depart, that the appellate court then will
2 review adequate grounds for departures,
3 including extraordinary family circumstances,
4 et cetera." You can go through a whole list
5 of what are traditional departure grounds.
6 "But if I just disregard that and I go to an
7 adjustment, a variance, then it's just a
8 question of reasonableness."
9 And what I find interesting in your
10 comments, Judge Tallman, is that when you
11 talked about the Ninth Circuit case, you
12 actually talked about a two-step process, not
13 a three-step process. First step, guideline
14 range, and then second reasonableness. And
15 you left out the question as to whether or not
16 the judge went through that middle process of
17 looking at grounds for departure.
18 And I wonder, and I'm going to ask
19 for a broad-based question, and you talk about
20 the inevitability of changes as a result of a
21 now-mandatory system, is this whole concept of
22 departures going to become antiquated under
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1 the current development in the process?
2 Do you see that at the court of
3 appeals level, where you just basically don't
4 have to even deal with extraordinary family
5 circumstances or the various other grounds
6 that the courts used to use for departures?
7 JUDGE TALLMAN: When Booker was
8 first announced I predicted, now in hindsight
9 incorrectly, that we were done with having to
10 worry about appeals that would challenge
11 [whether] the defendant had a significant role
12 in the offense as a leader, manager, or
13 organizer, that all we would now be looking at
14 was is this a reasonable sentence that the
15 district court has adequately articulated
16 grounds to support.
17 Then our en banc court decided
18 Carty and Zavala and said: No, that there is
19 still a real role here for the sentencing
20 guidelines. You have to start somewhere. And
21 that somewhere is step one, compute the
22 sentencing guidelines and then go from there,
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1 as I indicated earlier with regard to the
2 factors, the Commission statements, and so on.
3 VICE CHAIR SESSIONS: So do you
4 skip over the departures, do you skip over the
5 traditional grounds for departure that was
6 used by the courts and go right to variances?
7 JUDGE TALLMAN: I think so. I mean
8 it depends on how much weight you want to give
9 to the guideline in calculating them, but
10 ultimately when you then apply the 3553(a)
11 factors you're in essence doing the same
12 thing, because those factors are so broadly
13 written. You know, you must consider in
14 essence the inter rerum effect of the
15 sentencing you're imposing on this defendant
16 in order to deter others from engaging in the
17 same kind of conduct. You have to consider
18 the protection of the community. And those
19 are very broad considerations in justifying
20 whatever sentence the court wants to impose.
21 VICE CHAIR CARR: Judge Kozinski, I
22 want to address three things you said. One,
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1 the judges are not really constrained now,
2 which I think is one [reason] that they
3 articulate some reason for why they're doing
4 what they're doing and the right way is right.
5 The other two are that most judges want to do
6 what other judges are doing and that there
7 were not many outliers out there.
8 That was not my experience in the
9 first seven years that I was prosecuting cases
10 pre guidelines. I think that each judge
11 wanted to reach the right result as they saw
12 it. I didn't see that much concern back then
13 for what other judges were doing.
14 And I started in a courthouse in
15 which among about 20 district judges there
16 were four who would routinely give probation
17 for the same cases in which four others would
18 routinely give six to eight years in jail, and
19 the other dozen were all over the place and it
20 could depend on different kinds of cases. I
21 considered my courthouse to be an exhibit for
22 why we ended up with the sentencing
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1 guidelines.
2 If you're right that perhaps now
3 judges are more interested in doing what other
4 judges are doing and perhaps that would be
5 because, if it is the case, we have had a
6 guideline system for a while, it could suggest
7 two things, one of which I think you
8 mentioned, which is that our data and
9 research, which shows what other judges are
10 doing, gives a sentencing judge an opportunity
11 to compare him or herself to what other judges
12 have been doing.
13 The other is, aside from our data
14 and research, our guidelines and whether our
15 guidelines let judges say, "You know, this is
16 not only what other judges are doing, maybe we
17 should be doing this because the Sentencing
18 Commission does have some particular expertise
19 and does go about its business making its
20 decisions in the right way about what
21 guidelines should be." In your view, going
22 forward, is it likely that we're just going to
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1 be useful to district court judges in
2 providing them information about what other
3 judges are doing, or do you think there is a
4 way in which we can have or increase the
5 credibility of our own work for judges to care
6 about not only what other judges are doing but
7 what our guidelines are suggesting?
8 JUDGE KOZINSKI: Well, first of
9 all, it's sort of hard to argue with personal
10 experience. You know, my understanding is
11 that part of the guidelines -- in the circuit
12 it was taken, and I think in some other large
13 courts, they used to have sessions where they
14 would meet once a week and discuss cases as a
15 group. And where each judge would give the
16 sentence he thought was right, there was often
17 a consensus reached as to keep thing, to keep
18 -- avoid the kind of things that were to your
19 experience.
20 I thought those -- in the districts
21 where those kind of procedures were
22 implemented, they worked pretty well within
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1 the district. Of course it didn't tell you
2 what was going on in other districts, which is
3 much more difficult.
4 You know, I think the most
5 important thing the Commission can do is to
6 provide information to judges. But I think
7 the Commission also has a great deal of
8 delegated authority from Congress and I think
9 it is possible, and I -- I don't offer any
10 legal opinions on this and I won't guarantee
11 that I won't strike it down if you try it, so
12 -- but I think there is authority, there's a
13 great deal of authority that's delegated by
14 virtue of the fact that you are a regulatory
15 commission with members that go on from -- on
16 a bipartisan basis, from a wide range of
17 people involved in the process, prosecutors,
18 judges, so on.
19 So there's a great deal of both
20 moral and legal authority. And it would be
21 very helpful if the Commission could explore
22 ways of, you know, thought about the process
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1 of what we do on appeal and thought of ways
2 that we can exercise some authority to
3 constrain district judge, if that's -- because
4 that's how it's going to work.
5 People aren't going to come to the
6 Commission. The few cases that are going to
7 go to the U.S. Supreme Court, if they're -- as
8 fast, which is a goal, whether -- where the
9 rubber hits the road is what happens to a
10 sentence on appeal. I mean three judges get
11 together.
12 And right now we are -- it is like
13 swimming in molasses. There is really not --
14 you know, sure, we can check and make sure
15 that all the i's have been dotted and all the
16 t's have been crossed, but we have no
17 substantive protocols. And that is something
18 I think the Commission can provide or at least
19 can try to provide: Substantive protocols for
20 things that -- where we can exercise, you
21 know, with a light hand nevertheless some
22 constraint on the sentences that are imposed.
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1 I think that if the Commission is
2 going to be more a reposit of information, you
3 have to explore, you should explore the
4 possibility of providing within the guidelines
5 themselves these substantive protocols that we
6 can stand on in making judgments about the
7 substantive appropriateness of --
8 COMMISSIONER WROBLEWSKI: Judge,
9 can you follow up -- can I follow up with you
10 on that? I was going to --
11 ACTING CHAIR HINOJOSA: Oh, go
12 ahead. I'm sorry.
13 COMMISSIONER WROBLEWSKI: I know
14 that, Commissioner Friedrich, you also have --
15 I guess my question is -- first a comment. I
16 don't know that the guidelines can address
17 themselves to the appellate courts, but
18 doesn't this require the appellate courts
19 themselves, as some dissents within the
20 appellate courts have said, "This sentence is
21 just not appropriate," and that an appellate
22 court would say that and then take it on up to
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1 whether the Supreme Court really meant
2 anything about substantive review, in the case
3 where there have been some dissents where an
4 appellate court judge said, "Look at this,
5 this is not a reasonable sentence," and has
6 decided the record as to why that judge may
7 feel -- appellate judge feels this is not an
8 appropriate sentence; and then, therefore,
9 that takes it to the Supreme Court that then
10 decides, "Well, we did mean something by a
11 substantive review" or "We didn't"; and then
12 that leaves it open to the congressional
13 decision as far as whether there is any
14 appellate review.
15 I personally would rush to
16 appellate review. I will not take a guilty
17 plea where there is a giving-up of the right
18 to appellate review on the part of the
19 defendant. If that's part of the plea
20 bargain, I just don't take those pleas.
21 And so doesn't this require the
22 appellate courts themselves to -- and I
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1 realize that it puts you in a difficult
2 situation from the standpoint of these cases
3 keep getting filed and what standard do you
4 use, but doesn't this require that action as
5 opposed to --
6 JUDGE KOZINSKI: You follow --
7 following the United States versus Whitehead,
8 was a case I was on the panel, I don't know
9 whether it was particular of -- judges can
10 hold opinion, and was held in en banc, Judge
11 Gould filed saying, this is substantive, was a
12 case of -- a case out of my court, and I'm
13 sorry, I can talk about it, the case involved
14 somebody was defrauded a million dollars worth
15 of satellite dishes with the forged software,
16 a fraud to steal DirecTV signals, and he got
17 probation. And we affirmed over dissent by
18 Judge Bybee And then there was an en banc
19 hearing and there was by dissent by Judge
20 Gould saying if you affirm this sentence,
21 there is no such thing as substantive.
22 You know, I've read our sentence,
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1 and I think it's pretty good. I've read Judge
2 Bybee’s dissent, and I thought it was right,
3 too. And I read Judge Gould's dissent, and I
4 thought it was right as well. I think they
5 were all right. So that's the case to follow.
6 I don't know whether the Justice Department
7 will take the case up, and I hope it does
8 because I think it will test to see whether
9 the -- you know, I don't have any take in the
10 outcome. I hope for clarification around. I
11 hope the Supreme Court does take it and tell
12 us what it really means for us to do.
13 But I do think the Sentencing
14 Commission does have authority to deal with
15 the issue. I think it views matters too
16 narrowly to say you are just telling district
17 judges what to do. It is an integrated
18 process. What happens in the district court
19 ultimately doesn't matter very much. I mean
20 not to individual defendants -- very
21 important. Don't get me wrong. But in terms
22 of providing constraints and reform to the
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1 law, it only matters if there is some way in
2 which appellate courts can exercise real
3 review. But right now there is.
4 We can check and make sure the
5 district judge said all the right things.
6 But, believe me, district judges are very good
7 and they're very clever. They have good law
8 clerks. And they do not now say things like,
9 "Well, I decide to ignore three of the
10 Sentencing Factors." They will say the right
11 things.
12 ACTING CHAIR HINOJOSA:
13 Commissioner Friedrich.
14 COMMISSIONER FRIEDRICH: Thank you.
15 Judge Kozinski, I'm intrigued by
16 your suggestion that we should try to give
17 courts of appeal, we the Commission, more
18 guidance in terms of how to exercise their
19 authority, but I tend to agree with Judge
20 Hinojosa that -- and the Whitehead case is a
21 good example. In that case the district court
22 judge relied on factors that the Commission,
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1 through the guidelines, had already taken into
2 account, things such as acceptance of
3 responsibility, reflections the defendant was
4 remorseful -- that was one of the grounds the
5 district court relied on. Another was that
6 the defendant had a small child to take care
7 of, and that was another factor that the
8 Commission and which circumstance is addressed
9 in the guidelines.
10 And there are other cases that
11 illustrate the same point, which is even in
12 cases in which the district court judges
13 depart or vary from the guidelines based on
14 factors that are already taken into account by
15 the guidelines, the courts of appeals
16 nonetheless, in light of the Supreme Court
17 case law, view their hands as tied, based on
18 the decision involved.
19 Another one is Kimbrough. A number
20 of courts of appeals have said, "We can't
21 reverse based on a district court judge's
22 policy disagreement with the guidelines." So
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1 I guess I'm skeptical that despite whatever
2 policy decisions we make in the guidelines
3 that are intended to guide the courts, that
4 absent congressional or statutory reform,
5 which Congress creates a constitutional and
6 binding guideline system with a rigorous
7 appellate review, that there is any way the
8 Commission can give the courts of appeals the
9 power that you suggest and would like.
10 Because I just think in light of the Supreme
11 Court decisions, there are so many courts of
12 appeals judges who feel that a defendant can
13 be sentenced from probation to the stat max as
14 long as the judge doesn't commit procedural
15 error and correctly calculates the guideline.
16 So I guess I'm just skeptical of
17 what we could say in the guidelines that would
18 then be given greater weight by the appellate
19 judges.
20 COMMISSIONER WROBLEWSKI: And if I
21 could join in with Commissioner Friedrich.
22 You described earlier in your testimony, Judge
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1 Kozinski, how the judges on the Ninth Circuit,
2 you know, are staring at the chaos of the
3 Booker decisions, and then Gall and Kimbrough
4 and Spears and Nelson, and there's the Sixth
5 Amendment constraint.
6 And the Ninth Circuit judges
7 couldn't figure out how there could be some
8 meaningful constraint on district judges. If
9 the Commission were to take on the project
10 that you're suggesting, we have to stare at
11 those very same cases. And we have the same
12 Sixth Amendment limitation that you all are
13 facing.
14 And so is there a way consistent
15 with the Sixth Amendment as interpreted in the
16 series of cases by the Supreme Court that we
17 could, as a commission, give appellate courts
18 a way to provide that constraint? It's the
19 constraint, that's the problem. Once there is
20 the constraint, then you've run afoul of the
21 Sixth Amendment. And so I'm just curious.
22 What -- give us -- help us a little bit with
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1 this.
2 JUDGE KOZINSKI: Well, we're not
3 just talking about downward departures. We're
4 also talking about and I think, in some ways,
5 upward departures, more serious problems of
6 what you have, at least for the individual. I
7 faced a case, it was shortly after -- actually
8 Paul Wallace, due to be sentenced the day
9 Booker came out, and I postponed the sentence
10 because Booker had just come out, and so.
11 And I was sorely tempted, though he
12 had pled guilty to four counts of
13 environmental, and I was sorely tempted to
14 give him four consecutive five-year sentences,
15 even though the guidelines range was something
16 like -- I forget -- it was like 27, 40 months,
17 something like that.
18 I said: Well, you know, I have
19 discretion. This guy was I thought a really
20 bad guy. You know, I don't want to go into
21 the facts of the case too much, but I thought
22 the guy -- and I said: Well, he poses two
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1 counts. I said: You know, what if I decide
2 that this is so bad, you know, that this --
3 you know, I don't just give him five years, I
4 give him, I say four sentences to be served
5 consecutively, for a total of 20 years. And
6 I, for a variety of reasons, I just couldn't
7 get myself to do that. I gave him -- I
8 actually gave him a little bit on the high end
9 of the guideline sentence.
10 But I would say something like
11 saying if there are multiple sentences -- I
12 mean just to give you an example. If a
13 district judge decides to run them
14 consecutively, that requires some
15 extraordinary factor not -- that is not
16 already considered by the guidelines. Can't
17 be based on any factor that's not -- that's
18 already been considered by the guideline.
19 That used to be a great tool, by
20 the way, apart of Booker, to say the sentence
21 is outside the range, the reasons the judge
22 gave were all considered by the Commission, so
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1 it's reversed. So it would seem to me whether
2 the judge uses, as happened in Whitehead, I
3 think it should happen in Gall, if I'm
4 correct, where the judge relies on factors
5 that the Sentencing Commission has already
6 taken into account in drafting a sentence, I
7 think that there could be a presumption. I'm
8 just speaking to the moment here. I'm telling
9 you what I do if I had this case. So I'm just
10 speculating here.
11 But that might be one approach, is
12 to say that things not already taken -- if
13 it's not -- it's a fact that has already been
14 considered by the guidelines, then that is the
15 kind of factor that will -- that will not
16 support an extreme departure from the
17 sentencing guideline range. I think it's
18 worth a try, but I don't think that -- if the
19 Sentencing Commission can't solve the problem,
20 Congress can't solve the problem either
21 because the problem then winds up being
22 unconstitutional.
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1 So I think the Commission probably
2 has as much power as Congress can give it.
3 And if the Commission tries and fails, then
4 we'll know when the Supreme Court disapproves
5 that, then it can't be done and then Congress
6 will have to think about whether or not we
7 need jury trials for all these sentences. But
8 I think it's worth a try to take one more stab
9 at it based on the Commission's current power
10 and try to provide some hard constraints, but
11 particularly for those things that have
12 already been considered factors, that have
13 already been considered by the Commission.
14 ACTING CHAIR HINOJOSA: Our time is
15 up. We thank you very, very much for being
16 here. It's been most informative and we
17 appreciate your taking your time to share your
18 thoughts with us.
19 JUDGE TALLMAN: Thanks for having
20 us. Thank you all for the work that you do,
21 including putting all the rules together.
22 ACTING CHAIR HINOJOSA: Thank you
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1 very much. Thank you all very much.
2 And we'll take a five-minute break.
3 (Recess taken from 10:13 a.m. to
4 10:24 a.m.)
5 ACTING CHAIR HINOJOSA: Next we
6 will have a "View from the District Court
7 Bench," and this morning we're very fortunate
8 to have three individuals who have a great
9 amount of knowledge on the subjects with which
10 the Commission deals with.
11 We do have the Honorable Robert S.
12 Lasnik who has been a district judge for the
13 U.S. District Court, Western District of
14 Washington, since 1998. And he has served as
15 the chief judge since the year 2004. He was a
16 prosecutor at one point in the King County
17 prosecutor's office and actually became chief
18 of staff for that office. He was also a
19 superior court judge in the state court level
20 before he became a federal judge. And he has
21 his degrees from Brandeis and a University of
22 Washington law degree and a Master's from
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1 Northwestern. And he also is a very active
2 member of the Budget Committee of the Judicial
3 Conference of the United States.
4 We have the person who deserves the
5 coming-furthest-from award, the Honorable
6 Susan Oki Mollway who is a district judge in
7 the U.S. District Court for the District of
8 Hawaii. And she's been on the bench since
9 1998. Before being named a federal judge she
10 was in private practice in Honolulu from 1981
11 to 1998 and was an adjunct professor at the
12 University of Hawaii's School of Law. And she
13 holds her degrees from the University of
14 Hawaii and her law degree from Harvard.
15 And we also have the Honorable
16 Charles Breyer who has served on the U.S.
17 District Court for the Northern District of
18 California since 1997. He did clerk for a
19 U.S. district court judge, Judge Oliver
20 Carter. He also worked for the Legal Aid
21 Society of San Francisco and was an assistant
22 and chief assistant district attorney in San
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1 Francisco. And he has served as an assistant
2 -- he did serve as an assistant special
3 prosecutor for the Watergate Special
4 Prosecution Force and was in private practice
5 for almost 20 years. He holds his degrees
6 from Harvard and his law degree from the
7 University of California Berkeley.
8 And we thank you for your time.
9 And we'll start with Judge Lasnik.
10 JUDGE LASNIK: Well, I was just
11 thinking for a circuit that says they don't
12 know how to deal with any sentences, I've been
13 reversed three times on sentences in the last
14 two years.
15 The first point I want to make is -
16 - two of them are identity thefts where I
17 thought the people who had their identities
18 stolen were victims, even though the bank had
19 restored their money within a certain
20 reasonable period of time, but we end up
21 arguing about are victims really victims. And
22 any time the law looks foolish to people --
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1 and the person who has had their identity
2 stolen, regardless of whether the money is
3 restored, feels victimized, especially some of
4 the elderly people, under the circumstances of
5 these sentences. And I commend the Commission
6 for stepping up and dealing with that the way
7 they did.
8 But we have created a situation
9 where district court judges are aware of their
10 vulnerability on appeal if they make honest
11 calls in difficult situations and they call it
12 wrong against the defendant, that's the
13 vulnerability on appeal. If you call it right
14 for the defendant, in other words, use the
15 rule of lenity or some equivalent, you're not
16 going to get reversed.
17 On both those sentences with the
18 identity theft, I departed from the guideline
19 range, anyhow. But, still, because I had
20 calculated the guideline range wrong, it
21 needed to come back for resentencing.
22 So I think you've created a
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1 situation -- not you -- but the law has
2 created a situation where scoring the
3 guidelines becomes you err on the side of the
4 defendant, and then you're still free to do
5 what you want to do afterwards. And that is a
6 little unpleasant because it leads district
7 judges to be intellectually dishonest from
8 time to time.
9 I also think that one of the things
10 that we talked about at the beginning, it's so
11 great to have you within the Ninth Circuit, I
12 think it would be great for the credibility of
13 the Sentencing Commission to have a judge from
14 the Ninth Circuit on the Sentencing
15 Commission, because I don't think there's ever
16 been a judge from one of the biggest districts
17 in terms of criminal cases, the biggest
18 district in terms of geography.
19 And as with all sorts of diversity
20 issues when you see one of your own whom you
21 know and respect up there it makes a big
22 difference. So I'm hopeful that we'll get a
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1 district judge from the Ninth Circuit -- and
2 there are some great ones at this table -- to
3 be a representative.
4 COMMISSIONER WROBLEWSKI: So you
5 look to your right, you look to your left,
6 which way --
7 (Laughter.)
8 JUDGE LASNIK: Not myself, no. But
9 I'll tell you I do have the personal
10 experience of having been on this Washington
11 State Sentencing Guidelines Commission for a
12 number of years, including two years as chair
13 of the Commission. And so let me say my heart
14 goes out to you and my respect flows greatly
15 to you, all of you. And I think you're
16 actually doing a great job. I think that the
17 guidelines are well thought out in a number of
18 ways. They provide tremendous guidance to
19 judges.
20 We have great information. The
21 staff is always responsive and helpful. But
22 because there has been this traditional
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1 resistance to any kind of sentencing
2 guidelines, you get blamed, especially the
3 judges where their colleagues are almost
4 rooting for them to fail so that the whole
5 thing will come tumbling down. It's a
6 particularly difficult role to play, and you
7 have my great respect for what you do.
8 I would like to use my time to talk
9 about a different topic than occupied the
10 first hour and 20 minutes, or so. I want to
11 talk about how we can make the guideline
12 system better. And I think -- when I go to
13 the glossary of The Sentencing Manual, I don't
14 see any place in the index for alternatives to
15 confinement. I don't see any place for
16 treatment. I don't see any place for a first-
17 time offender waiver or some sort of special
18 treatment for first-time offenders. I don't
19 see anything about drug courts or diversion.
20 And I really think the time is
21 right, especially now, for the Commission to
22 take a leadership role along with the change
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1 in administration, the new Attorney General
2 who is talking about fairness in sentencing,
3 to say that we have to expand our utilization
4 of alternatives to confinement.
5 And I think the Commission started
6 this process with the conference, the document
7 we produced. But at the present time
8 alternatives are defined as basically
9 probation, or some sort of intermittent
10 confinement. And that is not keeping pace
11 with what's really going on. You're going to
12 hear later from U.S. Probation; you're going
13 to hear later from public defenders, including
14 my own fiery Federal Public Defender, Tom
15 Hillier.
16 And I took a look at the testimony
17 coming from the Federal Public Defenders, and
18 I agree with all of their suggestions. I
19 don't always agree with Tom Hillier about
20 everything, but I do agree with him on this.
21 And I had two experiences this year
22 that were very important to me. Seattle being
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1 Seattle often becomes a focal point for
2 national get-togethers. And both the federal
3 defenders and the CJA group met in Seattle,
4 and the U.S. probation officers and pretrial
5 services officers -- within a month of each
6 other. I was asked as chief judge to address
7 both groups. And both groups are yearning for
8 the Commission to open the door to
9 alternatives to confinement.
10 The U.S. probation officers,
11 especially, are thinking that -- they have
12 learned so much about ways to stop recidivism.
13 And that's a word that hasn't really appeared
14 in our discussion so far today. We've talked
15 about things like procedural fairness and
16 substantive fairness, but really the goal of
17 sentencing is not just uniformity, because
18 uniformity, if it's all bad, is certainly not
19 a good thing. Nor do I think we should be
20 wedded to the fact that a judge in Seattle has
21 to give exactly the same sentence as a judge
22 in New Hampshire. Crime does vary from region
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1 to region, from urban to rural. And it's
2 perfectly okay to take account of some of
3 those differences as long as we are open,
4 honest, and transparent about what we're doing
5 and why we're doing it.
6 My district, if you look at the
7 numbers, is one where we have 30 -- within the
8 guideline range, about 48 percent, so we're
9 outside the guideline range most of the time,
10 but 30 percent government-sponsored below the
11 range, 20 percent nongovernment-sponsored
12 below the range, one percent above the range.
13 So when a court, such as ours, is
14 20-to-1 on downward departures over upward
15 departures, I think that's a message that the
16 guidelines are not taking into account what
17 the right sentences are for us, for the
18 individuals who appear in front of us.
19 Now I'm not saying that -- we're
20 the standard by which everyone else should be
21 measured, but we have a district where our
22 U.S. Attorney has a philosophy, our Federal
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1 Public Defender and CJA panel have a
2 philosophy, and the court has a philosophy.
3 And no one -- it's not like what Commissioner
4 Carr was talking about, where the sentences
5 totally varied from place to place.
6 The seven of us, if you look at the
7 statistics, the seven active district judges,
8 and we have four senior judges who also
9 sentence, the 11 of us are roughly in the same
10 place with what we're doing. It's a different
11 place, perhaps, than the Southern District of
12 Texas, but it's a place where we say what
13 we're doing, why we're doing it. It's all on
14 the record. And I think that that is
15 appropriate and a fair way to approach things.
16 But I think that we can -- we
17 wouldn't have 20-percent downward departures
18 if the guidelines presented options to take
19 into consideration the use of alternative
20 sentencing.
21 In the state court system we
22 developed a drug court of sentencing
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1 alternative, a special sexual offender
2 sentencing alternative to encourage victims to
3 participate in the process even when it
4 involved a family member who they did not want
5 to go to prison for a super long time. Those
6 cases would not come into the system, at least
7 in the state courts, if grandpa was going to
8 have no other choice but to go to prison for
9 eight to ten years. But if there is a
10 possibility of grandpa getting a smaller jail
11 term, up to six months, and some treatment
12 option, we would get in those system and keep
13 -- getting those cases into the system and
14 keeping them there.
15 I also think that there is a role
16 in the federal system for drug court as a
17 diversion, not just for use on supervised
18 release. It can be a sentencing alternative
19 or it could even be a diversion in a
20 traditional deferred prosecution sense.
21 But I think that it's time to look
22 at what we know about evidence-based treatment
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1 programs that work and don't work. It's
2 certainly only fair to try to be wise with the
3 limited resources that we have. On the state
4 sentencing guidelines commission in Washington
5 state I had with me on the commission as ex
6 officio members, not just the Parole Board
7 Chair, but I had the Director of the Office of
8 Financial Management, who was there to make
9 sure that the sentences were not beyond what
10 the state could afford; the Director of the
11 Department of Corrections, who talked about
12 the impact of double bunking and triple
13 bunking in prison overcrowding. I had
14 prosecutors from Eastern Washington and
15 Western Washington, rural and urban; defense
16 attorneys; victims; and victim advocates. And
17 it created a dynamic that is not possible on a
18 limited Sentencing Commission such as you
19 have.
20 But I do think part of the reason
21 why it's so important for the Commission to go
22 on the road and listen to what you're
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1 listening to today is that there are a lot of
2 viewpoints that are not necessarily being
3 heard. And so I think it's great that you are
4 doing this.
5 Now the other thing that I think
6 that the Sentencing Commission and the
7 sentencing guidelines get blamed unfairly for
8 is, "Boy, we never had these huge
9 incarceration rates, and we never had these
10 problems before sentencing guidelines." And
11 that's just -- trying to compare the 25 years
12 before the Sentencing Reform Act to the 25
13 years afterwards in society is like comparing
14 the crime problem in "Mayberry RFD" to what
15 you see on "CSI." I mean the world has
16 changed. And it was going to change
17 regardless of sentencing guidelines.
18 The politicization of crime as an
19 issue which led to mandatory minimum terms,
20 tougher drug sentencing, tougher sex offender
21 sentencing, et cetera, et cetera, would have
22 been there anyhow. And I think we have a much
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1 fairer system with a guideline approach where
2 that is somewhat moderated than we would have
3 had we retained the prior system and had
4 mandatory minimum term one after another
5 imposed by Congress because they were so
6 unhappy or so unaware of what federal judges
7 were really doing.
8 So the explosion of crack cocaine
9 in the inner cities, the meth problems in
10 rural areas, you've had a lot to deal with.
11 And, as a closing point, again, I want to say
12 I think you've done a great job under the
13 circumstances. Now it's time to take that
14 next step towards alternatives to confinement.
15 Thank you.
16 ACTING CHAIR HINOJOSA: Thank you,
17 Judge Lasnik.
18 Judge Mollway.
19 JUDGE MOLLWAY: Yes. I'd like to
20 thank the Commissioners for letting me come
21 and speak. I'm very grateful for this
22 opportunity. And I did submit some written
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1 comments, and I'll follow-up on those, but I
2 actually wanted to start with something that
3 is not in my written comments but that's a
4 follow-up to a question that Commissioner Carr
5 asked of Chief Judge Kozinski.
6 And the discussion started with the
7 Commissioner asking whether the value of the
8 Sentencing Commissioners' work to judges might
9 be limited to data collection. And I don't
10 think that that's all that we need. That's
11 very helpful for us to get that data. But let
12 me suggest that taking in evidence of what
13 works and what doesn't work to meet sentencing
14 goals would be a great function for the
15 Commission.
16 And sometimes I'm concerned that
17 some of the guidelines might need more only
18 evidence to support them. In particular, I'm
19 concerned that the child pornography
20 guidelines might not have sufficient evidence
21 to show that the particular guidelines will
22 meet the sentencing goals.
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1 And so to follow up on that I'll
2 add also that I think the Commission has a
3 voice that can be heard probably much more
4 loudly than the voices of individual judges or
5 lawyers. And that voice can be used for
6 statutory changes also. And so I urge the
7 Commission not to think that the only value
8 that we, as judges, can get from you is
9 reports on what other judges are doing; also I
10 would not minimize that value which I think is
11 very helpful to all of us.
12 But going back to what I thought I
13 was going to come and talk about, for myself,
14 you know, I came on the bench in 1998, and the
15 guidelines were mandatory.
16 And when Booker came, a lot of
17 judges urged that the rest of us not exercise
18 the discretion we were given by Booker to its
19 fullest extent for fear of political fallout,
20 that Congress might react by imposing
21 mandatory sentences all over the place where
22 it had not yet done so.
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1 And there was, of course, another
2 voice to be heard, other judges saying the
3 Supreme Court has given us this discretion; we
4 should exercise it. And I think what has
5 happened -- at least it happened with me --
6 was that when you're faced with a specific
7 individual and all the details of that, that
8 that individual and that crime present, those
9 individual details are going to trump
10 political considerations that are theoretical,
11 what might happen if all the judges did this.
12 At least that's what I feel has happened for
13 me, that I'm always dealing with the
14 individual case, although I'm aware, of
15 course, that there may be fallout if everybody
16 does this. I'm faced with a person and that
17 person's individual circumstances, and that's
18 going to trump the more, to me, hypothetical
19 concerns. And so I don't know if that's how
20 the other judges feel, but that's how I
21 reacted.
22 I have a couple of requests of the
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1 Commission. One is that the Commission adds
2 its voice, its policy voice, to the -- again,
3 I know it's done this already -- and we do see
4 the crack cocaine/powder cocaine disparity,
5 but that it do so again, and that it add its
6 voice not only on the guideline level but also
7 on the statutory level because, as I say, I
8 think it's a powerful voice that the
9 Commission can express.
10 I also am concerned that because we
11 are charged by Section 3553(a) with creating a
12 reasonable sentence, with creating a sentence
13 sufficient to meet sentencing goals, but not
14 more than necessary to meet those goals, that
15 that requirement sometimes runs smack into
16 conflict with mandatory sentences. And that
17 becomes a problem for the judges who have to
18 impose mandatory sentences but who sometimes
19 feel that that is in direct conflict with the
20 need to fashion a sentence under 3553(a)
21 that's sufficient but not more than necessary
22 to meet those goals.
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1 Now what I've said so far I think
2 probably tends to suggest that I think
3 sometimes what we need is a more lenient
4 approach in some of the guidelines, some of
5 the statutes. But, you know, maybe once every
6 five years I actually impose a sentence that
7 goes above the guidelines. And so I'd like to
8 talk about that, too.
9 For me the place where I usually
10 will feel that is in a fraud case. And I
11 tried to think about why that might be, and I
12 think it's because fraud maybe comes in a
13 greater variety of forms than some of the
14 other crimes do. And it's so great that the
15 guidelines cannot possibly take into account
16 all of those factors.
17 Of course, for me a sentencing
18 hearing is a dynamic experience, and it's not
19 a sham where I go in and I argue what I'm
20 going to sentence somebody to. Sometimes
21 elocutions matter. And sometimes victims
22 stand up and say things, and those matter.
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1 So I understand that in calculating
2 the guidelines for purposes of presenting a
3 presentence investigation report, not
4 everything can be taken into account. But I
5 would suggest that some things can be taken
6 into account that I don't know that the
7 guidelines now consider.
8 The thing I'm specifically thinking
9 of has to do with the impact on victims. And
10 I can give you an example.
11 If you have a fraud case, the
12 guideline calculation is often driven by the
13 amount of money that was involved in the fraud
14 and the number of victims. There may be other
15 things, such as whether the person had a
16 position of trust, whether some of the victims
17 were vulnerable, and so forth, and there may
18 have been a destruction of justice.
19 But there are lots of things that
20 are not taken into account, and I wonder if
21 the Commission might consider whether these
22 should just be left as they are to being
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1 considered at the hearing, or whether they
2 might be folded into guideline calculations.
3 If you take, for example, the
4 situation in which there are ten
5 multimillionaires, each defrauded of a hundred
6 thousand dollars, the impact of those victims
7 will be different from the impact on a number
8 of victims, each of whom has only a hundred
9 thousand dollars, and gets defrauded out of
10 that full hundred thousand dollars. There
11 might be the same total financial loss and the
12 same number of victims. And possibly none of
13 the victims qualifies as a vulnerable victim,
14 but the impact on their lives is much greater.
15 So people will say: I can no
16 longer afford to do such-and-such in my life.
17 They're not starving, but they had certain
18 plans for this money which was in a savings
19 account and they no longer can do those
20 things. And that difference in the impact on
21 the victims is now not, I think, something
22 specifically taken care of in the guidelines.
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1 In my written testimony I also
2 asked for some clarification of 2B1.1 because
3 I happen to have a very difficult case in
4 which those guidelines -- that guideline was
5 the subject extensive briefing and argument.
6 I was lucky to have very good attorneys on
7 both sides and a terrific probation officer.
8 And all of them were flooding me with papers
9 and I, you know, still sat down, and there was
10 an issue about which guideline book applied.
11 So I sat down at my conference
12 table surrounded by books and memos. And, you
13 know, I would have liked to have had some of
14 these issues addressed. And those are
15 detailed in the written submissions I have.
16 They basically talk about how you determine
17 whether a particular offense, base offense
18 level should be seven or six. And you
19 wouldn't think that would be a big issue, but
20 it definitely became a big issue in a recent
21 case I had.
22 So some assistance on how to handle
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1 the fraud guidelines would be greatly
2 appreciated. And I think that's about all
3 that I have. Thank you.
4 ACTING CHAIR HINOJOSA: Thank you,
5 Judge Mollway.
6 JUDGE BREYER: Thank you, Chairman.
7 It's an honor for me to appear before you
8 today. I don't believe that I have any
9 particular insights about the sentencing
10 guidelines that are very different from those
11 of my colleagues, at least this panel. In the
12 earlier panel, there may be some differences,
13 and I concede that.
14 (Laughter.)
15 JUDGE BREYER: Almost all of us are
16 more pleased with the post-Booker sentencing
17 process than the previous. And I think that
18 all of us actually would agree that
19 sentencing, which is the hardest part of our
20 job, has become even more difficult but more
21 rewarding because of the responsibility it
22 imposes on judges to do justice.
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1 One thing that I suggest for you to
2 consider going forward as a Commission,
3 required by law to administer what is a very
4 complicated and an extremely important system,
5 I thought I would briefly discuss the
6 sentencing process and the role the Commission
7 can continue to play which would be of great
8 help to district judges.
9 First, let me give you a bit of an
10 analogy. We district judges, all 846 of us,
11 or some such number, find ourselves to be
12 positioned a bit like those lobsters in the
13 fish tank in a restaurant. We're perfectly
14 happy to be there as long as we don't ask the
15 question: Where do we go from here?
16 Each judge is individually capable
17 of giving his or her sentence of a just
18 sentence, but collectively if we don't
19 recognize the implications of our own
20 sentences in a nationwide context we may soon
21 find out where we go from here. And it could
22 easily be in the direction of less discretion,
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1 less individualized sentencing, and,
2 unfortunately, less justice.
3 We understand, of course, that we
4 are to begin the sentencing process with a
5 guideline calculation, because this range is
6 the starting point, an initial benchmark from
7 which a sentence is ultimately fashioned.
8 This is true, however, only if the guidelines
9 meaningfully impact the sentence.
10 Practically speaking, in a post-
11 Booker world, since the guidelines are
12 advisory and only one factor among the several
13 to be considered, they, these sentencing
14 guidelines may be swallowed up, ignored, or
15 even indirectly mocked by a sentence imposed
16 by judges.
17 The challenges facing the
18 Commission today, I respectfully suggest, is
19 how does one keep the sentencing guidelines
20 relevant as they change from mandatory to
21 advisory. Quite simply, will the sentencing
22 guidelines continue to serve as a framework
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1 for nationwide consistency.
2 I believe that the guidelines are
3 just as relevant today as they were pre-
4 Booker, but they may have been more difficult
5 to ascertain and, as a consequence, we may now
6 have less transparency in the sentencing
7 process. Let me give you some examples.
8 Judges are to consider real
9 conduct, not just charged conduct in setting
10 the offense level. Depending on the
11 negotiations between the prosecution and the
12 defense, a process which the court is
13 forbidden to participate, and the changing
14 policies of individual United States
15 Attorneys, the judge may never learn what the
16 real conduct was.
17 Take, for example, a child
18 pornography case. One prosecutor may decide,
19 through his or her policies, that you count
20 images a particular way. A second prosecutor
21 may have a different view as to how you count
22 images, yet the number of images has, of
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1 course, a bearing on the sentencing
2 guidelines.
3 In one district, the United States
4 Attorney, as a matter of policy may file
5 priors in narcotics cases at the outset, while
6 in a different district may do so only if a
7 defendant seeks pretrial release or, in our
8 district, if a codefendant files a motion to
9 suppress; or the prosecutor may fail to award
10 a three-point reduction for acceptance of
11 responsibility, even though the defendant
12 agrees to plead guilty but not, in the
13 prosecutor's judgment, soon enough.
14 It can be said, of course, that
15 these practices may have occurred pre-Booker
16 as well as today. But pre-Booker, these
17 decisions made by prosecutors, and sometimes
18 with the consent of the defense counsel, were
19 determinative of the outcome and, thus,
20 subject to judicial review.
21 Today, since they may not
22 necessarily be determinative of a particular
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1 result they all too often can be swept under
2 the rug of indifference since courts are free
3 to give little weight to them. Therein lies
4 the danger. Our starting point for a
5 guideline sentence becomes highly uncertain.
6 And to that uncertain platform
7 judges now apply all the 3553(a) factors
8 which, by their very nature, involve
9 subjective findings. It is this exercise that
10 is equally critical since it may involve
11 variances from the guidelines. To that end it
12 is important for judges to have enough
13 information so they can explain how and to
14 what extent these factors influence the
15 sentence.
16 In that regard, the judges must
17 rely on you, the Commission, to help train our
18 probation officers so that the presentence
19 reports contain details supporting each
20 sentencing factor, thereby enabling the judge
21 to address it at sentencing, refer to it the
22 JNC and, of course, provide sufficient detail
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1 for appellate review.
2 This process, while it requires
3 additional efforts on the part of judges and
4 probation officers, will assist, in my view,
5 to restore transparency. For example, judges
6 must consider disparities in sentences of
7 codefendants under 3553(a) in order to
8 determine if these disparities are warranted.
9 Without a judicial inquiry,
10 including a probing examination of the
11 circumstances, I doubt that a court can
12 discharge this obligation. Thus, even with
13 our newly-founded post-Booker discretion comes
14 the responsibility to exercise it through a
15 rigorous, energetic, and probing fact-finding
16 process. As judges we cannot simply accept
17 without question a party's representation that
18 the difference between two sentences is
19 warranted.
20 To do so creates a kind of shadow
21 guideline system operating by agreement of
22 counsel and frequently without the knowledge
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1 of the court and without the viewing by the
2 public. There will and perhaps should be
3 variances from the guidelines in individual
4 sentences, but these variances should be
5 explained in detail so that it is the
6 guideline that ought to be amended; there will
7 be empirical evidence on a nationwide basis to
8 support its changes.
9 Ignoring the guidelines by
10 accepting practices that mischaracterize the
11 underlying conduct will only impair our
12 ability to form a nationwide system of
13 sentencing and to correctly perceive where we
14 are.
15 So finally I suggest that all of us
16 can learn a little bit from these lobsters in
17 the fish tank, that we must know exactly where
18 we are today before we ask the question:
19 Where do we go from here. Thank you.
20 ACTING CHAIR HINOJOSA: Thank you,
21 Judge Breyer.
22 And it's open for questions.
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1 Commissioner Howell.
2 COMMISSIONER HOWELL: I'll just
3 start and pick up on one of the themes of your
4 comments, Judge Lasnik.
5 And that is that the regional
6 differences that we see should be of no
7 concern to us. I think that's sort of the
8 import of your comments in that. And I have
9 to say, I find that jarring.
10 I think one of the goals of the
11 Sentencing Reform Act was to have at, at least
12 at the federal level, more uniformity in
13 sentencing. And even the Supreme Court in
14 Booker in the quote I read at the first panel,
15 you know, seemed to acknowledge that there was
16 a value to that goal.
17 Do the other judges also, you know,
18 share -- share your views on whether or not
19 we, as a commission, should be concerned about
20 these differences --
21 JUDGE BREYER: You know, I give you
22 all -- I did share your concern, but I know --
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1 I read Judge Lasnik's -- or heard Judge
2 Lasnik's comments a bit different.
3 I think that what Judge Lasnik --
4 if I may?
5 JUDGE LASNIK: Please.
6 (Laughter.)
7 JUDGE BREYER: It's grand.
8 -- reflected the reality that there
9 will be a lot of differences given policies,
10 which I tried to enumerate some of them in my
11 remarks, by U.S. Attorneys whether they're
12 filing a prior at the beginning, whether
13 they're not filing a prior, how they're
14 counting pornographic images, how they're not
15 counting it.
16 So all of these things -- and
17 that's just two. You could go get 10, 20, 30
18 -- all of these differences in policies may
19 very well result in differences in guideline
20 calculations. And what will seem to be the
21 same or not, would not reflect really the
22 differences. I think that of course in an
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1 individualized sentence, the important thing
2 is that the judge discuss, and put it out on
3 the table and say at the sentencing, and write
4 it in his or her opinion what were the
5 factors, how were they viewed by that, because
6 I think then you get exactly what the
7 Sentencing Commission was going to do in 1984,
8 which is to amend, to bring about changes to
9 the sentencing guidelines which reflected the
10 reality on the ground, which is what we are,
11 of the sentencing process.
12 Now that has -- perhaps what was
13 naive in that, in that view, was the ability
14 of the Sentencing Commission and the judges to
15 influence Congress to accept the changes that
16 mirrored the reality of what was going on.
17 VICE CHAIR CARR: Let me tell you
18 what I think Judge Lasnik was saying.
19 (Laughter.)
20 VICE CHAIR CARR: I was going to
21 give that advice --
22 (Laughter.)
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1 VICE CHAIR CARR: -- and apparently
2 I've -- I thought you might be getting at the
3 point that a million-dollar fraud in New York
4 City and a million-dollar fraud in Montana
5 might be the same thing. But, as we've
6 discussed before, cattle rustling in New York
7 City and cattle rustling in Montana may not be
8 the same thing.
9 JUDGE LASNIK: Oh, just keep going.
10 I'm learning a lot.
11 (Laughter.)
12 ACTING CHAIR HINOJOSA: I guess
13 I'll go back to Commissioner Howell's
14 question. I think what she was asking was:
15 Did you mean, Judge Lasnik, that, for example,
16 on the border of McAllen, Texas a 50-pound
17 marijuana case is not that big a case because
18 we have such hundreds of pounds and tons of
19 pounds that are being seized. And so the
20 question becomes: Did you mean that I should
21 then have the opportunity to think, well, when
22 I look at all these other defendants, this
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1 isn't such a big amount of drugs as opposed to
2 somebody in Iowa who sees a 50-pound case in a
3 rare situation and thinks this is a big drug-
4 trafficking case, that we should be able to
5 take in those regional differences as far as
6 outlooks and then say: Well, it's okay for
7 Judge Hinojosa in McAllen, Texas to view it
8 differently than a judge in Iowa, because he's
9 already jaded by the amounts of drugs that he
10 sees.
11 JUDGE LASNIK: Yes, yes, and
12 partially yes.
13 When you're a state court judge and
14 you're in an urban area and people break into
15 somebody's garage and take a power tool, it
16 has one impact on the community. In a rural
17 area where people don't even lock their
18 garages and doors and somebody starts doing
19 that, it has a different impact on the
20 community.
21 I'm not saying that the crime
22 should vary tremendously, but there are
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1 regional differences in how crime impacts
2 communities and how it impacts victims that
3 it's okay to take into consideration as long
4 as you're open, honest, and doing what you
5 should be doing.
6 I don't agree with Judge Kozinski
7 that the defendant is worried that somebody in
8 Pasadena is worried that somebody in Amherst,
9 Massachusetts is getting the same exact
10 punishment for the same exact crime. They
11 are.
12 What they do is they talk to each
13 other in the jail and they compare notes in
14 there. And, you know, the greatest honor I
15 had is a guy who wrote me a letter and said,
16 "You have a very good reputation in the
17 Federal Detention Center for being fair," not
18 for being lenient, or being queasy, or a
19 milquetoast, but for being fair. And that
20 comes much more than how you handle the
21 sentencing as dealing with human beings in
22 front of you than it does processing, criminal
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1 history, severity level, looking at different
2 factors and coming up with a result.
3 The things that resonate with
4 defendants are you treated them as a human
5 being, you let their family members address
6 you, you treated them with respect, you didn't
7 necessarily go along with prosecutor who said
8 he was -- you're -- that the person was a
9 monster, or with something else that the
10 person said was really not fair or really not
11 true.
12 And then once you get through those
13 things the actual sentence is less important
14 than the process. And I think that's one
15 thing that district judges will tell you what
16 makes it so hard is, it's not just a matter of
17 looking at the probation officer's report and
18 saying: Well, that guideline range was
19 correct, and so I'll just go here; or I'll go
20 there. It's the process as much as it is the
21 result.
22 VICE CHAIR SESSIONS: So can I just
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1 add what I think you said?
2 JUDGE LASNIK: Yes.
3 VICE CHAIR SESSIONS: Actually I
4 think you agreed with Judge Mollway when she
5 said that a hundred-thousand-dollar loss to a
6 poor person is different than a million-dollar
7 loss because -- so those are human
8 characteristics that a judge always considers.
9 And what I think -- and I, you know,
10 certainly agree. We talk about uniformity
11 nationwide but, you know, I think that you
12 could become obsessive on that particular
13 issue and, in fact, there has to be some
14 leeway within the sentencing structure so that
15 there may be legitimate reasons why this
16 particular sentence is different than that
17 sentence despite the fact that you fall within
18 the same guideline range.
19 But having said that -- and,
20 obviously, the judges now have the power to do
21 that with 3553(A). When you talked about the
22 relevance of the guideline system, that's
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1 where we are at this particular point. After
2 all, you've got a guideline system that now
3 has less than 60 percent within the guideline
4 range. You have certainly many judges who
5 feel that they don't even have to go through
6 departure grounds; they can go right to
7 3553(a).
8 And, you know, so we are now
9 listening to people talk about what we should
10 do ultimately to make the guidelines continue
11 to be relevant. You've said one thing:
12 Alternatives to imprisonment. I'd love to
13 hear your thoughts about, you know, low-level
14 drug defendants.
15 Both of us were listening to the
16 Attorney General speak about low-level drug
17 defendants not going to prison. In fact,
18 obviously he said it right to the Judiciary
19 Conference, and both of us were there hearing
20 the same thing.
21 You know, that's one particular
22 option that may be helpful to make the
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1 guidelines, you know, relevant. But, you
2 know, on the broader perspective, just from,
3 you know, your thought, because you all three
4 are very thoughtful on these issues, what do
5 you think we should do to make the guidelines
6 relevant three or four years in the future?
7 JUDGE MOLLWAY: What you should do
8 to make the guideline --
9 VICE CHAIR SESSIONS: To make
10 guidelines relevant. To make them to continue
11 to be relevant in a post-Booker world that
12 allows a judge to go, as we've heard from the
13 appellate judges, allows a judge to go right
14 to 3553(a) and essentially be upheld.
15 JUDGE MOLLWAY: I think if I
16 thought that the guideline I was applying or
17 was told to apply was based on solid evidence,
18 that the number of times when I would feel
19 that I shouldn't sentence according to that
20 particular guideline would go way down.
21 I frequently go below the
22 guidelines in child pornography cases. And
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1 I'm not confident that the guidelines were set
2 based on actual empirical evidence that these
3 particular guidelines link to a sentence that
4 addresses these sentencing goals.
5 VICE CHAIR SESSIONS: The offense
6 that you're --
7 JUDGE MOLLWAY: I think if they
8 were evidence based, if I was confident they
9 were evidence based, that that would be
10 something that would definitely affect how I
11 viewed applying the guidelines.
12 ACTING CHAIR HINOJOSA: Judge, does
13 it make a difference to you if they were based
14 on congressional statements and directives to
15 the Commission and -- they being the ones that
16 wrote 3553(a) and knowing what they meant when
17 they wrote 3553(a) and what those factors
18 meant. And if there is evidence that these
19 are based on congressional statements and
20 directives to the Commission as part of the
21 statutes, where they have increased the
22 penalties or set mandatory minimums on child
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1 pornography, would that make a difference to
2 you as to how you view the 3553(a) factors
3 knowing that the Congress that wrote 3553(a),
4 knowing that they wrote it and knowing what
5 the law is, is sending these directives to the
6 Commission, does that make a difference to you
7 as to how you view the guidelines?
8 JUDGE MOLLWAY: I guess my answer
9 is I view Congress as having political reasons
10 for both the statutes that it passes and
11 directives that it sends to you. But I look
12 at the Commission as not some body, that is,
13 that has its overwhelming impetus from
14 politics. And so because I look at you
15 differently, -- I understand, it's a factor I
16 take into account, but if I don't think it's
17 evidence based, then I have a hard time
18 thinking that I should apply particular
19 guidelines in those cases.
20 ACTING CHAIR HINOJOSA: Even though
21 Congress may have written 3553(a) and you
22 think they may have had political reasons for
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1 having written them the way they did, that you
2 would then decide that it's not important to
3 listen to what they're saying with regards to
4 other statements they may make?
5 JUDGE MOLLWAY: I'll never say it's
6 not important not to pay attention to what
7 Congress says. I mean we're bound by the
8 statute, but Congress can put things into
9 statutes that are going to be binding upon us.
10 And when it doesn't, you folks have a charter
11 yourself and I think the charter goes beyond
12 just taking the political directives. I think
13 it would be great if you could tell Congress
14 that its political directive isn't supported
15 by evidence. Even if you have to write a
16 guideline in some way, I think using the
17 Commission's voice to suggest that a
18 particular directive isn't based on evidence
19 would go a long way toward educating Congress.
20 I mean they send you a different directive
21 later.
22 COMMISSIONER HOWELL: What is the
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1 evidence that you'd like to see? Because --
2 JUDGE MOLLWAY: I would like to --
3 COMMISSIONER HOWELL: -- I think
4 that the Commission, you know, it's a debate
5 that we have every time we write our
6 commentary and explanation for our amendments,
7 sort of how we're going to formulate that, and
8 we all look at that very closely. You know,
9 do we put in some of the data that --
10 empirical data, you know, the dataruns that
11 we've done and analysis that we've done on
12 data. Do we look at the recidivism analysis
13 that we've done. Do we look at average
14 sentence lengths. Do we look at departures.
15 I mean we do look at all that, but
16 the question is do we put that all into our
17 commentary, and sometimes we do and sometimes
18 we don't. The question is what -- are you
19 asking for -- when you say empirically based,
20 are you looking for more of an -- is basically
21 all you're saying is just more of an
22 explanation in the guidelines?
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1 JUDGE MOLLWAY: I don't --
2 COMMISSIONER HOWELL: Because we
3 look at the data for every amendment, in
4 conjunction with the directives we've been
5 given by Congress expressly. And oftentimes
6 Congress asks us first for a lot of data
7 before they actually give us the directive and
8 as they're considering legislation. So
9 oftentimes Congress has a lot of the data
10 already too and has made the policy decision
11 that forms the basis for the directive to us.
12 So sometimes I think that when I
13 hear people demanding or criticizing
14 guidelines for not being empirically based
15 when every amendment to the guidelines that we
16 issue is based on some empirical analysis,
17 whether essentially what you're asking for is
18 just more of an explanation that is -- and so
19 I'm curious what -- what exactly do you mean?
20 JUDGE MOLLWAY: I think having more
21 of an explanation would help, but my comment
22 was directed more at what -- I want not just
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1 being told something, but I want the reality
2 to be that there is empirical evidence that
3 supports a guideline, not just --
4 COMMISSIONER HOWELL: Not empirical
5 -- I'm sorry.
6 JUDGE MOLLWAY: -- being told
7 something.
8 And so I don't know, for example,
9 if you were to work out the possible sentences
10 that might come out of different combinations
11 of guidelines, let's just take child
12 pornography, whether there's evidence that
13 those particular sentences -- take a four-year
14 sentence for, you know, someone who had file-
15 share on a certain number of images, or
16 something like that -- does that really cut
17 down on recidivism. Can something different
18 have the same effect. That’s the kind of
19 evidence I would like to see.
20 I don't know whether what body is
21 better positioned to collect that kind of
22 evidence and work it into a nationwide policy.
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1 ACTING CHAIR HINOJOSA: I guess a
2 follow-up question is, Judge Mollway, let's
3 say it's a brand new statute, that has never
4 been a violation of federal law, should the
5 Commission then wait till it starts seeing
6 cases within that statute before it
7 promulgates a guideline on a brand new statute
8 or what should the Commission do in that
9 situation? Where there is no basis for prior
10 cases and empirical studies and looking at
11 average sentences and what courts have done in
12 a similar situation because there hasn't been
13 one?
14 JUDGE MOLLWAY: Well, I'm sure
15 whatever guidance the Commission could give me
16 would be greatly appreciated. If I'm the
17 judge who has to give the first sentence on
18 this new statute where there has never been
19 anything done, you can bet I'll be grateful
20 for any advice you give me.
21 But, you know, as they work their
22 way through and as we get evidence, if that
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1 could support any amendment --
2 ACTING CHAIR HINOJOSA: And I think
3 Commissioner Howell's point is that, you know,
4 this process that the Commission goes through
5 is a long process. And for those of us who
6 have to do it, you know, it's not unusual for
7 me to continue a sentencing because something
8 comes up at the sentencing. I know some
9 judges may be cautious about that, but I have
10 no problem whatsoever in the middle of a
11 sentencing, somebody comes up, and I need more
12 information, whether it's medical evidence
13 about a family member or anything else like
14 that, to say, okay, we'll continue it till I
15 get it.
16 But you know the Commission has the
17 luxury of we have gone through a whole process
18 of an extended period of time of comment from
19 defenders, prosecutors, the public; what we
20 got from Congress; what we get from the
21 judges; and that every guideline, Amendment,
22 and/or new guideline that comes into effect
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1 has gone through this extended process that
2 has been put through a pretty serious test,
3 and then obviously it goes to Congress and
4 sits there for six months before they let it
5 become part of the manual itself, and so it is
6 a difficult situation to explain this to --
7 and perhaps we don't do as good a job as we
8 should -- to explain what the process has
9 been, because it isn't that we just sit around
10 one day and decide, well, let's put this in
11 the book.
12 JUDGE MOLLWAY: I didn't mean to
13 suggest that --
14 ACTING CHAIR HINOJOSA: No, no.
15 And I know you didn't --
16 JUDGE MOLLWAY: And I'm grateful
17 for the detail you help me get --
18 ACTING CHAIR HINOJOSA: -- mean
19 that, Judge. And we didn't take it that way.
20 It's just that I think perhaps we don't do as
21 good a job sometimes of explaining what the
22 process is. And I, frankly, was not as aware
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1 about it as when I became a judge.
2 And, you know, getting back to
3 Judge Lasnik's point, I'm probably the first
4 southwest border judge ever to serve on the
5 Sentencing Commission and, frankly, never
6 picked up the phone and called the Sentencing
7 Commission when I probably should have. And
8 so that's why it's great that you all are here
9 because we're hearing from you. But it was an
10 eye-opener for me as to what the process was.
11 JUDGE LASNIK: The other thing,
12 Judge Hinojosa, picking up on what you said,
13 you have maintained great credibility with
14 Congress because you listened to what Congress
15 says, you incorporate it into the guidelines.
16 It doesn't help us for you to say,
17 well, we're going to be an independent
18 Commission and just go a certain way, because
19 you will lose your clout and your credibility.
20 So we understand that you have been
21 successful in many important ways for the
22 judiciary because of how you have handled a
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1 very difficult role of being this independent
2 Commission. So we understand that, and, you
3 know, especially as a former chair of a state
4 sentencing guidelines commission, if you lose
5 credibility with your legislative authority
6 and your political people, you're not going to
7 be of any use to anyone. So the political
8 doesn't mean evil, and it's important that you
9 take account of some of those factors. And
10 you've done a great job in that area.
11 ACTING CHAIR HINOJOSA: And I hope
12 that we've done a good job also of listening
13 to the judges, because, as we all know, the
14 district judges are the ones who have actually
15 to pass the sentencing, to do this actual
16 difficult job itself.
17 COMMISSIONER HOWELL: It saves
18 lobsters.
19 ACTING CHAIR HINOJOSA: And it's
20 difficult, as you all explained, you know, a
21 lot of times we know the defendant and family
22 members, I'm in a building where it's public
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1 elevators, so we sometimes ride up together.
2 But, at the same time, you know, it's also
3 difficult because the factors themselves talk
4 about the public quite a bit, and they're
5 usually not present. And so we have that
6 difficult task of putting it together as to
7 what's better for -- best for the defendant
8 and the public also. And so what we hear from
9 the judges is very helpful. And, you know,
10 certainly what the executive has to say and
11 the general public. And it's all put together
12 over a long period of time here.
13 But you all have been very helpful
14 and -- yes.
15 COMMISSIONER WROBLEWSKI: First,
16 let me add my voice of thanks for you all
17 being here.
18 I have a couple of follow-up
19 questions on a few things. Judge Lasnik and
20 Judge Mollway, you both testified about
21 alternatives to incarceration. And I'd like
22 you to expound a little bit on what you meant
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1 because a few things come to mind.
2 First is with advisory guidelines
3 and with the type of -- or lack of substantive
4 reasonableness review that's going on right
5 now, it seems to me that if a district judge
6 has in front of him or her a defendant who
7 that judge believes should not go to prison
8 and should be given an alternative, at the
9 moment under the current law that judge has
10 the ability to do so.
11 So my first question is, is there -
12 - is the problem you want the Commission to
13 address one of defining the eligibility for
14 alternatives or, as Judge Mollway talked
15 about, is it the idea of gathering the
16 evidence of what alternatives work and what
17 alternatives don't, presenting that to the
18 district judge within the current scheme of
19 eligibility? And if it --
20 JUDGE LASNIK: I think it's both,
21 frankly. And -- but I think we have a lot of
22 evidence out there in the social science
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1 community about what does and does not work,
2 much more than we had back in 1984, when the
3 Sentencing Reform Act was passed and we are
4 still on sort of the tail end of nothing
5 works. We have drug courts that started at
6 the state court level and apparently there was
7 a diversion during court that General Holder
8 utilized when he was a judge that he's very
9 positive about.
10 There's a lot of data on the Oregon
11 program being utilized. There are workforce
12 programs. There's MRT. There's a lot of
13 things that are out there. But there -- this
14 district does this, that district does that.
15 Hawaii has this program. And I think the
16 Commission can be a clearing house of what
17 works, what doesn't work, and possibly
18 influence funding to some extent because these
19 programs, they do save money over
20 incarceration, but they cost -- they cost
21 money in the intensity of drug treatment, beds
22 for mental health courts, or things like that.
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1 And so I think the problem that I
2 see with the Commission is the -- this is a
3 situation where Congress had a preference for
4 alternatives for certain kinds of offenders,
5 but as a judge you don't really know what's
6 out there other than straight probation or
7 some sort of intermittent confinement.
8 And I think we have a lot better
9 information, but it's scattered and it's not
10 put in a useful manner for not just the judge
11 but for the practitioners to present to --
12 COMMISSIONER WROBLEWSKI: Let me
13 follow up again on that. Obviously the
14 availability of treatment or of halfway houses
15 or of certain alternatives is going to be in
16 many ways very district specific and sometimes
17 city specific. So the Eastern District of
18 Virginia may have one availability of a
19 program in Alexandria and may not have a
20 similar program in Norfolk.
21 Do you think as a centralized
22 agency sitting in Washington, are you asking
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1 the Commission to sort of pick and choose and
2 sort of try to make something a little more
3 uniform across or are you just talking about
4 the Commission advocating more with the
5 appriators and allowing the kind of
6 experimentation that you described to continue
7 at least for some time?
8 JUDGE LASNIK: The latter point.
9 Because obviously, again, if uniformity is
10 your only goal, and you wait till everyone has
11 a similar program, it'll never happen. But to
12 have a pilot program that uses drug-court
13 diversion in Seattle, for instance, with the
14 concurrence of our new U.S. Attorney, backed
15 by the Attorney General, and with the court
16 and Probation and Pretrial Services being
17 onboard, and study that and see does it work
18 or not, might be a good thing to do, even
19 though it will lead to some sentencing
20 disparity because the people in the Western
21 District of Washington have an option that's
22 not open to them in the Eastern District of
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1 Washington.
2 But I still think those things are
3 important to encourage, from the Commission's
4 perspective, to study with your superb staff,
5 to educate and be training on, and to
6 hopefully -- it's not going to happen
7 overnight but work towards a system that put
8 some real meaning into the phrase
9 "alternatives to confinement."
10 JUDGE BREYER: But if there are
11 ways to put within the guideline structure
12 some alternatives for low-level drug
13 defendants, as an example. I mean obviously
14 that would encourage --
15 JUDGE LASNIK: It certainly would.
16 And I'm mindful of the fact that 40 percent
17 of the offenders are illegal aliens and it
18 creates a great challenge, because you cannot
19 do the same kind of programming with those
20 individuals.
21 But even those individuals who go
22 to prison, why not give them treatment, why
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1 not give them education opportunities, why
2 just warehouse them, or anything like that.
3 So I agree with the point that you can't
4 necessarily put those people in the same kind
5 of community-based, free-to-roam treatment
6 programs. But even there, with the ones who
7 go to prison, there should be drug treatment,
8 alcohol treatment, and work, education
9 opportunities.
10 JUDGE BREYER: And you know where
11 you see this, there is basically a national
12 laboratory for this because we all find in
13 cases of supervised-release violations, when
14 they come in, you start to get an idea of what
15 the particular problem is with respect to that
16 particular defendant. And then you do try, at
17 least I do and I think all my colleagues do,
18 fashion the sentence with respect to the
19 violation that addresses the particular
20 problem of that defendant.
21 So I think that there is some
22 empirical evidence out there about what seems
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1 to be working. I certainly would say you're
2 absolutely right, it's going to be
3 individualized district by district, maybe
4 even within districts. But I would hope that
5 the Commission would encourage more of these
6 programs to be developed, even if it isn't on
7 a nationwide basis.
8 The interesting thing about the
9 most recent report that came out on the
10 alternative -- alternatives to incarceration
11 was how small that book was. And that because
12 I agree with Judge Lasnik and Judge Mollway
13 that judges are constantly looking for ways to
14 basically address the problem of the
15 individual defendant so that recidivism isn't
16 really going to be the issue in that
17 particular case. That's number one.
18 We were all very surprised, at
19 least I was, when the Bureau of Prisons
20 terminated the Boot Camp Program, especially
21 those of us who had come from the state court
22 system -- where I was a district attorney for
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1 a number of years -- and found that in
2 particular cases it seemed to work rather
3 well. But I understand that, according to the
4 Bureau of Prisons' report, that overall it
5 wasn't cost-effective.
6 Well, you know, looking at
7 sentencing as an individualized issue, as an
8 individualized issue, there are those cases in
9 which it makes a great deal of sense to be
10 able to put a particular defendant in a
11 particular program. So I would love to see
12 the Commission use some energies and resources
13 to try to see whether we can develop more of
14 these programs, because, number one,
15 especially California, you know, you're going
16 to find that it's absolutely prohibitive
17 putting more and more people in jail. It's
18 not effective. It's prohibitive.
19 And so there is going to be a
20 fiscal issue of looking for other types of
21 situations that may address these problems,
22 and I think the Commission could be helpful in
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1 that regard.
2 COMMISSIONER WROBLEWSKI: It's
3 interesting the example that you pointed out,
4 the Boot Camp, because that decision was
5 evidence based. It was based on research that
6 showed, as compared to other programs, for
7 example, the Federal Prison Industries, the
8 Drug Treatment -- the Residential Drug
9 Treatment Program, that that's much less
10 effective, in some cases actually counter
11 productive to go through that program.
12 Can I just ask you, Judge Breyer,
13 one question about the -- I think what you
14 called the shadow guideline system that
15 started to creep in. And what you said rang
16 true to me because we've been hearing from the
17 U.S. Attorney's Office in the Northern
18 District of California and others, in fact
19 Karen Immergut is going to be -- from the
20 District of Oregon -- is going to be
21 testifying about the greater use of
22 11(c)(1)(C) pleas. And I think that's
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1 consistent with what you're talking about.
2 Basically the parties are getting together and
3 they are deciding what facts and factors
4 should go into the determination.
5 They're coming to court and saying,
6 "We've worked it all out here, take it or
7 leave it."
8 Do you have any -- any reason -- or
9 do you have any understanding of why this is
10 happening? Is it just -- is it possibly
11 because of greater uncertainty at the district
12 court level in terms of sentencing? Is it
13 Booker? Or is it completely underrated and
14 because of something else?
15 JUDGE BREYER: No, I think it's
16 Booker. I think that one thing parties
17 dislike in the criminal justice system is
18 uncertainty. They can live with a lot, but
19 what makes it very, very difficult is the
20 uncertainty. The -- and when the judges have
21 the discretion to exercise their discretion in
22 a particular way, that introduces, that
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1 introduces uncertainty into the process.
2 Every judge may have a different
3 practice. I do accept, and some judges don't,
4 by the way, the (c) plea with the proviso, of
5 course, that I'm going to make my own
6 independent inquiry and determine whether or
7 not I'm going to accept the disposition. In
8 other words, I accept the plea but I don't
9 necessarily accept the disposition and then I
10 -- if I don't, I simply send it back to them
11 and set aside the plea, if I need to do that
12 procedurally.
13 So it doesn't bother me that they
14 are trying to negotiate a disposition. What
15 bothers me about it is that that disposition
16 is frequently based on a set of facts or not
17 that I don't know about. And if I don't, then
18 actually I have transferred the sentencing
19 power that I really think for many, many
20 reasons ought to remain with the judge. You
21 know, a judge appointed by the President,
22 confirmed by Congress, who exercises
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1 independent judgment. I think that's a key
2 role for the judiciary, and to transfer that
3 power to either the executive branch or to,
4 depending on what district you're in, to -- to
5 defense counsel, I for one don't like that
6 because I don't think it's their role to set
7 the sentence.
8 So I have a healthy, healthy or
9 not, I have a suspicion -- some people would
10 say it's not so healthy -- I have a suspicion
11 about (c) pleas. And it's not that I want to
12 fashion the particular sentence. It's that I
13 want to know what the facts are in order to
14 fashion a particular sentence.
15 JUDGE MOLLWAY: Can --
16 ACTING CHAIR HINOJOSA: Go ahead.
17 I'm sorry.
18 JUDGE MOLLWAY: My own experience
19 with those kinds of plea agreements, and I
20 don't have that many of them before me, but
21 they're -- I don't think in the ones I've had
22 presented to me have been driven by Booker
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1 considerations. That they -- the ones I've
2 seen have tended to come up in cases where
3 there is a statutory sentence that the parties
4 are so concerned about because it's so high
5 and they have difficult trials, if the
6 government is going to go ahead without a plea
7 agreement, and so both sides compromised.
8 I recently rejected one such plea
9 because it required me to find substantial
10 assistance had been given to the government,
11 and I said I didn't see it. I said you can't
12 identify substantial assistance to me just
13 giving it that name, but it, in essence,
14 consisted of everybody pleading together but
15 nobody was willing to say "I caused him to
16 plea," because they wanted them all to be
17 accepted. I didn't have the sense that it was
18 a Booker-related kind of phenomenon.
19 COMMISSIONER FRIEDRICH: I just
20 have a question for the three of you. A
21 number of witnesses who testified before the
22 Commission have argued that in part to remain
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1 more relevant, the guidelines, that the
2 Commission should take steps to try to address
3 the kinds of factors the district courts are
4 typically considering under 3553(a) and
5 varying, particularly offender
6 characteristics.
7 And the problem with doing that of
8 course is twofold. On the one hand, Congress
9 has given, and since the Reform Act, some
10 clear direction to the Commission that certain
11 characteristics like race, for example, should
12 be -- the guideline should be entirely neutral
13 as to that factor; and as to others that it's
14 generally inappropriate for the guidelines to
15 consider other factors, education and things
16 like that. And thus the guidelines and
17 Chapter 5 contain the so-called forbidden
18 factors and discourage factors that aren't
19 forbidden, but aren't ordinarily relevant
20 except in an exceptional case.
21 And so there's the statutory
22 problem and then on top of it there's the
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1 practical problem. If you look at the cases
2 post-Booker across the country you can read
3 one district judge finding the facts the
4 defendant has a college education and a job as
5 a mitigating factor and the defendant's going
6 to be able to pay restitution, et cetera,
7 reduces the sentence for that reason.
8 On the other hand, another judge
9 finds it an aggravating factor. You know,
10 'You didn't need to be doing this fraud. You
11 have an education. You had a job.'
12 And so I'm just interested in your
13 views on, one, whether that's something that
14 the Commission should step into and is it even
15 as a practical matter, you know, and a legal
16 matter -- can the Commission --
17 JUDGE LASNIK: Again, if you go
18 back to the fact that we're all trying to
19 stop, in addition to having fairness and
20 equity in sentencing, to stop people from
21 committing offenses in the future, some of
22 those factors are determinative of recidivism.
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1 Age, for instance, is a factor that the
2 statistics clearly demonstrate. The at-risk
3 population is more likely to commit future
4 crimes than above 40, or something like that.
5 So I think it's -- but we would all
6 agree that we do not want to go back to a
7 situation that sentencing was when it was,
8 'Oh, you remind me of my niece, so I'm going
9 to give you a break' and white male judges
10 were favoring certain people over others.
11 And the very first sentencing I did
12 as a young prosecutor, I'll never forget it,
13 went in their bright-eyed and idealistic, and
14 it was a welfare fraud case with an African
15 American. And the sentence, the judge looked
16 down, you know, interrupted the pitch and said
17 to the defendant, "What kind of car do you
18 drive? I bet you drive a Cadillac? Does he
19 drive a Cadillac? A nice, big white
20 Cadillac."
21 And I was so -- I felt so awful and
22 so much like I needed a shower that, you know,
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1 those sort of experiences stay with you.
2 There was a lot of racism, sexism, and every
3 kind of ism in the state judiciary and I'm
4 sure in the federal judiciary too. So you
5 make a great point.
6 The more we start looking at
7 individual factors, the more those things
8 might creep in much more unconsciously than
9 that particular racist judge was very
10 conscious about what he was doing, so it's a
11 difficult question. And I think that the
12 Commission needs to be very careful about
13 opening the valve in some of those areas.
14 But I do think the prohibitions now
15 go too far and I think there [are] a number
16 that you should think about amending. And I
17 think Tom Hillier's -- they cover a little bit
18 in their presentation later, but it's a great
19 point. Very difficult to balance that, being
20 fair to everyone but also taking into account
21 some of the demographics that do matter for
22 recidivism.
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1 ACTING CHAIR HINOJOSA: Our time is
2 up. I thank each one of you for having taken
3 --
4 JUDGE LASNIK: It was an honor to
5 be here.
6 ACTING CHAIR HINOJOSA: Thank you
7 all very much. We appreciate your comments
8 and thoughts.
9 And we'll break until -- the next
10 panel is at 11:45.
11 (Recess taken from 11:36 a.m. until
12 11:50 a.m.)
13 ACTING CHAIR HINOJOSA: We're ready
14 to get started with the third panel. This is
15 a "View from the Probation Office." And we
16 are very fortunate to have three individuals
17 who represent different probation officers of
18 the Ninth Circuit that we're having the
19 hearing in.
20 And we have Ms. Marilyn Grisham who
21 was appointed as the first female U.S.
22 probation officer in 1987 in the District of
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1 Idaho. In September of 1998 she was promoted
2 to senior U.S. probation officer as the drug
3 and alcohol treatment specialist, and then
4 became a supervising U.S. probation officer.
5 And in September of 2003 she actually became
6 the chief U.S. probation officer for the
7 District of Idaho.
8 We have Dr. Chris Hansen who was
9 appointed as the chief U.S. probation officer
10 in the District of Nevada in the year 2003.
11 Prior to being in Nevada he had worked as a
12 U.S. probation officer in the Middle District
13 of Florida for 14 years serving as a line
14 officer, intensive supervision specialist, and
15 later as a supervisor. He and his staff have
16 actively been involved in advancing evidence-
17 based practices in the general probation
18 system.
19 And we have Ms. Elizabeth Kerwood
20 who is the deputy chief U.S. probation officer
21 for the District of Hawaii. She began her
22 career as a federal probation officer for the
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1 District of Oregon in 1983. She became the
2 after-care specialist in 1991 and a supervisor
3 in 1992. And she became the deputy chief for
4 the District of Hawaii in the year 2002.
5 We are fortunate to have these
6 three individuals with the experience they
7 bring to their work to address us today. And
8 we'll start with Ms. Grisham.
9 Did you want me to start some other
10 place?
11 (Laughter.)
12 ACTING CHAIR HINOJOSA: I'm
13 flexible. This isn't a courtroom.
14 MS. GRISHAM: Well, yes, but my
15 colleague might not appreciate it.
16 First of all, thank you so much,
17 Commissioners, for this opportunity for
18 Probation to share our thoughts with you about
19 the guidelines. And I would kind of apologize
20 for my written statement, not exactly knowing
21 the audience, that we're absolutely preaching
22 to the choir. So I'm going to kind of put
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1 that aside --
2 ACTING CHAIR HINOJOSA: Sometimes
3 it's okay to preach to the choir.
4 MS. GRISHAM: -- and, based upon
5 kind of the discussion this morning, maybe
6 choose some other issues to highlight that
7 will lend themselves more to discussion.
8 As I did say, though, in my paper,
9 I really feel I've had the unique opportunity
10 as a Probation Officer, Line Staff, to author
11 both pre- and post-guideline presentence
12 reports, so I can bring that perspective to
13 the table.
14 Having said that, the guidelines
15 definitely were kind of a scary thing for us
16 when they were implemented in 1987, but
17 definitely needed. And Idaho, as you probably
18 know, is a very rural state, the population
19 probably just over a million now, and it's
20 growing by leaps and bounds, but we have a
21 very diverse geographic area. It's a big
22 state, six Indian reservations. And Boise is
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1 the Capital.
2 So we deal with a lot. We've only
3 have two district court judges. My chief
4 judge will be here tomorrow. If I could put
5 in one plug, it would be that we need a third.
6 If there's any help out there for that, we'd
7 appreciate it.
8 But prior to the guidelines I did
9 see sentencing that did take into account
10 gender, race, ethnicity, those issues. So we
11 welcomed the changes that the guidelines
12 brought in that respect. And we really
13 appreciate our role with the guidelines as
14 that neutral party putting that presentence
15 together, collecting information, and writing
16 it up, working for the courts so that we can
17 be neutral.
18 And we feel like we have a whole
19 different voice now than we did pre-
20 guidelines. And, again, that's much
21 appreciated. As I tell my staff, it's my
22 belief, when you're writing a presentence
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1 report, that you want to write it so that you
2 judge who, in all likelihood, some of the
3 sentencing decisions are going to appeal,
4 because most of them are, you want him to
5 prevail on appeal based upon your research and
6 directive that you've given him. So we take
7 our job very, very seriously in that respect.
8 Moving forward now, if there were
9 some changes to the guidelines, we'd love to
10 see that the two-point reduction for
11 acceptance of responsibility at 3(E)1.1 just
12 be a given in a plea situation. We have
13 fought for 22 years for and against giving it
14 and not giving it [inaudible] and it always
15 ends up that we get it, whether we believe
16 that that's accurate or not. So I think that
17 would be worthwhile to take a look at.
18 It's been touched upon a lot today,
19 the white-collar-crime issue. It seems to be
20 that those sentences are departed upon more
21 frequently than other types of defendants.
22 And I think there's probably issues with that
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1 that can be addressed.
2 Some of the concern in our office
3 in what we see in prosecutions is that the
4 government seems to be controlling the outcome
5 of the sentencing decisions via the plea
6 agreements. They're very structured, a lot of
7 times what they're mentioning in there, and
8 then not presenting evidence at the sentencing
9 hearing to support controverted issues, even
10 though they have the evidence, they have the
11 ability to do that. They don't want to
12 jeopardize their written plea agreement.
13 And so while we're the neutral
14 party in gathering all the facts sometimes it
15 seems, you know, we're doing it all for
16 naught, because it's laid out and that's the
17 way it's going to be.
18 Another issue that we feel is of
19 concern [] is the drug quantities seem to be
20 disparate. We are a huge methamphetamine
21 District, always have been. We knew how to
22 spell [] methamphetamine in 1988. I don't
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1 know when it hit the Beltway, but those people
2 are going away for a very, very long time.
3 When we compare that perhaps to
4 marijuana, it would take boatloads of
5 marijuana to get the same sentence as a pound
6 of methamphetamine. So we would like to take
7 Congress and Sentencing Commission hopefully
8 to take a look at that.
9 And kind of in line with that, the
10 mandatory minimums appear to us to be too
11 stringent, especially in some of the drug
12 cases, especially the crack cocaine. We are
13 not a crack cocaine District. We only had
14 four cases that were affected by the
15 retroactive amendment. And one was already
16 out. But be that as it may, we still believe
17 that that's way too stringent.
18 They've talked a lot today about
19 alternative sentences. We certainly would
20 like to see them. I'm not sure in our
21 district, given the gravity of the offenses
22 that are prosecuted, that there would be many
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1 people known people that would qualify for
2 that, but there certainly are some:
3 Diversion, drug courts, other types of
4 alternatives would be welcome for us.
5 However, hand-in-hand with those
6 kinds of things are -- they're resource-driven
7 for us. And we struggle with reduced workload
8 via the workload formula, trying to do more
9 with less. And coming from kind of a
10 geographically-challenged state -- I mean I
11 have four satellite offices, two are manned by
12 one probation officer and a half-time clerk,
13 so there really is only so much we can do with
14 the resources that we have. It would simply
15 take more resources, more money coming our way
16 to really engage in those alternative-type
17 sentences throughout the state.
18 We recently implemented a drug
19 court in Boise last September, and just now
20 started another one in the eastern part of our
21 state last month. We don't have, you know,
22 empirical data to share, because they are so
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1 new. But it's a struggle, because they are
2 very, very different, intensive programs.
3 They wanted to start one up north and I asked
4 them to hold off because I just don't have the
5 officer power to deal with it at this point in
6 time.
7 Another thing that we see in Idaho
8 is an awful lot of immigration cases being
9 prosecuted. For us they're very time-
10 consuming cases. There is just an abundance
11 of case law out there that we have to be aware
12 of and deal with. The Taylor approach, which
13 they talked about this morning, it's a
14 challenge, a lot of times to get records that
15 are needed for that Taylor categorical
16 approach.
17 So I mean, if we don't have them,
18 we're certainly not going to go there with the
19 enhancements, but we are probably missing a
20 lot just because we can't get the records.
21 But even still I think that the sentences for
22 immigration cases are just too high. They're
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1 costing the public too much money via the
2 prison system.
3 I mean I know several years ago
4 they kind of made more distinctions in those
5 special defense characteristics. Perhaps
6 there could be more. I'm not sure what the
7 answer is. But 16 levels is huge. And that's
8 most of the cases that we see, because our
9 prosecutors go after the more egregious 1326
10 cases.
11 And finally I want to say that we
12 are very grateful for the Sentencing
13 Commission. We use the staff at Sentencing
14 Commission, the hotline as a resource. Often
15 we're often asked, prior to sentencing, by the
16 judges to contact the Commission to get their
17 take on the issue. And the website provides a
18 lot of guidance and great information, as
19 well.
20 To the same degree I guess a plug
21 would have to go also to the general counsel's
22 office, because we use them an awful lot, as
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1 well. We have great resources. We work with
2 great people. And truly post-1987 our role
3 changed significantly. And I think we're
4 really grateful for that. It's much more
5 challenging, much more interesting, and I
6 think has caused us as a system to just become
7 that much better.
8 So thank you.
9 ACTING CHAIR HINOJOSA: Thank you,
10 Ms. Grisham.
11 Dr. Hansen.
12 DR. HANSEN: Good morning. Thank
13 you for allowing us to be here. I understand
14 we are between you and lunch. So we'll move
15 the comments along. I had the opportunity to
16 review some of my colleague's testimony before
17 you and especially Greg Forest. And I didn't
18 want to reiterate what he said, but I agree
19 with many of his points.
20 As you no doubt are aware the
21 United States incarcerates more of its
22 citizens than any other country in the world.
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1 A recent article in the New York Times noted
2 the United States has less than five percent
3 of the world's population but it has almost a
4 quarter of the world's prisoners. One in a
5 hundred individuals in the United States are
6 incarcerated in prisons or jails. One in 31
7 are under some form of correctional control.
8 David King, who's the Chairman of
9 the American Conservation Union, noted, "The
10 fact that so many Americans, including
11 hundreds and thousands who are a threat to no
12 one are incarcerated. That means that
13 something is wrong with our criminal justice
14 system and the way we deal with both dangerous
15 criminals and those whose behavior we simply
16 don't like."
17 At mid-year 2007 the federal prison
18 population grew by 3.1 percent. I mention
19 these facts and figures to bring attention to
20 the fact that we can't keep building federal
21 prisons to deal to deal with our criminal
22 justice population. To deal with the systemic
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1 political issues goes far beyond the control
2 of the Commission.
3 I can compliment you all on your
4 unwavering efforts to end the disparity
5 between crack and powder cocaine, even when it
6 was unappealing to do so.
7 I also want to compliment the
8 Commission on its symposium on alternatives to
9 incarceration, and I hope that the Commission
10 continues to study alternatives to
11 incarceration.
12 I'd also note that we are in a
13 green state, and we should have green symbols
14 on all our Federal Bureau of Prisons and state
15 prisons because we are excellent recyclers.
16 Except it's human recycling we do.
17 The Commission asked for some
18 points that we would touch on. I'll touch on
19 a few of those.
20 First, the sentencing, post-Booker.
21 Booker has opened the door for judges to make
22 what I call the whole person in accordance
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1 with 18 3553(a). The court now has greater
2 discretion to determine a reasonable and just
3 sentence. The court now has the ability to
4 more freely considered the unique
5 characteristics of each case, each defendant
6 than previously.
7 The advisory nature of the
8 sentencing guidelines allows the court to
9 consider other imposed sentences of similarly-
10 situated defendants. In the post-Booker world
11 the Probation Office plays a critical role in
12 providing the court with a true and accurate
13 picture of the defendant. This role prior to
14 Booker had become rote.
15 With accurate calculations, the
16 guideline range paramount, the defendant's
17 characteristics has become benign. Probation
18 Officers in the post-Booker world must be
19 trained or retrained to analyze the unique
20 characteristics of each defendant. And this
21 will provide the court with the rationale and
22 justification to provide a just and reasonable
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1 sentence, including a variance, if warranted.
2 The role of the guidelines.
3 Perhaps there is no more important motivator
4 for the creation of the sentencing guidelines
5 than the desire to eliminate sentencing
6 disparity. Based upon the comments of the
7 judges in the District of Nevada, it would
8 seem that the sentencing guidelines are viewed
9 as inherently reasonable. This is further
10 supported by the high number of sentences
11 which continue to be imposed within the
12 calculated guideline range.
13 The sentencing guidelines were
14 designed to capture the specific acts
15 committed by defendant during the commission
16 of the primary offense category, not simply
17 qualify the statute which has been violated.
18 The sentencing guidelines also
19 attempt to assign a specific value to criminal
20 history behavior and provide an incremental
21 punishment for repeat offenders.
22 Potential changes to the guidelines
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1 could include a revision to allow the court to
2 depart from the applicable guideline range
3 based on the history and characteristics of
4 the defendant. 18 3553(a), which 18 3553(a)
5 directs the court to consider upon imposition
6 of sentence. The guidelines currently
7 discourage such consideration.
8 The guidelines could include a
9 uniform reduction available to defendants
10 being sentenced as to immigration offenses who
11 enter a timely plea. Currently, a few
12 districts offer fast-track reductions, which
13 are otherwise unavailable in most Districts.
14 This would serve to further diminish
15 sentencing disparities between Districts.
16 Based on my opening comments, the
17 Commission should increase the availability of
18 probation for low- risk, nonviolent offenders.
19 Probation is a low-cost and effective
20 alternative to imprisonment. As noted, the
21 Commission should continue to follow up on its
22 alternative to incarceration in a symposium.
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1 Federal sentencing system balanced
2 between judicial discretion, uniformity, and
3 certainty. The system appears to balance the
4 objectives of judicial discretion, uniformity,
5 and certainty. This is due to a continued
6 reliance upon the guidelines to set an
7 advisory sentencing range based upon specific
8 factors related to the offense and the
9 defendant's criminal history which are
10 uniformly calculated.
11 The sentencing guidelines offer the
12 court a starting point for the determination
13 of an appropriate sentence, which is utilized
14 in combination with those considerations
15 contained in 18 3553(a) when formulating the
16 final sentence imposed. And that is where the
17 presentence report is paramount.
18 How should offense and offender
19 characteristics be accounted for in federal
20 sentencing? What changes could be made to
21 account for these characteristics?
22 Experience has shown the guidelines
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1 focus on the details of the offense.
2 Increases or decreases to the guideline
3 calculations are based on the unique
4 characteristics of the offense and address
5 specific overt acts.
6 It would seem, however, that the
7 guidelines provide a lesser consideration for
8 the characteristics of the defendant. Most of
9 the guideline applications which address the
10 defendant's characteristics in Chapter 5 are
11 universally labeled as "not ordinarily
12 relevant," and are thus deemed discouraged
13 factors to be considered at sentencing.
14 This appears to be in conflict with
15 the directives of 18 3553(a)(1), which begins
16 with: The first factor the court is directed
17 to consider in imposing a sentence is the
18 nature and circumstances of the offense and
19 characteristics of the defendant.
20 Certain characteristics of the
21 defendant are indicative for the risk of
22 recidivism and are captured by the provisions
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1 of Armed Career, Criminal Career Offender, and
2 Safety Valve, which focus almost entirely on
3 criminal history and not on the other
4 characteristics of the defendant.
5 Other pertinent characteristics
6 which may also aid in the assessment of risk
7 and recidivism are not encouraged as factors
8 warranting significant weight in the
9 imposition of sentence, for example, a
10 defendant who is terminally ill may pose a
11 much less significant risk of recidivism.
12 What kind of analysis should [a]
13 court use when imposing a sentence within or
14 outside the guidelines sentence range.
15 As I've noted, the court should
16 rely upon both the analysis of the offense and
17 defendant pursuant to all guideline
18 applications and then utilize a comprehensive
19 review of the factors of 3553(a). The
20 combination of both guideline and calculations
21 and 3553(a) factors provide the basis for
22 analysis and result in a thoughtful,
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1 reasonable, and just sentence.
2 This is an area where the Probation
3 Office plays a critical role, as I've noted,
4 and must break free of the pre-Booker rote
5 presentence reports, as I have previously
6 noted.
7 How have Booker and subsequent
8 Supreme Court decisions affected appellate
9 review:
10 In Booker, the Supreme Court ruled
11 that sentencing guidelines were advisory in
12 order to comport with the Constitution, and
13 that the federal courts of appeals can review
14 criminal sentences for reasonableness.
15 Immediately thereafter, there
16 appeared to be wide dissent as to what the
17 standard for reasonableness was and what the
18 review would thus incorporate. The vagueness
19 led to a split in the circuits in their
20 determination of what constituted a reasonable
21 sentence. The circuits split and obviously
22 ambiguity led to the Supreme Court's
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1 subsequent ruling in Rita.
2 The Supreme Court attempted to
3 resolve the ambiguity as to reasonableness and
4 stated that a sentence within the now advisory
5 guideline range was presumptively reasonable.
6 The Supreme Court also noted that a
7 statement of reasons pursuant to 18 3553(c) on
8 the record by the judge was legally
9 sufficient. However, the appellate courts
10 then differentiated themselves from each other
11 again with decisions made as to what
12 constitutes a specific-enough statement of
13 reasons.
14 Since then district court judges
15 have responded by making additional efforts to
16 satisfy the appellate courts by putting [on]
17 the record that they have thoroughly
18 considered the parties' arguments and other
19 reasons for imposing what is a reasonable
20 sentence.
21 As part of the recommendation,
22 there was a recent request by the American Bar
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1 Association to amend Rule 32. And the
2 Probation Office recommends that no changes
3 occur, more specifically, as to the proposed
4 changes proffered by the Bar Association. I
5 have listed several reasons why we should get
6 that mandate, but I'm not going to go ahead
7 and read those now.
8 Recommendations the Commission may
9 make to Congress with respect to statutory
10 changes regarding federal sentencing:
11 The mandatory minimum sentences may
12 be revised (sic) for certain defendants who
13 have committed a nonviolent offense and pose a
14 relatively low risk of recidivism. We've seen
15 in our district how a Mexican National who
16 came in with a trunkload of drugs, acting as a
17 mule, with no prior criminal record and no
18 established tie with [the] United States, was
19 sentenced to a severe minimum mandatory
20 sentence.
21 A sentence imposed below the
22 mandatory minimum may well be adequate and not
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1 greater than necessary to meet each of the
2 goals of sentencing.
3 I would also urge the Commission to
4 review the research literature to determine
5 the types of defendants who would do well on
6 community supervision without the need for
7 specific imprisonment. We cannot continue to
8 build prisons as a way out of this complicated
9 problem.
10 As my opening comments alluded to,
11 we are a world leader in incarceration of our
12 citizens. This is a costly and at times an
13 unnecessary response to low risk, nonviolent
14 offenders when alternatives are available.
15 I encourage the Commission to
16 continue to study this issue objectively with
17 the assistance of professionals at every level
18 in and outside of the criminal justice system.
19 And I want to thank you for
20 attention.
21 ACTING CHAIR HINOJOSA: Thank you,
22 Dr. Hansen.
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1 Ms. Kerwood.
2 MS. KERWOOD: Good afternoon
3 esteemed members of the U.S. Sentencing
4 Commission and members of the audience. Thank
5 you for inviting me to represent the District
6 of Hawaii, the Probation Office in Hawaii. I
7 feel very honored to be here and to share
8 their thoughts with you.
9 The District of Hawaii is an island
10 community rich in diverse cultures, beliefs,
11 and socioeconomic backgrounds. Because of
12 this diversity and the relatively close
13 proximity in which we reside, the underlying
14 values of living in harmony; tolerance for
15 individual differences; treating each other
16 with compassion and dignity; and role modeling
17 or teaching the skill sets which support these
18 values to those who have gone astray permeates
19 how we conduct business in the probation
20 office.
21 Additionally, when the conduct has
22 the imminent potential of resulting in harm
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1 either to our community, to a specific person,
2 or to the offender himself and all the efforts
3 towards rehabilitation have failed, the
4 Probation Office pursues action for timely and
5 appropriate consequences.
6 It is with this backdrop that I
7 share our experience of how the U.S.
8 sentencing guidelines and the Supreme Court on
9 U.S. versus Booker have affected federal
10 sentencing guidelines in the District of
11 Hawaii.
12 It is also from this island
13 prospectively that I respectfully share our
14 thoughts on how devoting resources to crime
15 prevention, rehabilitation, and incorporating
16 collaborative efforts of the offender, the
17 probation officer, and various stakeholders in
18 the community to which the offender will
19 ultimately return is an essential component of
20 reducing recidivism, thereby safeguarding
21 public safety.
22 As you know, the U.S. Sentencing
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1 Commission was established as an independent
2 agency in the judicial branch of government
3 with the express purpose of establishing
4 sentencing policies and practices for the
5 federal criminal justice system.
6 The sentencing guidelines were
7 specifically designed to incorporate the
8 purposes of sentencing enumerated 18 U.S.C.
9 3553(a) and to reflect, to the extent
10 practical, advancement in the knowledge of
11 human behavior as it relates to the criminal
12 justice process.
13 In the District of Hawaii the
14 advancement in the knowledge of human behavior
15 relating to the criminal justice system is
16 guided by the meta analysis of research on
17 criminal behavior and evidence-based practices
18 that focus on the outcomes of various
19 treatment and intervention modalities in
20 reducing recidivism.
21 It is notable that even before the
22 passage of the Second Chance Act, due to
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1 primarily to our underlying community values,
2 the District of Hawaii embarked on creating a
3 collaborative alliance with the offender and
4 other support systems to ensure a more
5 meaningful transition into the community for
6 the offender.
7 As succinctly stated by Assistant
8 Deputy Chief Probation Officer Burton Maroney
9 from the Southern District of Iowa, "In the
10 end, our goal is to have offenders see
11 themselves as being a part of the community
12 and not see themselves as being apart from the
13 community."
14 In this testimonial statement, I
15 bring a message from the District of Hawaii
16 that the Supreme Court decision in Booker
17 acknowledges the unique circumstances of each
18 offender's background and the contributing
19 factors culminating in criminal conduct and
20 maintains the integrity of the Sentencing
21 guideline system, albeit, advisory in nature.
22 Additionally, revisions to the
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1 advisory sentencing guidelines which
2 incorporates principles of the current
3 research on criminal behavior are a necessary
4 component of addressing the purposes of
5 sentencing, specifically, just punishment,
6 deterrence, incapacitation, and
7 rehabilitation.
8 In 2005, pre-Booker fiscal year,
9 69.9 percent of offenders received sentences
10 within the then mandatory sentencing guideline
11 system; 26.1 percent received a downward
12 departure based on substantial assistance; 2.2
13 percent received an upward departure; and 2.2
14 received a downward departure.
15 In the 2008 post-Booker fiscal
16 year, 42.8 percent of offenders received
17 sentences within the advisory guideline range;
18 30.9 percent received a departure based on
19 substantial assistance; and approximately 29
20 percent received a variant sentence below the
21 advisory guideline range based on 18 3553
22 factors or a combination of a guideline-
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1 supported departure and 18 3553 factors.
2 In comparison, the pre-Booker 2005
3 and post-Booker 2008 statistics shows an
4 appreciable progression and movement toward
5 individualized sentences.
6 Following Booker, the District of
7 Hawaii made a philosophical shift and
8 implemented evidence-based practices, EBP, in
9 the presentence process as well as in the
10 supervision practices of offenders.
11 Briefly, EBP entails the objective,
12 balanced, and responsible use of current
13 research and the best available data to help
14 guide practice decisions such that outcomes
15 are improved.
16 The District of Hawaii is very
17 fortunate and is one of the grant recipients
18 from the Office of Probation and Pretrial
19 Services of the Administrative Office of the
20 United States Courts to implement EBP. As
21 such, in preparing presentence reports,
22 probation officers conduct presentence
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1 investigations in the spirit of motivational
2 Interviewing, MI.
3 This style of interviewing enables
4 the defendant to share information in a
5 collaborative, nonauthoritative atmosphere
6 which then triggers "change talk," for the
7 identification of areas in the defendant's
8 lifestyle or desired change.
9 The incorporation of MI in the
10 presentence interview has also resulted in
11 better identification of criminogenic needs
12 and 18 U.S.C. 3553 factors to assist the court
13 in fashioning an individualized assessment and
14 sentence.
15 Also in the supervision of
16 offenders, we also utilize assessment tools to
17 identify risk factors and we introduce needs
18 to help create a collaborative alliance to
19 promote the offender's success.
20 In addition, we are using various
21 modalities. We are using cognitive behavioral
22 techniques, interactive journaling, offender
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1 workforce development, and reenter programs to
2 facilitate the offender's success.
3 And it's also noteworthy to mention
4 that the passage of the Second Chance Act of
5 2007 affirms the need for the collaborative
6 efforts of all components of the correctional
7 system to work towards the common goal of
8 reducing recidivism.
9 In his concurring opinion, Eighth
10 Circuit Court of Appeals Judge Myron H. Bright
11 noted that it is clear that the spirit of the
12 Second Chance Act of 2007 intends for the
13 entire correctional system to work towards the
14 rehabilitation of prisoners for the purpose of
15 reducing recidivism.
16 In this regard, the U.S. Sentencing
17 Commission can play a significant role in a
18 comprehensive reentry model and make a
19 substantial impact on the rehabilitation of
20 offenders in reducing recidivism.
21 When I asked my supervisors what
22 information regarding the guidelines can I
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1 share with you, they indicated -- for the most
2 part they said the guidelines take into
3 account most of the relevant facts and the
4 circumstances of a crime.
5 However, with respect to 2B1.1
6 there continues to be ambiguities which result
7 in complex and time-consuming efforts to seek
8 clarification, both through consultation with
9 the Sentencing Commission, case law research,
10 and prolonged fact-findings at sentencing.
11 Additionally, in particular, in
12 Application Note 3, loss is defined as the
13 greater of "actual" or "intended" loss. In
14 applying this definition, it would appear that
15 there would be two different values.
16 However, according to
17 representatives from the U.S. Sentencing
18 Commission during a recent training in Hawaii,
19 "intended" loss would always be the greater
20 value since it includes "actual" loss.
21 This position is neither supported
22 by the definition of "loss" in application
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1 notes nor by the various circuit opinions. To
2 remedy this situation, if it is truly the U.S.
3 Sentencing Commission's position that intended
4 loss will always be the greater of losses, it
5 should amend the application note to make the
6 intention clearer.
7 Additionally, during a recent
8 sentencing involving the determination of the
9 base offense level under sentencing guideline
10 2B1.1, the sentencing judge found that 2B1.1
11 is sufficiently ambiguous in syntax to
12 mitigate against applying the higher
13 alternative base offense level. I believe
14 that Judge Mollway referred to that in her
15 testimony, as well.
16 It is our district's belief that
17 the Sentencing Commission is an independent
18 entity that should stand behind its opinions
19 when providing a position pertaining to the
20 interpretation of a particular guideline or
21 application note.
22 In this regard the nonbinding
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1 waiver that automatically accompanies an
2 opinion rendered through the U.S. Sentencing
3 Commission Hotline Staff undermines the
4 validity of the Sentencing Commission's
5 interpretation.
6 In conclusion, we applaud your
7 efforts in meeting the statutory obligation
8 and keeping the guidelines evolutionary. We
9 respectfully encourage, however, that the
10 Commission consider the evolving research-
11 driven policies and practices of our
12 correctional system when contemplating
13 amendments to the sentencing guidelines.
14 If future policy and guideline
15 amendments keep in step with the criminal
16 justice and social research concerning
17 recidivism, the reentry of offenders, public
18 safety, and the need for the Sentencing Reform
19 Act to reduce recidivism, to reduce excessive
20 and unnecessary lengthy periods of
21 incarceration can be assured a progressive
22 collaborative model to address the statutory
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1 purpose of sentencing.
2 I believe, as Judge Sessions said
3 earlier at the beginning of this session, that
4 we all are part of a sentencing structure of
5 the country. And we need to continue to work
6 together, to use our resources wisely, to look
7 at what evidence-based practice is showing,
8 and to somehow always keep the sentencing
9 guidelines relevant to what's going on with
10 the country.
11 Thank you very much.
12 ACTING CHAIR HINOJOSA: Thank you,
13 Ms. Kerwood.
14 And we'll open it up for questions.
15 Judge Sessions.
16 VICE CHAIR SESSIONS: Thanks. And
17 since you just mentioned my name, I'm going to
18 ask you a question, --
19 MS. GRISHAM: Sure.
20 VICE CHAIR SESSIONS: -- actually
21 the broader question.
22 In Idaho, Ms. Grisham, talked about
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1 your reentry program, and, you, as well,
2 talked about the collaborative process in
3 which you now are approaching defendants in a
4 different way.
5 When you couch it in terms of
6 reentry, my question is: Have you thought
7 about options -- when you start speaking of
8 alternatives to imprisonment, have you thought
9 about the options or the lessons that you've
10 learned in reentry programs? And can you
11 suggest ways in which that can be incorporated
12 in the presentence process, which is
13 essentially related to alternatives to
14 imprisonment?
15 My question is: Have you thought
16 about the possibility of looking into these
17 kinds of treatment options on a presentence --
18 in the presentence arena? And, if so, do you
19 have suggestions to the Commission as to how
20 we could encourage that kind of alternative?
21 DR. HANSEN: It is a very difficult
22 question. Hawaii and Nevada are two of the 18
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1 grant-funded districts. I can tell you --
2 just big picture -- probation has been a
3 failure nationwide, because we don't do
4 anything with offenders. That's been
5 primarily the way we've operated. I mean we
6 have also operated under the assumption that
7 "I direct you, stop smoking." And you will
8 walk out and put away your cigarettes and stop
9 smoking.
10 We realize that that has not
11 worked. And we have changed the way we've
12 done business and changing the culture, and
13 looking to the evidence to what works.
14 In Nevada we've implemented a
15 program for drug treatment for methamphetamine
16 addicts. We looked at the research to see
17 what program actually works. We went there;
18 we studied it. We hired a counselor that did
19 that. We partnered with the Bureau of Prisons
20 to run this program in a halfway house.
21 The red tape, the bureaucratic
22 stuff we had to put up with to try and get
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1 this to fruition was very difficult. But we
2 did, and we have a real high success rate.
3 We do that. We do motivational
4 interviewing with people to find their
5 intrinsic motivation. But a lot of this stuff
6 is untested as of yet. We've hired
7 researchers to look at what we are doing now.
8 We actually do a risk needs
9 assessment of individuals before -- once they
10 get out. We do a risk needs assessment of
11 them at the presentence stage to see, all
12 right, what are their risks. Are they going
13 to be a high risk of violence and a high risk
14 of recidivism. But that never makes a
15 presentence report, because the --
16 VICE CHAIR SESSIONS: Why not?
17 DR. HANSEN: The objections of the
18 Public Defender to say we're basing a sentence
19 on an instrument is very hard to overcome. We
20 are -- because these instruments haven't been
21 tested on federal populations. So what we are
22 doing now is researching instruments. We have
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1 researchers that are looking at these to
2 validate them with our populations.
3 We don't do psychosexual
4 evaluations before you get a case of a sex
5 offender. Where you could say this is a low-
6 risk offender, and I could tell -- we -- our
7 Public Defenders won't let us do that. They
8 won't let us provide you with the risk and
9 needs. So it has to be a comprehensive
10 education.
11 So I'm not sure if I'm answering
12 your questions, but a lot of these are
13 difficult and a lot of the stuff that we're
14 doing now is untested on the federal
15 population, but we are conducting a lot of
16 research to see if we are making a difference
17 to reduce recidivism.
18 But I agree with you, it should be
19 on the front, the judges should be informed of
20 this. We're trying to work with the suspicion
21 of the Public Defenders to try and work this
22 out so we can give the judge a complete
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1 picture.
2 They won't let us talk to them
3 about a lot of issues. They're just saying
4 motivational interviewing, trying to give the
5 judge a complete picture. The position of the
6 Public Defender's Office is: My only goal at
7 that point is getting the lowest sentence
8 possible. So I really don't care what happens
9 after, before, but my role is the lower
10 sentence. So if you're going to try and
11 tailor stuff to when they get out, and they're
12 going to talk about that, I don't want you
13 talking to them about that.
14 So those are some of the hurdles we
15 are overcoming to try and put this stuff in
16 the presentence report to give you a
17 comprehensive picture in order to fashion a
18 sentence.
19 MS. GRISHAM: At the pretrial
20 stage, as well, the pretrial conditions are
21 based upon the least restrictive conditions
22 that will assure community safety and the
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1 person's reappearance. And so those wouldn't
2 necessarily jibe with that, if you will. That
3 goes kind of way beyond what would minimally
4 be necessary to achieve those two goals. And
5 we would run into severe resistance with the
6 Public Defenders, because they don't know.
7 VICE CHAIR SESSIONS: What about
8 low-level drug defendants who come in? Let's
9 say, you know, they have a courier role or
10 they're low-level nonviolent drug defendants
11 who obviously have an addiction. Oftentimes
12 that's the case. Are you involved in getting
13 them into treatment and does that become a
14 part later on of the presentence process?
15 MS. GRISHAM: Typically, in our
16 district, it would start with just testing.
17 If they're out there and have a drug problem,
18 obviously they're going to be tested. Now
19 bear in mind that the Public Defender will not
20 let them speak to a pretrial officer during
21 that stage about drug use.
22 So we kind of have to look at what
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1 they were arrested for, collateral contacts,
2 what they're saying, perhaps they have other
3 drug-related arrests, and make a determination
4 that, yes, they've got a drug problem, so we
5 will test them.
6 If they are failing at the testing,
7 if they're testing positive, then we will
8 offer them treatment. We are a combined
9 district here, and so we are able to take
10 advantage of the alternatives to federal
11 detention money yearly. So that really helps
12 us budgetarily.
13 I would say a majority of our
14 defendants are not your low-level persons and
15 they're detained. So it's really a small
16 population that we're dealing with that is
17 out. But, yes, we will test them and then we
18 will treat them. And, you know, depending on
19 success or failure, they may or may not make
20 it in the pretrial stage on a release
21 situation for the entire time.
22 DR. HANSEN: If I could just speak?
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1 One case of that I remember vividly. It was
2 a minimum mandatory, ten years to life, crack
3 cocaine case. A drug-addicted lady was doing
4 crack. She had four or five children. She
5 faced a minimum mandatory of ten years. She
6 was put into residential treatment at the
7 pretrial stage. She did phenomenally well.
8 The first time in her life, the first time in
9 her adult life she was clean and sober. That
10 followed her to the presentence stage.
11 The judge departed down to
12 probation -- she had HIV -- and gave her
13 probation. She was one of my most successful
14 cases that I dealt with, probably for [the]
15 last three years of her life before she passed
16 away.
17 That is one case where, yeah, it
18 started in the pretrial stage of getting drug
19 treatment. The court recognized this. And
20 everything about her was related to addiction.
21 All her arrests -- I mean, it is quite clear.
22 But there's never been any resources to treat
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1 like that.
2 And until we developed our program
3 -- the inpatient programs are 28 days.
4 There's nothing that 28 days is going to cure.
5 And we were spending about $150 a day on a
6 28-day program. Luckily, this offender got
7 into a long-term program, which is what she
8 needed anyway, and it worked. And so there is
9 one case I can say that it got through the
10 presentence, the pretrial, and it came to
11 sentencing.
12 MS. GRISHAM: And I think that
13 second half of your question was, certainly,
14 it is reported it in the presentence under
15 adjustment to pretrial supervision. So either
16 way it's reported there.
17 ACTING CHAIR HINOJOSA: Dr. Hansen,
18 I guess in this case, in your success case she
19 had qualified for Safety Valve, because you
20 said she was facing the high mandatory minimum
21 of ten years to life. So she must have
22 qualified for Safety Valve.
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1 DR. HANSEN: You know, I'm not sure
2 how the court did it, Judge. I don't think
3 she was a Safety Valve case, though. But I'm
4 not sure how court departed down, whether it's
5 for health reasons, or how we managed to --
6 ACTING CHAIR HINOJOSA: But if it's
7 a mandatory minimum, I don't know that they
8 could have used the health reasons.
9 DR. HANSEN: I'm not -- somehow the
10 court passionately -- the U.S. Attorney didn't
11 object. So I figured it was a --
12 ACTING CHAIR HINOJOSA: And you had
13 the other case that you mentioned earlier, the
14 illegal alien, I believe, who had faced a
15 mandatory minimum, but was a courier. I guess
16 that person did not qualify for the Safety
17 Valve?
18 DR. HANSEN: If it was a first-time
19 offender? I believe that person did. But the
20 sentence was still extremely high, under
21 Safety Valve, that they received.
22 ACTING CHAIR HINOJOSA: Okay. The
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1 other point is you all have talked about
2 Evidence-Based Practices. And most of this
3 has occurred after somebody is released, or
4 they're on supervised release, or the cases
5 that have probation is to avoiding recidivism,
6 and that that is the purpose of Evidence-Based
7 Practices. That is one of the subfactors of a
8 3553(3)(a) factor. But even under (a)(2)
9 where the issue of recidivism is mentioned,
10 which is to protect the public from further
11 crimes of the defendant, even under that
12 factor that has four subfactors, the others
13 include more adequate deterrents to criminal
14 conduct, to reflect the seriousness of the
15 offense, to promote respect for the law, and
16 to provide just punishment for the offense, as
17 well as providing the defendant with needed
18 educational/vocational training, medical care,
19 other correctional treatment in the most
20 effective manner. And then we have all the
21 other factors, including the sentences
22 available. And I'm not going to despair you.
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1 Ms. Grisham made the point, which I
2 think a lot of people make, which is most of
3 the federal felony cases are very serious
4 offenses. And so the question is: How do we
5 put all this together? Evidence-based
6 practices is talking about deterrence. Now
7 it's talking about recidivism studies.
8 But we have all these other factors
9 that we're supposed to be concerned about, as
10 well as realizing that these are mostly
11 serious offenses, at least in the eyes of
12 many. Do we concentrate on just one factor as
13 opposed to the others? Does this recidivism
14 take precedence over these others, or how do
15 we use the Evidence-Based Practices with
16 regards to some of these other factors,
17 including deterrence and conduct, which is
18 viewed as serious by many at the federal
19 felony level?
20 MS. KERWOOD: I think I'd like to
21 respond to that, because I think in the past
22 we've always treated the offenders the same,
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1 because they fall in a certain guideline.
2 They have a range of zero to six, or whatever.
3 And when we are looking at
4 Evidence-Based Practices, when we say look at
5 the offender's needs, look at the risk level.
6 I think that's what we're trying to do more
7 and do better of. If we can identify the
8 offenders' risk level, then we can say perhaps
9 then they need to have a higher sentence.
10 They have --
11 ACTING CHAIR HINOJOSA: That's a
12 deterrence. That's a recidivism factor. What
13 about the other factors that we're supposed
14 consider? How can we use Evidence-Based
15 Practices for those? I mean, we're actually
16 asking the question as to can we do studies
17 that help us with regards to our system, or
18 these other factors?
19 MS. KERWOOD: I agree with how --
20 ACTING CHAIR HINOJOSA: And the
21 work that you all have done, which I think is
22 commendable, what probation officers have done
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1 with regards to the work that is being
2 emphasized with regards to what we're supposed
3 to do. I have always told probation officers:
4 Your job is not to put somebody back in
5 prison. Your job is to try to see if there's
6 some way that we can keep people out of prison
7 the ones you're dealing with. It's a very
8 difficult job.
9 Evidence-based practices is an
10 attempt at that. But then when you put it all
11 together, how can use that for some of these
12 other factors, or can we get Evidence-Based
13 Practices to give us that information?
14 DR. HANSEN: Judge, those are very
15 difficult questions. And we don't have the
16 answers for you on those, because they are
17 difficult questions. What we're finding is
18 people don't need to be incarcerated for as
19 long as they're being incarcerated for. A
20 little bit of incarceration goes a long way.
21 Canada, we're up in arms because
22 they only incarcerate one in 500 of their
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1 citizens, and we're at one in a hundred.
2 It's a very difficult proposition
3 for us to say we are going to reduce the
4 penalties or to do less time, based upon the
5 research that says: If we do this you, we can
6 make you a success, but we still have to
7 punish you.
8 That's kind of the dilemma of --
9 you know, we have research shop. It's
10 Washington State Public Policy Institute.
11 They had to make a determination if they were
12 going to build two new prisons in the next 20
13 years. They looked at everything and said:
14 All right, if we do this it reduces
15 recidivism. We can save money. We could do
16 this, and it reduces recidivism and saves us
17 money. And they looked at every program. And
18 the example you made was the boot camp.
19 Research says basically it doesn't work. And
20 we're throwing a lot of money at this program,
21 and it doesn't work.
22 So I'm not sure how we can tie all
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1 the research in. But what it's saying is we
2 don't need the -- as long [] sentences as we
3 have. We have shorter sentences, but be able
4 to provide the offender adequate treatment
5 when they get out.
6 And we are 93 separate Probation
7 Offices, with 93 separate services and 93 ways
8 of doing business. And part of the thing with
9 the Administrative Office who has grant-funded
10 us to do these programs and then see what
11 works and propagate through the rest of the
12 country. I can tell you that we started this.
13 The states have -- some states have
14 been far more advanced in the federal system.
15 And we used to be leaders of this type of
16 work, where we could develop programs that
17 work. We have failed miserably.
18 Now we are turning to the states to
19 look at what works, and we are trying to
20 replicate some of those with our offenders.
21 So it is a difficult question you
22 have posed to us, and I'm not sure we've
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1 provided you any guidance along that way. I
2 do know that when we started our Evidence-
3 Based Practices, we were given money and said,
4 "Here's money, go do stuff."
5 It was almost like going to an
6 Asian restaurant and ordering one out of
7 column B and one out of column C. And we put
8 all these programs. We didn't do as Hawaii
9 did to develop the foundation, the risk needs,
10 to determine what the risks are, what the
11 needs are.
12 The researchers were telling us
13 that you have some low-risk offenders, that if
14 you mess with too much, you mess them up. If
15 you're from the South, it's kind of like
16 making biscuits. If you mess with the dough
17 too much, you screw up the whole biscuit. And
18 that's what we found with low-risk offenders.
19 So what we're doing is we're not
20 supervising them as intensely. We did
21 supervise everybody the same. So you're 80-
22 year-old-bank embezzler, he got the same as a,
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1 you know, a 25-year-old carjacker.
2 Now we're realizing the errors of
3 our way and starting, but it's going to be a
4 slow process. It's not going to occur
5 overnight. And we are looking at -- we're
6 hiring researchers for the first time. We can
7 talk to you about research. This was never in
8 our field to talk about research, at least on
9 a federal level.
10 I don't know in my career if I've
11 ever read any research, because we were guided
12 by gut. Now we're turning to research and
13 saying what works. So if we can incorporate
14 that at the presentence stage and start
15 developing that, so the judges have a more
16 comprehensive picture of what the risk is this
17 offender poses, and develop a just sentence
18 that would reduce that risk, public
19 protection, and also try and negate them from
20 recidivatity once they're released. I mean I
21 think that would go a long way.
22 VICE CHAIR CARR: Dr. Hansen, if I
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1 understood you the risk analysis that you do
2 when someone's going to be released from
3 prison, you also do at the time that the
4 presentence report is prepared, but it never
5 makes it into it because defense counsel would
6 object. Did I understand that correctly?
7 DR. HANSEN: Yes, sir.
8 VICE CHAIR CARR: And they object
9 because they're concerned that the results of
10 that risk analysis might end [up] aggravating
11 the sentence?
12 DR. HANSEN: Yes, sir.
13 VICE CHAIR CARR: But isn't it also
14 true that the results of that risk analysis,
15 in many cases, might end up reducing the
16 sentence?
17 DR. HANSEN: You would think.
18 VICE CHAIR CARR: And, Ms. Grisham,
19 you mentioned the problem with the two points
20 for acceptance of responsibility. I take it
21 that means that the prosecutors are often
22 coming in and arguing against it?
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1 MS. GRISHAM: Well, it used to be
2 that way. And, you know, the joke was, "Okay,
3 do they have to cry in the office? What is
4 remorse? What is contrition?"
5 And I think that they've backed off
6 of that. But we still get the offenders now
7 that will plead guilty, but they're going to
8 frivolously contest, rather than conduct, or,
9 you know, the other verbiage in that
10 guideline.
11 So we still are saying, "Well, yes,
12 even though they pled guilty for these
13 reasons, they don't deserve a two-point
14 reduction in acceptance of responsibility, but
15 it would never fly.
16 VICE CHAIR CARR: Okay. But is the
17 issue that the prosecution is coming in and
18 arguing against it, or the probation officer
19 is saying this defendant doesn't deserve it?
20 MS. GRISHAM: It's more the issue
21 of the probation officer saying they don't
22 deserve it, yeah.
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1 VICE CHAIR CARR: And the other
2 item in terms of -- I think you said the
3 white-collar cases, where the government
4 doesn't come out with the supporting facts.
5 Is that a case where it appears that the
6 government is giving the defendant a break and
7 is withholding facts that might enhance the
8 sentence, if the probation officer had the
9 full picture?
10 MS. GRISHAM: Yes.
11 VICE CHAIR CARR: Okay.
12 COMMISSIONER HOWELL: I have a
13 question, although we're just before lunch,
14 and this is like the difficult question.
15 (Laughter.)
16 COMMISSIONER HOWELL: I actually
17 was looking forward to this panel to explore
18 with you or have you illuminate for me exactly
19 how judges know, when they're sitting with
20 you, going over a presentence report, are
21 actually determining whether or not to give a
22 variance and how much that variance is?
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1 And, Dr. Hansen, I was interested
2 that -- I mean you focus in your written
3 statement and your oral statement about how,
4 you know, it's a very important, you know,
5 critical role the Probation Office is playing
6 in going through those 3553(a) factors, and
7 helping to analyze those for the court.
8 Do you all also, in addition to
9 reviewing the 3553(a) factors, also give
10 recommendations to the court on how much of a
11 variance might be appropriate in a particular
12 case?
13 DR. HANSEN: Yes, we do, but --
14 COMMISSIONER HOWELL: And how do
15 you come up with that variance number? I'm
16 really interested in the process that you all
17 go through. And is that empirically based,
18 and how are you figuring out what to recommend
19 to a judge on how much to vary?
20 DR. HANSEN: I wish I could say it
21 was evidence-based. I mean we are looking at
22 the characteristics of the offender and
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1 looking at their risk level, looking at our
2 risk needs tool. But as far as the exact
3 sentencing range, that is an individual
4 officer with their supervisor in coming up
5 with that.
6 And you made a comment about us
7 sitting with the judges. That doesn't happen.
8 We don't really sit with the judges. There
9 are some --
10 COMMISSIONER HOWELL: I think there
11 are different practices.
12 DR. HANSEN: There are some senior
13 judges that -- or the old-fashioned judges
14 that we do sit with and go through with that
15 and kind of lay out a lot --
16 COMMISSIONER HOWELL: I'm dating
17 myself from when I was a clerk.
18 DR. HANSEN: But that's why we
19 really need to have more information in the
20 presentence report, so that that way we can,
21 but we do make those recommendations.
22 COMMISSIONER HOWELL: Well, I mean,
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1 I think we're going to hear later on from one
2 of the -- an AUSA from the District of Nevada,
3 who says, you know, the District of --
4 District of Idaho -- excuse me -- the District
5 of Idaho believes that judges are using the
6 bottom of the guideline range as a new
7 maximum.
8 I mean, are you finding that? And
9 then you're saying that this is the guideline
10 range, you know, here's the bottom of the
11 guideline range; that's the new maximum, and
12 here are all the 3553(a) factors, and we
13 recommend that you vary off from that low
14 guideline range by a certain amount?
15 DR. HANSEN: We are not seeing
16 that, the low guideline --
17 COMMISSIONER HOWELL: You're not
18 seeing that.
19 DR. HANSEN: -- range as a ceiling.
20 COMMISSIONER HOWELL: So when you
21 look at sort of the age of a defendant, and
22 you look at [various] factors, do you have a
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1 meaning within the probation officers about --
2 to have some consistency there, and how much
3 of a variance you're recommending, or is it
4 just up to an individual Probation Office how
5 much of a variance they're going to recommend
6 to a particular judge?
7 MS. KERWOOD: In our office the
8 officer has a lot of latitude. And they'd
9 staff that case with a supervisor. And we
10 have two supervisors for the Presentence Unit.
11 And they would try to have some consistency
12 there.
13 So what they generally do is that
14 they, in their group meetings, is that they
15 share their thoughts on what types of
16 variances have come about. In our
17 confidential recommendation to the court, we
18 do identify some issues for variances of
19 3553(a) factors, but we do not state
20 specifically one or two or three levels. Then
21 our officers may independently say that to the
22 judges, but in our reports we don't say
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1 exactly what -- how many levels.
2 MS. GRISHAM: Because that would be
3 objected to vehemently and vigorously. And so
4 we couch it as, you know, these are something
5 you may want to consider as a variance. But
6 we make, in a presentence report, absolutely
7 no recommendation. But then in the
8 recommendation we would.
9 And one judge, those are
10 confidential, then the other they are not.
11 But we operate the same way. And we only have
12 one supervisor that reviews them all. So
13 there is some consistency. But, like Chris
14 said, it's not based on any empirical
15 evidence. So we're still using -- still using
16 the gut.
17 DR. HANSEN: We usually find if the
18 Public Defender is upset with us and the U.S.
19 attorneys are upset with us, we did something
20 right.
21 MS. GRISHAM: Yes, that's a good
22 thing.
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1 COMMISSIONER HOWELL: Well, you
2 know, we've heard from Judge Breyer that he
3 suspected there were some shadow guidelines
4 being --
5 MS. GRISHAM: Absolutely.
6 COMMISSIONER HOWELL: And I sort of
7 think that -- he has cited some reasons for
8 shadow guidelines, but I also think in this
9 whole new arena of the variances and the
10 recommendations that probation officers are
11 coming up on the degree of variances and
12 whatever factors probation officers are using
13 about the factors for variances, and then the
14 degree of the departure associated with each
15 of those factors.
16 The probation officers may also be
17 coming up with their own sort of shadow
18 guidelines or shadow variances. Do you think
19 that that is something that's developing, not
20 just in your districts, but across the board?
21 MS. GRISHAM: I don't. I don't see
22 it. I don't think so.
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1 DR. HANSEN: I'd say not.
2 VICE CHAIR SESSIONS: But you do
3 see a shadow guideline system between the
4 defense lawyer and the government?
5 MS. GRISHAM: Absolutely. I had
6 one prosecutor, one time I called him up, and
7 I said, "This is the plea agreement." And it
8 was a separate -- "And we took the guidelines
9 you used. And why did you use that? Why
10 didn't -- why didn't you go here?"
11 And he goes, "Well, I know that's
12 right. I was -- but, you know, this is our
13 plea agreement. And we weren't going to say
14 anything unless you caught us."
15 So, yeah, all the time that's
16 happening.
17 VICE CHAIR SESSIONS: Do you think
18 the substantial assistance departures are used
19 in some way to circumvent the guidelines as
20 well?
21 MS. GRISHAM: Absolutely.
22 VICE CHAIR SESSIONS: The severity
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1 of the guidelines?
2 MS. GRISHAM: Absolutely. And in
3 Idaho, and I speak about it in my paper, I
4 mean we're a small district, but for some
5 reason we have a lot of multidefendant drug
6 cases. And it's not uncommon for every one of
7 those defendants who enters a plea to get a
8 5K. The amount of the 5K at sentencing that
9 the government is recommending will be
10 different, but every one of them.
11 COMMISSIONER FRIEDRICH: Similarly,
12 are you all seeing more use of mandatory
13 minimums in the offenses that contain the
14 criminal penalties or 924(c)s that could be
15 more enhancements, or are you observing the
16 prosecutors are doing that more, particularly
17 in like Hawaii where your departure and
18 variance rate is considerably above other
19 districts within the Ninth Circuit? I'm just
20 curious. Anecdotal we're hearing that is
21 occurring. I was just wondering whether
22 you're observing that in your respective
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1 districts?
2 MS. KERWOOD: I think that then
3 they are still using the mandatory minimums.
4 Are you talking about in terms of the U.S.
5 Attorneys that --
6 COMMISSIONER FRIEDRICH: That are
7 charging, charging --
8 MS. KERWOOD: -- that are charging.
9 COMMISSIONER FRIEDRICH: --
10 offenses that contain mandatory minimums.
11 DR. HANSEN: To try and steer the
12 guidelines -- the ranges will stay out there,
13 --
14 COMMISSIONER FRIEDRICH: Right.
15 Correct.
16 DR. HANSEN: -- but the court won't
17 go far down --
18 COMMISSIONER FRIEDRICH: Correct.
19 And 924(c) and 851 enhancements. Are you not
20 seeing more of those, because we're under the
21 impression that that's happening more often to
22 ensure that departures and variances aren't --
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1 you know, they're not probationary sentences.
2 MS. GRISHAM: We're not -- we
3 haven't noticed any difference in the 851s
4 being filed. That's a big bargaining tool.
5 And they use it, you know, post-indictment.
6 We are seeing the 924(c)s.
7 But, in truth, we've always seen
8 them in the District of Idaho, so I don't
9 think that's changed for us.
10 DR. HANSEN: Now I'm not sure if
11 we're seeing any more or not. I couldn't
12 guess on that.
13 MS. GRISHAM: But we have -- we
14 have. And we still are seeing them when they
15 do the 5K in conjunction with the 5Ks with
16 3553(b). So that opens the door to go through
17 that.
18 ACTING CHAIR HINOJOSA: Ms.
19 Grisham, you pointed out the meth cases in
20 your district and the penalties in the meth
21 cases. And, as you're aware, pure meth has
22 the same threshold levels for the mandatory
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1 minimums as crack does. And did you all have
2 any opinions with regards to meth and if there
3 was a change in crack, as to how you view
4 those particular sentences?
5 MS. GRISHAM: I do think that they
6 are getting -- you know, that methamphetamine
7 defendants are getting way too much of a
8 sentence. So I'd love to see them come down.
9 And over the years, I mean, as you know, it's
10 crept up, not gone down.
11 And, you know, you can't sentence a
12 drug defendant to life anymore. They're
13 capped. But prior to that we've had life
14 sentences in the District of Idaho for drug
15 defendants. So, you know, they're doing 10
16 years, 20 years for not a lot of
17 methamphetamine.
18 DR. HANSEN: We see a lot of the
19 meth being brought in from Mexico now because
20 we've done a good job of stopping production
21 in --
22 MS. GRISHAM: Right.
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1 DR. HANSEN: -- the United States.
2 So the real dealers that we're seeing now,
3 unless they're catching them coming across the
4 border right then, are addicts that are
5 dealing methamphetamine. So it's such a
6 destructive drug, they'd do anything to sell
7 their product.
8 ACTING CHAIR HINOJOSA: Does
9 anybody else have any other questions?
10 If not, we want to thank you very
11 much. We realize the roles that you all play
12 every day in the sentencing process and we
13 thank you for taking time from your districts
14 to come and share your thoughts with us.
15 Thank you.
16 And we will break for lunch now.
17 And we'll be back at 2:30.
18 Thank you all very much.
19 (Luncheon recess taken from 12:52
20 p.m. to 2:53 p.m.)
21
22
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17 A-F-T-E-R-N-O-O-N P-R-O-C-E-E-D-I-N-G-S
18 (2:53 p.m.)
19 ACTING CHAIR HINOJOSA: Our next
20 panel is a "View from the Executive Branch."
21 We have two individuals on the panel.
22 Ms. Karin J. Immergut has served as
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1 U.S. attorney for the District of Oregon since
2 October of 2003. She also currently serves on
3 the Attorney General's Advisory Committee.
4 Prior to her appointment as U.S. attorney, she
5 served as an assistant U.S. attorney in the
6 District of Oregon for two years and as an
7 assistant U.S. attorney for the Central
8 District of California for six years. And she
9 also served as the deputy chief of the
10 narcotics section and chief of the training
11 section there. And she is a graduate of
12 Amherst College and received her law degree
13 from Boalt Law School at U.C. Berkeley.
14 Mr. Lawrence G. Brown has served as
15 a first assistant U.S. attorney for the
16 Eastern District of California since March of
17 2003. And recently he's been named as the
18 acting U.S. attorney for that district. He
19 has been executive director of the California
20 District Attorneys' Association from 1996 to
21 March of 2003. And actually in 2001 he served
22 as president of the National Association of
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1 Prosecutor Coordinators and board member of
2 the National District Attorneys' Association.
3 And he is a graduate of U.C. Davis Law School
4 where he served as a visiting professor.
5 Which one of you is going to start
6 first?
7 MS. IMMERGUT: I will.
8 VICE CHAIR SESSIONS: Can I just
9 add a couple of things to Ms. Immergut's
10 introduction? She's soon to become a state
11 judge.
12 MS. IMMERGUT: So I feel completely
13 differently today than I did yesterday, not
14 that I mind.
15 (Laughter.)
16 VICE CHAIR SESSIONS: She also
17 practiced in Vermont. She went to Amherst. I
18 went to Middlebury, but...
19 MS. IMMERGUT: Thank you.
20 Well, thank you for the opportunity
21 to speak with you about the federal sentencing
22 policy today and the state of the federal
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1 sentencing guidelines. We at the Department
2 of Justice are pleased that the Commission has
3 undertaken a comprehensive review of federal
4 sentencing. We believe that the review is
5 timely and very important.
6 Your leadership during this period
7 of change in federal sentencing policy is
8 welcome. The Commission has a unique role to
9 play in reviewing federal sentencing policy
10 with unmatched and valuable data and analytic
11 capacity.
12 As the Attorney General indicated
13 in a letter to the Commission last month, the
14 Department has recently begun a comprehensive
15 review of sentencing and corrections policy,
16 and we very much hope to tap into the
17 Commission's experience and capabilities
18 during that process. I'll say a little bit
19 more about the Department's review in a
20 moment, but for now let me just say that we do
21 look forward to working with you over the
22 coming months on this extremely important
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1 project.
2 It's no secret that the federal
3 sentencing system, which includes both
4 sentencing guidelines and mandatory minimum
5 sentences, has been the subject of significant
6 criticism over many years and it has also
7 undergone significant change.
8 The Supreme Court's decision in the
9 United States versus Booker from 2005, when it
10 rendered the guidelines advisory has
11 dramatically changed the way business is done
12 in the federal courts. Clearly, the
13 sentencing courts are no longer bound to
14 follow the guidelines, but merely must consult
15 those guidelines and take them into account
16 during sentencing.
17 As you well know, sentencing
18 demonstrates that Booker and subsequent cases
19 have had an effect. The percentage of
20 defendants sentenced within the guidelines has
21 dropped from 72 percent to 60 percent and to
22 45 percent in the Ninth Circuit. The rate of
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1 within guideline sentences differs markedly in
2 different districts and circuits around the
3 country.
4 The total impact of the new
5 jurisprudence and these differing policies is
6 still not entirely clear, but the signs point
7 to increasing sentencing disparity, including
8 disparity based on differing judicial
9 philosophies among judges working in the same
10 courthouse.
11 At the same time, the number of
12 inmates in federal prisons, state prisons, or
13 local jails has quadrupled since 1980,
14 reaching over 2.2 million today. The
15 burgeoning federal prison population strains
16 our existing resources and limits the number
17 of qualified prisoners who could receive the
18 drug treatment and other services they need
19 while in prison. Ninety-seven percent of all
20 prisoners are eventually released, sending
21 about 45,000 individuals back into the U.S.
22 communities each year.
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1 Statistically, a significant number
2 of those will then reoffend or be charged with
3 probation violations and end up back in
4 custody. All of this, jurisprudential
5 changes, differences in prosecutorial
6 practices, differences in judicial
7 philosophies, a very large federal prison
8 population, and more lead us to the conclusion
9 that a thorough and comprehensive review of
10 federal sentencing and corrections policies
11 with an eye towards possible reform is
12 warranted.
13 The Department of Justice shares
14 the Commission's commitment to a sentencing
15 and corrections system that protects the
16 public, is fair to victims and defendants, and
17 eliminates unwarranted sentencing disparities
18 and reduces recidivism.
19 We firmly believe that our criminal
20 and sentencing laws must be tough,
21 predictable, and fair and not result in
22 unwarranted disparities. Criminal sentencing
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1 laws must provide practical and effective
2 tools for federal, state, and local law
3 enforcement, prosecutors, and judges to hold
4 criminals accountable and to deter crime.
5 The certainty of our structure is
6 also critical to disrupting and dismantling
7 the threat posed by drug-trafficking
8 organizations and gangs that plague our
9 nation's streets as well as dangerous illegal
10 drugs and violence. It's also vital in the
11 fight against violent crime, child
12 exploitation, sex trafficking, and it's
13 essential to effectively punishing financial
14 fraud.
15 Ensuring fairness in the criminal
16 justice system is also critically important.
17 Public trust and confidence are essential
18 elements of an effective criminal justice
19 system. Our laws and their enforcement must
20 not only be fair, but also must be perceived
21 as fair.
22 The perception of unfairness
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1 undermines governmental authority in the
2 criminal justice process. It leads victims
3 and witnesses of crimes to think twice before
4 cooperating with law enforcement, tempts
5 jurors to ignore the law and facts when
6 judging a criminal case, and draws the public
7 in to questioning the motives of government
8 officials.
9 The Department of Justice is
10 committed to reviewing criminal justice issues
11 to ensure that our law enforcement officers
12 and prosecutors have the tools that they need
13 to combat crime and ensure public safety,
14 while simultaneously working to root out any
15 unwarranted and unintended disparities in the
16 criminal justice process that may exist.
17 As the first step last month the
18 Department announced its intention to seek the
19 elimination of the crack and powder cocaine
20 sentencing disparity. The Department's
21 commitment to addressing this policy stems
22 from a position that the U.S. Sentencing
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1 Commission first took 15 years ago when it
2 reported on the differences in sentencing
3 between crack and powder cocaine.
4 Since that time a consensus has
5 developed that the federal cocaine sentencing
6 laws should be reassessed. Indeed, over the
7 past 15 years our understanding of crack and
8 powder cocaine has indeed evolved. It's not
9 hyperbole to say that the Commission has
10 played a tremendous role in contributing to
11 our understanding of this issue.
12 That refined understanding, coupled
13 with the need to ensure fundamental fairness
14 in our sentencing laws, policy, and practice
15 necessitates a change. We will be working
16 with members of Congress over the coming
17 months to address the sentencing disparity
18 between crack and powder cocaine.
19 Our review of sentencing and
20 corrections policy cannot end with addressing
21 the penalties for crack cocaine, however.
22 Last month the Attorney General asked the
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1 Deputy Attorney General, David Ogden, to form
2 and share a working group to examine federal
3 sentencing and corrections policy.
4 Currently I chair the Attorney
5 General's Advisory Committee, and as chair of
6 that committee I also serve on the Sentencing
7 Policy Working Group. The group's
8 comprehensive review will include possible
9 recommendations to the President and Congress
10 for new sentencing legislation affecting the
11 structure of federal sentencing.
12 In addition to examining federal
13 cocaine sentencing, this review will examine
14 the structure of federal sentencing, including
15 the role of the guidelines and mandatory
16 minimums; racial and ethnic sentencing
17 disparities; alternatives to incarceration;
18 and reducing recidivism through effective
19 reentry programming; as well as the
20 Department's charging and sentencing policies.
21 The Sentencing and Corrections
22 Working Group review will include not only
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1 discussions with the Department of Justice; we
2 will reach out beyond the Department to the
3 federal judiciary, law enforcement agencies,
4 the defense bar, victims' groups, civil rights
5 and community organizations, academics, and
6 others as part of our work. We hope to work
7 closely with you and benefit from your own
8 experience and your extensive collection of
9 data on federal sentencing.
10 Now I'd like to turn my attention
11 to the regional impact of the Supreme Court's
12 decision in Booker, which has led to some
13 significant changes in my district, the
14 District of Oregon, on both the trial levels
15 as well as in appellate practice and, as a
16 result, on our charging and plea practices
17 within the district.
18 My comments are based on my
19 experience and the experience of my office
20 alone, and they don't necessarily represent
21 the views of the Department of Justice as a
22 whole.
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1 Within the District of Oregon, as
2 I'm sure is the case in many districts around
3 the country, sentencing tendencies have always
4 been somewhat unique to the judge, but the
5 differences since Booker have become more
6 pronounced. Some of our judges continue to
7 follow the advisory guidelines in the majority
8 of cases. Other judges routinely decline to
9 impose a guidelines' sentence and instead
10 impose sentences with variances from moderate
11 to significant.
12 With one unusual exception
13 involving a seaman's manslaughter conviction,
14 sentencing variances in Oregon result in
15 lower, not higher, prison terms. These
16 variances are generally made without prior
17 notice to the government.
18 Since the Supreme Court's decision
19 in Irizarry, prior notice is no longer
20 required for variances, as distinct from
21 guideline departures. Nevertheless, we've
22 asked that our district judges provide us with
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1 notice so that we're more prepared to provide
2 meaningful input at sentencing.
3 In surveying my office, the overall
4 number of guideline variances does appear to
5 have increased. Moreover, the extent of those
6 variances appears to have risen. When a judge
7 deviates from the guidelines today, he or she
8 does so in a fashion that's more dramatic than
9 what we previously observed when the judges
10 looked to Chapter 5 of the guidelines for
11 departure guidance.
12 For example, in United States
13 versus Autery, the defendant was discovered
14 during an internet sting operation attempting
15 to purchase custom-made child pornography
16 videos from two different independent
17 investigators. Autery also had a computer
18 with hundreds of images of child pornography.
19 He pled guilty to unlawful possession of
20 child pornography and his advisory guideline
21 range was 41 to 51 months.
22 At the sentencing hearing there
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1 were no objections to the guidelines'
2 calculations and the only dispute between the
3 parties was where within the range Autery
4 should be sentenced. The district judge
5 sentenced Autery to probation, relying
6 exclusively upon the statutory factors set out
7 in 3553(a) and relied heavily on the absence
8 of evidence that Autery had ever actually
9 touched any children or molested any children
10 as well as his lack of criminal record. There
11 were no other unique and mitigating
12 circumstances in that case.
13 The court rejected our argument
14 that proof of child molestation would have
15 resulted in a different charge and different
16 guidelines' calculations. We appealed
17 Autery's sentence and the Ninth Circuit
18 affirmed, citing the highly deferential
19 standard of review envisioned by the Supreme
20 Court in Gall and Rita.
21 Under a pre-Booker mandatory
22 guideline scheme, Autery's sentence would
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1 likely have been within the 41- to 51-month
2 range agreed upon by the parties.
3 In child sexual exploitation cases
4 district judges throughout the Ninth Circuit
5 often grant downward variances, particularly
6 in possession cases. Some of these variances
7 are based on claims that the particular
8 defendant has not committed a hands-on offense
9 against a child. For example, the statement
10 "he was only looking at pictures" has often
11 come up.
12 In another case a defense
13 psychologist opined that the defendant was not
14 a pedophile or was at low risk for committing
15 a hands-on offense. Some judges have cited
16 the defendant's lack of criminal record which,
17 of course, would not have been a viable ground
18 for departure under the guidelines, but may be
19 used as a ground for a variance.
20 These variances have had an impact
21 on our charging decisions. We routinely now
22 charged counts carrying mandatory minimum
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1 sentences, such as receiving, transporting, or
2 distributing child pornography, in cases where
3 the evidence supports those counts in addition
4 to the possession counts.
5 We routinely allege prior
6 convictions, where applicable, which enhance
7 both the mandatory -- the statutory maximum
8 and mandatory minimum penalties. Many AUSAs
9 require the defendant to either plead guilty
10 to a mandatory minimum count or at least agree
11 to an 11(c)(1)(C), binding plea, guideline
12 sentence with no variances or departures.
13 We've also seen many variances in
14 cases involving crimes of violence, such as
15 bank robbery. One such case involved a bank
16 robber who received a substantial downward
17 variance despite the fact that he gave the
18 teller a demand note announcing that he had a
19 gun and, indeed, a gun was found in his
20 possession shortly after his arrest some 30
21 minutes after the robbery.
22 Another judge granted a 60-percent
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1 variance in a child sex abuse case where the
2 defendant actually did abuse three children,
3 all of whom were under the age of 12 at the
4 time of the abuse. Indeed, one was five, one
5 was eight, and one was 11. The abuse occurred
6 over a two-year period. Such a sizable
7 variance is difficult for victims to
8 understand. Moreover, the lack of
9 predictability in these cases is troubling for
10 crime victims who have genuine concerns about
11 a defendant's future release from custody.
12 The scope and content of sentencing
13 hearings has also changed. Sentencing
14 hearings have taken on a more trial-like
15 appearance following Booker. Numerous
16 setovers are sought and granted to give
17 defendants an opportunity to put together
18 mitigating evidence for the judge's
19 consideration at sentencing as relevant
20 background information under 3553(a).
21 These hearings have prompted AUSAs,
22 in turn, to be more active, play a more active
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1 role in gathering victim impact evidence to
2 counter defense mitigation material and to
3 ensure that the court's focus is not limited
4 to the nature and circumstances of a
5 particular defendant.
6 Meaningful consideration must also
7 be given to the seriousness of the defense
8 conduct and the need to deter the defendant
9 and others from criminal activity. Asking
10 victims to attend sentencing hearings and the
11 increased reliance upon victims at sentencing
12 hearings is attributable to the changes
13 brought about by Booker.
14 Requiring victims to relive their
15 victimization in these hearings is, frankly,
16 an unfortunate consequence for victims who
17 have already been traumatized once for the
18 crime itself.
19 One recent example of an extensive
20 mitigation sentencing presentation took place
21 in a cocaine case involving a career offender
22 who bought and sold kilo quantities of crack.
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1 The defendant had been on pretrial release
2 for almost two years when he came before the
3 court for sentencing, having sought and
4 received numerous extensions of his trial
5 date.
6 While some of that time was spent
7 operating with the government, much of the
8 rest of the time was spent reestablishing
9 himself in the community. Now this defendant
10 did, in fact, make several positive steps
11 forward, securing employment, actively
12 participating in his children's lives in a
13 manner that he never before achieved prior to
14 his arrest.
15 Because of his cooperation, we
16 filed a motion for a downward departure of
17 five levels under 5K1.1. The district court
18 granted the departure for cooperation but
19 granted 12 levels instead of five sought by
20 the government. The court then turned to the
21 statutory factors, varied entirely from the
22 adjusted guideline range, and imposed a
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1 sentence of probation, despite the fact that
2 two other cooperating codefendants with
3 similar criminal histories had received
4 sentences of 70 to 80 months.
5 This case illustrates how
6 application of the statutory sentencing
7 factors, untethered to the guidelines or to
8 the considerations found in Chapter 5, can
9 lead to results that are anomalous and out of
10 step with sentences imposed upon other
11 similarly-situated defendants.
12 Drug cases and significant
13 sentences driven by drug quantity
14 determinations have always been a point of
15 concern for judges in our district. The chief
16 of my drug unit reports that variances of two
17 levels are now the norm.
18 The way in which we charge and
19 negotiate pleas has also changed since the
20 guidelines became advisory. Overall, our
21 reliance upon binding plea agreements under
22 11(c)(1)(C) has increased and charging
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1 mandatory statutory minimum sentences, where
2 applicable, has increased.
3 Much of this has been driven by the
4 goal of providing some consistency and
5 assurance in sentencing, particularly in cases
6 that involve victims. For example, in child
7 pornography cases we will use both possession
8 and receipt charges to negotiate. A
9 possession charge for a first offender carries
10 no mandatory minimum term, while a receipt for
11 a first offender does.
12 In gun cases involving criminals
13 with violent histories, we charge them under
14 the Armed Career Criminal Act and find that in
15 many instances judges impose the 180-month
16 mandatory minimum term, regardless of the
17 guideline range.
18 In illegal reentry prosecutions of
19 criminal aliens we now use 11(c)(1)(C)
20 agreements routinely since many of these cases
21 are handled on a fast-track system. Following
22 Booker, some of our judges have been applying
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1 3553 factors to vary downward from negotiated
2 sentences for criminal aliens even in the
3 absence of a presentence report. To ensure
4 consistency among similarly-situated
5 defendants and to avoid the increasing burden
6 on the U.S. Probation Office, we now use
7 binding pleas.
8 Since Booker, the types of cases we
9 prosecute have generally not changed with the
10 exception of cases involving felons in
11 possession of firearms. For felon-in-
12 possession-of-firearms cases, we are now far
13 less likely to prosecute a defendant if a
14 probationary sentence is likely.
15 In canvassing other districts in
16 the Ninth Circuit, nearly all emphasize a wide
17 variation between different judges within
18 their districts. Most districts report
19 similar experiences to those we've seen in
20 Oregon, although many note that they have been
21 relying on mandatory minimum sentencing
22 charges well prior to Booker.
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1 The Northern District of
2 California, for example, reports increasing
3 use of 11(c)(1)(C) binding plea agreements.
4 Nevada reports that white-collar sentences
5 have experienced a downward trend. And the
6 District of Idaho believes the judges are
7 using the bottom of the guideline range as a
8 new maximum.
9 One of the starkest examples of
10 Booker is from the Commonwealth of the
11 Northern Mariana Islands. There a high-
12 ranking Mexican drug cartel member was
13 originally sentenced to 360 months. Following
14 an Ameline remand, his sentence was reduced to
15 120 months, the mandatory minimum statutory
16 term.
17 The Ninth Circuit held in Carty
18 that district courts must continue to
19 correctly calculate the advisory guideline
20 range and then use that range as a starting
21 point for determining and appropriate
22 sentence. We've seen that our judges continue
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1 to faithfully calculate the advisory guideline
2 range.
3 Once that process is complete,
4 however, the advisory nature of the guidelines
5 under the Supreme Court and Ninth Circuit
6 precedent dictate that the advisory range is
7 not presumptively reasonable and is simply one
8 of many factors that the court should
9 consider.
10 For the most part, there is no
11 seamless flow from guideline computation to
12 the reasonableness analysis undertaken under
13 3553(a). Instead, in cases in which the judge
14 makes a significant variance, the guidelines
15 are properly calculated and then sidelined
16 during the court's consideration of statutory
17 factors.
18 When judges consider a sentence
19 under the statute the proceeding often becomes
20 one that resembles a pre-guideline sentencing
21 where there was an upper range, sometimes a
22 lower range, and then a vast sea of discretion
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1 in between.
2 Several recent decisions from the
3 Ninth Circuit affirming massive downward
4 variances under 3553(a) to probationary
5 sentences, such as Whitehead, Ruff, and
6 Autery, have also had an impact. These
7 decisions employ such a deferential standard
8 of review that sentencing judges now know that
9 any sentence they impose will be affirmed as
10 substantively reasonable as long as they
11 commit no procedural errors and properly
12 calculate the advisory range.
13 In addition, we have experienced a
14 sharp increase in the number of sentencing
15 appeals. Prior to Booker, a district court's
16 discretionary refusal to depart was
17 unreviewable on appeal. After Booker, all
18 sentences are subject to review for both
19 procedural and substantive reasonableness.
20 Any defendant who is dissatisfied with his
21 sentence, regardless of whether that sentences
22 is within, above, or below the guideline
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1 range, now has a right of appeal. And
2 defendants are exercising that right with
3 increased frequency.
4 While Booker has had a significant
5 impact on how we negotiate pleas and litigate
6 sentencing issues, we are still successfully
7 prosecuting a broad range of federal crimes
8 and, for the most part, we’re receiving
9 lengthy sentences for the most egregious cases
10 and the most violent repeat offenders.
11 Regardless of the sentencing
12 structure in place, we remain committed to
13 prosecuting cases that merit punishment and
14 deterrence. We've used the tools available to
15 us to provide some consistency in sentencing
16 to be fair to defendants sentenced to similar
17 crimes and who share similar criminal
18 backgrounds.
19 We also continue to use the
20 guidelines as a tool to help inform victims
21 about the possible consequences of a
22 particular plea and potential sentencing
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1 outcomes. The guidelines continue to serve as
2 a reference point for prosecutors, defense
3 counsel, and judges; and the empirical base
4 helps to inform the justice system about the
5 national experience.
6 Thank you for the work that you're
7 doing on this important issue and for the
8 opportunity to share the experiences of my
9 district. And I welcome any questions that
10 you have.
11 ACTING CHAIR HINOJOSA: Thank you,
12 ma'am.
13 Mr. Brown, sir.
14 MR. BROWN: Thank you. Mr.
15 Chairman, members, thank you for the
16 opportunity to address you today and provide
17 some input from our district on the impact of
18 the Booker decision and its progeny. Our
19 district from the Oregon border down through
20 Bakersfield, California, encompassing
21 California's Central Valley, the Sierra
22 foothills. We have a population of seven and
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1 a half million residents. Thirty-four of
2 California's 58 counties are in our district.
3 We have large urban communities in
4 our district as well as vast rural regions.
5 As a result, our counterparts in both
6 prosecutor offices and in law enforcement
7 agencies run from very large to very, very
8 small. We have, I believe, an outstanding
9 relationship with these agencies and become an
10 important ally for them in targeting some of
11 their worst offenders.
12 Our crime problem runs the full
13 spectrum. We have a number of organized
14 violent street gangs throughout the Central
15 Valley of California. While perhaps not as
16 notorious as those down in places like Los
17 Angeles, they are just as ruthless. Places
18 like Fresno, Vallejo, Stockton are overrun
19 with ethnic gangs. The level of violence and
20 disregard for human life associated with many
21 of these gangs are chilling.
22 There's also large-scale drug
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1 trafficking within our district. Interstate 5
2 runs north and south through the entire length
3 of our district and Interstate 80 runs east
4 and west, both major drug corridors in the
5 Western United States.
6 Methamphetamine trafficking and
7 abuse is particularly acute in our district.
8 As a result, federal law enforcement agencies
9 served on a number of Safe Streets and Project
10 Safe Neighborhood task forces, as well as
11 high-intensity drug-trafficking area task
12 forces.
13 We have been an important ally on
14 those task forces because the criminal
15 community generally fears "going Fed." They
16 know that the sentences in the federal
17 criminal justice system are generally lengthy
18 and they won't serve their time reunited with
19 their fellow gang members in a California
20 state prison.
21 I've been told firsthand of targets
22 of gang sweeps when the targets are laughing
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1 and joking around as they are being
2 transported on the bus until they realize that
3 they've passed the exit for the county jail
4 and they're off to federal court in Fresno.
5 The federal justice system must be
6 a high-impact system, taking cases that matter
7 to the criminal community and to the community
8 at large and to victims. The vast majority of
9 cases, of course, are handled locally in the
10 state court system, as it should be. The
11 system traditionally has had that impact, but
12 that in part is because there's been certainty
13 in the sentences being imposed. With
14 sentencing guidelines now advisory that
15 certainty is very much in question.
16 Our district's enforcement
17 challenges are by no means limited to just
18 controlled substances and violent crime. Our
19 district has served as ground zero in mortgage
20 fraud. Last year we indicted more mortgage
21 fraud cases than any district in the nation,
22 returning 49 indictments. There's many
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1 reasons, but one might be that half of the ten
2 top for home foreclosures in the United States
3 lie within our federal district.
4 Finally, another significant
5 enforcement priority are crimes involving the
6 exploitation of children. For the past
7 several years our district has also led the
8 nation in the number of indictments returned
9 for child photography and trafficking of
10 children.
11 I will note that in that regard one
12 of the reasons why we did step up so
13 significantly was that California, until very
14 recently, was among just a handful of states
15 that punish possession of child pornography
16 only as a straight misdemeanor. It is our
17 view, and that's shared by law enforcement
18 across our district, in any event, that that
19 was too lenient and that we had a role to
20 serve, to complement the efforts by taking
21 some of those offenders federally. And we've
22 gladly done so.
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1 Now, finally, as to the issue at
2 hand, I think it's fair to state that
3 prosecutors in my office were less than
4 enthralled when the high court handed down the
5 Booker and Fanfan decisions. Most of our
6 office grew up in the guideline system, and we
7 valued the overall consistency promoted by
8 them. We fear that with advisory guidelines,
9 consistent and tough sentences would be lost.
10 With four years under our belt, in
11 the parlance of our profession, I think it
12 fair to say that the jury is still out.
13 Certainly consistency in sentencing has not
14 entirely collapsed. The sky has not fallen in
15 the Eastern District of California. The
16 handling of cases has continued much the same
17 way it had in the past. We've certainly
18 become more conversant in 3553(a) factors.
19 And attorneys from my office have had to
20 engage in greater sentencing advocacy,
21 perhaps, than they did in the past.
22 Sentences have remained
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1 substantially similar to what they would have
2 been pre-Booker, though there is a general
3 consensus within my office that the sentences
4 have trended downward somewhat, the one
5 phenomenon being that the most routine plea
6 agreement would be at the low end of the
7 sentencing guidelines, but now the defense
8 says, "Yes, but we'd like to reserve the right
9 to argue for below that." So in some respects
10 a low-level guideline range starts to become a
11 ceiling, not in every case by any stretch, but
12 it's more common than certainly it would have
13 been in days past.
14 That we haven't seen wildly-lowered
15 sentencing in our district is perhaps due to
16 the relatively conservative composition of our
17 judiciary and, frankly, to the presence of
18 statutory minimum mandatory sentences in
19 trafficking cases as well as receipt,
20 distribution, and manufacture of child
21 pornography. We might even concede that at
22 times the flexibility afforded the courts has
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1 provided a welcome vehicle for helping to
2 resolve a particularly nettlesome case.
3 There have been exceptions, though,
4 to these general patterns, particularly as it
5 relates to possession of child pornography. I
6 get somewhat gratified in hearing the
7 testimony throughout the day that we're
8 certainly not alone in this regard.
9 While guideline calculations might
10 propel an offender to a sentencing range at
11 the low end of 78 months, many judges have
12 routinely imposed much lower sentences.
13 Frankly, as this practice began to emerge, we
14 more routinely now do, in fact, charge
15 receipt, distribution, manufacturing charges
16 if they are available so as to avail ourselves
17 of a 60-month minimum mandatory sentence or
18 we, too, seek (c)(1)(C) plea agreements on
19 straight possession of child pornography
20 cases.
21 The final example would be one
22 that's both cathartic for me, since it's a
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1 case I handled last summer where a deviation
2 had arisen in corruption and white-collar.
3 Last year I cotried the United States versus
4 Julie Lee, a corruption case involving a
5 fundraiser who diverted $125,000 of state
6 grant funds from the Department of Parks and
7 Recreation to a statewide political campaign
8 and then attempted to tamper witnesses when
9 her scheme came to light, courtesy of the San
10 Francisco Chronicle.
11 At the time of sentencing after
12 trial she was 62. She was a grandmother, a
13 community leader, activist, with no criminal
14 record whatsoever. However, given her role in
15 the offense, the amount of loss, obstruction,
16 the low end of her applicable guideline range
17 was 46 months. The Probation Department,
18 conducting its analysis, recommended 46
19 months.
20 The defense argued for straight
21 probation, encouraging the judge to fully
22 embrace his discretion that's been handed down
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1 by the high court. This left my trial
2 partner, who is the chief of the Criminal
3 Unit, and myself in a somewhat delicate spot.
4 The judge that we were appearing
5 before, when compared to some of the other
6 judges in our district, commonly sentences in
7 a more lenient fashion. We knew that if we
8 went in and argued the low end of the
9 guideline range of 46 months, that we'd be
10 largely irrelevant to the sentencing
11 discussion that was going to happen at the
12 hearing that day.
13 So we made a tactical decision. We
14 would advocate for 46 months but say in no
15 event should the sentence be less than 21
16 months. The court imposed a sentence of a
17 year and a day. This sentence has largely
18 been derided as overly lenient.
19 I recognize -- what number is
20 right, 46 months, 21 months, a year and a day,
21 probation, high end of the guideline range? I
22 know it's in the eye of the beholder. But to
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1 us this was a very dramatic example of all the
2 risks that we run in a post-Booker advisory
3 guideline era. Namely, in these areas where
4 you have well-heeled defendants, with very
5 adept representation, who don't have
6 significant criminal histories, who do provide
7 services to the community, that they present a
8 compelling case for more lenient disposition.
9 I believe in this era of fraud
10 crimes, mortgage fraud crimes, and the like,
11 warrant significant attention by both this
12 body and certainly by the Congress.
13 Finally, I recognize that the
14 balancing of competing societal interests
15 brought to bear in any sentencing framework is
16 complicated. I applaud the Commission for its
17 ongoing efforts in this challenging and most
18 important endeavor. And thank you again for
19 the opportunity to appear here today.
20 ACTING CHAIR HINOJOSA: Thank you,
21 Mr. Brown. And now we'll open for questions.
22 COMMISSIONER HOWELL: Mr. Brown,
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1 you know, I think courts, even pre-Booker, who
2 were deciding on downward-departure motions
3 had to figure how much they were going to
4 depart, the degree of departure and so on.
5 Some districts and your prosecutors make
6 recommendations of specific departures and had
7 to figure out what their specific
8 recommendation was going to be, and so on.
9 You know now in the world of
10 variances it's -- courts may be using the same
11 kind of analysis to decide the degree of
12 variance that they're going to give, using the
13 same kind of factors and thought process they
14 went through in deciding the degree of
15 departure. But that's not really clear.
16 We're still collecting the statistics to find
17 out the difference and degrees of variances
18 versus departures, and there is some
19 difference.
20 How in the case that you described,
21 where the -- for strategic reasons you decided
22 to offer up a variance amount, how did you
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1 come up with your 21 months?
2 MR. BROWN: Which was precisely the
3 question the sentencing judge asked. It is
4 one of those sort of damned if you do, damned
5 if you don't. You know, in part, our criminal
6 chief has been a prosecutor for almost over
7 two decades, and prosecuted a number of
8 corruption cases over time, I think sort of
9 looked at the heartland and what cases
10 typically have gone for in the past and we did
11 take into account the age of the defendant.
12 She wasn't elderly by any stretch, but had
13 some health complications. We thought the
14 straight probation was just entirely out of
15 the question. I thought maybe two years, my
16 criminal chief said 21 months would go up with
17 his number.
18 Right, I mean I recognize everybody
19 is in that process of trying to divine
20 numbers. And the challenge, though, becomes
21 exacerbated when it's not just a guideline
22 sentence range now that might be the sphere of
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1 the analysis, because something we found
2 ourselves in, the 46-months-to-straight-
3 probation box, and again I just think the 46
4 months, I don't think I would have gotten
5 about three words out at the lectern that
6 morning.
7 COMMISSIONER HOWELL: Well, I mean
8 I know how we on the Sentencing Commission
9 figure out where we're going to set offense
10 levels. I mean we look at statistics of
11 similar kinds of cases and what average
12 sentences have been, where courts have
13 upwardly or downwardly departed.
14 We look at similar kinds of cases
15 with different factors that apply, that are
16 two -- you know, two offense levels have been
17 applied with certain CLC special offense
18 characteristics. Not -- I mean to gage the
19 portionality of the offense levels that we are
20 going to propose to Congress for
21 consideration, and so -- but when you're in
22 the world -- so we look at a fairly large
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1 context when we're figuring out offense
2 levels.
3 But when it comes to variances sort
4 of like, you know, you're looking -- I'm just
5 curious whether people are actually looking at
6 the guidelines themselves also and saying,
7 well, you know, two levels off for this factor
8 and that factor, so we're going to -- if
9 you're using the bottom of the offense -- the
10 guideline level as a ceiling, as you said,
11 which may be becoming more prevalent a
12 practice, you know, perhaps we should do two
13 levels off that or three levels off that. So
14 I was curious to see whether you based your 21
15 months on some referral to the guidelines, but
16 it seems like that wasn't the case --
17 MR. BROWN: No, not -- actually --
18 no, it was much more I think looking at the
19 body of experience that we did have and which
20 a sense as to what those cases generally are
21 received.
22 VICE CHAIR SESSIONS: I'd like to
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1 make a general observation and see if you
2 agree.
3 We're here to evaluate the national
4 system, with the idea that we would have a
5 system that is relatively consistent in
6 application across the country. And as I
7 listened this morning, now I listened to
8 testimony today, it's becoming more and more
9 clear that this is not only particularly
10 national in scope, oftentimes, but localized
11 and, in particular, that sometimes the
12 criminal justice system becomes quite
13 personalized.
14 You know as you described in Oregon
15 all of a sudden you have some judges who are
16 beginning to depart or adjust, and as a result
17 you respond with mandatory minimum sentences
18 and 11(c)(1)(C) pleas. And I've heard other
19 assistants say that they are faced with one
20 particular judge who is lenient and so as a
21 result there always will be a floor to the
22 plea agreement.
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1 And regard to another judge who
2 might be down the hall and that judge would
3 never get a floor agreement because that judge
4 sentences within the guidelines, and that
5 apparently is happening in each district.
6 Oregon has, what, eight judges? And I wonder
7 if you apply 11(c)(1)(C) pleas or mandatory
8 minimums universally to every one of the
9 judges or just those judges in which you fear
10 a particular outcome? Is that really what is
11 happening here as a result of Booker, that is,
12 everybody's making assessment as to the
13 individual judge?
14 They will -- you know, they're
15 going to go outside what is reasonable and as
16 a result you will restrict them. And,
17 conversely, if they don't, if they sentence
18 within the guidelines, then we'll let the
19 sentencing judge sentence within the
20 guidelines. Is that -- would you agree with
21 that assessment?
22 MS. IMMERGUT: One thing,
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1 certainly, you know, particularly in a
2 district the size of Oregon or even Mr.
3 Brown's district, you obviously get to know
4 the judges. You know which judges
5 particularly dislike white collar defendants
6 or, you know, the like, which used to be more
7 severe, who doesn't like the drug lords, so
8 you get to know that personality.
9 What I try to do as a U.S. Attorney
10 and I think the department has tried to do and
11 I think one of the things that we're going to
12 look at with the Sentencing Work Group, which
13 I think is going to be valuable, is to try to
14 reach both as little disparity as possible
15 that isn't just based on personality and
16 judges in a particular district but, rather,
17 to look at, you know, how do we have as
18 uniform as possible charging policies that
19 make sense across the board nationally to
20 address -- although I think regional
21 disparities and district disparities are
22 probably something we're never going to
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1 completely eliminate, but I do take to heart
2 the idea that there is some benefit to more
3 national charging policies that our AUSAs
4 stick to.
5 However, obviously the Ashcroft
6 memo was something that people were very
7 critical of because it tied -- you know,
8 people thought at was too heavy-handed. So
9 achieving the right balance where the
10 judiciary gets some discretion, we get some
11 discretion is something that obviously we're
12 going to look at in this working group.
13 But I think in our offices we have
14 tried to come up with policies both on -- in
15 each office, I mean has different policies,
16 but my office has, say, 5K1 departure policies
17 and review policies and supervisory-approval
18 policies and charging practices and thresholds
19 that, again, you need a supervisor to review
20 if you're going to deviate from a threshold,
21 so that we are not really all over the map
22 just deciding, you know, what does judge x
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1 want to do today.
2 VICE CHAIR SESSIONS: But am I
3 wrong that you were just talking about the
4 increased number of adjustments pursuant to
5 post-Booker and as a result your response
6 would be to charge mandatory minimums, receipt
7 of child pornography, a perfect example that
8 both of you just said, reduced the charge
9 possession, now you charge receipt so you get
10 the mandatory minimum, and that could very
11 well -- that could very well differ based upon
12 the judge you're in front of.
13 MS. IMMERGUT: And perhaps if I
14 misunderstood your question, yes, we are doing
15 those things, but we are trying to do them
16 uniformly in the district so that we are not
17 singling out any particular judge with respect
18 to any particular case.
19 VICE CHAIR SESSIONS: Do you agree
20 with that?
21 MR. BROWN: Well, I do. On the
22 charge of receipt and distribution it's kind
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1 of so much judge specific, I think it's trying
2 to impact sort of the culture of then
3 negotiating with the defense, frankly, to show
4 that we have this option. If we could just
5 start doing it more routinely, we will. If,
6 on the other hand, you want to do (c)(1)(C)
7 pleas in straight possession cases, then let's
8 talk more -- you know, a little more globally.
9 I do think that probably with
10 certain judges you would see a more ready use
11 of the (c)(1)(C) plea agreement because we
12 would have concern. And based on our
13 experience in front of that judge, that we run
14 the risk of having a sentence that we think to
15 be far, far too low.
16 I just talked with my branch office
17 in Fresno and there's three district court
18 judges and my attorneys were saying, sure, I
19 very much do my sentencing advocacy strategies
20 anyway depending on which judge because
21 there's certain buttons you push or don't push
22 depending on the jurist you're in front of.
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1 But I agree with Ms. Immergut,
2 there's still, you know, baseline in terms of
3 just the plan, you know, what you're charging.
4 I think then that becomes -- that's the more
5 uniform approach.
6 MS. IMMERGUT: And I should say,
7 just to -- one more response was that we are
8 not always the ones who propose the
9 11(c)(1)(C)s, the defense has also come to us
10 probably in about half the time to request
11 11(c)(1)(C)s because they want the certainty
12 as well.
13 ACTING CHAIR HINOJOSA: We
14 obviously have the adversary, and you
15 mentioned how it operates to some extent.
16 You've mentioned that defense attorneys ask
17 for either departures and/or variances below
18 the guidelines. And my question to you is:
19 Have you or anybody in your office ever asked
20 for a departure and/or variance higher than
21 the guidelines and, if not, why not? And have
22 you never seen a case that you felt that was
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1 out of the heartland that would require higher
2 than the guideline sentence?
3 MS. IMMERGUT: Honestly, I can't
4 remember us asking for it now. And I think
5 it's -- we're conditioned that it would be
6 very rare for us to get it, but it's possible.
7 I just -- you know, I would have to actually
8 go --
9 ACTING CHAIR HINOJOSA: But you
10 haven't tried it is what you're saying?
11 MS. IMMERGUT: I'm trying --
12 personally, I personally have tried to get --
13 ACTING CHAIR HINOJOSA: I mean I
14 know the prior administration had the view, I
15 think the policy was that you were [to] argue
16 for it within the guidelines sense.
17 MR. BROWN: And that's where I
18 think we are still, too. We've had training.
19 We've had sentences where the court has done
20 upward variance.
21 ACTING CHAIR HINOJOSA: On their
22 own.
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1 MR. BROWN: There's been a few.
2 But I think as I said but I think it's been on
3 the road and not sure the prosecutor was going
4 to be too upset about that occurring. But,
5 no, directed, it's continued then, we argue
6 for the guideline sentencing, recognizing I
7 recall or being summoned by one of district
8 judges to chambers who told you're becoming
9 irrelevant in the sentencing process if you
10 continue just to be guideline advocates in a
11 post-Booker world and he was sort of extolling
12 the idea that we should be advocating to go
13 further up. And I said, well, --
14 VICE CHAIR SESSIONS: I gather --
15 MR. BROWN: -- we'll win those on
16 occasions, but more often we're on the boat.
17 VICE CHAIR SESSIONS: So I gather
18 on the cases where you saw them go up, you
19 felt that was appropriate, you just didn't
20 know how to argue for it?
21 MR. BROWN: I think that'd be fair
22 to say. Yes.
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1 VICE CHAIR CARR: Mr. Brown, if I
2 understood the case you were talking about,
3 you said that you advocated in the alternative
4 for 46 months but in no event less than 21
5 months?
6 MR. BROWN: Yes.
7 VICE CHAIR CARR: When the -- when
8 the district court judge's statutory
9 obligation is to impose a sentence that is
10 sufficient but not greater than necessary to
11 satisfy the statutory purposes of sentencing,
12 how do you articulate an argument like that in
13 the alternative, explaining why 21 months is
14 the bottom that's acceptable but "We want 46"?
15 MR. BROWN: Well, again, I think we
16 were putting forward to the court that that
17 should be sort of the range of consideration
18 by the court, to reframe the numbers that he'd
19 be looking at with the case ultimately. I
20 mean ultimately in a judicial system it's
21 about what's the case worth, whether in the
22 state system or federal system, what number,
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1 the offense is going to carry what number.
2 And we were looking at [the] number to be sort
3 of created at that framework, it was [to] try
4 to have a discussion between 21 and 46 months,
5 and hope that he goes somewhere in there
6 thinking it's very likely he could end up in
7 21 months.
8 As you can see our skill advocacy
9 was very effective, and he had no problem
10 breaking through that framework and giving a
11 year and a day, so --
12 VICE CHAIR CARR: They were being
13 selective. They just were --
14 MR. BROWN: That's it. Right.
15 Yes, we're not out training at the conferences
16 on our successful advocacy technique, I assure
17 you.
18 VICE CHAIR SESSIONS: I guess it
19 was Commissioner Carr's point, was it skilled
20 to have given that range of 25 months and at
21 that point to place the judge in -- well, 12
22 months and a day is ten and a half months
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1 versus probably the 17 or 18 with good time,
2 15 percent off.
3 MR. BROWN: I hate to be cynical,
4 but I believe that the judge when he took the
5 bench that day knew that the case was going to
6 get a year and a day. And there wasn't much
7 that was done by way of presentation in the
8 sentencing hearing, but obviously I frankly
9 had probably greatly impacted ultimately where
10 he landed on the case, where to put money on.
11 VICE CHAIR SESSIONS: Did you lose
12 the office pool?
13 MR. BROWN: I just note the fact
14 that I got the Commission guidelines.
15 COMMISSIONER FRIEDRICH: Is it fair
16 to say in light of the recent Ninth Circuit
17 cases, like the ones you mentioned, like
18 Irizarry and some of the others, that the
19 government just is no longer appealing on
20 substantive grounds, cases out of the Ninth
21 Circuit; is that a fair conclusion to draw?
22 MS. IMMERGUT: In the cases, for
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1 example the one that I spoke of, we have
2 appealed, where the one defendant got a
3 completely disparate sentence from the two
4 defendants who got in range of 70 to 80 months
5 and got probations, so we are continuing to
6 appeal and getting -- where the sentences are
7 getting worked. So we'll continue to appeal,
8 but only think it so far appealed perhaps at
9 some point the Ninth Circuit will find that
10 it's unreasonable, but we're not optimistic.
11 COMMISSIONER FRIEDRICH: You also
12 mentioned that you're no longer prosecuting
13 firearms cases in which you anticipate it will
14 be a sentence of probation. I take it those
15 you're just referring them to the state?
16 MS. IMMERGUT: We just refer them
17 to the state, which I think is -- you know,
18 another impact added. You know, Mr. Brown
19 addressed it a little bit, but obviously a lot
20 of what we do in our communities is to work
21 closely with the state and locals on different
22 projects, whether it's gangs, or violence
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1 crimes. And crack cocaine is an example,
2 where there has become a reliance on our
3 ability to use federal muscle, if you will, to
4 have a strategic approach to reducing crime in
5 a district. And that's something we need to
6 look at, how that's been affected. but that
7 with the firearms cases we can no longer
8 guarantee -- they will bring cases to us if we
9 can guarantee a certain sentence in federal
10 court, and now we can't do that.
11 VICE CHAIR CARR: You know, I
12 remember a few years ago that the Oregon
13 judges used to meet every week and go over all
14 of their sentences and come essentially to
15 consensus. Is that no longer the case in your
16 state?
17 MS. IMMERGUT: We had what was
18 called a sentencing council, and the Ninth
19 Circuit said we couldn't do it. And I forget
20 [the] name now with the case, but they
21 actually sent a clerk, how the sentencing
22 worked, that was after -- so they stopped it.
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1 ACTING CHAIR HINOJOSA: Do you guys
2 have any other questions?
3 Commissioner Wroblewski, you don't
4 have one single question for this panel?
5 (Laughter.)
6 COMMISSIONER WROBLEWSKI: No. I've
7 spoken with both and I do want to -- it's
8 unlikely I don't have a question, but I do
9 want to say how grateful we all are, and I in
10 particular, for you being here and for your
11 services in your offices and in your
12 districts. And not just now but during the
13 course of these proceedings, we really
14 appreciate it.
15 Thank you.
16 ACTING CHAIR HINOJOSA: Thank you
17 all very much, and good luck with your new
18 job.
19 MS. IMMERGUT: Thank you.
20 ACTING CHAIR HINOJOSA: And I
21 appreciate your taking your time, and we'll
22 break.
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1 (Recess taken from 3:45 p.m. to
2 3:54 p.m.)
3 ACTING CHAIR HINOJOSA: The next
4 panel is a "View from the Defense Bar." We're
5 very familiar with two of the individuals on
6 the panel.
7 Mr. Thomas Hillier has worked in
8 the Federal Public Defender's Office in the
9 Western District of Washington since 1975.
10 And he became the Federal Public Defender
11 there in 1982. He coteaches trial advocacy as
12 an Adjunct Professor at the University of
13 Washington. And he is a former chair and
14 present member of the Federal Defender
15 Sentencing Guidelines Committee. He received
16 his Bachelor of Arts from St. Martin's College
17 and his law degree from Gonzaga. He didn't
18 play basketball there that I know of.
19 MR. HILLIER: Just inter rerum.
20 ACTING CHAIR HINOJOSA: Ms. Davina
21 Chen is an Assistant Federal Public Defender
22 in the Central District of California where
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1 she has been both a trial attorney and an
2 appellate attorney. In 2003 she actually
3 served as a visiting defender with the U.S.
4 Sentencing Commission. After law school she
5 clerked for a circuit judge on the Ninth
6 Circuit, Judge Fredrickson, and she received
7 her Bachelor of Arts from the University of
8 California Berkeley, and her Master's from
9 Stanford, and her law degree from NYU.
10 Mr. Douglass A. Mitchell
11 specializes in commercial litigation and
12 federal criminal litigation at the Law Firm of
13 Boies, Schiller and Flexner in Nevada. In
14 1995 the federal District Court for the
15 District of Nevada appointed him to serve as a
16 mentor training defense attorneys to practice
17 criminal law before the court. And he is also
18 a CJA panel attorney in Nevada. And he also
19 clerked for a judge, for a U.S. district court
20 judge for the District of Nevada, Judge
21 George.
22 And we appreciate all three of you
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1 being present. In defender fashion, Mr.
2 Hillier informed me that he was going first.
3 But in my judge fashion, I informed him that I
4 was calling on him first anyway.
5 (Laughter.)
6 ACTING CHAIR HINOJOSA: So we'll
7 proceed with Mr. Hillier.
8 MR. HILLIER: For the record, I
9 advised Your Honor that I lost the draw on the
10 short straw, but it is an honor to be here.
11 And as a Federal Public Defender especially
12 I'm grateful for this opportunity to appear
13 before the Commission.
14 After this morning I had the hope
15 that I was going to be continuing a variation
16 on a theme that was addressed by the district
17 court judges and the probation officers about
18 expanding the availability of probation as a
19 sentencing tool in federal court and
20 alternatives to sentencing, the idea to
21 mitigate the harshness of some of these
22 guidelines, particularly in the realm of
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1 illegal aliens, drugs, and child pornography.
2 Also we, as you can see from my
3 written materials, are echoing another theme
4 of this morning, which is to encourage the
5 Commission to generate more evidence-based
6 information related to why sentencing ranges
7 relate to the purposes of sentencing and how
8 evidence-based programs might assist in
9 carving out a new emphasis in alternatives to
10 sentencing, but then we had the panel just a
11 few moments ago. And I wanted to kind of jump
12 into the fray for a moment and deviate from my
13 notes --
14 VICE CHAIR SESSIONS: Is this
15 unusual for you to want to jump into the fray,
16 to respond to the government?
17 (Laughter.)
18 MR. HILLIER: It might relate to
19 that fiery thing that Judge Lasnik said this
20 morning. I'm not sure but, in any event, in
21 listening to particularly the U.S. attorney
22 from the District of Oregon, she talked about
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1 child pornography and some of the sentencing
2 issues and angst that relate to that
3 particular crime in the District of Oregon.
4 And it is a crime that just generates a lot of
5 emotion and revulsion and feelings that we all
6 have about something like that.
7 And she spoke about how the defense
8 sometimes gets a psychological evaluation that
9 tells the court that their defendant is not
10 one who's prone towards being a pedophile or
11 being involved in harming children beyond the
12 crime that they committed.
13 And I just wanted to give you a
14 different perspective of what occurs in
15 Seattle. We, as a group, in Seattle -- the
16 government, the judges, the Probation
17 Department -- recognize that in child
18 pornography prosecution one size does not fit
19 all. But the guidelines are very severe in a
20 uniform way to anybody who is involved in that
21 crime. But the defendants who come into
22 court, after having been convicted for
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1 committing a crime, vary tremendously in who
2 they are, how they got involved, and what the
3 appropriate punishment is.
4 And in our district, the
5 government, as I said, recognizes that, too.
6 And what they do is cooperate in trying to
7 figure out who that person is and what an
8 appropriate sentence might be. And we don't
9 have a defense psychological report; we have a
10 report that we would really -- if we agree to
11 do a report and, of course, there are some
12 clients I have where a report isn't going to
13 help my client, so we're not going to go down
14 that path. But if we agree to do a report by
15 an expert who everybody believes is somebody
16 we can rely upon, all the parties, and when we
17 communicate that evaluator's information to
18 the judge, we're all confident that that
19 information is neutral, and appropriate, and
20 science-based information.
21 The reason we do that is that the
22 prosecution approached us on that in order to
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1 be sure that we didn't paint too broadly with
2 the child pornography penalties. And in
3 consideration for that report we get
4 concessions at sentencing from the government.
5 The government agrees to reduced guideline
6 applications and, depending upon how favorable
7 the report is, maybe even more.
8 So it's not that in our district --
9 well, in our district we don't look at the
10 range as the, you know, end-all, and if we
11 don't get there, then we jump into a mandatory
12 minimum situation with receipt. Receipt might
13 be charged in a case where it is appropriately
14 charged, not as a hammer to force us into a
15 guideline range.
16 In addition to the consideration
17 that the government gives us for going through
18 this evaluation process, -- and it's very
19 intrusive and instructive to the court -- we
20 are able to argue to the court, if we can do
21 so credibly, for a variance even from whatever
22 even lower guideline range it is that we've
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1 all agreed upon.
2 And we do that out of recognition
3 of the fact that some of the penalties are
4 just too high for some of the defendants. And
5 I think that that's a contrast, perhaps, to
6 sort of the reactive way that deviations from
7 whatever variances from guidelines are
8 achieved in some districts begrudgingly.
9 Sliding into the more prepared
10 remarks, one of the themes of our written
11 presentation, the one that I'm going to
12 concentrate on -- Davina is going to talk
13 about anything that's hard and answer all the
14 questions -- is our view that probation is
15 underused in the federal district courts and,
16 particularly, under the sentencing guidelines.
17 And I'm going to be direct here. I believe
18 that it's underused because the guidelines at
19 their inception some 22 years ago marginalized
20 the significance of probation in the
21 sentencing function.
22 And, in fact, the Commission was
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1 very honest about saying that, "We think
2 probation is overused and that this is a
3 problem." And, as a result, we're saying all
4 federal crime or nearly all federal crime is
5 serious and, therefore, within the ambit of
6 that statute that says serious crime ought not
7 to get probation in the usual case. And they
8 offered no explanation for deciding all of a
9 sudden why it is that all federal crime was
10 serious. It is a policy decision. It was a
11 political decision. And it was compounded by
12 an interpretation, we think misinterpretation,
13 of the statutory directives in title 28 994,
14 which say that further marginalized
15 considerations that might drive a sentence
16 towards probation, those -- or a defendant
17 characteristics, special -- a defendant's
18 characteristics [inaudible] define who that
19 person is by saying in Chapter 5H these are
20 not ordinarily relevant.
21 And the way that that came about is
22 the Commission then interpreted 994(d) and (e)
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1 to say that it's inappropriate to consider
2 age, education, and drug dependency, and the
3 sort of things in making a sentencing
4 decision. But those statues don't say that.
5 They say just the opposite. (e) says that
6 it's inappropriate to use those considerations
7 in putting somebody in prison, because it is.
8 You don't put somebody in prison because
9 they're poor or because they're uneducated.
10 But the fact that they're poor,
11 uneducated, or they may have drug addictions,
12 or mental health issues, or any number of --
13 thousands of other personal characteristics,
14 they said in 994(d), may be appropriate to
15 that sentencing decision. And 994(d) charged
16 the Commission with deciding what is the
17 appropriateness of age in the sentencing
18 decision, and education in the sentencing
19 decision, and family ties in the sentencing
20 decision.
21 And as a policy matter, the
22 Commission decided it wasn't inappropriate,
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1 but the directives from Congress don't say
2 that. And certainly now Booker says that's
3 not the case, but rather 3553(a) factors,
4 which are those factors under Booker and its
5 progeny, are directly relevant to the
6 sentencing decision.
7 So we feel that probation is
8 underused because of some decisions that were
9 made a long time ago that are now, in the wake
10 of Booker, subject to some revision and should
11 be revised. And there should be some critical
12 thinking on this Commission about whether or
13 not those policy choices were right way back
14 then.
15 As Judge Lasnik said, there's all
16 sorts of ways to inform whether or not that
17 decision was right. So when you see, when
18 this Commission sees a departure rate that is
19 20 to 1 in favor of downward departures,
20 that's a signal. That's a signal that
21 sentences are too high and that the
22 marginalization of probation is not a good
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1 thing.
2 The judges in surveys this
3 Commission has sponsored have historically and
4 consistently argued that probation is
5 underused. The judges say in drug cases in
6 particular, anywhere from 74 percent to 82
7 percent of the judges are saying, "There are
8 times when we would like to use sentences that
9 are less than what are advised by the
10 guidelines in these cases; can't you do
11 something about it?" Sixty-four percent of
12 the judges said they would like to see a
13 greater use of probation in drug cases.
14 The Probation Department spoke
15 about the program that they have in
16 alternatives to custody that our win-win
17 propositions in cases, such as community
18 service. And we would like to see more and
19 more of these sorts of initiatives because
20 probation is being underused. And we
21 recognize and your studies show and other
22 studies show that when you send somebody to
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1 prison, it has a negative effect on that
2 person and their involvement in the community.
3 That person is exposed, if they're a low-
4 level offender and they go to prison, they are
5 exposed to, oftentimes, more serious
6 criminals.
7 And criminologists have seen a
8 relationship between that exposure and the
9 risk of recidivism later on. And the
10 criminologists have shown that when you pull
11 people out of the community, out of a job,
12 that produces a greater risk of recidivism.
13 And all of those things suggest that when you
14 overuse prison by excluding probation you're
15 not just -- by creating a greater risk of
16 recidivism you are actually harming the
17 potential safety of the community because
18 these peoples may go back out and do things
19 that they shouldn't do because they've lost
20 their bearings, they've lost their anchors in
21 the community.
22 I want to do something that's a
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1 little unusual, I'm sure in the context of
2 this case, and finish my remarks around two
3 cases that I handled last week. I'm not the
4 policy one that all of my colleagues are, and
5 I learned in the trenches basically. And
6 these two cases I think speak to some of the
7 problems I see with the way the guidelines are
8 currently constructed and some of the
9 solutions that Booker and its progeny have
10 offered to you and some ideas that it has
11 offered to you to bring more judges within the
12 fold of the guidelines, make the guidelines
13 more credible to judges so that the judges are
14 using them much, much more consistently than
15 they are today.
16 And I might say -- we heard today
17 from the U.S. attorney in Oregon that in the
18 Ninth Circuit 45 percent of the cases are
19 within the guidelines, which means, of course,
20 55 percent are outside of the guidelines, but
21 42 percent of those 55 percent are there
22 because of government-agreed-to departure. So
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1 it's only talking about 11 percent of the
2 cases that are judge-sponsored, judge-driven
3 departures alone. So we're not far away, but
4 there are some matters that I think can really
5 redeem the credibility of the guidelines
6 system, make it relevant to sessions, as
7 you've talked about again and again throughout
8 the morning.
9 The two cases I had last month were
10 kind of remarkable in the sense that they were
11 really similar, but they weren't because of
12 who the defendants were. But both involved
13 ecstasy exportations or importations. My
14 clients were both young women in their early
15 twenties who were recruited by individuals
16 older than them, but -- I shouldn't say -- one
17 was older; one wasn't -- but to go to Canada
18 to bring ecstasy back into the country. Both
19 cases involved about five kilograms of
20 ecstasy. Neither client had any criminal
21 record whatsoever. And they both had
22 different judges, not Judge Lasnik, but
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1 different judges who had completely different
2 sentencing philosophies. And they pled guilty
3 and they both attempted to cooperate.
4 One probably wouldn't have gotten
5 the 5K motion in most of the districts in the
6 country; the other one probably would have.
7 They both got 5K motions in our district.
8 Before the 5K motion and after the guideline
9 calculation, both received ten-level downward
10 adjustments to their base offense level with
11 acceptance of responsibilities, Safety Valve,
12 roll on the offense.
13 I mean it was just remarkable, ten
14 levels. I've never seen ten levels in a case
15 before. And generous by guideline standards,
16 to say the least. And at the conclusion of
17 that exercise, both had ranges of 41 to 51
18 months in prison. And I'd like to say, I'd
19 like to believe that no judge in this country
20 worth his or her judging salt would give
21 either of these young women a day in prison,
22 but I know differently.
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1 So we're faced with 41 to 51, and
2 we're going to court. We get the 5K motion
3 and begin the advocacy of sentencing. And
4 neither of these defendants were well-heeled.
5 Okay. Neither of them had any money. And
6 they didn't have [inaudible] representation
7 either. I think they received the sentences
8 they got despite the representation that they
9 had.
10 And I did advocate. Now, you know,
11 I wrote a sentencing memo that talked about
12 the ecstasy guideline, how the science of the
13 ecstasy guideline, when the information was
14 given to the Commission, was bad science and
15 that the court should devalue it some. And I
16 hope this issue is revisited. I can say,
17 based upon conversations I had with Dr.
18 Holland, who wrote a declaration in our case
19 and who testified before the Commission in
20 2001, that there are studies ongoing, one of
21 which is going to be completed later this
22 year, which is hopefully going to identify
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1 what the real harms of ecstasy are. But the
2 current medical information suggests that the
3 harms are less than heroin, less than
4 methamphetamine, less than alcohol, less than
5 marijuana, less than cocaine, but it's at the
6 same level as cocaine and just barely below
7 meth and heroin for purposes of the
8 guidelines.
9 So I made that argument, and I made
10 other arguments, philosophical arguments about
11 how general deterrences, ethically challenged,
12 and those sorts of things in my sentencing
13 memo. And I made roll-on-the-offense
14 arguments and cooperation arguments, but
15 mentioned none of that during oral advocacy,
16 because none of that really mattered. This
17 was really all about who my clients were, are,
18 and whether or not they're going to prison
19 made any sense. Did it make any sense; did it
20 further any sentencing purpose.
21 Clearly they were deterred.
22 Clearly general deterrence wasn't an issue.
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1 They were anonymous. Nobody was in the
2 courtroom other than family. Community safety
3 wasn't on the table. And the only question
4 was the seriousness of the offense. And, you
5 know, that sort of subjective thing, which was
6 measured by a drug quantity that they had no
7 relationship to in terms of their own personal
8 culpability in relation to that crime.
9 So after all of that and after the
10 argument -- and I argued to the judges that --
11 for one of my defendants who was -- had
12 psychological issues -- sending her to prison
13 would have been devastating. It would have
14 destroyed her. It would have made her worse.
15 And the other defendant didn't have those
16 same issues. But it would have been at the
17 very best a horrible waste of time and ripped
18 her out of her home for that time that she was
19 there to the detriment that I've already
20 described.
21 Both received -- one received two
22 years of supervised release. She got credit
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1 for the days she did in jail. The other
2 received three years of supervised release
3 with credit for the two days she spent in jail
4 before she was released on a personal
5 recognizance.
6 And the reason was that the judges
7 understood, the courts understood that client
8 number one needed therapy and client number
9 two, who had been out for several years
10 pending transfer of the case from Texas, and
11 cooperation, and all this sort of thing, that
12 -- and totally squared away her life, got a
13 job, and went on to establish herself in the
14 community.
15 Client number one is graduating
16 next week from the University of Washington.
17 Both understood that prison made no sense. It
18 just would further no sentencing purpose. So
19 they gave her those supervisory sentences.
20 And they did so -- they are empowered to do
21 that; they were authorized to do that. And
22 they would have had a difficult time to do
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1 that prior to -- but they were able to do that
2 because of Booker and its progeny.
3 So I think these cases offer an
4 example of what judges can do now, but they
5 also offer examples of how it is that the
6 judges don't need to go through the sort of
7 gymnastics in order to get to these results.
8 The manual as it relates to roll on
9 the offense is something that I think both
10 judges were concerned about. Roll on the
11 offense is given these quantitative numbers:
12 Two levels off, four levels off, three levels
13 off if it's something in between, which really
14 don't amount to a hill of beans when it's a
15 quantity-driven penalty that you're starting
16 with.
17 They certainly don't measure the
18 true culpability of defendants who have truly
19 minimal roles in an offense or just have
20 really no stake in that charge, but get
21 drugged in somehow or another for any number
22 of reasons. And that culpability is a measure
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1 of how serious their involvement in that crime
2 is. And the judges knew that. They knew and
3 understood that the numbers in the guidelines
4 didn't account for anything.
5 So one of the things we're
6 recommending in our submission is that in
7 addition to those numbers, if you want to keep
8 the numbers in that adjustment is to say -- to
9 an application note that says, you know, these
10 numbers may not really take into account the
11 true insignificance or to measure truly your
12 client's culpability or defense culpability,
13 and you can go below that. You can depart,
14 that we can encourage a departure, which
15 brings judges, when they do this, within, you
16 know, compliance -- to use your word -- with
17 the guidelines. I'd just say confirm swift,
18 but...
19 The other is personal
20 characteristics. Both of these defendants had
21 major issues that the courts were concerned
22 about. And, as I said at the outset, the
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1 guidelines say in making a decision to be
2 outside a range, these characteristics aren't
3 ordinarily relevant and sometimes aren't
4 relevant at all, yet the law now says the
5 opposite. As I stated, I think there's been a
6 misinterpretation of the statutes in getting
7 to that policy decision, but it is a policy
8 decision. But today the courts are saying the
9 same repeatedly: That the judges must, they
10 not just can but they must consider these
11 characteristics in shaping a decision.
12 So we've recommended that you take
13 5H out of the guideline range because it is
14 causing chaos, to use your term, Commissioner
15 Wroblewski. See, I like that term. I don't
16 think it really applies to sentencing in
17 general. I agree with Judge Lasnik. I think
18 they're better now than they were pre Booker.
19 But what chaos exists is because
20 there's confusion that's generated by a
21 guidelines manual that says you shouldn't
22 think about this, and the Supreme Court and
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1 the court of appeals all say you got to think
2 about that. And that confusion, that chaos
3 has resulted in some conflicting case law,
4 that every day it's more and more thunder is
5 coming towards -- resounding towards a
6 conclusion that you must consider that sort of
7 information. So you could go a little long
8 ways, I believe, we believe by taking that
9 confusion out and redefining the policy that
10 got to -- us to that state.
11 In this case, as I alluded to, 5K,
12 we received 5Ks in both cases. I'm certain in
13 one case it wouldn't have occurred. We
14 recommend that would take the requirement of a
15 motion out. It really isn't required anymore
16 for a judge to consider a defendant's
17 cooperation or efforts to extricate herself
18 from criminality in shaping a decision. But
19 why give the government that hammer and
20 similarly with accepted of responsibility that
21 third point, in this case, in the plea-
22 negotiation process, the first case, I asked -
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1 - you know, I wouldn't sign a plea agreement
2 that asked me to make concessions on guideline
3 application seen waive a fee. I said I'm not
4 going to do [it]. I said we'll plead to a
5 count and leave it at that. So he reindicted
6 and counted -- you know, did x, importation,
7 possession, and conspiracy. So we have three
8 counts. And so if you've got to plead to all
9 three counts, "Well, we're not going to give
10 you acceptance of responsibility."
11 And I said, "Fine, it costs my
12 client $200 but at least she didn't get stuck
13 with a guideline application" or a commitment
14 to a guideline application that would have
15 gotten her more time in jail, but that's
16 simply because the government threatened me
17 with no acceptance of responsibility if we
18 didn't plead to all three.
19 I said, "I'll plead to one and
20 we'll go to trial on the other two later on."
21 I had more acceptance -- I'm not just
22 bluffing, obviously, because we wouldn't go to
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1 trial, but -- that's the sort of thing that,
2 you know, who needs that hammer, and I think
3 we should just take it away from. It's not
4 necessary, it does[] no good.
5 And finally and probably most
6 importantly, in our materials we're submitting
7 an idea for something bigger than all of this.
8 This fine tuning is the easy stuff. As the
9 superintendent of our state prison told me
10 when I was arguing about conditions the other
11 day out there, he said, "Well, I'll take care
12 of that. That's the low-hanging fruit," and
13 some of these things I've suggested of low-
14 hanging fruit, we can do these adjustments in
15 a hurry.
16 But one proposal that we make in
17 all earnestness is to devise a guideline that
18 at the front in, in all cases that don't have
19 mandatory minimums, allow the judge to make an
20 in and out decision. Devise a guideline that
21 gives advice on how to do that, on whether and
22 under what circumstances somebody should have
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1 to go to probation, so that in these cases,
2 for example, a judge could say, "I invoke the
3 new guideline and make this decision."
4 Now if they decide prison isn't
5 appropriate, then they go to the guidelines
6 for advice on how to do that. But by doing
7 this what you're doing is creating a mechanism
8 that brings judges within the fold of the
9 guidelines and concerns with lack of
10 consistency and that sort of thing diminish in
11 the process. And uniformity is achieved to
12 the extent that uniformity. But I agree whole
13 heartedly with Judge Lasnik that uniformity --
14 fairness should not come at the cost of
15 failing us.
16 And Judge Lasnik, he's immortal in
17 our district for the time and care he takes
18 with our clients, all clients to explain to
19 them what it is he's doing, why he's doing it,
20 even when the clients don't like it, they
21 leave understanding, they feel respected, they
22 feel they've been treated justly, as compared
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1 to somebody who gets 20 months because "I gave
2 20 months to somebody else," which doesn't
3 resonate fairly and is a price that we
4 shouldn't be paying in this system.
5 ACTING CHAIR HINOJOSA: Thank you,
6 Mr. Hillier.
7 Ms. Chen, you're next.
8 MS. CHEN: Yes.
9 VICE CHAIR CARR: Ms. Chen.
10 MS. CHEN: I go next. Can I go
11 next?
12 ACTING CHAIR HINOJOSA: Yes.
13 MS. CHEN: I also would like to
14 thank the Commission for inviting me to come
15 and speak to them today. And I'm especially
16 happy to see the Commissioners that I worked
17 with when I was at the Commission in 2003 and
18 also to be able to address Commissioners that
19 I haven't had the opportunity to address
20 before.
21 You know, a few weeks ago when I
22 started to think about what I wanted to say to
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1 you today, the Obama Administration was on the
2 airwaves talking about measuring programs by
3 their outcomes and not by their intentions.
4 This time it was because they were proposing
5 cuts from popular programs under the federal
6 budget. You, as we know, this idea that
7 government should work and that we should
8 measure why the government works by evidence
9 and analysis instead of ideology and intention
10 is already a major theme of this young
11 administration.
12 And I know that everyone here, all
13 the stakeholders, want to make federal
14 sentencing work. But the Commission is in the
15 unique, indispensable, and statutorily defined
16 role of collecting sentencing information,
17 both empirical and descriptive; using this
18 information to measure the effectiveness of
19 sentencing policy in meeting the statutory
20 purposes of sentencing; and encouraging
21 sentencing practices that are informed by that
22 analysis.
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1 And obviously when acting in this,
2 what the Supreme Court has described as its
3 characteristic institutional role, the
4 Commission has hard-earned and well-deserved
5 credibility.
6 Acting in this role, the Commission
7 has -- obviously it's on everyone's mind --
8 criticized sentencing practice that had unjust
9 outcomes, the most obvious being the cocaine
10 penalties. And it looks like Congress may
11 well finally be on the verge of addressing
12 that.
13 But we as defenders know that the
14 Commission hasn't always taken its own advice.
15 We have -- although the cocaine reports may
16 be the most famous of the Commission's work,
17 we as defenders are well aware that the
18 Commission has long standing commitments to
19 doing all sorts of research, things like its
20 mandatory minimum report. Its research on
21 recidivism. Its 15-year review.
22 And prior to Booker defenders
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1 repeatedly urge[d] Congress and the Commission
2 to address the concerns that were raised in
3 these reports, whether it be abandoning the
4 practice of mirroring mandatory minimums in
5 the drug guidelines, or amending the Criminal
6 History scoring, so that it match[ed] a little
7 bit with what it was learning in its
8 recidivism practice.
9 After Booker, the defenders have
10 increasing gone straight to the courts and
11 said, "Look, even the Commission's research
12 has shown that these guidelines are defective.
13 We're asking you to vary because of
14 guidelines [that] are not effective based on
15 [] the Commission's research." But I believe
16 that the interests of the sentencing report,
17 when we talk about sentencing reform we're
18 talking about justice. So the interests of
19 justice are best served when all the
20 stakeholders work together. So it's not, "Oh,
21 we couldn't get it from these people, so we'll
22 get it from those people."
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1 We all need to work together. In
2 our lengthy written submission, which I
3 understand was delivered late in the night, we
4 made some specific recommendation about how
5 the Commission could encourage the imposition
6 of substances that are sufficient but not
7 greater than necessary to meet the statutory
8 sentencing purposes.
9 We encourage the use of probation
10 and alternatives to incarceration, which Mr.
11 Hillier talked about. We encouraged the
12 committee to abandon the practice of mirroring
13 mentors and memo in the guideline. We
14 encourage the Commission reduce unwarranted
15 severity of specific guidelines and thereby
16 reduce disparity.
17 We encourage the Commission to
18 eliminate policy statements that restrict the
19 consideration of the beginning factors, again
20 something that Tom [is] working on. And we
21 encourage the Commission to urge the repeal of
22 mandatory minimums and specific --
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1 (Noise in background.)
2 MS. CHEN: I'm not going to talk
3 about all that because we wrote a lot about
4 that in our written testimony, among --
5 instead I want to address the broader issue
6 that's raised in our written testimony. And
7 that's the goal of and mechanisms for
8 fostering the ongoing dialogue between the
9 stakeholders and federal sentencing.
10 I was asked to speak at least in
11 part in my capacity as an appellate attorney.
12 So I'm going to be speaking from that [for
13 the] rest of my very short presentation.
14 I have one observation and three
15 comments based on that observation. And the
16 first of the observation: As an appeals
17 attorney in a very large district I review a
18 wide variety of sentencing transcripts. And
19 the most striking observation I have post-
20 Booker is not that sentences are somewhat
21 shorter, which they are, and not that
22 sentences are somewhat fairer, which I also
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1 believe is true, the most striking observation
2 I have is that everybody, the prosecutors, the
3 defense attorneys, the judges are talking a
4 lot more. Transcripts are thicker. People
5 come back with more stories from sentencing.
6 And they're not just saying more to
7 advocate or explain a sentence that is outside
8 the guideline ranges, they're also saying more
9 to explain or advocate for a sentence within
10 the guideline range. And I have no doubt that
11 this, this fact that everyone is talking a lot
12 more is a direct result of Booker.
13 I have three comments based on this
14 observation. And the first is that I think
15 that this is extremely healthy for [the]
16 system. I think it's extremely healthy for
17 the government to have to justify what tends
18 to be its position, that the guideline
19 sentence is sufficient but not a greater-than-
20 necessary sentence. And, more recently, for
21 the government [to] have to explain why
22 they're agreeing to a variance in a crack
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1 case.
2 I think it's healthy for defense
3 counsel to be able to criticize the guidelines
4 frontally, without hiding that criticism as
5 somehow a Hartmann argument or gaming the
6 system or circumventing somehow. Being able
7 to criticize the guidelines frontally. It's
8 healthy for defense counsel to be able to
9 identify facts, even about the offense or the
10 offender that they believe are relevant to the
11 statutory sentencing purposes, even if those
12 factors are factors that the Commission has
13 deemed either never or not ordinarily
14 relevant. It's healthy for defense counsel to
15 be able to advocate honestly and openly and
16 directly for a just sentence.
17 And perhaps most importantly, it's
18 healthy for the client who's being sentenced
19 to hear the judge actually explain the
20 sentence and the reason for it. I've heard
21 judges say many times that sentencing is the
22 hardest part of their job. And I know you'll
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1 all believe me when I say it's pretty hard for
2 the defendants, too.
3 But I believe even when the
4 sentence is one that is what I view to be too
5 harsh, it's much more consistent, the
6 seriousness of the decision that's being made,
7 for the judge and for the client, for the
8 judge to explain the sentence imposed
9 thoroughly and honestly, rather than for the
10 judge to do some math and then say, "I
11 understand I have the discretion to depart.
12 I'm electing not to depart in this case and in
13 giving a sentence."
14 So the first comment is that
15 perhaps as [an] unintended byproduct of
16 Booker, the current sentencing system allows
17 for a sentencing hearing. It is much more
18 consistent with what I believe justice looks
19 like.
20 My second comment is that one of
21 the things I've learned from reading all these
22 transcripts, and especially from attempting to
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1 craft appellate arguments [is] that a
2 resulting sentence either is or isn't
3 reasonable, is that both district and
4 appellate judges are hungry for explanations
5 from the Commission as to the rationale behind
6 the guideline, so that they're better able to
7 assess whether the guideline makes sense as a
8 general rule and whether it makes sense in
9 this specific case.
10 As an appeals attorney, and I've
11 been doing almost exclusively appeals now for
12 four years, it's extremely difficult to
13 explain why a sentence is or is not
14 reasonable, especially in relationship to the
15 guideline sentence, when the Commission has
16 not displayed what sentences purposes the
17 guideline was intended to serve, let alone how
18 the guideline elements were meant to achieve
19 that purpose.
20 I strongly encourage the Commission
21 to examine each guideline, each policy
22 statement, each adjustment to determine if and
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1 how it furthers the statutory sentencing
2 purposes set forth in 3553(a). If the
3 Commission determines a factor does not
4 further those purposes, it should be revised
5 or removed.
6 For the remaining factors, the
7 Commission should set forth an explanation of
8 what purpose the guideline is intended to
9 serve, how it is meant to achieve those
10 purposes, and what evidence the Commission
11 relied upon to conduct the -- the conclude
12 that the guideline would be effective in
13 achieving those purposes. If of course the
14 factor is the result of a congressional
15 directive, then the Commission should just say
16 that.
17 The Commission should set forth the
18 explanations in the guideline Manual itself.
19 I think that a lot of attorneys and perhaps
20 some judges have never looked at Appendix C,
21 because it's really difficult to use. I have
22 all of the guidelines up on my shelf and
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1 rather than looking at Appendix C, I just want
2 to pull random books to see when things have
3 changed and then I go to Appendix C, because
4 it's really complicated the way it is. So I
5 think that the rationale should be in the
6 guidelines so that people can see it.
7 So if, for example, the
8 Commission's study on recidivism or a current
9 random search supports the statements in
10 5H1.1, which basically says that a defendant's
11 age is largely irrelevant to the statutory
12 purposes of sentencing, then the Commission
13 should so state. But if, on the other hand,
14 looking at this research reveals that age is a
15 relevant factor for a number of the statutory
16 purposes of sentencing, whether it be
17 recidivism or the relative culpability of a
18 defendant, then the Commission should either
19 remove said policy statement or revise it.
20 The reasons I make this
21 recommendation are, one, I think it would be a
22 really healthy exercise for the Commission to
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1 return to the first principles of the
2 Sentencing Reform Act. Two, I think the
3 guidelines would have a lot more credibility
4 with judges, practitioners, and even clients
5 if they were grounded in something that we
6 could understand and evaluate, they're linked
7 to the statutory sentencing purposes.
8 And in the actual sentencing
9 process, where advocates and judges are
10 considering advisory guidelines and assessing
11 whether they resolve the sentence that is
12 sufficient but not greater than necessary to
13 meet the statutory sentencing purposes, and,
14 in my process, the appellate process, where
15 advocates and judges are considering whether
16 the sentence imposed is reasonable, we all
17 need to know what the intended purpose of the
18 guideline is before we can even begin to
19 evaluate whether that purpose is served
20 generally by the guideline, given careful
21 research, or would be served in this case
22 based on the specific facts of this case and
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1 our client.
2 Put simply, by explaining the
3 guidelines the Commission can both enhance
4 their credibility and promote their ongoing
5 evolution.
6 And my final comment stemming from
7 this observation about how much judges are
8 saying is that the Commission seems to be
9 missing a lot in the manner it's collecting,
10 reporting, and presumably analyzing this data.
11 It's my understanding that the Commission
12 relies primarily on the statement of reasons
13 form in compelling -- in completing sentencing
14 data. But in my practice as a clerk to a
15 judge, as a trial attorney, as an appeals
16 attorney, the only time I've ever seen a
17 statement of reasons form was the six months
18 that I was at the Commission.
19 Since I've never seen a form I have
20 no way of knowing who filled out that form,
21 but I understand from others who have seen the
22 form, that it may not always be the judge.
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1 And even when it is the judge, the form isn't
2 really designed to capture all the stuff that
3 the judges are saying. It's mostly box
4 checking, and then there's a little space in
5 the bottom to justify a non-guideline
6 sentence.
7 Our written testimony contains
8 several suggestions for how the Commission
9 could improve the process of collecting and
10 reporting information, but what I can say from
11 personal experience of reviewing sentencing
12 transcripts, on the one hand, and the
13 Commission's charts on the other, is that the
14 judges are saying some very interesting things
15 that the Commission's data isn't capturing.
16 Finally, to conclude, the
17 Sentencing Reform Act contemplated an ongoing
18 dialogue between the courts and the
19 Commission. To make this dialogue work, the
20 Commission must clearly explain its view of
21 the relationship of the guidelines and Section
22 3553(a) and hopefully capture how the judges
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1 are responding.
2 I encourage the Commission to
3 continue their work on both of these items.
4 Thank you.
5 ACTING CHAIR HINOJOSA: Thank you,
6 Ms. Chen.
7 Mr. Mitchell, you'll go last.
8 MR. MITCHELL: Like Mr. Hillier and
9 Ms. Chen, I'd like to thank the Commission for
10 the opportunity to appear today and the
11 opportunity to offer just a couple of what I
12 think are simple suggestions about what the
13 Commission might consider as they think about
14 reforming the guidelines in this post-Booker
15 era.
16 From my perspective, the sentencing
17 guidelines seek to obtain three reasonably
18 worthwhile goals. They attempt to promote
19 sentencing uniformity with similarly-situated
20 defendants. And I'm honest enough that I
21 don't know that I believe similarity is the
22 same thing as uniformity, but they do attempt
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1 to promote a degree of uniformity amongst
2 similarly-situated defendants.
3 Second, I also think it attempts to
4 foster predictability in sentencing so that
5 prosecutors, defendants, and defense counsel,
6 as they consider some very important issues
7 that affect a defendant's life, can have some
8 method of measuring early in the case the
9 potential impact on that defendant, so they
10 can then make wise decisions as they counsel
11 their client or prosecute a case as a
12 prosecutor.
13 And the third, I think the
14 sentencing guidelines at least in some measure
15 tend to cultivate a degree of proportionality
16 in sentencing. Now I pause here again to note
17 that I'm not going to talking about the
18 vigorous debate about minimum mandatory
19 sentences or also the problems associated with
20 different issues involving the severity of
21 certain sentences recommended in certain types
22 of offenses. But I do note that at least from
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1 my perspective there is an effort to create
2 some degree of proportionality within the
3 context of variations in a spectrum of conduct
4 related to a particular offense; and also in
5 the context of different statutory offenses
6 that attempt to regulate or control similar
7 conduct.
8 But as with any comprehensive --
9 any effort to establish a comprehensive set of
10 rules or regulations that attempt to quantify
11 human behavior, the sentencing guidelines have
12 made more progress in some areas than they
13 have in others. My colleagues today, and I'm
14 very certain my colleagues at other sentencing
15 hearings before the Commission, have suggested
16 a number of ways and a number of amendments
17 that are well reasoned and well thought out
18 and worthy of consideration by the Commission.
19 Today, however, I just want to focus on two.
20 Two in particular that I think are broader
21 and should encompass some of the Commission's
22 thinking as they begin to consider how to
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1 refashion the sentencing guidelines.
2 First, I think it is important for
3 the Commission to consider how they might
4 refashion the sentencing guidelines to help
5 judges acquire all of the sentencing factors
6 in 18 USC Section 3553(a). The Sentencing
7 Reform Act and the particular provision of the
8 Sentencing Reform Act underlies much of the
9 sentencing policy that should govern the
10 Commission's decisions and analysis of the
11 sentencing guidelines.
12 In the wake of Booker and progeny,
13 the sentencing guidelines should be amended in
14 two particular respects, I think, to
15 accomplish its objective of refashioning the
16 guidelines into something that can help the
17 sentencing judges apply all of the 3553
18 factors.
19 The first thing is that the
20 Commission should enhance the usefulness of
21 the guidelines as an advisory, as opposed to a
22 mandatory tool. As currently drafted, and
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1 it's understandably so, but as currently
2 drafted, the sentencing guidelines are worded
3 and drafted in terms of a mandatory process, a
4 process that instructs judges in particular
5 defense characteristics and particular rules
6 that attempt to quantify behavior. I think in
7 a post-Booker world and in conformity with the
8 factors and the policies set forth in 3553,
9 greater effort should be made to attempt to
10 fashion the guidelines as an advisory tool
11 that can help structure an analytical
12 framework for judges as they consider an
13 individual who appears before them. This can
14 be done in a number of ways.
15 First, centralizing the
16 decisionmaking process in a mandatory set of
17 rules is while enticing and while in some
18 respects seemingly efficient, is not always
19 effective. In the end I think it's important
20 to remember that in any circumstance the
21 sentencing decision is relating to an
22 individual who appears before the court under
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1 particular circumstances. Mr. Hillier has
2 described in his final two case examples two
3 circumstances where the situation and
4 circumstances of the particular individual who
5 appeared before the court were entitled to
6 great weight and indeed received great weight
7 in the district court.
8 And so while there is some
9 attraction to the notion of a centralized
10 decisionmaking process, I think the Commission
11 as it considers how to reform and how to
12 improve the guidelines should bear in mind
13 that in almost every case the individual
14 appearing before the court to be sentenced has
15 individual circumstances and individual needs
16 that need to be taken into account as the
17 judge reaches its sentencing decision.
18 This notion of effectiveness in
19 sentencing I think in the parameters of
20 Section 3553 are very apparent in the language
21 of 3553, which creates a judicial necessity
22 for discretion. And I think that is most
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1 evident in Congress' mandate within the
2 language of that statute, that the courts
3 consider the history and characteristics of
4 the defendant; and that also in its related
5 instruction, in 3553, that says that
6 sentencing judges should impose a sentence
7 that is sufficient but not greater than
8 necessary. It becomes very difficult to
9 accomplish those two sentencing objectives and
10 those two policies without taking into account
11 the very unique and individual circumstances
12 of the defendant appearing before the court.
13 It's just not possible, I think, to adequately
14 or statutorily balance in adequate fashion
15 those two factors without taking into account
16 the kinds of sentencing and discretionary
17 issues that arise in some of the rules Mr.
18 Hillier described earlier today: education,
19 age, other factors relate go to, for instance,
20 boyfriends or girlfriends or other
21 circumstances that draw people into criminal
22 behavior who might not otherwise be there.
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1 Second, although the guidelines
2 currently provide an analytical framework for
3 weighing societal factors and offense
4 characteristics, the guidelines do not include
5 a statutory-adequate decisionmaking role for
6 their personal characteristics of an
7 individual defendant. Indeed I think that if
8 we look at the variations in kind and degree
9 of human behavior, individual character and
10 personal experience are practically limitless
11 and it becomes very difficult to quantify let
12 alone identify a defined set of
13 characteristics that might be considered when
14 one is called upon to weigh personal
15 experiences, personal history, and personal
16 characteristics. Therefore, I believe the
17 sentencing guideline should as it considers
18 how to reform the guidelines, the Commission
19 should make an effort and find a way to
20 develop an adequate role for extenuating
21 factors and mitigating circumstances.
22 Extenuating factors and mitigating
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1 circumstances that play a meaningful role in a
2 judge's decision to satisfy its obligations
3 under Rule 3553(a).
4 By extenuating factors I mean those
5 factors or facts or evidence relating to the
6 particular offense that provide some reason
7 for believing that the offense should be
8 treated more leniently.
9 And by mitigating circumstances I'm
10 speaking in terms of factors or evidence
11 relating to an individual's good character or
12 his history that suggests there is less
13 likelihood of recidivism, for a reason to
14 believe that the behavior is not consistent
15 with that individual's character.
16 I think as the Commission finds and
17 develops ways to take into account those two
18 very important factors in weighing sentencing
19 decisions for individuals who appear before
20 the court, the Commission will develop a
21 framework that is capable of producing even
22 greater uniformity, more accurate
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1 predictability, and more desirable
2 proportionality in sentencing. Those unique
3 characteristics of the guidelines' goals of
4 uniformity and proportionality and
5 predictability I think the best obtained when
6 considering the unique circumstances of the
7 individuals who appear before the court.
8 Second, in addition to fashioning
9 the guidelines in a way that they become
10 meaningful aids to courts who are attempting
11 to apply the sentencing factors in 3553(a), I
12 think the Commission should also give serious
13 considerations to simplifying the guidelines.
14 Again, whenever one deals with an effort to
15 make a comprehensive set of rules quantifying
16 human behavior, over time the risk increases
17 that those rules and the details and
18 complexities of those rules will result in
19 unwanted results and unwanted consequences,
20 not only for the individuals but for of course
21 society as well.
22 And I think there is merit in the
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1 notion of returning to a simpler, more basic
2 concept of sentencing guidelines. Perhaps
3 we're just spoiled in the federal District
4 Court of the District of Nevada, but it has
5 been my experience that the judges we appear
6 before are good people who take very seriously
7 their sentencing obligations and who make
8 every effort to make the decision they think
9 is right under the circumstances that are
10 presented before them in relation to the
11 particular offenses and the defendants'
12 circumstances. And I think there is value and
13 merit in trusting those judges to make the
14 right decisions for each individual who
15 appears before them in their particular,
16 unique circumstances.
17 Simplifying the sentencing
18 guidelines will accomplish that goal. It will
19 provide judges who have good character and who
20 have good intentions and who seek to do the
21 right thing with the flexibility to consider
22 mitigating circumstances and extenuating
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1 factors as well as specific offense
2 characteristics as they're already defined in
3 the sentencing guidelines, and it will provide
4 them with the ability to fashion appropriate
5 relief which, as required by Section 3553(a),
6 should be sufficient but not more than
7 necessary. And, in relation to that, benefit
8 that comes from simplifying the sentencing
9 guidelines and developing a system that
10 empowers judges, I think the Commission will
11 find over time as it collects and analyzes its
12 statistics, although I'm certainly not as
13 familiar with them as many of you and many of
14 my colleagues, I think over time the evidence
15 will appear that the judges will be making
16 very uniform decisions and they will be making
17 very predictable decisions that prosecutors
18 and defendants can rely upon as they counsel
19 clients or seek to charge cases. And I think
20 we will see greater proportionality, true
21 proportionality in terms of sentencing
22 decisions, after taking into account the
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1 unique circumstances of individual defendants
2 who appear before them.
3 I think that by returning greater
4 sentencing discretion in a simpler system that
5 includes a role for all of the factors in
6 Section 3553 will enhance the goals with which
7 the sentencing guidelines began. And I would
8 encourage the Commission therefore to
9 refashion the guidelines to give the judges
10 the greater discretion and guidance on how to
11 exercise that discretion in a meaningful way
12 within the parameters of 3553(a).
13 ACTING CHAIR HINOJOSA: Thank you,
14 Mr. Mitchell.
15 And we'll open up for questions.
16 VICE CHAIR CARR: You talk about
17 extenuating factors and mitigating
18 circumstances, which would be both be on the
19 down side with respect to 3553(a). Do you not
20 address aggravating factors because you're on
21 the other team or because you think the
22 guidelines have already gotten them covered?
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1 MR. MITCHELL: I think the
2 guidelines largely address most of the
3 aggravating factors and circumstances, that
4 there may be some others that could be added,
5 or they may fall within such a small
6 percentage of offense characteristics that the
7 judges can deal with those exercising their
8 discretion. But I think the guidelines have
9 done a very good job of identifying offense
10 characteristics.
11 I think, as Mr. Hillier pointed
12 out, the guidelines, however, have not done
13 such a good job of identifying and creating a
14 role for extenuating factors and mitigating
15 circumstances. And I think that greater
16 attention should be paid to those two
17 concepts.
18 ACTING CHAIR HINOJOSA: Judge
19 Kozinski brought up a point this morning that
20 I've thought about as far as having done the
21 guidelines, having done sentencing before the
22 guidelines. And in those days it was not
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1 necessarily unusual for the court to consider
2 running consecutive if someone had pled to two
3 counts or had been convicted of two counts or
4 more.
5 And so my question is: Do you
6 think after Booker I now have the discretion
7 to run sentences consecutive when somebody has
8 pled to two or more counts and/or been
9 convicted of two or more counts? The
10 guidelines say no. My question to you is:
11 After Booker do I -- and all the cases that
12 have followed -- do I now have the discretion
13 to go ahead and do that? In the case if I
14 think the 3553 factors would make that
15 appropriate?
16 MR. MITCHELL: I do. I think
17 discretion runs both ways and I think that's
18 part of the benefit of giving judges greater
19 discretion, together with guidance for that
20 discretion.
21 VICE CHAIR SESSIONS: Can I just
22 follow up on this judicial discretion, because
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1 I think you're making a strong point, to take
2 the 3553 factors, put them right within the
3 guidelines, remove what was the assessment
4 according to Mr. Hillier of the earlier
5 Commission, and therefore have more sentencing
6 discretion with the judge able to consider
7 human characteristics. You know, trying to
8 jibe that with the earlier testimony that
9 we've received from the government, is also --
10 and also from the judges, and that's the
11 reaction to Booker.
12 What we seem to be faced with is a
13 situation in which the government, in response
14 to the discretion that is given to the judges
15 as a result of Booker, might be interested in
16 creating more restrictions on that judicial
17 discretion by way of mandatory minimums or
18 11(c)(1)(C) pleas. And, in fact, the
19 testimony earlier on today is the defense as
20 well is interested in limiting discretion
21 because they don't want the variability of
22 what can happen when the case goes to a judge.
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1 And what happens to be a tough judge, then
2 you're likely to get a high sentence, and so
3 the defense is going to want to control that
4 discretion. And if it's a lenient judge,
5 you're going to want the government to limit
6 that discretion.
7 And, as a result, as a product of
8 the Booker case, it has exposed in some
9 philosophical way the interest of each of the
10 stakeholders to stake out -- stakeholders
11 staking out their authority. And as a result
12 you're in this state of limbo in which the
13 government all of a sudden sees these
14 sentences falling, so they want [to] exercise
15 more control over the sentencing process and
16 the defense, when they're faced with a tough
17 judge, and what the Chair has just indicated,
18 you know, consecutive sentences, they're going
19 to want to limit judicial discretion. So when
20 you say to us let's develop a system of
21 justice which allows more discretion with the
22 judge by incorporating all these factors, is
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1 that what you're really saying? Or are you
2 just really saying that personal
3 characteristics should play a part in the
4 sentencing process? And, honestly, that if
5 there is that level of discretion with judges,
6 you together with the government would be most
7 interested in limiting that discretion in the
8 interests of your client?
9 MR. MITCHELL: Well, I think part
10 of the problem that we see today is largely a
11 factor [of] a hybrid sentencing process. We
12 have a set of sentencing guidelines, as I
13 indicated, which have a mandatory flavor to
14 them and which have for many years now
15 fashioned and dictated judicial
16 decisionmaking. Now we have superimposed upon
17 that a Booker analysis [which] has rendered
18 those guidelines advisory, but we still have,
19 as Mr. Hillier noted, a large number of judges
20 who are largely following the sentencing
21 recommendations and the guidelines.
22 And so I think we are seeing what
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1 is a natural transition from the older
2 sentencing guideline rule-based decisionmaking
3 process to a more individualized sentencing
4 crutch. And we're in that transition phase
5 right now partly because we're dealing with an
6 old set of guidelines that were adopted under
7 one philosophical viewpoint and a new set of
8 judicial decisions that have asked us to adopt
9 a new view on how sentencing should be done.
10 And so I think that's why we're
11 seeing a lot of the kinds of behavior you're
12 talking about because we're grafting two
13 different things into one another. I think as
14 the Sentencing Commission looks at [how] to
15 reform the guidelines in a way that it can
16 take into account the post-Booker world, some
17 of those factors that you've noted may become
18 more acute and some of them may become less
19 acute, but I think in many instances it puts
20 the judges in a position where they can be
21 judges, and it lets attorneys and defendants
22 be in positions where they can be attorneys
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1 and defense counsel --
2 VICE CHAIR SESSIONS: Would you be
3 completely happy with a system in which the
4 judge has total discretion over a sentencing
5 decision, ultimately? Somewhere after we get
6 past the transition period; is that what
7 you're actually suggesting that we head for?
8 Or are we always going to be continually
9 involved in the various participants in the
10 sentencing process -- I shouldn't say fighting
11 for power -- but, you know, having their own
12 interests and in some ways I've always come
13 out with 5K motions or it will come out with
14 (c)(1)(C) plea agreements or mandatory
15 minimums, or something. That's -- I mean it's
16 a philosophical -- a deeply philosophical
17 question.
18 MR. MITCHELL: It is a very good
19 question. And I don't know, but that time
20 will tell. I think in a lot of ways the best
21 of both worlds is somewhat of a hybrid. In a
22 situation where the judges obtain guidance in
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1 appropriate recommendations for sentencing,
2 but guidance which is tempered by the notion
3 that it is not mandatory in their
4 decisionmaking process and also includes a
5 role for mitigating and extenuating
6 circumstances. And then give the judges that
7 ability to make the decisions that we have
8 appointed them to make.
9 And I think there is some benefit
10 to having those benchmarks that can advise and
11 inform judges while at the same time making
12 sure they have the opportunity to take into
13 account the virtually limitless variations in
14 human behavior and circumstances that might
15 relate to an individual who appears before
16 them.
17 ACTING CHAIR HINOJOSA: Ms. Chen,
18 were you raising your hand?
19 MS. CHEN: I just wanted to say
20 that I can't predict -- I think we are in a
21 state of transition and I can't predict what's
22 going to happen. But I can say unequivocally
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1 that what we have now is better than what we
2 [had] before Booker. And the reason for that
3 is what I stated in my opening remarks, is
4 that the people are saying a lot more.
5 In my district we are not having
6 that experience where everyone is agreeing to
7 11(c)(1)(C), whether it's sought by the
8 government or by the defendant. In fact, the
9 only 11(c)(1)(C) agreements at our district
10 are the fast-track sentences in the illegal
11 reentry context, and I have addressed that in
12 the written testimony and won't address that
13 here.
14 They're not addressed --
15 11(c)(1)(C) agreements because everyone wants
16 to go to the judge and tell them they what
17 really think. And I think that that's really
18 great for the system. I think it's great for
19 all of the stakeholders that are in the
20 courtroom and I think it's great for the
21 Commission too, to hear what it is that
22 they're saying.
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1 So I've heard the testimony over
2 there today that apparently in the Eastern
3 District of California and in the District of
4 Oregon there's increasing 11(c)(1)(C). I
5 would say that in our district there's
6 actually been a decrease in 11(c)(1)(C)
7 because now we don't have to worry about the
8 judge is going to giving a guideline sentence,
9 he's going to listen to everyone, everything.
10 And so --
11 ACTING CHAIR HINOJOSA: Ms. Chen, -
12 -
13 MS. CHEN: -- I would say it's
14 different --
15 VICE CHAIR CARR: -- would you then
16 say that the mandatory guideline system was a
17 much better system than what we had before, if
18 we're going to judge as to what was being said
19 at the time of sentencing. Having done that
20 for four and a half years without any
21 guideline system and knowing exactly what
22 wasn't said during that period of time, would
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1 you then say that the mandatory guideline
2 system then brought this openness and this
3 transparency to the system and actually gave
4 both sides the opportunity to respond to what
5 judges were thinking anyway before the
6 guideline system?
7 MS. CHEN: I didn't practice before
8 the guideline system. I'm too young. But
9 what I can tell you about --
10 ACTING CHAIR HINOJOSA: Well, I am
11 old enough and have been a judge.
12 MS. CHEN: I would say since became
13 a federal public defender, but what I can say
14 is they talked a lot during the mandatory
15 guideline system, but they talked about things
16 --
17 ACTING CHAIR HINOJOSA: My question
18 was do you think it was a better system than
19 what was there before the passage of the
20 Sentencing Reform Act?
21 MS. CHEN: I can defer to Pam on
22 that, but can I just say that people did say a
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1 lot during the mandatory guideline age, but it
2 was about a lot of stuff that the defendants -
3 - get, the defense lawyers were the only
4 attorneys that would get it. You know what
5 I'm saying? They were talking about the --
6 ACTING CHAIR HINOJOSA: Well, that
7 does depend on the courtroom, but --
8 MS. CHEN: -- would the application
9 know 14 did or didn't require helping. And
10 after they were done with all that, then the
11 sentence was imposed --
12 ACTING CHAIR HINOJOSA: Well, I
13 don't know what courtroom you were in, but it
14 depends on the courtroom I guess because
15 whenever there was an application of
16 discussion or a discussion addressed in an
17 enhancement or a mitigating factors, you had
18 to discuss the facts and you had to discuss
19 the facts of that particular case and you had
20 to discuss the characteristics of that
21 particular defendant and the history of that
22 defendant as well as the commission of that
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1 particular offense. And I guess it depended
2 on courtrooms, but I guess that's going to
3 happen regardless of what system you had -- we
4 had.
5 But I will say that under the old
6 system, before the Sentencing Reform Act,
7 there was no discussion or there didn't need
8 to be a discussion other than the allocution
9 of the defendant. There was no explanation
10 from the court as far as saying, "I'm
11 considering these factors" or "didn't happen
12 to me." And do you want to, both sides,
13 respond to this?
14 MR. HILLIER: Well, Your Honor,
15 that's true. Judges made their decision and
16 that was that, basically, unless they did
17 something totally procedurally or something to
18 be wrong but in my view, and I practiced a lot
19 before the guidelines, the sentencing was way
20 fairer before the guidelines came into effect.
21 So whether we were talking more or less, my
22 clients fared better pre-guidelines. The
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1 guideline reign was a disaster for my clients.
2 Forty percent of clients pre-guidelines,
3 right around 40 percent, received probation.
4 And that classic case is asking you
5 to reopen to the availability of probation,
6 eight percent get it now. So basically a
7 third of my clients are going to prison for
8 just six months or whatever it might be during
9 the timeframe, and I was talking about it a
10 lot because I was upset by it and I was trying
11 to convince the court to instill hope that
12 there was some extraordinary circumstance in
13 my client's life that might drive a sentence
14 outside of the guidelines. Now we don't have
15 to do that.
16 I think where we are now is better
17 than we were in the pure discretion system and
18 better than we were in the mandatory system.
19 ACTING CHAIR HINOJOSA: Wouldn't
20 you say that's related to the Controlled
21 Substances Act of 1986? In fact, I just had a
22 staff get for me the information of the drug
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1 cases that are being sentenced, and I think
2 it's for fiscal year 2008. Seventy percent of
3 those cases are not entitled to probation by
4 law.
5 If you take out the noncitizens of
6 the United States, 80 percent of those cases
7 are not entitled to consideration of probation
8 by law. And so it really is related more to
9 the Controlled Substances Act of 1986 as
10 opposed to the guidelines themselves, it would
11 appear as to the availability of probation.
12 The other question I have, which I
13 faced --
14 MR. HILLIER: I just say I disagree
15 with you on that, Your Honor, but...
16 ACTING CHAIR HINOJOSA: Well, I'm
17 just throwing out the number as to
18 percentagewise, by law, and not by guidelines.
19 MR. HILLIER: But the guideline
20 ranges for the other offenses where we're
21 bound, you know, sort of tied to --
22 ACTING CHAIR HINOJOSA: Right, but
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1 when you look at the statutes and the
2 availability of probation in the drug case,
3 those are the numbers that we come up with as
4 far as on depending on the conviction, the
5 statute conviction.
6 The other thing that I see on a
7 regular basis, and I do sentence about 800
8 people a year and I have to say that I pay
9 very close attention to every single one of my
10 questions and read every single thing that
11 comes across, any letter, including all the
12 letters that come in Spanish. And I [am]
13 often getting letters from defendants and
14 family members saying -- although I don't know
15 that I've ever received one from the
16 government -- saying that I'm a fair sentencer
17 and that's why they're writing these letters
18 and they know I'll read them.
19 One thing that I see on a somewhat
20 regular basis is a defender, for example,
21 who's in front of me for several cases for
22 sentencing on a particular day, will have
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1 filed a basic canon brief with regards to a
2 particular guideline to indicate to me why
3 that particular guideline is not based on
4 certain type of evidence and should not be
5 followed.
6 And then in the next case with the
7 same defense attorney, that brief has not been
8 filed. And the strong argument is for me to
9 stay within the guidelines in that particular
10 case with the same guideline applicable in
11 both cases. And so my question is: Doesn't
12 that put people in a situation where a certain
13 national policy that is being put out there
14 affects individual defendants in different
15 ways and how do I judge the credibility of an
16 attorney who is telling me in one set of
17 filings this guideline shouldn't mean anything
18 to you, as opposed to in the next defendant on
19 the same day arguing very strongly that I
20 should stay within the guidelines when I
21 raised issues that might indicate that I might
22 consider this is a case that should go higher?
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1 MR. HILLIER: Well, it's hard for
2 me to put myself in that lawyer's mind because
3 I'm not that lawyer, but I would guess that
4 what that lawyer's doing is -- the lawyer
5 believes based upon information that we sort
6 of generated in analyzing how guidelines came
7 about, that this particular range just sort of
8 came from where, but there wasn't a reason for
9 this particular range, so put this,
10 deconstructed it, and made an argument why you
11 shouldn't be tied to that region in this
12 particular case and particularly since there
13 are some mitigating circumstances that would
14 allow for you to give a better sentence. In
15 the other case, that lawyer's probably
16 thinking there's some problems here with
17 relevant conduct or with aggravators, and
18 notwithstanding the bad science that may have
19 gone into constructing this particular
20 guideline, I think a fair sentence in this
21 case would be this, and I don't want you to go
22 up here.
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1 I mean you're arguing for what you
2 feel to be a good sentence, the best sentence
3 that you can get for your client under all of
4 the circumstances, hopefully taking your
5 aggravators on one and extenuating mitigators
6 on the other case. So I'm guessing that's
7 [what] the lawyer did.
8 And I hope that you don't feel that
9 detracts from the lawyer's credibility or the
10 credibility of the argument about -- you know,
11 the basis for the particular guideline range,
12 but rather it's just a lawyer who's struggling
13 to --
14 ACTING CHAIR HINOJOSA: Well, I
15 don't know that I'd [not trust the]
16 credibility of the lawyer, but I'd certainly
17 [not trust] the credibility of the argument
18 when you have in one sentence arguing that
19 this guideline should just be thrown away,
20 basically, and in the other one grabbing the
21 book and basically saying these are the
22 reasons why we should stay within the Manual.
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1 And I guess I'm going to allow
2 myself one more question, and Jonathan --
3 Commissioner Wroblewski actually has a
4 question for you all.
5 COMMISSIONER HOWELL: I have one.
6 ACTING CHAIR HINOJOSA: And
7 Commissioner Howell.
8 Your two-case example with regard
9 to the two defendants that received the 5K1.1
10 motion, --
11 MR. HILLIER: Right.
12 ACTING CHAIR HINOJOSA: -- that was
13 an ecstasy case; is that right?
14 MR. HILLIER: They were ecstasy
15 cases, correct.
16 ACTING CHAIR HINOJOSA: And how
17 much ecstasy was involved?
18 MR. HILLIER: They were level 32s
19 before we began --
20 ACTING CHAIR HINOJOSA: So then
21 they went to a 30 for parole adjustment?
22 MR. HILLIER: Went down to 22, 22.
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1 COMMISSIONER WROBLEWSKI: The
2 mitigating role.
3 ACTING CHAIR HINOJOSA: The
4 mitigating role.
5 MR. HILLIER: You got -- you know,
6 one of those cases where we got a [3B1.2],
7 Avila Paul (phonetic), so safety valve, and
8 beginning row, and et cetera --
9 ACTING CHAIR HINOJOSA: So is five
10 kilos of cocaine
11 MR. HILLIER: Of ecstasy.
12 ACTING CHAIR HINOJOSA: But the
13 reason that you went to the level that you did
14 was because of the 5K1.1 motions?
15 MR. HILLIER: No, the -- no, the 22
16 --
17 ACTING CHAIR HINOJOSA: The judge
18 granted the motion. I mean you others went to
19 the 41, the 51, the 10 level --
20 MR. HILLIER: Right, right.
21 ACTING CHAIR HINOJOSA: -- based on
22 all these other factors within the guidelines.
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1 But this was a decision that was
2 made by the court with regards to granting of
3 the 5K1.1 motions, not a variance or departure
4 based on the motion not being available?
5 MR. HILLIER: No. In my -- in both
6 cases the motion was made.
7 ACTING CHAIR HINOJOSA: And
8 granted?
9 MR. HILLIER: Yeah, well, in my
10 case it was really a problem, and so -- both
11 cases they were granted. In the other cases
12 there was perhaps. But in my district, as we
13 all know, we’re fairly generous, and the judge
14 screamed when I sa[id] that. You get about 50
15 percent from a long wind. You can accept that
16 as a general rule.
17 So in both these cases my client[s]
18 were then look[ing] at 18 to [inaudible]
19 months in a typical case. So the judges went
20 to the supervisor because of --
21 ACTING CHAIR HINOJOSA: Which,
22 frankly, they put it under, under the
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1 mandatory system, if they had the 5K1.1
2 motion?
3 MR. HILLIER: Well, yeah. I mean
4 then the -- this was not a mandatory case --
5 ACTING CHAIR HINOJOSA: No, but
6 let's say it was a mandatory guideline system.
7 They could have done that under five --
8 MR. HILLIER: That's correct.
9 That's correct.
10 MS. CHEN: But I think one of the
11 things that Tom was saying is that 5K1.1 is
12 not as generous in other dirks. And by a
13 district you basically have to give them
14 someone that they're going to prosecute before
15 you get a 5K1.1, and even then it can be two
16 or three levels. And so -- or no levels if
17 they just -- if the information that the
18 defendant had to give, the government already
19 knew, for instance. Or for whatever reason
20 they were choosing not to pursue it. And so -
21 -
22 ACTING CHAIR HINOJOSA: Right.
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1 MS. CHEN: -- that it this be taken
2 out of the hands of the prosecutors because in
3 districts like mine you have to testify --
4 ACTING CHAIR HINOJOSA: And that
5 depends --
6 MS. CHEN: -- before you --
7 ACTING CHAIR HINOJOSA: That
8 depends on -- a different situation is to the
9 U.S. Attorney decides to file motions for
10 substantial assistance under the statute,
11 under guidelines, and what the judges do with
12 those motions --
13 MS. CHEN: Exactly.
14 ACTING CHAIR HINOJOSA: --
15 depending on where they're filed.
16 MR. HILLIER: 5K1.1 is real
17 relevant. One thing that was important in
18 this case and I think is worth emphasizing
19 because of Booker and its progeny is that I
20 really advocated with Probation and the U.S.
21 Attorney before we got to the judge. And both
22 of those entities came in with remarkable
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1 recommendations in both cases, so I think
2 that's a factor that's very important to us.
3 When we can go to the U.S. attorney and say
4 check this only, you know, my clients -- he's
5 here because of these issues, personal
6 characteristics. And in both our cases for my
7 clients, the government and the probation have
8 raised those concerns, and the information is
9 meant to their recommendations.
10 ACTING CHAIR HINOJOSA:
11 Commissioner Howell.
12 COMMISSIONER HOWELL: I just wanted
13 to thank all the panelists but in particular
14 federal public defenders, I must say that the
15 submissions that you made to the Commission
16 are complete, incredibly thorough, and hefty.
17 And this one really, you know, shows the
18 passion with which the Federal Public Defender
19 is taking sensitive issues and so on behalf of
20 myself and the Commission I want to thank you
21 all for all of the work.
22 I did find more intriguing your
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1 analysis of 28 USC 994(c), (d), and (e), and
2 your analysis that -- if I understand it
3 correctly and I wanted to make sure I was
4 understanding it correctly, that the
5 Commission's chapter, you know, 5H factors,
6 saying that age, socioeconomic status, you
7 know, family circumstances are not ordinarily
8 relevant in the sentencing, are a
9 misinterpretation of the purpose and intent of
10 994(d) and (e); is that the thrust or your
11 argument, that for the past 20 years the
12 Commission's guidelines --
13 MR. HILLIER: They may not --
14 COMMISSIONER HOWELL: --
15 misinterpret the plain language of those
16 factors?
17 MR. HILLIER: They may not be. At
18 the minimum what the Commission did and what I
19 heard is that -- I've read the Atlanta
20 testimony. I saw questions from the panel --
21 from the Commission indicating that it felt
22 that these factors weren't relevant to the
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1 sentencing, they're not generally going --
2 COMMISSIONER HOWELL: Ordinarily.
3 MR. HILLIER: -- what I'm saying at
4 a minimum what the Commission did after
5 deciding probations was over used, they said
6 to (d), which charged the Commission with
7 determination what relevance these factors
8 have in the sentencing decision, the probation
9 sentencing decision, they decided they're not
10 ordinarily relevant. That was a -- they took
11 the statute which clearly authorized these to
12 have relevance to the sentencing decision,
13 they made a decision that they're not going to
14 be ordinarily relevant, so -- but this statute
15 doesn't require that. That was a policy
16 decision of the Sentencing Commission. The
17 statute enabled the Commission to decide
18 however it wanted what the relevance was. And
19 of course now we know that the Supreme Court
20 at least and circuit courts are saying that
21 they are.
22 COMMISSIONER HOWELL: Well, it has
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1 been a disconnect frankly in my own mind
2 between 3553(a) and considering the history
3 and characteristics of the defendant and the
4 difficulty of reconciling that with 994(d) and
5 (e). And I wouldn't say, you know, and I
6 think that the original Commission struggled
7 with that and read the plain language of
8 994(e) and determined that where it says the
9 Commission shall assure that the guidelines
10 and policy statements recommending a term of
11 imprisonment or length of term of imprisonment
12 reflect the general inappropriateness of
13 considering education and vocational skills,
14 et cetera. And that's almost exactly the
15 words that they used --
16 MR. HILLIER: Right. And that
17 exactly means if you're going to put --
18 COMMISSIONER HOWELL: -- we used in
19 5H.
20 MR. HILLIER: -- somebody in prison
21 it's not because of these factors. But if you
22 are -- but there's an alternative, and that's
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1 probation. And that's what (d) relates to
2 when decided what relevance these factors had
3 now in the probation. If they can't be used
4 prison but the Congress has asked you to
5 determine the relevance otherwise, it has to
6 be to the probationary decision. And in (d)
7 it says: Determine what relevance, if any,
8 they have to that decision, --
9 VICE CHAIR CARR: Mr. Hillier, can
10 I --
11 MR. HILLIER: -- the same language
12 that's used to decide how serious the offense
13 is right up there in (c). I mean the
14 qualifying language -- if you read that
15 qualifying language to say they're not
16 relevant, then the seriousness of the offense
17 isn't relevant neither.
18 VICE CHAIR CARR: Are you saying
19 the Commission could have gone either way and
20 went an unfortunate way, or were you saying
21 the Commission got it wrong and misinterpreted
22 the statute?
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1 MR. HILLIER: Well, --
2 MS. CHEN: I think what we're
3 saying is the Commission could have gone
4 either way, but what we've heard consistently
5 is that the Commission understood the statute
6 to mean that these factors could not be
7 relevant. If the reason that the Commission
8 promulgated the five -- the prohibitions is
9 because they believed that (d) and (e) said
10 that the Commission was sure that they would
11 not be relevant, then we believe that they is
12 a wrong interpretation. And I think it really
13 helps to look at 994(c) first and (d)
14 together. So (c) and (d) talk about what
15 factors the Commission is supposed to
16 consider, whether they're relevant or not.
17 (c) is if that's characteristics.
18 (d) is the offender characteristics. But the
19 preparatory language is identical. So clearly
20 Congress didn't intend for (d) to mean you
21 can't consider any of these and for (c) to
22 mean you must consider all of these. Then how
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1 do you reconcile and (d) and (e)? Because (d)
2 says the Commission is supposed to [consider]
3 whether and to what extent these factors are
4 relevant. And then (e) takes a number of
5 those and says the Commission shall assure
6 that the guideline and policy statements in
7 recommending a term of imprisonment or length
8 of a term of imprisonment reflect the general
9 inappropriateness.
10 So this is a much more specific
11 guideline which talks about if you're to be
12 recommending a term of imprisonment, it can't
13 be based on somebody's vocational skills, a
14 lack thereof, for instance. And the
15 legislative history supported the sentencing
16 format. One of the purposes was that these
17 factors not be used to warehouse defendants
18 who didn't have vocational skills or
19 educational skills or socioeconomic status in
20 prison.
21 So I think that we're saying,
22 right, that the Commission took a wrong turn
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1 at one point and said that these things are
2 not ordinarily relevant. But to the extent
3 that the Commission or Commissioners have said
4 that Congress required that we take that fork
5 in the road, that is where the
6 misinterpretation comes.
7 ACTING CHAIR HINOJOSA: So you say
8 when Congress -- let's say the 70 percent of
9 the cases of the drug field that are not
10 entitled production, you think Congress is
11 saying that it's generally inappropriate in
12 those cases, 70 percent of the cases, to
13 consider the issue of age, or whatever, in
14 determining what sort of imprisonment to
15 impose?
16 MS. CHEN: I think what Congress
17 was saying is that you shouldn't put someone
18 in process because of their --
19 ACTING CHAIR HINOJOSA: Or a term
20 of imprisonment as I think you read it --
21 MS. CHEN: Right. Well, you should
22 have --
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1 ACTING CHAIR HINOJOSA: So --
2 MS. CHEN: -- a longer term of
3 imprisonment --
4 ACTING CHAIR HINOJOSA: -- in 70
5 percent of the drug cases where probation is
6 not allowed by law, if you make the argument
7 to the sentencing judge, myself for example, I
8 can under their theory then go back to the
9 statute and say well, that's just not
10 generally appropriate for me to consider all
11 or all these family ties and responsibilities,
12 because I'm considering a term of imprisonment
13 or imprisonment.
14 MR. HILLIER: You're required in
15 that case to impose a sentence of
16 imprisonment.
17 ACTING CHAIR HINOJOSA: Right. And
18 so therefore is guidance to me that under the
19 3553(a) factors, I shouldn't consider those?
20 That they're normally inappropriate?
21 MS. CHEN: In terms of not opposing
22 probation? Because of course --
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1 ACTING CHAIR HINOJOSA: No, in
2 terms of the sentence length that I pick, that
3 I -- those are generally inappropriate for 35
4 and (3)(a) factors, because that's the way you
5 read the statute, that this is only for
6 imprisonment or terms of imprisonment. And
7 that, therefore, if I'm trying to put the
8 statute as you read it with the 3553(a)
9 factors, where Congress says probation's not a
10 verb, that I normally take these factors out
11 of my mind as far as considering them when you
12 make the argument that I should consider them
13 with regards [to] the length of imprisonment I
14 impose in those cases.
15 MS. CHEN: If I were arguing to you
16 as a judge at this point, I would say in that
17 area that statute is more ambiguous. And then
18 we would turn to the legislative history. And
19 the legislative history does indicate -- or as
20 far as I've read, the history does indicate
21 that the language was intended to prevent the
22 warehousing of poor, unemployed, et cetera,
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1 defendants. And so then I would say you can't
2 consider it to say, well, he's not going to
3 get a job, he's never had a job, and he's not
4 going to get a job. So therefore, we should
5 just put him in prison so he can, you know,
6 three squares and a cot.
7 I know you would never say that. I
8 know you would never say that.
9 So what I'm saying is that I think
10 Congress intended --
11 ACTING CHAIR HINOJOSA: No, I don't
12 know any judge --
13 MS. CHEN: -- that's my reading of
14 the --
15 ACTING CHAIR HINOJOSA: -- that
16 would say that, really.
17 MS. CHEN: I don't know any judge -
18 -
19 ACTING CHAIR HINOJOSA: And so what
20 I'm saying is you can't have it both ways. If
21 you read the statute a certain way, well, then
22 it has to apply under all circumstances, but
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1 I've taken enough time here.
2 COMMISSIONER WROBLEWSKI: Thank you
3 very much, Judge.
4 And thank you all for being here
5 and for participating, and especially thank
6 you for the time and effort that obviously
7 went into all of your presentations.
8 The theme for me of the whole thing
9 has been back to the future. And, Tom, what
10 it seemed to me that you were arguing for and
11 what you what you described in some of your
12 submissions is your return to the therapeutic
13 model of sentencing. A model that's focused
14 on the offender and the value of particular
15 punishments for the offender, the system that
16 we largely had up in this country until the
17 1970s and the federal system till the 1980s.
18 And, as you know, in the 1980s with
19 the Sentencing Reform Act we changed
20 dramatically. We moved to very different
21 model of sentencing, one that some people have
22 described as just desserts. That regardless
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1 of the offender's personal characteristics, if
2 you committed a certain crime, you roughly
3 served a certain amount of time, whether you
4 were Martha Stewart and you knew for certain
5 you were going -- we thought pretty certain
6 that you weren't going to commit a new crime
7 or somebody else, if you committed that
8 obstruction offense, you were going to go to
9 prison for some amount of time.
10 And of course what we have now,
11 after Booker, is we allow individual judges to
12 determine what model. You're advocating and I
13 think the submission's advocating that the
14 Commission should reach into the guideline
15 system, the guideline system largely is a just
16 desserts model and it should come closer to
17 the therapeutic model.
18 And I'm not sure we should do that,
19 and let me tell you why, and I'm curious what
20 you think. If we go about -- and my question
21 really is should the Commission spend its time
22 trying to come up with a new balance between a
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1 therapeutic model and a just desserts model.
2 And the reason I'm a little skeptical about
3 doing that is because under the Booker regime,
4 the judges of course should consider the
5 guidelines, but then ultimately have the only
6 thing on their own and look to the 3553(a)
7 factors.
8 So if we come up with a new balance
9 between therapy and just desserts, defense
10 attorneys are under no obligation to really
11 argue the therapeutic model 100 percent. And
12 so it seems to me that under the current
13 system, as you know, and as we've heard over
14 and over again, alternatives to incarceration
15 are currently available. The two cases that
16 you described, the judge gave an alternative
17 to incarceration, regardless of what the
18 guideline said. And if we just go about
19 trying to expand that a little bit or expand
20 it a lot, unless we expand it completely,
21 there are still going to be arguments made,
22 and the decision about whether it should be a
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1 therapeutic model or a just desserts model is
2 ultimately going to be left to the -- to the
3 individual judge.
4 So my question to you is: Should
5 we go down that road, am I right that it's
6 largely a waste of time, should we try -- who
7 should ultimately be the decider of whether we
8 have a therapeutic model or a just desserts
9 model, and doesn't that necessarily mean some
10 sort of constraint on discretion for judges?
11 MR. HILLIER: Well, I was on -- I'm
12 not just a strict judge-should-have-discretion
13 kind of guy. I've been -- I was on the
14 Constitution Project since the initiative and
15 we actually came out with a recommendation
16 that you have -- the guideline system has lots
17 of advantages and lots to be said for it. So
18 I think -- and that's true. I think the idea
19 of some degree of certainty for different
20 crimes and under particular circumstances is
21 huge and important, not just for society but
22 for the defendant.
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1 In advocating -- what we're having
2 to [do] now is the Booker decision and sort of
3 the resistance to the Booker decision at the
4 beginning by judges, sort of the threats, you
5 know, about allowing this, you know, and the
6 sky's going to fall. And then mandatory, the
7 guidelines, and all that. So what we're --
8 what I'm advocating for right now -- I mean
9 we're -- what we really want to see is to see
10 this play out a little bit, to see what
11 happens.
12 And I think as Judge Lasnik said
13 and as all the judges said in Atlanta, this is
14 working, give us some time here. What we
15 would really like to see in the short run is
16 some tweaking where there are signals to you
17 that the guidelines aren't really operating
18 fairly. And you see it in areas where there
19 are these clusters of departures. That is a
20 signal, as Judge Lasnik said, that these
21 things might be too harsh.
22 So if we go there and we fix that a
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1 little bit, then maybe judges will figure, you
2 know, how to make these things make more
3 sense, and you'll see a rearrange of
4 sentencing within the guidelines that you've
5 tweaked.
6 If you take five -- you know, the
7 language of 5H out of the way so judges don't
8 get confused or so that there's not this
9 dissidence between what 5H says and what the
10 cases say, then judges -- then, you know, I
11 think you'll see greater consideration of, and
12 as Davina said, discussion about factors that
13 make some sense in a certain sense of
14 discretion, so if you have --
15 COMMISSIONER WROBLEWSKI: Can I ask
16 --
17 MR. HILLIER: -- an entirely
18 therapeutic model, but it's just being more
19 rational.
20 COMMISSIONER WROBLEWSKI: But let
21 me take that example just a little bit. The
22 Congress enacted the safety valve, said we
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1 think there should be exceptions to these
2 mandatory minimums. For first offenders, who
3 cooperate, nonleaders, and all the rest. But
4 they said there should still be some floor, 24
5 months. Okay, they were subject to a five-
6 year mandatory, there should be exception, 24
7 months. If the Commission goes down the road
8 that you're suggesting and we take out 5H1.1
9 and we say, "You know what, Judge, you
10 consider age in these circumstances. But even
11 if the person is young or old, or whatever the
12 mitigating age is, you should still give some
13 term of imprisonment for somebody who
14 transports five kilos of ecstasy over the
15 border."
16 What -- I mean we've done
17 something, but you're still going to argue for
18 a probationary sentence. We've changed the
19 mix a little bit in the book, but we still
20 have a somewhat incoherent system with each
21 judge deciding the model. Am I right or wrong
22 about that?
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1 MR. HILLIER: Well, I think what
2 you've done is you've given judges more
3 direction on how they should sentence in these
4 types of cases. And what you're going to see
5 is more judges actually having -- making
6 decisions consistent with what advice you
7 gave. You are still going to see the -- you
8 know, the lawyers of the persons that I
9 represented advocating for more for the
10 reasons that we articulated. And in both
11 those cases the reasons were strong and so the
12 judge said, "I'm going to make an exception to
13 this policy for these reasons," and they
14 articulate that.
15 And there's nothing wrong with
16 that. You're not swinging the door open wide
17 for everybody being able to get below that 24-
18 month floor, if that's what it is you're
19 say[ing] in your advice, but there might still
20 be exception circumstances where that is going
21 to occur.
22 I think sort of the unarticulated
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1 concern there is that if you give judges that
2 discretion they're going to use it widely, and
3 I don't -- I think you should have more
4 confidence in our judges.
5 I read Judge Hinkle’s testimony,
6 and what a measured person that judge is, and
7 he basically says hey, look, untie our hands
8 at least to the extent so that we -- you know,
9 it's better to give five fair and five unfair
10 [sentences] than ten unfair uniform
11 [sentences], and we can be trusted with doing
12 that.
13 So I don't think you're throwing
14 open the barn door so [wide] by doing that. I
15 think what you're going to see is that judges
16 are going to respect what you're doing. And
17 they're not going to go down to probation
18 unless they can say this is appropriate in
19 this case because the sentencing purposes are
20 not furthered by putting this person in
21 prison, and that penalty is really greater
22 than is necessary.
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1 COMMISSIONER WROBLEWSKI: But
2 ultimately who should decide that? Should it
3 be every --
4 COMMISSIONER HOWELL: Well, the
5 judge --
6 COMMISSIONER WROBLEWSKI: Decide
7 that, in every case the judge should decide
8 that? And if Congress --
9 MR. HILLIER: Well, unless Congress
10 has said it's a mandatory minimum.
11 COMMISSIONER WROBLEWSKI: Correct.
12 That's the rule.
13 ACTING CHAIR HINOJOSA: I think
14 that's the last question. It is. We
15 appreciate it, on the part of the Commission,
16 that you all have made your presentations.
17 And I echo what Commissioner Carr has said,
18 that you can provide information to the
19 Commission, and it's appreciated very much.
20 And thank you all for your taking your time
21 from work on a regular basis.
22 (The hearing was recessed for the
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1 day at 5:28 p.m.)
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7
8
9
10
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12
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UNITED STATES SENTENCING COMMISSION
+ + + + +
PUBLIC HEARING
+ + + + +
Thursday, May 28, 2009
The United States Sentencing Commission met at the University of Stanford Law School, Stanford, California, at 8:39 a.m., Ricardo H. Hinojosa, Acting Chair, presiding.
MEMBERS PRESENT:
RICARDO H. HINOJOSA, Acting Chair WILLIAM K. SESSIONS III, Vice Chair WILLIAM B. CARR, JR., Vice Chair BERYL A. HOWELL DABNEY L. FRIEDRICH JONATHAN J. WROBLEWSKI
ALSO PRESENT:
JUDITH W. SCHOEN, Staff Director GLENN R. SCHMITT, Director, Office of Research and Data LOUIS REEDT, Acting Deputy Director, Office of Research and Data
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T A B L E O F C O N T E N T S
Panel VI. View from the District Court Bench ...... 3
Panel VII. View from Academia ...... 118
Panel VIII. Community Impact ...... 182
Adjournment
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1 P-R-O-C-E-E-D-I-N-G-S
2 (8:39 a.m.)
3 ACTING CHAIR HINOJOSA: Good
4 morning. This is the second day of our second
5 regional public hearing with regards to the 25
6 years after the Sentencing Reform Act. And,
7 as I indicated yesterday, we are very grateful
8 for the individuals who have taken up their
9 time to come share their thoughts with us this
10 morning. And I can't say enough, on behalf of
11 the Commission, how much we appreciate your
12 presence here.
13 We do have three district judges,
14 which is the second panel for district judges.
15 This morning we have the Honorable Vaughn R.
16 Walker who was appointed to the U.S. District
17 Court for the Northern District of California
18 in 1989. And he has served as the chief judge
19 since the year 2004. He did clerk for the
20 U.S. District Court's Central District of
21 California, Judge Kelleher. After law school
22 he was in private practice in San Francisco.
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1 And he received his Bachelor's from the
2 University of Michigan and his law degree from
3 this very school here, the Stanford Law
4 School.
5 We also have Judge Edward F. Shea
6 who is a judge in the United States District
7 Court for the Eastern District of Washington.
8 And he's been on the bench since 1998. The
9 judge is a graduate of Boston State College
10 with both a Master's and a Bachelor's from
11 there. And Georgetown University Law Center
12 is where he received his J.D. The great thing
13 is that as far as prior employment he was a
14 police officer with the U.S. Capitol Police
15 Force for three years in Washington, D.C. and
16 was in private practice. And after law school
17 he also clerked for a judge on the state court
18 of appeals. And we're very fortunate to have
19 Judge Shea with us this morning.
20 We also have the Honorable Lynn
21 Winmill who was appointed as the district
22 judge for the U.S. District Court for the
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1 District of Idaho in 1995. And he also has
2 served as chief judge from 1999 until the
3 present. And he was in practice in Colorado
4 and later in Idaho before being appointed to
5 the bench. And he actually was a state judge
6 before taking the Federal bench. And he is a
7 graduate of Idaho State University and has
8 received his law degree from Harvard Law
9 School.
10 And we'll start with Judge Walker.
11 And Judge Walker has a plane to catch, I
12 believe, or has -- no, he had not a plane to
13 catch because he's going to San Francisco.
14 JUDGE WALKER: No. I have criminal
15 defendants to sentence.
16 (Laughter.)
17 ACTING CHAIR HINOJOSA: So he will
18 be leaving us right after his statement and
19 any questions we may have of him. We'll
20 change the order a little bit. Normally we
21 have the statements of all three of them and
22 then questions then answers. But if anybody
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1 has questions of Judge Walker we can go ahead
2 and ask him before he has to leave.
3 Judge Walker.
4 JUDGE WALKER: Very well. Thank
5 you, Judge Hinojosa, and thank you to you and
6 to the members of the Commission for coming
7 all the way out to the West to hear us on this
8 part of the country about the important issues
9 that are committed to your responsibility as
10 members of the Sentencing Commission.
11 It's, I'm sure, helpful to have a
12 point of view of those in areas outside of
13 Washington. And we appreciate your
14 willingness to come and to hear our views.
15 Now what I'm going to express, of
16 course, are my personal views. And they are
17 views that are shaped by some 20 years as a
18 federal district judge in the Northern
19 District of California [and] as Judge Hinojosa
20 said, the last five years as chief judge.
21 Now I came to the bench with no
22 prior judicial experience and with no
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1 experience in criminal law and sentencing. I
2 was a litigator, trial lawyer, but exclusively
3 on the civil side. And so I came to the bench
4 pretty much as a clean slate as far as
5 criminal law was concerned and certainly as
6 far as sentencing was concerned.
7 When I came to the bench, it was
8 after the effective date of the Sentencing
9 Reform Act but there were still at that time a
10 good many offenders who had committed their
11 wrongdoing before the guidelines became
12 effective. Thus, at the outset of my judicial
13 career I was called upon to frame and impose
14 pre-guideline sentences, as well as sentences
15 under the guidelines.
16 With respect to those pre-guideline
17 offenders, I was unfettered by the guidelines
18 although, of course, the presentence reports
19 always calculated what the sentence would have
20 been had the guidelines applied.
21 I found an important difference in
22 the way that I approached sentences governed
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1 by the guidelines and those not subject to the
2 guidelines. With respect to nonguideline
3 offenders I found that framing a sentence
4 required me to drill down deeper into the
5 facts of the offense and the characteristics
6 of the offender in order to satisfy myself
7 that the sentence I was about to impose was,
8 in my view, fair and appropriate.
9 In short, I needed to work harder
10 and for myself more fully because, although I
11 have the guidance of the guidelines, I lacked
12 its constraints. In the case of sentences
13 governed by the guidelines, I found the
14 baseline they provided diminished the felt
15 need to delve as deeply into the facts of the
16 offense and the characteristics of the
17 offenders, and shifted the focus away from
18 those factors to whether the guidelines were,
19 in some way, inappropriate to the case at
20 hand.
21 The gravitational pull of the
22 guidelines becomes irresistible in all but the
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1 most unusual cases. Although viewed
2 abstractly, the judge's moral obligation to
3 find an appropriate sentence is no less than a
4 guidelines' case.
5 The mere presence of the guidelines
6 diminishes the imperative to search the record
7 for the facts relevant to an appropriate
8 sentence. Imposing a sentence on another
9 human being for criminal conduct is a purely
10 awesome responsibility. It is easy to become
11 blasé about the process when one is called
12 upon to do this routinely.
13 By providing a cookbook with
14 recipes for sentencing, the guidelines have a
15 tendency to induce judges to approach
16 sentencing as a working-out of a solution to a
17 puzzle rather than assessing the human price
18 to be paid by an offender for the harm that he
19 has done to the victims of this criminal
20 conduct.
21 Since the Booker decision and its
22 progeny some of the moral imperatives of
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1 seeking [an] appropriate sentence [] lost with
2 the advent of the guidelines has returned. To
3 move then to less flexible guideline standards
4 would, I truly believe, be a grave mistake.
5 The Commission should be ever
6 mindful that no matter how comprehensive, no
7 matter how thoughtful, no matter how well
8 intended, crafting and imposing a criminal
9 sentence should always allow plenty of room
10 for the manifold facts and circumstances that
11 are relevant to fashioning an appropriate
12 punishment. And these can never be adequately
13 captured in a numerical grid.
14 For that reason I think the
15 Commission should make every effort to urge
16 Congress to widen the range of appropriate
17 sentences under each of the various categories
18 that the guidelines provide. I realize there
19 is a statutory limitation that the Commission
20 faces, but the Commission's experience, I
21 think, should take account of the tremendous
22 variation from offense to offense and offender
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1 to offender and urge Congress to give the
2 guidelines greater leeway than they presently
3 have.
4 I wish further to address a
5 particular concern I have with the guidelines
6 in their current state. The guidelines very
7 heavily rely on drug quantity as a proxy for
8 culpability in drug cases. The use of drug
9 quantity as a proxy originated in Congress, as
10 you well know, with the Antidrug Abuse Act of
11 1986, known informally as the ADAA.
12 The ADAA codified mandatory
13 minimums based on drug quantity as measured by
14 weight. According to this Commission's 15-
15 year report, Congress seems to have been
16 motivated by the notion that all else being
17 equal those apprehended in possession of
18 greater quantities of drugs play a more
19 serious role in drug offenses and, therefore,
20 merit harsher sentences.
21 Following the ADAA's passage, the
22 Commission linked drug amounts in the statutes
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1 to guideline ranges and extended the quantity-
2 based approach. In the 15-year report, the
3 Commission noted that the historical record
4 lacks evidence as to why the Commission
5 extended the ADAA's quantity-based approach.
6 The report hypothesizes that the
7 Commission believed that quantity was an
8 acceptable proxy for the level of harm and
9 that the Commission wished to avoid sentencing
10 cliffs in which a small change in quantity
11 triggered a substantially different sentence
12 under the guidelines.
13 This post-hoc justification,
14 combined with the Commission's admitted
15 uncertainty as to that justification's basis
16 in reality, hardly inspires confidence in the
17 decision to extend the use of drug quantity
18 beyond what is mandated by statutory minimums.
19 In Fourth Amendment jurisprudence,
20 as we all know, an articulable justification
21 is required for a legal search. Without one
22 the search is unconstitutional. Criminal
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1 defendants, similarly, deserve an articulable
2 justification for the guidelines under which
3 they are sentenced, particularly given the
4 presumption of reasonableness to which the
5 guidelines are held to be entitled.
6 The lack of an articulable
7 justification for the Commission's use of drug
8 quantity as a proxy for culpability is itself
9 sufficient to call into question this
10 particular approach to drug sentences. The
11 hypothetical justification[s] speculated by
12 the Commission in the 15-year report are
13 themselves suspect, I would submit.
14 A few situations illustrate the
15 point. Imagine a courier with little
16 involvement in a drug transaction who perhaps
17 does not even know what or how much he is
18 carrying. If this courier happens to be
19 transporting a large quantity of drugs he
20 would, under the guidelines, receive a harsh
21 sentence.
22 In contrast, an individual who
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1 sells a small quantity near a schoolyard is
2 given a lesser sentence. And yet I would
3 submit that the latter may very well represent
4 a far more serious social threat, but the
5 guidelines would support a lesser sentence for
6 such a person.
7 The Drug Quantity Table not only
8 miscalibrates the social harm associated with
9 drug offenses, lower quantity drug
10 transactions are just as likely, in my view,
11 perhaps even more likely to be accompanied by
12 physical violence than transactions involving
13 large quantities.
14 Street-level and hand-to-hand drug
15 dealing degrade cities, neighborhoods, public
16 housing, penal institutions, and society in
17 general. Should we necessarily assume that
18 two-bit drug dealers are less harmful than so-
19 called drug kingpins?
20 In our courts such hypothetical
21 scenarios become very real. Last year Judge
22 Gertner in the District of Massachusetts faced
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1 such a situation involving a defendant who had
2 only a small role in the offense and had no
3 previous criminal record. Nevertheless,
4 because the quantity of drugs that the
5 defendant was transporting he faced a
6 substantial sentence under the guidelines.
7 Judge Gertner departed from the
8 guidelines because she disagreed with the
9 emphasis placed on quantity rather than on
10 other more pertinent factors. She noted in
11 her opinion that the deductions allowed by the
12 guidelines for a defendant who has a minor
13 role do not offset the base offense level,
14 which is determined by the quantity of drugs
15 involved.
16 As Judge Gertner also observed,
17 criticism of the use of drug quantity as a
18 proxy for culpability is not new. In 1994 the
19 Drug Violence Task Force was created to report
20 to the Sentencing Commission. The Task
21 Force's specific recommendations included
22 reexamining the role of drug quantity in the
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1 calculation of offense levels in drug cases.
2 The Task force stated this is
3 considered by many to be a misleading
4 indicator of an individual's culpability for
5 the offense and noted the particular
6 unfairness for individuals with minor roles in
7 offenses involving large quantities. Perhaps
8 because the Task force was unable to reach a
9 firm consensus and ultimately dissolved, this
10 recommendation was not adopted.
11 Professor Albert Altschuler
12 similarly criticizes the use of drug quantity
13 in sentencing, claiming that it makes little
14 sense with many offenders. He, too, notes the
15 drug couriers may not know at all the
16 quantity, value, or kind of drugs they carry,
17 factors on which the length of their
18 imprisonment turns.
19 I cite these sources to demonstrate
20 that I'm not alone in my concern that the use
21 of drug quantity as the chief determining
22 factor in drug sentencing is, I think, highly
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1 problematic. A proxy that is so imprecise
2 does not merit the approbation of the
3 Commission through the inclusion in the
4 guidelines in its present form.
5 The issue of sentencing cliffs is
6 no longer as significant a concern post-
7 Booker. Since the guidelines are not
8 mandatory judges will not be forced into
9 arbitrarily distinguishing offenders based on
10 small differences in quantity solely because
11 of the guidelines. Statutory minimums, of
12 course, inevitably create such cliffs. But
13 the Commission should not aggravate the
14 problematic character of these minimums by
15 conforming sentences not subject to statutory
16 minimums to these same features.
17 There is no reason, I submit, to
18 follow Congress' questionable lead by
19 extending the use of quantity in drug
20 sentencing beyond what the statutes require.
21 The use of quantity as a proxy for
22 culpability is not only imprecise, it also
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1 rests on an unrealistic assumption about
2 narcotics trafficking. I believe that the
3 initial motivation for this policy decision
4 rests basically on an illusion, the illusion
5 of the drug kingpin.
6 The market for drugs is, indeed, a
7 market and some players are bigger than
8 others; some are more evil than others. But a
9 Hollywood interpretation of the drug trade
10 seems embodied in this Drug Quantity Table,
11 specifically the idea that there are larger-
12 than-life evildoers lurking at the heart of
13 the system and if only we could capture and
14 punish severely these villains the industry
15 would unravel and illicit narcotics could be
16 driven from the land.
17 Grand and despicable characters
18 make for compelling narratives in films,
19 television shows, and novels. But in my
20 experience these are not the ones who are cast
21 in court. These are not the characters cast
22 in the real-life dramas that we see in our
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1 courts.
2 We shouldn't predicate our
3 rulemaking on an attempt to ensnare an
4 illusory villain. The hypothetical drug
5 kingpin may serve a political purpose for
6 members of Congress who are attempting to pass
7 legislation and appeal to their constituents.
8 Screenwriters and novelists may also find
9 them useful, but literary, fictional, or
10 political demonization of imaginary
11 individuals should not leave this Commission
12 to create misdirected sentencing guidelines
13 that serve rhetoric better than reality.
14 Finally, the Drug Quantity Table is
15 really little more than rank pseudo-social
16 science. The Drug Quantity Table assumes, for
17 example, that one kilogram of marijuana
18 represents the equivalent harm to society of
19 one gram of heroin, but the one gram of
20 cocaine is only as harmful as 200 grams of
21 marijuana, while a gram of MDMA equates to 500
22 grams or a half-kilogram of marijuana.
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1 Exactly where these numbers stack
2 up with social harm associated with these
3 drugs is never explained. And the Commission
4 has been notably silent on the empirical
5 justification for these distinctions. And,
6 well, it should be silent because there simply
7 is no justification.
8 To describe the offense levels
9 associated with the various quantities in the
10 Drug Quantity Table as irrational I think
11 understates the matter. Arbitrary
12 distinctions are an inevitable part of any
13 legal regime. But those are the kinds of
14 distinctions appropriate for the legislative
15 branch but not for a judicial branch and not
16 certainly for a Commission which guides a
17 judicial branch in imposing sentences on
18 offenders.
19 A claim that there is an inevitable
20 connection between drug quantity and harm to
21 society as the product of common sense I think
22 is subject to serious question. The idea that
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1 you can assess the seriousness of a drug
2 offense by the quantity involved is simply an
3 unexamined assumption that underlies the Drug
4 Quantity Table.
5 And I would strongly urge the
6 Commission to open the subject up to see if
7 there is an empirical justification for
8 linking quantity and the severity of
9 sentences. I do not suggest for a moment that
10 a judge in imposing a sentence in a drug case
11 should not take into account the quantity
12 involved. It may, indeed, have some measure -
13 - it may reflect some measure of the
14 seriousness of the offense, but is not the
15 kind of lock-step, one-to-one relationship
16 that the Drug Quantity Table suggests.
17 The interests of justice are ill
18 served by recommending sentences based on an
19 inaccurate and an imprecise proxy such as the
20 Drug Quantity Table. This is a policy for
21 which there is really no articulable
22 justification. Like a police officer who
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1 seeks a search warrant without an articulable
2 justification, the Commission, I submit, lacks
3 an articulable justification for the offense
4 levels given by the Drug Quantity Table.
5 As a warrant should be denied to an
6 officer who fails to provide an articulable
7 justification for a search, so the Commission
8 should reject sentences where it cannot
9 provide an empirical basis and an articulable
10 justification for the sentences that it
11 recommends.
12 ACTING CHAIR HINOJOSA: Thank you,
13 Judge Walker.
14 Are there any questions before
15 Judge Walker has to leave?
16 Bill.
17 VICE CHAIR SESSIONS: Judge Walker,
18 I appreciate your comments. When you
19 translate your observations to the guideline
20 structure, you are proposing, you know, fairly
21 radical changes.
22 First, in regard to the 25-percent
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1 rule, if you're talking about wider ranges,
2 then you're eliminating that rule, talking
3 about a totally different chart with much less
4 than 43 offense levels and perhaps an
5 adjustment to the criminal history score as
6 well. You're obviously consolidating those.
7 And you're suggesting that the
8 Commission break its tradition of linking drug
9 guidelines to mandatory minimums and, as a
10 result, creating the cliffs.
11 There has been a lot of discussion
12 about drug quantities driving the sentence.
13 And one of the ways that the Commission
14 historically has tried to reduce the impact of
15 drug quantities is to use other factors by way
16 of enhancements to either increase or, in some
17 cases, decrease the penalties. So, therefore,
18 the focus of sentencing is only partly
19 involved in the issue of drug quantity and, in
20 fact, the judge spends much of his or her time
21 dealing with questions of role in the offense,
22 use of weapons, violence, injury, et cetera,
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1 all of the other factors, which are quite
2 significant. And in fact you just referred to
3 the school yard as another significant factor.
4 I think you get, you know,
5 universal support from the members of the
6 Commission that those are factors which are
7 extremely important in regard to sentencing,
8 but when you talk about drug quantity being
9 essentially irrelevant, I wonder if you are in
10 fact going perhaps just a bit too far.
11 The drug defendant who is in
12 possession of large quantities signifies
13 something in regard to the seriousness of the
14 offense in whether it's a leadership role or
15 whether it's just this is a person who is
16 engaged in significant drug distribution,
17 that's a relevant factor.
18 And I wonder if rather than, say,
19 eliminate the consideration of drug quantity,
20 you are really saying that it is a factor but
21 it should be among other factors in arriving
22 at a just sentence?
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1 JUDGE WALKER: That is exactly what
2 I'm saying, that it is a factor to be
3 considered, but it is not the factor that
4 should drive the sentence. It should be
5 weighed along with role in the offense and all
6 of the other factors that you point out.
7 The trouble with the Drug Quantity
8 Table is, first, it overwhelms in most cases
9 all of these other factors. That the numbers
10 -- the numbers --
11 VICE CHAIR SESSIONS: Isn't it a
12 question of --
13 JUDGE WALKER: -- the numbers are
14 such that the adjustments for role in the
15 offense and the other factors only offset to a
16 limited degree the import of drug quantity.
17 What drug quantity should be is
18 simply one of numerous other factors that
19 would be considered in determining the
20 seriousness of the offense and the threat to
21 society, which the offense represents. But it
22 overwhelms these other factors, first.
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1 And, number, two, it has what I
2 submit is a false illusion of precision. The
3 idea that certain quantities of drugs can be
4 made equivalent in social harm to other
5 quantities of drugs is simply an unexamined
6 assumption on the part of the Commission and
7 the Quantity Table -- Drug Quantity Table.
8 And there simply isn't any evidence that the
9 Commission in its reports has been able to
10 point to that establishes that kind of precise
11 relationship.
12 So I think because of the
13 importance of drug quantity in determining
14 sentences, that the Commission has a
15 responsibility to look at the underlying
16 justification. And I think when the
17 Commission does it will reduce quantity to
18 simply a factor among many others in
19 determining what is an appropriate offense
20 level.
21 VICE CHAIR CARR: Judge Walker,
22 upgrade aside drugs and drug guidelines for a
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1 moment, given that we're in the post-Booker
2 world with what you've described is your
3 increased requirement again to go back and
4 search the record, why is it as important to
5 you that we widen the bands?
6 JUDGE WALKER: It probably is not
7 as imperative now as it was previously, but I
8 think the 20-percent swing is simply too
9 narrow to reflect the qualitative factors of
10 the offense and the offender. And most judges
11 I think would like very much to adhere to the
12 guidelines. The guidelines are helpful in
13 lots of ways to a judge and they're helpful
14 because if your feeling about what the
15 sentence is is far outside what the guidelines
16 provide, it's a wake-up call to help you
17 decide whether your assumptions are correct,
18 whether you're viewing the matter properly, or
19 whether you're driven by some misunderstanding
20 or some other factor.
21 So I think we would like to adhere
22 to the guidelines to the degree possible,
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1 consistent with all of the other factors, and
2 frankly a 20-percent swing is just too narrow
3 to reflect the tremendous variation in the
4 characteristics of the offense and the
5 offender.
6 VICE CHAIR CARR: And now a drug
7 question. Assuming that drug quantity is not
8 a good proxy for culpability, I assume that
9 you would agree that type of drug may well be
10 a proper consideration as to what a starting
11 point might be in terms of the severity?
12 Marijuana versus heroin.
13 JUDGE WALKER: I don't know about
14 that. Does the Commission have some empirical
15 evidence to substantiate that assumption?
16 VICE CHAIR CARR: And that's what
17 would determine the difference for you,
18 whether we would have empirical evidence as to
19 the social harms of marijuana versus heroin?
20 JUDGE WALKER: Correct.
21 COMMISSIONER HOWELL: Well, and
22 that's a good lead-in to my question which is
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1 how, in your view, should the Commission
2 respect policy determinations made by
3 Congress, because Congress of course in its
4 statutes has indicated that quantity is an
5 important consideration for Congress in
6 establishing penalties for different drug
7 offenses, and Congress has made the policy
8 decision that, for example, heroin is to be
9 punished more severely than marijuana? Is it
10 your view that the Commission as an
11 independent agency should just ignore those
12 policy decisions that have been made by
13 Congress?
14 JUDGE WALKER: No, of course not.
15 COMMISSIONER HOWELL: Well, what
16 kind of deference and what level of deference
17 do you think that the Commission is required
18 by law to show to Congress?
19 JUDGE WALKER: Well, there's no
20 question that we all have to apply
21 [inaudible]. And we have to do more than pay
22 deference, we have to obey those laws.
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1 COMMISSIONER HOWELL: Right.
2 JUDGE WALKER: There's no question
3 about that. But a regime that is put in place
4 that the Commission has found reason to
5 suspect is not a rational one, seems to me
6 imposes two responsibilities on the
7 Commission.
8 The first is to try to urge
9 Congress to change the law and the second is
10 where the Commission has discretion, as it
11 does in vast areas of sentencing, not to
12 follow what the Commission has determined is
13 not an appropriate standard. So I'm not
14 suggesting for a moment that we can do away
15 with the minimum mandatories or with the
16 congressional limitations that they place upon
17 us, but that doesn't mean that we should march
18 lemming-like into the sea where we are
19 convinced that Congress' determinations are
20 not appropriate.
21 ACTING CHAIR HINOJOSA: Judge
22 Walker, you use the example of the courier who
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1 may not know the controlled substance nor the
2 amount of the controlled substance that
3 they're either bringing across the border or
4 possessing with the intent to distribute in a
5 hidden compartment or otherwise in a vehicle
6 or other -- you know, hidden someplace and
7 that they're responsible for that.
8 Are you bothered by the fact that
9 case law interprets the statutes, at least for
10 mandatory minimum sentences, as holding that
11 person responsible for that type of drug and
12 the amount of drugs, at least for mandatory
13 minimum purposes? It's case law that has
14 determined that an interpretation of the
15 statute means that you're responsible. If you
16 knew you had a controlled substance and that
17 you were possessing it and were intending to
18 distribute it to someone else, that you're
19 responsible for that controlled substance and
20 the amount of weight of that controlled
21 substance? Do you think the courts have
22 misinterpreted the statutes or does that
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1 bother you that perhaps the courts shouldn't
2 have done that or...
3 JUDGE WALKER: Well, you're
4 assuming that the courier knows of either the
5 nature of the drugs that he's carrying or the
6 quantity --
7 ACTING CHAIR HINOJOSA: Well, I'm
8 not assuming it, --
9 JUDGE WALKER: -- and --
10 ACTING CHAIR HINOJOSA: -- the case
11 law is that if the courier knows that there is
12 a controlled substance, even though the
13 courier may not know what the controlled
14 substance is, that the courier, for purposes
15 of this statute, is responsible for that
16 controlled substance that it turns out to be
17 and the weight of that controlled substance.
18 Do you think the courts in
19 developing the case law have been interpreting
20 the statutes that way?
21 JUDGE WALKER: Yes, I do. But we
22 all sit in the Ninth Circuit and so we face
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1 that situation frequently, where we think --
2 VICE CHAIR SESSIONS: Where the
3 courts are wrong, is that --
4 JUDGE WALKER: That's exactly what
5 --
6 VICE CHAIR SESSIONS: -- what
7 you're suggesting?
8 ACTING CHAIR HINOJOSA: There is a
9 record of this, okay.
10 VICE CHAIR SESSIONS: Is he still
11 here? No, he's not here.
12 JUDGE WALKER: We all face that,
13 don't we, Judge Sessions.
14 ACTING CHAIR HINOJOSA: And I guess
15 --
16 JUDGE WALKER: Even in the first --
17 Second Circuit.
18 ACTING CHAIR HINOJOSA: I guess
19 I want to share another personal view with
20 you, because we've both been on the bench so
21 long and we both have done sentencing before
22 the guidelines, you know, since I've been on
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1 the bench, I guess, six years longer than you
2 have. But I have to say that the thousands of
3 defendants that I have sentenced, I don't know
4 that I've ever seen a defendant who has been
5 surprised that I have indicated that this is a
6 tougher sentence because of the type of drug
7 and the weight of the drug that you were
8 involved in.
9 I have -- and, you know, we develop
10 a sense as to what the defendants are thinking
11 without sometimes them even saying anything,
12 but I don't know that I've ever had the look
13 of 'Why are you making an issue of the
14 weight.' And you mentioned that you think
15 criminal defendants are confused about this
16 and find it unfair, but I don't know that I've
17 ever had a reaction from a defendant in court
18 when I've used the weight, both under the old
19 system and the mandatory guideline system and
20 the advisory guideline system as an issue with
21 them as to, you know, this was a large amount
22 of drugs. It was going to cause a lot of
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1 damage to society. I don't think that I've
2 ever had the look of you're someplace from
3 Mars here.
4 JUDGE WALKER: Well, I don't -- I
5 don't know that the lack of surprise of
6 defendants who, after all, by the time
7 sentencing rolls around they've had an
8 opportunity to learn the consequences of the
9 sentence that they face, I'm not sure that is
10 a very illuminating factor.
11 ACTING CHAIR HINOJOSA: I guess I
12 brought it up because you had mentioned it,
13 this certainly surprised criminal defendants
14 that their sentence would be based on weight.
15 JUDGE WALKER: I don't believe that
16 I -- I certainly did not intend to say that
17 the defendants are surprised by that fact. I
18 think by the time they face sentencing and
19 they've read the presentence report or had it
20 read to them, that they are aware of what the
21 regime is, and so they realize what their
22 exposure is.
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1 My problem with this is in large
2 measure the false impression of precision
3 which the Drug Quantity Table gives, precision
4 both in terms of measuring the social harm of
5 particular narcotics and also quantity.
6 Importing a ski bagful of marijuana by one
7 person may have very limited social impact.
8 Whereas in another case given certain
9 circumstances it may represent a far more
10 serious offense. And so I don't think
11 quantity alone should be the driving factor in
12 determining the offense level and that is
13 exactly what it is under the Drug Quantity
14 Table.
15 ACTING CHAIR HINOJOSA: Judge, do
16 you think -- and I'm sure you've had these
17 cases, whether they're money-laundering or
18 exporting more than 10,000 -- the currency
19 reporting requirement top cases where you
20 export money or import money without declaring
21 it, do you think the amount of money in those
22 cases makes a difference as to what the
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1 sentence should be?
2 JUDGE WALKER: It seems to me
3 that's a far more rational basis upon which to
4 predicate --
5 ACTING CHAIR HINOJOSA: The amount
6 of money in those cases --
7 JUDGE WALKER: Well, you take the
8 Embezzlement Table, the Theft Table, and so
9 forth, it seems to me that it is easier to
10 comprehend that the seriousness of those kinds
11 of offenses relates to the amount involved,
12 although, as you well know, with some of these
13 cases that we confront now, the back-dating
14 cases, some of the cases undoubtedly that
15 we're going to increasingly see as a result of
16 all that's going on in the economy, the
17 numbers become so large that it's hard to --
18 ACTING CHAIR HINOJOSA: I --
19 JUDGE WALKER: -- hard to see a
20 lock-step relationship between the numbers and
21 the harm to society --
22 ACTING CHAIR HINOJOSA: I'm not so
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1 much talking about fraud as opposed to the
2 cases that involve money laundering, and it's
3 maybe based on the amount with regards to the
4 determination of the sentence as far as
5 guideline determinations and/or exporting out
6 of the country more than $10,000 or importing
7 into the country more than $10,000 without
8 declaring it. Do you think that in those
9 cases we also should not rely on the amounts
10 as to the sentence or...
11 JUDGE WALKER: I would suggest that
12 all of these things should be open to
13 discussion and consideration by the
14 Commission. There's an awful lot of learning,
15 that it seems to me the Commission is in a
16 unique position to foster and develop and to
17 encourage, and it should -- it should take
18 advantage of that learning.
19 VICE CHAIR CARR: Would you suggest
20 that the quantity of drugs in a drug case is
21 more akin to the amount of money taken in a
22 bank robbery, where other factors drive the
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1 sentence much more and the amount of money
2 that you attempted to get or got has a much
3 smaller consequence in a robbery case, for
4 example, than the quantities of drugs have in
5 a drug case?
6 JUDGE WALKER: Well, if I
7 understand it, in a bank robbery case the
8 sentence is not driven to the same degree by
9 the amount of money involved.
10 VICE CHAIR CARR: That's my point.
11 JUDGE WALKER: Yes, and I think
12 that's absolutely correct, a correct
13 assessment. Because an individual who comes
14 into a bank could represent a threat to the
15 individuals in the bank and to the community,
16 wholly disproportionate to the amount of the
17 money that he obtains in the course of the
18 robbery, so --
19 VICE CHAIR CARR: And are you
20 drawing the same analogy?
21 JUDGE WALKER: And I'm drawing
22 exactly the same analogy with regard [to] the
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1 drug quantities. That you could have somebody
2 who is a two-bit drug dealer who might be a
3 very serious threat to society, whereas
4 somebody driving across the border with an
5 automobile full of marijuana may be not a
6 serious threat to society. And I don't think
7 the guidelines take account of that
8 distinction.
9 ACTING CHAIR HINOJOSA: [Mr.]
10 Wroblewski.
11 COMMISSIONER WROBLEWSKI: Thank
12 you.
13 Judge Walker, first, thank you very
14 much for being here and for the thought and
15 effort that went into your testimony. I want
16 to ask you a couple of questions about the
17 first part of your testimony, --
18 JUDGE WALKER: Okay.
19 COMMISSIONER WROBLEWSKI: -- as
20 opposed to the second part.
21 You indicated your clear preference
22 for the guidelines is they are now advisory
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1 and just one factor. And you described the
2 process that you go through and the extra
3 effort that has to be made now just as you
4 sentenced before the guidelines.
5 The one part, though, that we
6 didn't talk about was the fact that now we do
7 still have mandatory minimums and those
8 mandatory minimums are applicable for
9 somewhere roughly half of the cases, most of
10 the drug cases, child pornography, gun cases.
11 And so it seems that we now have a hybrid
12 system. We have an advisory system where you
13 have to drill down and think pretty hard and
14 then we also have this mandatory minimum
15 system.
16 Do you think that -- I recognize
17 your preferences for the former rather than
18 the latter, but if we address the latter it
19 means going to Congress. And if Congress
20 says: you know, we'll do something about the
21 mandatory minimums, but we also want to do
22 something about the advisory system. And we
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1 want to come out somewhere in between, and it
2 might be your system of wider ranges, but
3 maybe there is some force to those wider
4 ranges. What do you think of that and do you
5 think the Commission should attempt to try to
6 reconcile these two systems, the advisory
7 system and the mandatory minimums, which seem
8 really at extremes?
9 JUDGE WALKER: Well, they are at
10 extremes. And the minimum mandatory sentences
11 of course are troubling for all of us in many
12 cases because they don't necessarily
13 adequately reflect the tremendous variations
14 in the particular facts and circumstances of
15 the case.
16 I think the Commission should make
17 every effort to spread in Congress the
18 learning that the Commission has obtained over
19 the years. In the same way that all of the
20 other agencies and commissions of government
21 periodically go to Congress and lobby
22 Congress, tell Congress what it is that they
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1 have developed in the course of their work,
2 and attempt to enlighten the Congress about
3 many of these issues.
4 The minimum mandatories in drug
5 cases, child pornography cases, and so forth
6 were enacted in reaction to a perceived
7 political need at the time. Over time the
8 need diminishes, the political need
9 diminishes. And I think perhaps it hasn't yet
10 arrived in the child pornography area, but I
11 think increasingly in the drug area my sense,
12 but you're far better able to know this than
13 I, but my sense is that going to Congress with
14 a rational program to soften the minimum
15 mandatories in drug cases would not be badly
16 received.
17 I think there's an increasing
18 understanding in the population as a whole
19 that the general criminalization program that
20 we've embarked upon is not really working, is
21 not a great success, and that we ought to look
22 at it somewhat differently. So I think the
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1 Commission has a great opportunity to attempt
2 to move Congress in the right direction away
3 from the minimum mandatory system.
4 Now I suppose your question is: Is
5 that going to foster some reaction on the part
6 of Congress to take away the advisory
7 guideline status and to lock us into minimum
8 mandatory sentences across the board? That's
9 a political judgment that you'll have to make,
10 but my sense is that if you go to Congress and
11 you make your case, you'll be listened to and
12 you'll at least have a chance of getting some
13 reform.
14 COMMISSIONER WROBLEWSKI: And then
15 one last really follow-up question. You
16 talked about also at the beginning of your
17 testimony about the judge's role and how
18 that's different under the advisory system
19 than under the mandatory system and you talked
20 about the need for, again, I think you said
21 drilling down to try to really get at the
22 heart of the offense, the victim, and the
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1 defendant, and background.
2 A huge swath of the federal docket
3 involved cases where there is no individual
4 identified victim, that the harm to society is
5 diffused. Drugs, for example, you catch
6 someone with a hockey bagful of marijuana, we
7 have no idea what that means in terms of
8 harms.
9 Immigration cases, you find someone
10 coming in, there's some harm to society when
11 you have an immigration system that's somewhat
12 lawless. How can you identify that? I'm not
13 really clear.
14 Firearms trafficking. How do we
15 identify if a victim isn't there? Even child
16 pornography. Obviously there's a child in the
17 picture, but that child might be in
18 Yugoslavia. It might be, you know, somewhere
19 very, very far away, and that person is not
20 going to be coming into your courtroom.
21 So in those cases where the harm to
22 society is very diffused, of course you have a
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1 defendant in every single case and they're in
2 front of you. Do you think in those kinds of
3 cases that the role of the district judge
4 should be different, that the role of a
5 centralized body like the Commission or
6 Congress should be different and whether there
7 should be more mandates on district judges in
8 those kinds of cases?
9 JUDGE WALKER: That's really a
10 political question, isn't it? And Congress
11 has given us those mandates in a number of
12 areas. Congress has the legitimacy of being
13 an elected body. And, therefore, it's in a
14 position to lay down these arbitrary rules.
15 The Commission is really in a
16 different situation, it seems to me. In a
17 different -- its function, its role is
18 different in character. I think it's much
19 more akin to that of a judicial body, although
20 it's not quite a judicial body. And a
21 judicial body fails its fundamental purpose in
22 our society, I think, when it fails to base
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1 its actions upon evidence.
2 And the only way that evidence
3 really can be taken into account is on an
4 individual basis, and that requires the
5 application of individual assessments of the
6 facts and the circumstances involved and the
7 application of the law to those.
8 COMMISSIONER WROBLEWSKI: And if
9 the harm in an individual case is simply
10 unknowable? It's simply unknowable. You
11 don't know if a police officer, an undercover
12 police officer is involved in a hand-to-hand
13 two-rock crack case, you have no idea if the
14 police officer had not been there if it would
15 have gone to somebody who was an addict and
16 was on the verge of doing some great harm to
17 their family or not. If in that kind of case
18 what's a judge to do?
19 JUDGE WALKER: The judge, it seems
20 to me, needs to do the best that he or she can
21 given the imponderables of that situation.
22 And it is for that reason that I think the
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1 more leeway judges have to make these
2 individual assessments, the better will be the
3 end results.
4 COMMISSIONER WROBLEWSKI: Thank
5 you.
6 JUDGE SHEA: It's a little bit
7 difficult, but Judge Winmill and I to listen
8 to our colleague, this is typically where the
9 three of us would exchange views, and he's
10 done a great job of, I think, pointing out a
11 number of things. And I know that Judge
12 Winmill, I'm not sure whether you want to ask
13 those questions now --
14 ACTING CHAIR HINOJOSA: We were
15 going to go ahead and let you give your
16 statements.
17 JUDGE SHEA: Okay. Well, I know
18 Judge Walker's --
19 ACTING CHAIR HINOJOSA: And we
20 appreciate your patience of sitting --
21 JUDGE SHEA: Not at all. I enjoyed
22 listening to the judge and would like to have
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1 had the opportunity to exchange with him.
2 ACTING CHAIR HINOJOSA: And, Judge
3 Walker, I know that you have to leave, and we
4 really appreciate your time.
5 JUDGE WALKER: Well, I appreciate
6 being here. I appreciate the patience of my
7 colleagues to the left. And you were very
8 gracious last evening. And it was a pleasure
9 to be with you and I look forward to seeing
10 you in the future.
11 ACTING CHAIR HINOJOSA: Thank you,
12 Judge.
13 COMMISSIONER WROBLEWSKI: Thank you
14 for your time.
15 COMMISSIONER HOWELL: Thank you
16 very much.
17 ACTING CHAIR HINOJOSA: And to
18 Judge Shea and Judge Winmill, thank you for
19 letting us take this out of order, and we
20 appreciate it very much. And, Judge Shea,
21 would you like to --
22 JUDGE SHEA: Gets us discussing our
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1 views to each other about whether we agreed or
2 disagreed with the judge on certain points.
3 ACTING CHAIR HINOJOSA: Judge Shea,
4 if you'd like to make your presentation, and
5 now we'll go back to -- then Judge Winmill
6 would get to say something, and then we'll go
7 to the questions and answers.
8 JUDGE SHEA: Well, thank you for
9 allowing me to participate. Chief Judge
10 Whaley asked me to substitute for him. He was
11 prepared to come; he had a family emergency.
12 His daughter became eligible for the state
13 golf championships. He is a dutiful father,
14 and I know well the feeling, and wanted to be
15 there. I agreed under those circumstances to
16 jump into his place and come on down here to
17 speak with you folks.
18 A couple of things at the outset.
19 One, I should observe that I was a United
20 States Capitol Hill policeman. I took that
21 job because I thought that it would enable me
22 to put my feet up on a desk and curl up with a
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1 tort treatise during the swing shift or night
2 shift. As it turns out, Washington, D.C.
3 between 1967 and 1970 was hardly the place
4 where that was allowed, given the marches and
5 riots that were almost a weekly occurrence
6 there. So it was not the experience I had
7 hoped for, but I made it through, and it was
8 quite a challenge.
9 So that said, I welcome the
10 opportunity to talk about -- every district
11 judge has issues about sentencing and issues
12 with the Sentencing Commission. Let me say at
13 the outset that I share Judge Vaughn's (sic)
14 views on a couple of points. And I admire his
15 point that we don't accept, necessarily, what
16 you tell us in gradations. And I share his
17 views that we need to be questioning the
18 Commission about whether there is empirical
19 data to support some of those gradations in
20 various parts of the sentencing guidelines.
21 I was going to add to his the
22 increase -- depending upon the number of
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1 videos or photographs in the child porn cases,
2 how you reached the conclusion that each one
3 of those levels merited that increase is
4 beyond my understanding. But given the post-
5 Booker rule, I'm able to overcome those sorts
6 of things, and I've frequently said there is
7 no rational basis for it and I decline to
8 follow it. So even after I'd done what I'm
9 required to do, my initial calculation of the
10 guidelines is part of the first step in
11 sentencing.
12 I will, in some instances, declare
13 that conclusion unreasonable and move to the
14 3553(A), the remaining factors and determine
15 whether the sentence was sufficient but not
16 greater than necessary to carry those out.
17 Now there's two points that that
18 brings me to. One is that if you look at the
19 3553(A) factors, you find nothing in there
20 about the cost of imprisonment except in the
21 subsection that deals with the imposition of
22 fines. That does mention the cost of
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1 imprisonment. So in every presentence report
2 that we get in our district, you will find the
3 cost of imprisonment, approximately $2,000 per
4 month.
5 I look at that and I know it's
6 under the fine provision, but I and at least
7 two of my colleagues regularly consider that.
8 That's with some difficulty, because it's not
9 explicit in the factors. And it's the more
10 difficult because of a case in the Ninth
11 Circuit. And I share Judge Vaughn's views
12 about the cases in the Ninth Circuit. I agree
13 that there are cases that are simply wrongly
14 decided, and I'll cite one to you in a few
15 minutes.
16 But there is a national movement at
17 the state level to deal with the problem of
18 immigrants. In our district -- I don't know
19 about Judge Winmill's -- but we are an
20 agribusiness district, millions of acres of
21 land blessed with 300 days of sunshine, three
22 major rivers, and countless crops. So we have
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1 an illegal-immigrant problem because of the
2 agribusiness that exists there and the need
3 for migrant laborers. That said, 31 percent
4 of our docket is 1326 cases, reentry after a
5 prior conviction. So for us that's a major
6 concern.
7 When I look at those 1326 cases and
8 I see the people, and I look at their
9 histories and I am forever grateful that
10 Booker was decided as it was and restored to
11 us some discretion, because I was really
12 restless and frequently the subject of appeals
13 because I so disagreed with those guidelines.
14 For me the way it was prior to Booker and
15 even prior to the amendments that you made to
16 the gradations in 1326 cases, where you
17 mitigated some of the severity of those by
18 adjusting the numbers that you would apply,
19 even then I found myself very restless and
20 struggled with the sentences and the
21 Sentencing Commission in its guidelines.
22 So I welcomed Booker. And by
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1 saying I welcome Booker, that doesn't mean
2 that I in any way think the guidelines should
3 be dispensed with or that you should go out of
4 existence. I welcome the history and the
5 precedent that it gives me, and I recognize
6 that even as moderate as I think I am in my
7 sentencing patterns that, as an individual, I
8 find that there are times when the sentencing
9 guidelines offer me some guidance in a case
10 where I might have been impetuous or I may
11 have had an initial thought that I moderated
12 after reading the guidelines and looking at
13 the cases. And it was helpful in that regard.
14 And I believe it is probably
15 helpful to cure the problem that existed in
16 the 1970s when I was a criminal defense
17 lawyer, among other things, and tried any
18 number of serious felony cases and was
19 acquainted with the pre-reform sentencing
20 provisions. There it was a bit like we have
21 today in the post-Booker world.
22 So when I went to the bench in
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1 1998, I hadn't done criminal law in
2 approximately 15 years. I really found it
3 difficult and confining to find out I had
4 mandatory guidelines to cope with when I had
5 been accustomed, during my years as a criminal
6 defense practitioner, to somewhat the system
7 we have now where you consider any number of
8 factors, especially those factors that are
9 more human and more social. And a lot of
10 those factors became critical in the 1970s.
11 And then, because of the reasons
12 that we all know, with the disparity in
13 sentences reform was necessary. For me then
14 the Booker case gave me or restored to me the
15 discretion that I thought we needed.
16 But I welcome the continued
17 existence of the guidelines, and I don't
18 resent it at all doing the initial
19 calculation. As I say, my staff and I go
20 through it. I frequently find that I agree
21 with the guidelines, though I would guess that
22 my sentencing patterns are -- the majority of
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1 my sentences are below guideline range. And I
2 think that's probably true most places in the
3 country, that sentences are below the
4 guideline range.
5 When I consider that and I
6 encounter my 1326 cases, and I look at the
7 cost of imprisonment, which I think is a
8 critical component of rational sentencing, and
9 I look at the movement among the states to
10 deal with the illegal immigrants who are in
11 their prisons and the cost of them, I know
12 that it's a matter of some national
13 importance, and it seems to me that it has a
14 place in the guidelines and ought to be in
15 there.
16 The problem is that it's not, and
17 we have two cases. One in the Ninth Circuit
18 and one in the Eighth Circuit that have held
19 that it is not a proper consideration in a
20 sentencing. Now that's baffling to me. The
21 Tapia-Romero case here in the Ninth Circuit
22 decided in 2008 was a case that involved, I
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1 think, the Southern District.
2 The defender's office, for reasons
3 that remain best known to them, to that
4 office, decided to appeal the case, where that
5 very issue was before the district judge.
6 They asked him to consider the cost of
7 imprisonment as to two factors. One of those
8 factors was not to protect the public.
9 The case went up, the Ninth Circuit
10 issued a published opinion, therefore making
11 it a precedent in the Ninth Circuit, saying
12 that simply, "The district court properly
13 concluded that the cost to society of a
14 defendant's imprisonment is not a factor a
15 sentencing judge can consider under 18 United
16 States Code Section 3553(A) in determining the
17 appropriate term of imprisonment under 18
18 United States Code Section 3553(a)(2)(A)."
19 The Eighth Circuit recently agreed with that.
20 I think that's wrong.
21 When I look at the states, in
22 particular Washington, where the governor and
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1 the legislature are coping with that and they
2 are trying to pass legislation to get those
3 illegal immigrants out of the state system,
4 into our system, saving themselves $8 million
5 over two years.
6 I know that in our system the cost
7 of imprisonment should also be a rational
8 factor in sentencing. And I think that if you
9 went to any body and any group, any group that
10 you wish to choose, the Chamber of Commerce,
11 any speech you might give at a commencement
12 and told them that that was not part of a
13 rational sentencing, they would be appalled
14 and stunned that it was not.
15 The rationale for the decision is
16 that it was not explicitly mentioned by
17 Congress, and Congress knows how to make
18 things explicit when it wishes. It did allow
19 it to be considered as part of the fine
20 provision and, therefore, under rules of
21 construction, if it knew how to do it there,
22 it certainly knew -- it could have made it a
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1 factor. It didn't. Therefore, it's not.
2 I think that it's -- to me, in the
3 way we use it and have used it in my district,
4 two of my colleagues and I, is that it's part
5 of protecting the public. The cost-benefit
6 analysis seems to be inherent in that.
7 And when you asked as part of your
8 -- part of your topic list, Number 8, "What,
9 if any, recommendations should the Commission
10 make to Congress with respect to statutory
11 changes regarding federal sentencing," I urge
12 you to make that.
13 However, I recognize the risk of
14 going to Congress and asking for any change
15 that may produce the unwanted result of a
16 return to mandatory sentencing or something
17 much more strict and structured than we
18 currently work under.
19 So I would ask you to take that
20 into consideration. And if, in your political
21 judgment, it's the right time and the right
22 issue, then I'll ask you to do that and have
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1 them amend 3553(A) to include in considering
2 protection of the public, the cost of
3 imprisonment is a factor.
4 And let me merge those two
5 concepts, that is my comfort with the post-
6 Booker world, the cost of imprisonment in a
7 1326 case. In the last year -- each judge
8 could tell you a story, and I'm going to tell
9 you one.
10 In the last year I sat on a case
11 called U.S. versus Ramirez-Paz. Mr. Paz was
12 an illegal immigrant. He had an eight-year-
13 old boy who was in the school systems in my
14 community. He was a Mexican national as well,
15 born in Mexico.
16 Mr. Ramirez-Paz was before me in a
17 1326 case. But Mr. Ramirez-Paz some 10 or 12
18 years earlier had been convicted of murder.
19 He was not the actor but he was there and was
20 charged and pled to some form of murder. He
21 received an exceptionally low sentence, but in
22 the 1326 case he carried with it the heavy
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1 baggage of that conviction and the points that
2 came with it.
3 As a result, he was at 21, an
4 adjusted defense level of 21-4, and that
5 exposed him to 57 to 71 months. Well, he had
6 an eight-year-old boy who was totally
7 dependent on him. More than that, during the
8 time he had been back in the country, after he
9 had married in Mexico, the mother had left he
10 and the child, and he returned to the country
11 so the child could get the education that he
12 hoped for. He had been a dutiful worker
13 supporting his family and his mother with a
14 heart condition.
15 He experienced severe injuries in
16 an agribusiness accident. Both legs broken,
17 needing multiple surgeries as well as
18 lingering other health issues, and more
19 surgeries planned. And yet the schoolteachers
20 who appeared for [him] in written form spoke
21 of how dutiful he was, in coming in his
22 wheelchair to the school to support his child
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1 and to the devastating effects on that eight-
2 year-old boy of watching his dad be hauled off
3 to jail without a word.
4 The teacher who wrote on his behalf
5 explained the family circumstances. She and
6 her principal both wrote. I had the boy in
7 court with the mother, with the grandmother
8 who had the heart condition. He, in fact,
9 translated for her.
10 And under those circumstances he
11 had been in prison seven months. Now I could
12 have simply said, "The guidelines have a
13 range, and that's important, but at what cost
14 and to whom?" At $2,000 a month, society is
15 keeping that man in prison instead of
16 returning him to Mexico, is depriving a child
17 of its father who was otherwise, after a
18 serious felony offense, was otherwise
19 relatively law-abiding.
20 He was getting workers'
21 compensation. And, as a result of the
22 workers' compensation, the family was able to
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1 live. But as soon as he was sentenced, the
2 workers' compensation ceased. And here is a
3 woman who is not able to work, a grandmother
4 with an eight-year-old boy who was a Mexican
5 national, who will be thrust into the juvenile
6 court system. Who knows what foster care
7 would follow.
8 And none of those things were
9 before me.
10 I can't say -- after the sentence
11 it was not appealed, and I imposed a sentence
12 of time served, though he had, under the
13 guidelines, 57 to 71 months. And I found that
14 the family circumstances' exception applied
15 and granted a 14-level reduction.
16 One of my colleagues said if it
17 wasn't post-Booker you wouldn't have been able
18 to do that. And I think that may be an
19 overstatement. That has certainly helped me
20 to realize that I had more discretion post-
21 Booker than I would have had pre-Booker.
22 So from my viewpoint on a 1326 case
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1 it was a legitimate consideration to say,
2 "What's the cost to the taxpaying public of
3 keeping this man in prison with the potential
4 for the child going into the system with
5 additional costs to the public?" And I think
6 that's a rational basis -- a rational factor
7 to include in sentencing. And I would hope
8 that you'd give that some consideration in
9 what matters you take to Congress.
10 Let me say as to the judges in my
11 district, I think we're all comfortable in a
12 post-Booker world. I've had the usual
13 sentencing discussions with my colleagues.
14 Everybody is happy with post-Booker. They're
15 grateful that the discretion that's been
16 restored to them in part, and yet I think they
17 also are not in any way advocating that the
18 Sentencing Commission go out of business or
19 that the guidelines stop. I think it's a body
20 of law that's very helpful. And we've talked
21 about the fact that it does aid us in our
22 sentencing and gives us some structure as an
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1 advisory guideline.
2 I believe that's all I have to say.
3 Thank you.
4 ACTING CHAIR HINOJOSA: Thank you,
5 Judge Shea.
6 Judge Winmill.
7 JUDGE WINMILL: Yes. Thank you. I
8 want to thank the Sentencing Commission for
9 allowing me to participate and offer testimony
10 on this 25th anniversary of the Sentencing
11 Reform Act.
12 I think the comments that have been
13 made so far, particularly Judge Walker's
14 comments, have included portraying how truly
15 difficult a task it is that you face. But I
16 take a somewhat different approach, and I want
17 to really applaud your efforts.
18 And I would indicate that I have
19 always been essentially an advocate of the
20 sentencing guidelines, even pre-Booker. In
21 fact, I would say that I stand as a freely and
22 unabashed supporter of the guidelines even in
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1 the pre-Booker years.
2 But I came by that opinion honestly
3 through my own experience with both 14 years
4 on the federal bench and eight years on the
5 state court trial bench before that. It
6 provided me with a unique opportunity to kind
7 of compare two very different systems.
8 In the state court in Idaho we have
9 what's called the "truth in sentencing law,"
10 which requires that a judge impose a fixed
11 portion of the sentence during which time a
12 defendant is not eligible for parole and then
13 an indeterminate portion when they are parole
14 eligible, but there's essentially completely
15 unlimited discretion on the part of the
16 sentencing judge. And, of course, we all know
17 what I faced when I came on the federal bench
18 in 1995.
19 But one particular experience that
20 really occurred on the cusp of that transition
21 from the state to the federal court bench []
22 clearly portrayed for me the value of the
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1 sentencing guidelines pre- or post-Booker.
2 During the summer of 1995 I was a
3 state court trial judge in Idaho awaiting
4 confirmation from the Senate of my
5 appointment. And I was scheduled on the
6 morning of August 11th -- and I remember that
7 day because it was the day the Senate approved
8 my -- confirmed my nomination.
9 But that morning I had a sentencing
10 scheduled in state court. Defense counsel had
11 a crisis which necessitated that we move the
12 sentencing back a week. However, I had worked
13 through the presentence report and made my own
14 preliminary determination of what I thought
15 was an appropriate sentence. The case
16 involved a very young individual, 19, 20 years
17 old, who had been charged with dealing
18 cocaine.
19 Given his age, the nature of his
20 crime, the lack of any significant prior
21 criminal history, I had determined that what
22 made the most sense for him was a two-year
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1 fixed sentence followed by a ten-year
2 indeterminate sentence with the idea that he
3 would be parole-eligible within two years and
4 at least have some prospect of being able to
5 restore his life and perhaps develop a normal
6 life in the future.
7 However, fate intervened and that
8 afternoon I received a call from my senator,
9 who indicated that the Senate had confirmed my
10 nomination. The following Monday I learned
11 that President Clinton had signed my
12 commission. The following Wednesday I was
13 sworn in as a federal judge.
14 And, of course, because I was no
15 longer on the state court bench I never had
16 the opportunity to impose the sentence on that
17 young man.
18 Two weeks later I read that the
19 case had been reassigned to another judge who
20 actually was older, but had only been on the
21 bench one year at the time, and found that
22 this young man whom I had intended to impose a
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1 sentence of two years fixed with eight years
2 indeterminate, instead received a ten-year
3 fixed sentence followed by a five-year
4 indeterminate sentence.
5 What that drove home to me in my
6 life and something I've never forgotten is
7 that by the sheer luck of the draw this young
8 man's life was drastically altered from the
9 two-year minimum sentence, with at least some
10 hope for the future, he ended up with a ten-
11 year minimum sentence with I think little hope
12 for the future.
13 My own experience is that people
14 who spend long terms in prison are forever
15 changed and their opportunities of returning
16 to society in a somewhat normal fashion, I
17 think, are substantially impaired.
18 I cannot say that if the sentencing
19 guidelines had been in place in the state
20 courts of Idaho that the end result would have
21 been any different. There is every
22 possibility that given the quantity of drugs,
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1 the ten-year sentence imposed by my less-
2 experienced colleague is precisely what this
3 individual would have received, but I'd like
4 to think if that had been the result under the
5 sentencing guidelines, that at least would
6 have been based upon some empirically-based
7 determination of a heartland sentence rather
8 than based upon the blind luck of the draw and
9 which judge happened to be assigned to this
10 case following my being sworn in.
11 I think that is why I embrace the
12 guidelines as I assumed the federal bench. I
13 must admit that I think the guidelines pre-
14 Booker may have been too much of a good thing
15 in terms of the consistency and the strait
16 jacket. The mandatory nature of the
17 guidelines turned judges with I think years
18 and years of experience in observing the human
19 condition and determining a just sentence into
20 glorified accountants and bookkeepers. During
21 sentencings on many occasions I found myself
22 apologizing to those in the audience observing
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1 the proceedings over the seemingly impersonal
2 process in which we were engaged. It seemed
3 that we were arguing over levels, points, and
4 categories, rather than about lives, families,
5 and loss of both the defendants and the
6 victims who were in our courtroom.
7 But I think with Booker, and I echo
8 what has been said here, but I think Booker
9 has perhaps provided us with the best of both
10 worlds, and I think that's an important
11 consideration. It leaves us with the
12 stability and the consistency provided by the
13 guidelines as they provide kind of a tethering
14 or anchoring effect to all sentences. Even
15 though we have that discretion I think the
16 starting point of the guidelines still keeps
17 the vast majority of cases within striking
18 distance of that guideline range. But today
19 we also have the justice and common sense
20 again of judges with years of experience in
21 their application of the other 3553(a)
22 factors.
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1 Now are the guidelines post-Booker
2 perfect? Clearly not. And I want to identify
3 at least three areas where I think there are
4 issues and continuing concern.
5 The first and to me most troubling
6 but unfortunately the one for which the
7 Commission probably has little answer is the
8 continued ability of the prosecutor to affect
9 the application of the guidelines in ways that
10 I think were not envisioned by either Congress
11 or the Commission. This is I think the
12 primary remaining impediment to consistency in
13 sentencing. Let me give you some examples
14 that I see routinely.
15 Primarily drug cases. For example,
16 what I see very often is a decision by a
17 prosecutor to withhold the finding of an 851
18 information to seek an enhancement in the
19 mandatory minimums until very late in the
20 game, and they simply hand that over the head
21 in order to try to exact a plea of guilt. I
22 think that creates a tremendous potential for
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1 inconsistency which drives the guidelines and
2 the mandatory minimums in a substantial way.
3 I think another problem is the way
4 in Assistant U.S. Attorneys often agree to a
5 drug quantity, often explicitly in a plea
6 agreement but sometimes not. But it does come
7 into play when the probation officer who
8 prepares the presentence report feels that a
9 much longer quantity is established by the
10 evidence. But at least in the Ninth Circuit
11 it is really not even an option for me if the
12 U.S. Attorney is not willing to put on
13 evidence to support the larger drug quantity.
14 I'm pretty much left with whatever that
15 lesser quantity is that the defense is arguing
16 for, because I'm forced to essentially accept
17 the facts as undisputed if the U.S. Attorney
18 is not willing to put on evidence during the
19 sentencing hearing that would support a larger
20 drug quantity calculation.
21 I think the decision not to put on
22 evidence, likewise in support of a firearm
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1 enhancement, has a substantial affect upon
2 sentencing and our goal of consistency.
3 Child pornography, which I know the
4 Commission has heard a great deal about, but I
5 think one aspect that's sometimes forgotten is
6 the decision by the U.S. Attorney about
7 whether to charge mere possession or whether
8 to charge receipt and distribution. And often
9 the difference between possession and receipt
10 is a very ephemeral, almost-nonexistent
11 distinction that has a huge impact, I think,
12 in the mandatory minimum which I think to be a
13 five-year mandatory minimum on receipt, no
14 mandatory minimum, and I think a ten-year
15 maximum on mere possession. It also has an
16 effect on the base guideline range that is
17 applied.
18 So I think that's another example
19 where a decision by a prosecutor can really
20 lead to inappropriate differences in what the
21 sentence may be from district to district.
22 I think one other area where the
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1 Commission might make a significant impact is
2 the Fast Track Program, under 5K3.1, which
3 districts are allowed to either opt in or opt
4 out, in other words, develop a Fast Track
5 Program or not. I think the ability in some
6 districts to have up to a four-level decrease
7 in your offense level because of your
8 agreement to administrative deportation,
9 whereas in other districts which have not
10 adopted -- that inherently create[s] an
11 inconsistency I think the Commission could
12 well control by recommending a change which
13 would either require all districts make it
14 available or none.
15 Again, I don't know if the
16 Sentencing Commission can respond to those
17 problems. Some I think -- for example, the
18 Fast Track Program, they probably can. Others
19 they cannot. But I think you need to be
20 mindful of it, the way in which prosecutors in
21 charging decisions from district to district
22 will affect our goal of consistency.
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1 A second concern I had is that I
2 think disparity in sentencing still exist in
3 areas which I think we need to be cognizant of
4 if -- again, I've read some of the testimony
5 from Atlanta and I know some of the judges
6 expressed a concern that a just sentence, that
7 there's no necessary correlation between a
8 just sentence and a consistent sentence. I
9 really disagree. I think if we have sentences
10 that are irrationally inconsistent, that
11 cannot be a just system. And for that reason
12 I think we need to strive for consistency in
13 sentencing.
14 One example I think of disparity in
15 sentencing again in the drug area is the
16 availability of 5K1.1 departure motions, which
17 I think create a race to the prosecutor's door
18 in large-drug conspiracies. Now one might
19 argue that that is the intended effect, that's
20 exactly what Congress had in mind and perhaps
21 what the Commission had in mind. But I think
22 it can result in unjust results when
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1 distributors and kingpins, further up the food
2 chain in the drug-distribution organization,
3 receive shorter sentences than defendants who
4 are far less culpable. I think the effect of
5 121.8, which precludes consideration of
6 evidence obtained post-plea can also, I think,
7 lend some additional problem in this area.
8 I think an area -- and this really
9 plays off of what Judge Walker was saying
10 earlier, I think, is the differing views of
11 relevant conduct in drug cases. I think
12 there's a tremendous difference from district
13 to district as to how you view what is or is
14 not relevant conduct.
15 In some districts, such as ours, I
16 adopt, and I think Judge Lodge in our district
17 adopt[s] what we regard as a policy of lenity,
18 that the defendant should only be held
19 responsible for the drugs in which the
20 evidence is essentially overwhelming. Either
21 it's a hand-to-hand transaction or there's a
22 tremendous volume of other evidence coming
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1 from other persons involved in the drug
2 conspiracy that establish the drug quantities.
3 In others I think the concept of relevant
4 conduct is viewed more broadly, which results
5 in greater offense levels. And this may be at
6 the heart of the problem I think Judge Walker
7 was referring to. I think I would actually
8 disagree, and I will then, I guess, on one of
9 his comments in his criticism of our using
10 drug quantities as a proxy for culpability.
11 I think the problem is really in
12 how we get to that calculation and how
13 accurate we are. I think if we know with some
14 accuracy the exact amount of drugs that a
15 person was involved in distributing, it is a
16 very good proxy for culpability, because of
17 the harms that this imposes upon society,
18 somewhat diffused but nevertheless clear harms
19 that are done to society. But the devil is in
20 the detail and in the determination of the
21 details, whether we review relevant conduct
22 broadly or narrowly from district to district,
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1 which I think create both elements of
2 disparity in sentencing but also raise some
3 questions I think about the mechanism that we
4 adopted and calls into question, I think in
5 some judges' minds, whether or not there
6 should be a true proxy or a proxy used --
7 between using drug quantities as a proxy for
8 culpability. But I think that is an area and
9 it may be something the Commission can address
10 by more clearly defining what is relevant
11 conduct and not, and doing whatever it can to
12 remove these differing views from district to
13 district about how narrow their view will be
14 as to what is or is not relevant conduct.
15 I think differing practices also --
16 and, again, this probably goes back more to
17 what Assistant U.S. Attorneys do, but the
18 extent of 5K1.1 downward departures for
19 substantial assistance. I think there's a
20 marked difference from Assistant U.S. Attorney
21 to Assistant U.S. Attorney and from district
22 to district as to how that cooperation is
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1 valued and what recommendations are made to
2 the judges based upon that.
3 And, again, the availability of
4 Fast Track, the illegal reentry cases in some
5 districts but not others I think also creates
6 this built in disparity.
7 I think my final comment will be
8 that I think that the guideline ranges are
9 skewed somewhat towards longer-than-necessary
10 sentences. I think most of my colleagues may
11 feel that they're somewhat more out of touch
12 with what the judges would do than perhaps I
13 would view the problem. But I think if you
14 look at it this way, if the guideline truly
15 represents the heartland, then one would
16 assume that actual sentences aren't affected
17 by the guidelines, would cluster around the
18 guideline range. But I think when we look at
19 what happened post-Booker, and when judges
20 were free to impose sentences with a greater
21 amount of discretion, what we saw was that
22 judges tended obviously to seek far more
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1 downward -- or to impose far more downward
2 sentences than sentences above the guideline
3 range.
4 If I interpret the data correctly,
5 the 2008 data indicates that about one percent
6 of the sentences were imposed above the
7 guideline range, about 10.2 percent below the
8 guideline range. I guess I would disagree
9 with Judge Shea. I was a little surprised by
10 that. I feel that I give far more sentences
11 below the guideline range than what my
12 personal statistics actually show. Maybe
13 there's a guilt factor. But every time I
14 sentence below the guidelines, I feel somewhat
15 guilty, and it takes on greater importance
16 than it should.
17 But it does indicate that I think
18 judges generally feel that perhaps the
19 guidelines are skewed somewhat higher and
20 toward longer sentences than perhaps they
21 should.
22 If the guidelines, in Justice
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1 Breyer's words, are to represent the
2 appropriate sentence in the mine-run case,
3 then I think the collective wisdom of 678
4 active district judges and hundreds of senior
5 judges in the United States suggest that
6 perhaps the guidelines are a bit high and that
7 they've been skewed upwards.
8 Now of course there are reasons to
9 explain that, some of which were touched upon
10 by Judge Walker. And I again take a somewhat
11 different view from him about our ability and
12 your ability to affect Congress. But I think
13 the reasons for the sentences being perhaps
14 higher than perhaps they should is that trial
15 judges' concern, real or imagined, that an
16 appellate court is more likely to reverse a
17 below-guideline -- excuse me -- an above-
18 guideline sentence than they would a below-
19 guideline sentence.
20 A second effect I think is the
21 upward compression created by mandatory
22 minimums. Third would be the effect of
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1 Congress' role in exercising its effective
2 veto power over the guidelines. And fourth,
3 the effect of that veto power on this
4 Commission's policies and decisionmaking.
5 Now these factors reflect political
6 reality and there are structural issues in our
7 system of governance that will not go away.
8 In fact, I guess I disagree with Judge Walker
9 in our ability and your ability to persuade
10 Congress to -- again, I've watched what you've
11 done in terms of the crack cocaine/powder
12 cocaine disparity. And I know at least two of
13 you reasonably well in other settings, that my
14 sense is you might have liked to have done
15 more, but I think there is a political reality
16 that stands behind all of this that we all
17 have to deal with.
18 I would not urge you to disregard
19 that political reality, because I think that
20 the guidelines are necessary and some real
21 mischief could occur if Congress perceives too
22 much pushback, either from judges or from the
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1 Sentencing Commission.
2 But I do think that the Commission
3 must seek to, wherever possible, and in
4 whatever ways possible, to bring the
5 guidelines as close as possible to what I call
6 the cumulative wisdom of district judges
7 throughout this country, who struggle to find
8 justice every day with every defendant. I
9 would urge you to continue to listen to us and
10 to take into account as a primary factor in
11 your decisionmaking what trial judges are
12 doing and saying, how they are voting with
13 their feet as they perhaps march away from the
14 guideline range when getting the opportunity,
15 and to perhaps listen to those voices of
16 judges who are making hard decisions affecting
17 the lives of individuals and health of society
18 as a whole.
19 But again, having made these
20 comments, it is intended only as very -- I
21 hate to even use the word "constructive
22 criticism." It's intended to be constructive
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1 and really not criticism at all because I'm a
2 real advocate of the guidelines, based in
3 large part upon my unique ability to see the
4 differences between a sentencing without
5 guidelines and sentencing with guidelines. So
6 thank you.
7 ACTING CHAIR HINOJOSA: Thank you,
8 Judge Winmill.
9 Commissioner Friedrich.
10 COMMISSIONER FRIEDRICH: Yes.
11 Judge Shea, I was interested in exploring with
12 you the way in which you consider the cost of
13 imprisonment when you sentence defendants. Is
14 that something you consider in every case, is
15 there a certain threshold amount at which you
16 reach in terms of cost of imprisonment that
17 then kicks in and you reduce it down a certain
18 amount consistently? Is it ad hoc?
19 JUDGE SHEA: Well, every case my
20 staff knows that I want to know the cost of
21 imprisonment. Do a quick calculation on the
22 guidelines. If you know what the guideline
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1 calculation is, you know the cost is $2,000 a
2 month plus or minus, and so you know exactly
3 what it's going to cost the American taxpayers
4 to impose a guideline sentence and you were
5 within the range.
6 And then I'll make a calculation as
7 to -- I'll factor that in along with all the
8 other considerations: History and
9 characteristics, nature and circumstances, et
10 cetera.
11 COMMISSIONER FRIEDRICH: And when
12 you say you factor it in, does it -- in your
13 own mind do you have a certain reduction you
14 give for --
15 JUDGE SHEA: I look at a certain
16 reduction. It is based on the case itself. I
17 look at the facts of the case, the crime, the
18 criminal history, what I'm dealt with by way
19 of a social profile of the individual, support
20 of family, work, pay taxes, as opposed to
21 running up child support obligations and
22 having obligations to the state or to the
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1 federal government. So I look at all of those
2 factors and that's one of the things I
3 consider, the cost to protect the public from
4 this individual charged with that crime, with
5 that social record. And I factor that in.
6 COMMISSIONER FRIEDRICH: Because
7 some would argue that it would be preferable
8 to have that kind of calculus done by -- in a
9 consistent manner -- by some body like
10 Congress, and Congress, when it considered
11 legislation considers increasing penalties,
12 actually requests from the Commission the
13 prison impact of new legislation. So that in
14 a way, perhaps not in sort of the specificity
15 you're dealing in a certain case is considered
16 by the Congress.
17 And so I'm -- if, on the one hand,
18 you have -- you're consider[ing] that in your
19 courtroom, but another judge isn't, is that
20 the sort of disparity that we should welcome
21 in the system? Shouldn't that be something
22 that's either considered by all judges in a
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1 relatively uniform way or not?
2 JUDGE SHEA: Precisely. So go
3 right up to the Hill and get Congress to
4 change that. And then we'll have that
5 uniformity that I think is appropriate.
6 If you think in terms of -- the
7 current financial crisis has produced
8 rethinking of a number of things. I don't
9 think it's -- I know that people are
10 questioning whether the patterns of severity
11 produced by state legislatures and Congress in
12 the last ten or 15 years, reacting to certain
13 kinds of problems or perceived problems, and
14 the mandatory minimums imposed have filled our
15 prisons with more people than any country in
16 the history of the world. Over two million
17 people.
18 And so you have to ask yourself
19 when you're talking generally about the
20 justice system and we talk about people in
21 prison, the cost of that seems to me is a
22 rational factor to be considered.
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1 COMMISSIONER FRIEDRICH: But you
2 don't think that that is a factor Congress
3 considers when it passes legislation?
4 JUDGE SHEA: If you tell me that
5 they ask for your input on that, then they do,
6 because I have to accept your word for that.
7 COMMISSIONER HOWELL: I actually
8 was very intrigued by your comments about the
9 costs of imprisonment and given our country's
10 rate of incarceration, I think that it's
11 something that Congress should pay a lot more
12 attention to and they should ask for prison
13 impact statements far more often than they
14 generally do.
15 And one of the things that the
16 Sentencing Commission is actually tasked with
17 under its organic statute, and I'll just --
18 I'll just alert you to this in case you're
19 interested -- under 28 USC 994, is to
20 formulate the guidelines to minimize the
21 likelihood that the federal prison population
22 will exceed the capacity of the federal
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1 prisons as determined by the Commission.
2 And it's something that in terms of
3 our statistical analysis the Commission, when
4 we consider retroactivity, for example, or
5 even amended guidelines that we think -- we
6 always ask, you know, how many more people
7 will be affected by this, how much longer will
8 they serve in prison, we basically get prison
9 impact systems for everything that we
10 consider. We don't necessarily share that
11 information publicly when we -- when we
12 promulgate amendments. And do you -- do you
13 think that that kind of information, you know,
14 would be something that would be helpful for
15 the Commission when it is promulgating its
16 amendments, to issue either amendments that
17 are the result of directives from Congress or
18 our own?
19 For example, the crack
20 retroactivity amendment, where we most
21 certainly looked and did a very detailed
22 retroactivity analysis of how many
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1 incarcerated defendants would be affected.
2 And so we knew the number was going to be
3 about 20,000 incarcerated defendants were
4 going to be released earlier than before. And
5 we did an analysis of the effect it was going
6 to have on prison beds.
7 JUDGE SHEA: I'm respectful of the
8 analysis that you did I --
9 COMMISSIONER FRIEDRICH: Right.
10 And so that's one where we actually published
11 the analysis, that we generally do for almost
12 all of our amendments, particularly those that
13 we want to apply retroactively.
14 Do you think that more information
15 like that, even if you are, you know, barred
16 from conserving -- infuse the court's view --
17 retail level at sentencing.
18 JUDGE SHEA: Right.
19 COMMISSIONER FRIEDRICH: Is that
20 something that you think would be helpful
21 generally if we published more information
22 about that?
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1 JUDGE SHEA: Yes, I would welcome
2 that. And I -- while I'm barred, I make that
3 observation at every sentencing and try to
4 promote an appeal so we can get that
5 reconsidered, but --
6 COMMISSIONER FRIEDRICH: Right.
7 JUDGE SHEA: -- we'll see how that
8 turns out.
9 You know, if Judge Winmill has any
10 thoughts on that.
11 JUDGE WINMILL: Well, one initial
12 thought is similar to what was just expressed.
13 It seems to me that it's a problem that cuts
14 across every case type and it's not unique to
15 a particular case. It's a systematic problem
16 that needs to be addressed. And I think it
17 appears to me the role of the Commission is to
18 do what it can to ensure that we're
19 controlling prison populations, which is an
20 indirect way of doing exactly that.
21 I think it's on the background of
22 every judge's mind along with a lot of other
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1 factors, that it should play out in every case
2 in roughly the same way because it is, I think
3 as Judge Shea said, it truly is just the
4 flipside of protecting society. It's the cost
5 of protecting society, so we're deciding
6 whether we need to protect society. In this
7 particular case what we're really asking
8 ourselves is it worth the cost of $2,000 per
9 month for this individual to be locked away so
10 that we can ensure they won't be dealing
11 drugs, possessing firearms, illegally
12 reentering this country, or doing all those
13 kind of things.
14 So I think it is playing out in the
15 background of every judge's mind when they
16 impose sentence.
17 I guess my own view, I don't think
18 I need to be able to explicitly tell, and
19 maybe that's why my cases don't, on that issue
20 at least, don't get reversed, as it's playing
21 around, banging around in my mind, but it's
22 not something that I've ever felt the need to
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1 be explicit about, so -- I've never --
2 JUDGE SHEA: You're leading with
3 your chin -- you're leading with your chin on
4 the issue.
5 JUDGE WINMILL: The bristles don't
6 bother me. It's a pattern of --
7 JUDGE SHEA: Well, I just like the
8 extra work, of having to redo things, so.
9 JUDGE WINMILL: Well, I look at it
10 as every time you make those decisions, you
11 add to the body of law whether the Ninth
12 Circuit adopts my views or whether it rejects
13 them. We're all better informed as judges
14 because I raise the issue as much as Judge
15 Walker raised the issue of the quantity and
16 quality of drugs. I think that's what those
17 judges do, they question the criteria that the
18 Commission sets out. And even they question
19 the Ninth Circuit's rationale for their
20 decisions, which is I think a healthy
21 exercise.
22 COMMISSIONER HOWELL: I also was
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1 very appreciative that you raised the relevant
2 conduct issue. And I just wondered, you
3 raised it in the context of the drug quantity,
4 and I just wondered whether you --
5 JUDGE WINMILL: Well, it would have
6 just obviously would apply inversely to
7 everyone --
8 COMMISSIONER HOWELL: And that's
9 what I wanted to clarify, whether you saw
10 issues with both disparity, prosecutorial
11 manipulation of the facts presented to the
12 court, with the relevant conduct not just in
13 the drug context, but also across the board,
14 number one.
15 And, number two, -- which you just
16 answered.
17 And, number two, do you have
18 suggestion for the Commission of how we might
19 review or modify our relevant conduct
20 provision? And you say that you require
21 overwhelming evidence which you've sort of
22 built into your application of 1B1.3.
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1 JUDGE WINMILL: Well, --
2 COMMISSIONER HOWELL: Is that
3 something that you think that we should
4 consider incorporating to apply across --
5 across the board?
6 JUDGE WINMILL: I don't know that
7 my view is better, but I think a consistent
8 view would be important across the board and
9 that each district not employ a somewhat
10 different view of what they're going to
11 require in terms of relevant conduct.
12 I went back and forth on the issue
13 until I finally -- and then apart, but I was
14 driven by the concern that the guidelines in
15 drug quantity -- in drug cases are so driven
16 by drug quantities, --
17 COMMISSIONER HOWELL: Right.
18 JUDGE WINMILL: -- that's where it
19 becomes, you know, critical. And so for that
20 reason I adopted a fairly stringent view and
21 instructed probation officers that they're to
22 take a very conservative calculation -- make a
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1 very conservative calculation of drug
2 quantities.
3 The problem is, and I just thought
4 of it actually as Judge Walker was speaking,
5 that I may have created a potential for an
6 unjust sentence. Because while that works
7 appropriately for someone who's a low level
8 drug dealer, they're not getting tagged with
9 drug quantities involved in the drug
10 conspiracy, but of which they had no personal
11 knowledge. But, on the other hand, it may
12 handcuff you when I'm dealing with a higher-
13 level individual who never puts their hands on
14 the drugs. And it creates sort of a -- it
15 handcuffs me in terms of maybe finding the
16 appropriate sentence for people further up the
17 food chain, as I had described it, if I take
18 that same approach.
19 So the bottom line is I'm still
20 struggling with it myself. I'm just observing
21 there's a problem of inconsistency in that
22 area. You know, as President Obama said
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1 during the debates about determining when
2 concept- -- when life begins, it's above my
3 pay grade, I'm going to kick it to you guys to
4 figure that out, but it's just an observation
5 that I think bears addressing to see if we
6 could at least look at the definition of
7 relevant conduct and see if indeed there is
8 some variety of approaches in the different
9 districts who perhaps define it more narrowly.
10 VICE CHAIR SESSIONS: I want to
11 thank you both for coming. And I didn't know,
12 we were confirmed on the same day.
13 JUDGE WINMILL: That's right. Yes.
14 VICE CHAIR SESSIONS: On the same
15 exact day.
16 I have a couple of questions to
17 ask. The first is what impact in a different
18 kind of sense Booker's had in your course.
19 What I've observed about the criminal justice
20 process is that when you make a change in
21 regard to authority or power over sentencing,
22 giving more or less power to one participant,
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1 that oftentimes there's a kickback from the
2 other participants in the system, a pullback
3 in regard to their authority. It's almost a
4 push-and-pull kind of situation.
5 And we've heard yesterday that in a
6 number of jurisdictions in light of the fact
7 that judges have more discretion post-Booker
8 that there may be more filing of 851 charges,
9 there may be more 11(c)(1)(C) pleas and
10 mandatory minimums being pursued more
11 rigorously. I'm interested to know whether
12 you see in fact that happening in your
13 jurisdiction as a result of the post-Booker
14 world.
15 And the second sort of related
16 question focuses in upon what we heard, what
17 you and I heard the attorney general say about
18 low-level drug defendants and how there should
19 be alternatives to imprisonment in regard to
20 low-level drug defendants.
21 And, you know, we asked questions:
22 Are there low-level drug defendants within
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1 the federal system. And, you know, some
2 people have said to us that because it's the
3 federal system, that these really aren't --
4 there are not many people who would be
5 impacted by alternatives to imprisonment for
6 low-level, nonviolent drug defendants. And
7 I'm interested to know whether you -- what
8 your observations are in regard to whether or
9 not there are those persons in the system.
10 JUDGE SHEA: I don't think so. For
11 me, when I think about the experience we have
12 in our neighbors, Idaho and Washington and
13 Eastern Washington and Idaho, I think probably
14 have some comparative case statistics. So I
15 don't see either any increase in the
16 11(c)(1)(C)s. I don't see the USAO or the DOJ
17 taking the position to try to push back onto
18 the increased discretion.
19 And of course that's all driven by
20 the United States Attorney in that district as
21 well as DOJ policy, so you have both the
22 personality of the United States Attorney in
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1 the district and then you have DOJ policy, and
2 I've not seen that in Eastern Washington. And
3 I'll...
4 JUDGE WINMILL: I would say the
5 same. In fact, I was thinking about I feel
6 I've seen a few more 851 informations. But,
7 as I said earlier, they're almost more of a
8 threat than a reality. It's a threat, 'We
9 will file this if we can't get a plea
10 agreement.' But I haven't seen a great deal
11 of that.
12 I think part of it is that,
13 frankly, the availability of the volume of
14 5K1s, the government I think has always been
15 kind of invested in the resolution of these
16 cases in a way that avoids going to trial.
17 And I think giving the judges more discretion
18 is not that problematic because they're making
19 recommendations for lower sentences in a large
20 percentage of the cases.
21 I mean I sometimes wonder when I've
22 had like 25-defendant drug conspiracy cases
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1 and I'm trying -- sometimes I'm not sure if
2 anybody didn't get a 5K1. It's like
3 everybody's just pointing fingers at each
4 other in order to get some benefit. I'm
5 assuming somebody must be at the top, again,
6 of the food chain. And they presumably didn't
7 get a 5K1, but the government's been so
8 involved in that historically that I don't
9 think they felt the need to have a tremendous
10 amount of pushback against continued judicial
11 discretion, because once they filed that 5K1
12 they essentially vest the judge with quite a
13 bit of discretion about how far downward to
14 the part.
15 VICE CHAIR SESSIONS: And do you
16 see many low-level drug defendants in your
17 court?
18 JUDGE WINMILL: That's a very good
19 question. Both of our courts have what we
20 call reentry programs, in which we treat it as
21 an attempt to mainstream troubled individuals
22 through supervised release and to keep them
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1 from reoffending and then going back to prison
2 on revocation petitions.
3 I don't see a lot of cases that I
4 think would be appropriate for a true
5 diversion program, which is the more classic
6 drug court that you see in state court. Judge
7 Aiken, from Oregon, who's been a super
8 advocate of more aggressive, almost social-
9 work type approach to this, feels that there
10 are a lot of these cases. But, frankly, I
11 think they're being handled primarily in state
12 court.
13 I think the drug -- typically it's
14 someone who is more of a drug user or a very,
15 very low-level drug distributor that might
16 profit from that, and we just don't see that.
17 They tend to go to state court and get
18 resolved there.
19 JUDGE SHEA: A number of drug
20 offenders get swept up in the conspiracies.
21 JUDGE WINMILL: Yeah.
22 JUDGE SHEA: That's where you see
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1 them. There's a 15- or 20-person indictment
2 and 12 or 13 of them are just people who have
3 been running around distributing low level,
4 minor quantities of drugs as part of the
5 overall conspiracy. So they're in a tough way
6 because there are two counts. There's the
7 distribution count and the conspiracy count.
8 And that's what I see regularly.
9 JUDGE WINMILL: We don't -- you
10 know, I think there's a real cooperative
11 effort between the state and the federal
12 authorities, so the low-level folks have been
13 charged in state court coming out of the same
14 conspiracy. We end up getting mostly just the
15 high-level distributors, so it's a little
16 different animal.
17 JUDGE SHEA: In our jurisdiction
18 multiple-defendant cases, a dozen or more
19 people, are increasing. So I'm handling a 30-
20 person, statewide distribution case at the
21 present time.
22 VICE CHAIR SESSIONS: So would many
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1 of those be low-level, nonviolent drug
2 offenders that could receive the benefit from
3 --
4 JUDGE SHEA: They are low level.
5 It would be in the sense that they are --
6 they're only a small cog in the overall
7 machine of that distribution. And nowhere
8 near the top. They're just making a few bucks
9 delivering drugs or feeding their habit by
10 cutting a little off the top.
11 JUDGE WINMILL: But I do -- I
12 really would endorse the idea of changing
13 those provisions that talk, you know, about
14 zone A, B, C, and D, and giving us some more
15 discretion, perhaps a little bit further up or
16 down, I guess, the grid, to consider some
17 alternatives, like probation, which I think is
18 a critical part of any kind of a quasi-
19 diversion program. If you're trying to keep
20 someone from going to prison, obviously you
21 better not send them to prison, so I think
22 having probation as an option further down the
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1 grid might be a real help in that regard.
2 I am a real advocate of
3 alternatives not just in drug cases but I
4 think people involved in embezzling, fairly
5 small amounts, but involving federal
6 institutions, so that -- here in federal court
7 I think there is a lot of cases where I think
8 some type of diversion and consideration, like
9 weekends in jail, things of that sort, should
10 be considered.
11 But in small districts, because we
12 don't have any Federal Bureau of Prison
13 facilities really for some distance, even in
14 Washington it's a problem, the alternatives
15 are just not available. And I've had
16 communications with the Bureau of Prisons
17 about that. And I think we'd all like to
18 address that.
19 JUDGE SHEA: Yeah. Because when I
20 was in the -- doing criminal defense work in
21 the state system, Work Release was a program
22 that really, I thought, worked well. And
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1 there are some cases -- and, on the other
2 hand, I don't how much you steal, if you steal
3 you go to prison.
4 JUDGE WINMILL: My sense is that
5 you can go to prison, but perhaps keep your
6 job during the week so you can support a
7 family, but -- with a work-release program.
8 JUDGE SHEA: It depends. And the -
9 - my take is that white collar criminals go.
10 If I send some poor addict, white collar
11 criminals are going. If you steal $10,000
12 from the Post Office, you embezzle it, you're
13 going. And I say that because I think it's
14 only fair to treat all of them so that you're
15 not having disparate sentences.
16 And the drug guidelines are so
17 tough on the addicts and yet a person who
18 embezzles from a credit union or from a labor
19 union or from that sort of thing, everybody is
20 very empathetic about it and they don't want
21 to see him go to prison. It's remarkable.
22 And I take the quite different view. I say,
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1 "Don't -- you can come and make the
2 recommendation, but they're going now." That
3 said, I'd love to have in the federal system a
4 work-release program where we could permit
5 them to continue to work and at the same time
6 punish them for their misdeeds.
7 But it's very difficult to get it
8 because of the -- we're very large districts:
9 The entire state for Idaho and we're Eastern
10 Washington, which is sizable geographically.
11 And we have three locations, but only have, I
12 think, two locations with work-release
13 programs. So if you live in Spokane and --
14 you're okay. If you live in Wenatchee or
15 Walla Walla, you're not, so.
16 COMMISSIONER WROBLEWSKI: Thank
17 you, Judge. And thank you both for being
18 here.
19 I have two quick questions. Judge
20 Winmill, you talked about and identified a
21 problem that has been plaguing us in the
22 sentencing system since the advent of the
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1 Sentencing Reform Act, and that's the
2 prosecutor's ability to -- I think your word
3 was -- manipulate sentences.
4 JUDGE WINMILL: I call it gaming
5 the system, is another way.
6 COMMISSIONER WROBLEWSKI: Right.
7 And the way the Justice Department has tried
8 to deal with that since the beginning of the
9 Sentencing Reform Act was to require through
10 internal policies that prosecutors charge the
11 most serious readily-provable offense, and
12 that policy is roughly the same, been the same
13 throughout administrations, Republican and
14 Democrat.
15 Obviously there are questions about
16 how much it's followed all over the country.
17 And now in the new administration we're
18 reviewing that policy. First, do you think
19 that is the right policy to deal with the
20 problem that you've identified? And, if not,
21 what is a better policy?
22 And then, Judge Shea, you talked
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1 about of course the cost of imprisonment, and
2 I think there has been a great desire to look
3 at the cost and benefits of imprisonment. And
4 this relates -- this question relates to the
5 question I asked Judge Walker: How in some of
6 these cases do you determine the benefits?
7 Obviously it's easy to determine the costs,
8 but in a case -- the case that you described
9 where you have someone who has committed
10 murder and has been deported and has been
11 brought back, the idea behind the guidelines
12 is that when someone like that is caught,
13 there is a risk if they're just deported that
14 they'll come back and they may commit some
15 additional crime.
16 And, as I mentioned before with
17 drug crimes, it's very, very difficult to
18 identify, perhaps impossible to identify the
19 harms that are associated or that might be
20 associated with that crime. So my question to
21 you is: How do you weigh the costs and
22 benefits?
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1 JUDGE WINMILL: Just quickly, as I
2 said earlier, I'm not sure I have an answer
3 for that problem either. You know, I'm aware
4 of, I guess, the Ashcroft memo and before
5 that. I mean every administration has the
6 memo which says almost exactly the same thing
7 as you've described. Not only that they must
8 pursue -- only accept a plea to the greatest
9 readily-provable offense, I think is the
10 phrase, on a plea agreement.
11 The problem is the memo's there. I
12 think it's followed to some extent, but it's
13 -- and obviously I don't think the judges
14 should be involved in policing that. I
15 sometimes feel like I would like to because I
16 get a case where it's pretty clear to me that
17 someone just didn't want to take his to trial,
18 and I think they are pleading to a fairly
19 innocuous offense. And I'm seeing other
20 defendants involved in the same drug
21 conspiracy pleading to the conspiracy count as
22 opposed to one substantive count and facing
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1 much longer sentences.
2 But we're really at the mercy, I
3 think, of the U.S. Attorney. And they're --
4 COMMISSIONER WROBLEWSKI: But do
5 you think it's the right policy -- if we do a
6 better --
7 JUDGE WINMILL: I don't -- I think
8 --
9 COMMISSIONER WROBLEWSKI: -- job of
10 enforcing it?
11 JUDGE WINMILL: Yeah. I can't come
12 up with a better policy. I mean what you may
13 be doing is just pushing back to kind of
14 charge bargaining, you know, even before you
15 decide what we're going to present to the
16 grand jury, or looking forward to what you're
17 going to try to negotiate. I don't have an
18 answer. I wish I did, but I think that's
19 probably as good as we can get. If I come up
20 with a better solution, you'd be the first to
21 know.
22 COMMISSIONER WROBLEWSKI: Thank
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1 you.
2 JUDGE SHEA: You wanted to know --
3 remind me of your question again -- I was
4 thinking through some --
5 COMMISSIONER WROBLEWSKI: The cost-
6 benefit analysis, which I think is the right
7 one, the costs are easily determined, $2,000 a
8 month, if we send them to prison. But the
9 benefits in terms of addressing the public
10 safety risk in a case like an immigration case
11 or a drug case or something like --
12 JUDGE SHEA: Yeah, that's the
13 point. If you take a 1326 and you compare it
14 to a violent felony, then it's self-evident.
15 I mean if you have a violent bank robber who
16 walks into a bank with a weapon, that's -- the
17 cost-benefit analysis is that person is going
18 to commit a violent crime, a high risk to
19 injuring the public.
20 A 1326 who -- you can have any
21 record you want. If that record reveals no
22 prior and no subsequent criminal activity to
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1 speak of, driving while intoxicated -- minor.
2 And it's been several years and you have a
3 taxpaying profile of a worker, et cetera, then
4 what's the point of keeping that person under
5 a 1526 severe sentence in our country when
6 they should be deported to the country of
7 their birth and save the taxpayers $2,000 a
8 month?
9 On the other hand, if it's a
10 violent felony, then it's worth the payment
11 that you make, and that's the kind of
12 judgments that district court judges make day
13 in and day out. And that's what -- and I'm
14 grateful for the opportunity to make that
15 judgment.
16 JUDGE WINMILL: Could I make one
17 comment? And I --
18 JUDGE SHEA: Only if you agree with
19 me.
20 JUDGE WINMILL: No, I agree with
21 what you said.
22 In the area of the illegal reentry
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1 I think there are two really troublesome areas
2 for me, and that's the two matters that are
3 considered violent crimes and result in a 16-
4 level enhancement. One is the statutory rape,
5 which varies so much from state to state as to
6 what is statutory rape. Now I know under that
7 qualified -- what's the term -- qualified
8 category -- -- no, quantifiable categorical
9 approach, you know, where we're required to
10 compare the state statute with kind of a
11 generic statute, but I think there's real
12 mischief there.
13 You can have situations where
14 they're not even close to a violent crime and
15 it's hard to even imagine why one would
16 consider violent -- you have a 16-level
17 enhancement that is just out of whack. I
18 think burglary on a dwelling is another that's
19 considered a violent crime under the
20 guidelines. That just -- I really -- that can
21 get to a pretty innocuous offense.
22 JUDGE SHEA: Statutory rape is very
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1 -- can be a vexing issue. I had a person -- I
2 sentenced a person who was married to the
3 person who was the alleged victim of the
4 statutory rape. And it's --
5 JUDGE WINMILL: And they get a 16-
6 level enhancement.
7 JUDGE SHEA: And they did and it
8 was a very troublesome case because they were
9 then married. But there is some sound
10 reasoning for the philosophy underlying why
11 13-, 14-, or 15-year-old girls ought not to be
12 able to consent. There's very sensible social
13 policies that underlie that law. And so -- on
14 the other hand, when we find the person
15 married with a couple of children, it's very
16 difficult to rationalize this sentence. It's
17 very difficult.
18 JUDGE SHEA: I --
19 JUDGE WINMILL: Is that what you
20 mean, too, those policies?
21 JUDGE SHEA: Yeah, well, they're
22 pinch points, and those are two that I've seen
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1 on 1326 cases, but anyway.
2 ACTING CHAIR HINOJOSA: Well, thank
3 you all very much and we certainly appreciate
4 your patience having sat through the questions
5 before and now your questions. Thank you very
6 much.
7 We'll take a five-minute break.
8 (Recess taken from 10:19 a.m. to
9 10:35 a.m.)
10 ACTING CHAIR HINOJOSA: We're ready
11 to start the next panel, who's been patiently
12 waiting. First we have Dean Kevin Cole who
13 was named Dean of the University of San Diego
14 Law School in 2006. He did serve as interim
15 dean prior that since July of 2005. He
16 clerked for the U.S. Court of Appeals for the
17 Sixth Circuit and he practiced law in
18 Philadelphia before joining the faculty of the
19 University of San Diego Law School in 1997.
20 He is the coauthor of both the Federal
21 Sentencing Guidelines Handbook and the Federal
22 Sentencing and Forfeiture Guide.
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1 We also have Professor Robert
2 Weisberg who works primarily in the field of
3 criminal justice and writing and teaching in
4 the areas of criminal law, criminal procedure,
5 white collar crime, and sentencing policy. He
6 founded and now serves as Director of the
7 Stanford Criminal Justice Center and was a
8 consulting attorney for the NAACP Legal
9 Defense Fund and the California Appellate
10 Project. And he was a law clerk to Justice
11 Potter Stewart of the Supreme Court and Judge
12 James Skelly Wright of the U.S. Court of
13 Appeals for the D. C. Circuit.
14 Then we have Professor Frank
15 Zimring who joined the Boalt Hall School of
16 Law faculty at U.C. Berkeley in 1985 as
17 Director of their Earl Warren Legal Institute.
18 His major fields of interest are criminal
19 justice and family law with special emphasis
20 on the use of empirical research to inform
21 legal policy. Professor Zimring was a member
22 of the University of Chicago Law faculty and a
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1 Professor of Law there and was Director of the
2 Center for Studies in Criminal Justice there.
3 We appreciate each one of you
4 taking time out from your busy schedules to
5 share your thoughts with us with regards to
6 the federal sentencing process. And we will
7 start with Dean Cole.
8 DEAN COLE: Thank you, Judge and
9 Members of the Commission. I had hoped to get
10 here yesterday to listen to the testimony and
11 was detained and wasn't able to make it, but
12 just from being here this morning I'm glad I
13 wasn't here yesterday because it would have
14 just driven home the point that I had nothing
15 new to say. And I think that probably at this
16 point if you have something new to say about
17 the guidelines, you're wrong.
18 So let me just make a couple of
19 observations, points of emphasis, perhaps,
20 where I think future work might be justified,
21 spend a few minutes this morning discussing
22 the criticism that the guidelines are in some
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1 respects calling for sentences that are overly
2 severe. And it's a criticism, of course,
3 that's been frequently directed at the drug
4 offenses.
5 I begin by briefly describing what
6 I see as the origins of the severity
7 objection, and then I want to turn to a
8 suggestion about how the experience of the
9 judiciary might be enlisted to help the
10 Commission in the work it's already begun to
11 address and achieve an acceptable consensus on
12 severity issues, with reference to a couple of
13 instances that illustrate the severity concern
14 that arise in the connection with drug
15 offenses but some of which are also of a more
16 general concern as well.
17 The first 25 years of the federal
18 sentencing guidelines, I think, does not prove
19 the adage that timing is everything, but the
20 experience certainly illustrates that timing
21 is something. As has often been noted, the
22 guidelines came into being at about the same
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1 time as statutory mandatory minimum drug
2 sentences triggered by the quantity of drugs
3 involved in the offense.
4 Many actors in the system,
5 including many judges, regard these mandatory
6 minimums as unduly harsh. The Commission
7 calibrated sentences for drug offenses
8 involving smaller drug quantities to the
9 penalties in the mandatory minimum statutes.
10 The Commission's decision in that regard I
11 think was defensible, but it infected the
12 guidelines with the same malady that so many
13 perceived in the mandatory minimum offenses
14 themselves.
15 At least some of the initial
16 backlash against the guidelines arose from
17 this sense that they were too harsh. And the
18 judges who perceived the guidelines to be too
19 harsh found a large group of academics who
20 shared their viewpoint.
21 The attack was not confined to the
22 claim of harshness. Indeed, those who
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1 believed the guidelines to be overly harsh
2 probably perceived that that argument would
3 have limited appeal. After all, Congress must
4 have thought that voters would have approved
5 the mandatory minimums that they enacted. And
6 arguments about what penalties are excessive
7 for a particular crime are notoriously mushy.
8 People can readily agree in the abstract that
9 offenders should not get more punishment than
10 they deserve, but when we attempt to translate
11 and result to months in prison, that's where
12 we find out where we disagree.
13 The criticism of the guidelines
14 have taken many forms and once articulated
15 these criticisms tend to take on a life of
16 their own. It would be a mistake to think
17 that each criticism of the guidelines is
18 merely a roundabout attack on severity, but it
19 seems advisable to consider that some of these
20 criticisms might be moderated if severity
21 considerations can be addressed in a
22 satisfactory way.
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1 It is tempting to hope after Booker
2 that severity concerns will take care of
3 themselves. Judges will vary from guidelines'
4 sentences when they believe variance is
5 warranted. The Commission can examine where
6 the variances occur and adjust the guidelines
7 as information flows in about the sentences
8 that the judges on the front lines approve.
9 In getting a handle on this mushy
10 question of what sentence falls within the
11 range that society should regard is deserved,
12 judges are a wonderful resource. But relying
13 solely on individual sentencing decisions made
14 by judges acting in isolation only partially
15 taps the resource.
16 The Commission, I think, should
17 consider augmenting the important work it does
18 in analyzing individual sentencing decisions
19 by facilitating meetings of federal judges at
20 which their judicial instincts could be tapped
21 in a more focused and systematic way, perhaps
22 teeming with or mirroring the model employed
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1 by the Federal Judicial Center for providing
2 continuing education for judges.
3 I know that my own law school would
4 be glad to assist the Commission in staging
5 meetings of this type. I'm sure many other
6 law schools throughout the country would
7 likewise be willing to participate.
8 One advantage of this kind of
9 format is that judges could be exposed to data
10 that they might lack when making real
11 sentencing decisions in isolation. They would
12 also have the benefit of hearing the views of
13 a set of colleagues. And the resulting
14 recommendations could be made available to
15 judges not in attendance, hastening progress
16 toward a set of guidelines that the judges
17 might more commonly find attractive.
18 The recommendations would also give
19 the Commission a stronger basis than isolated
20 sentencing decisions for supporting changes to
21 the guidelines, increasing the odds of
22 Congressional acquiescence and reducing the
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1 risk that Congress will be tempted by some of
2 the methods apparently available to return to
3 a set of mandatory sentencing rules.
4 Several areas of possible reform
5 might fruitfully be explored in this way, and
6 I want to discuss two of them briefly today.
7 I address a third regarding drug quantity and
8 the relevant conduct provision in my written
9 submission. Because of the significance of
10 drug prosecutions to the Federal criminal
11 docket and because drug cases have been an
12 area in which severity concerns have been
13 especially acute, case studies focusing on
14 these issues as they arise in drug
15 prosecutions might be particularly helpful.
16 So let me start with the criticism
17 that the guidelines pay insufficient attention
18 to characteristics of the offender that might
19 traditionally have mitigated the offender's
20 sentence.
21 Professor Doug Berman hypothesizes
22 that the guidelines' formulaic structure may
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1 work against the inclusion of offender
2 characteristics that are "difficult to measure
3 systematically and [can] not [be] easily
4 plotted on a sentencing chart."
5 One might also add that many of the
6 offender characteristics that one might take
7 into account can apply in widely varying ways.
8 For example, if an offender's disadvantaged
9 background could mitigate punishment, then one
10 might rightly wonder how disadvantaged a
11 background would need to be to justify a
12 sentence reduction. Trying to capture a level
13 of disadvantage in a verbal formulation would
14 be a difficult task, as would be attempting to
15 grade levels of disadvantage that exceed the
16 minimum.
17 Both questions of the typically
18 sensible reduction for particular mitigating
19 factors as well as the best verbal formulation
20 to address those factors could be fruitfully
21 developed and tested by presentation of sample
22 cases to groups of judges. In response to a
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1 sample case, these judges could be asked first
2 whether they find the typical guideline
3 sentence appropriate in the ordinary case;
4 second, if not, what sentence they believe
5 would be appropriate in the ordinary case;
6 and, third, what sentence they would give if
7 the offender possessed a particular
8 potentially mitigating characteristic.
9 After answering these questions
10 individually, the judges could then compare
11 their answers and discuss their views, change
12 their answers, perhaps, if they felt
13 appropriate in light of the discussion.
14 In addition to the benefits of
15 allowing quick collaboration among judges in
16 reacting to common case files, these meetings
17 could afford the added opportunity to educate
18 a group of judges quickly and efficiently on
19 facts that might enter their decisionmaking
20 processes only haphazardly in the course of
21 making individual sentencing decisions in real
22 cases.
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1 As to the issue of possibly
2 mitigating offender characteristics, for
3 example, federal judges at a sentencing
4 meeting might benefit from sessions
5 highlighting the approach of various state
6 jurisdictions to a particular potentially
7 mitigating factor, setting forth any
8 diagnostic difficulties or uncertainties
9 associated with the factor, and assessing how
10 common the factor is among the criminal
11 population generally, which might counsel in
12 favor of setting normal sentences to capture
13 the factor instead of having a separate
14 mitigating defense recognized.
15 Another area that might fruitfully
16 be explored in this format is the suitability
17 of replacing prison sentences in some less
18 serious cases with non-prison sentences, like
19 fines, restitution orders, house arrest,
20 probation, and the like.
21 Dean Nora Demleitner has
22 thoughtfully explored the possibility that
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1 further use of such sanctions could alleviate
2 the resource problems caused by the extensive
3 use of incarceration in this country. It is
4 also at least possible that some of these
5 sanctions, by disrupting less severely the
6 offender's legitimate employment prospects,
7 could have fewer of the negative long-term
8 effects attributable to our heavy use of
9 imprisonment.
10 The educational benefit of
11 addressing these questions with a group of
12 judges could be significant. Because of
13 certain legal obstacles to use of some of the
14 sanctions and certain kinds of cases, judges
15 may not have a great deal of experience with
16 some of the sanctions and may not have thought
17 systematically about how all of the possible
18 sanctions might be employed or combined.
19 Moreover, some non-prison sanctions
20 might currently only be available in certain
21 districts, further underscoring the benefits
22 of education. Judges could be educated about
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1 the sanctions, information about state systems
2 could be useful, and if the sanctions were
3 identified as being particularly attractive to
4 judges, then the Commission might recommend
5 that Congress mandate the availability of some
6 of these sanctions or remove legal obstacles
7 to their use.
8 One problem that can arise with
9 increased use of nonprison sanctions is the
10 perception that they simply aren't serious
11 enough in comparison to a prison sanction.
12 The collective judgment of experienced
13 sentencing judges that particular sanctions
14 are an apt substitute for imprisonment, either
15 singly or in combination, could be extremely
16 valuable in convincing Congress and the public
17 that these sanctions deserve the same
18 acceptance in our federal system that they
19 receive in state systems and abroad.
20 And, in particular, a more
21 aggressive use of fines might be a strategy
22 that judges would find attractive and that
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1 could be presented to Congress, not as a way
2 of reducing sentences that are imposed on
3 offenders but rather substituting one kind of
4 sanction for another kind of sanction that has
5 less cost for society.
6 So in conclusion I just would say
7 that even in an era of advisory guidelines,
8 the Commission can do much to promote sound
9 sentencing policy widely embraced by actors
10 within the system as meting out fair
11 punishment. The judiciary can and should be
12 among the Commission's greatest resources in
13 that job.
14 Thank you.
15 ACTING CHAIR HINOJOSA: Thank you,
16 Dean Cole.
17 Professor Weisberg.
18 PROFESSOR WEISBERG: Thank you,
19 Judge. And may I just say on behalf of my
20 home university here that we are honored that
21 you came. And I'd like to note that Judge
22 Sessions was our distinguished guest just a
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1 couple of years ago in an event here on The
2 Global Victim in the Criminal Justice Process.
3 And, of course, we're looking forward to have
4 our distinguished alumnus Mr. Wroblewski here.
5 I should also mention that the
6 Blakely case, which led to Booker which led to
7 the situation we're all in, was argued, as you
8 probably recall, by then Seattle lawyer,
9 Jeffrey Fisher, who is now my colleague here
10 at Stanford Law School. So you might say that
11 you have not returned to the scene of the
12 crime, but at least the current home venue of
13 the perpetrator.
14 (Laughter.)
15 PROFESSOR WEISBERG: The theme of
16 my brief remarks, and I'm going to alter
17 slightly the written remarks I submitted, is
18 that a large if admittedly speculative and
19 vague factor to keep in mind as the Commission
20 moves forward is the possibility that Congress
21 may act and the question of how the Commission
22 might best prepare for the possibility of
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1 Congress acting.
2 The guidelines are currently in a
3 state of suspended animation. I stress both
4 words in that cliché. They are suspended of
5 course because in light of Booker they are
6 merely advisory and always remain subject to
7 the possibility of some congressional
8 revision. But it's also in a state of
9 animation in a good sense because the
10 Commission remains active and productive,
11 generating new research, new refinements of
12 the guidelines in harmony with the original
13 congressional mandate, and in accord with its
14 mandated processes.
15 Now, as you've heard from many
16 speakers here, there's a little dissent from
17 this, but I think there is something like a
18 consensus. The current situation is
19 reasonably healthy, it's a kind of equilibrium
20 that exhibits certain healthy characteristics,
21 even though the equilibrium seems to have been
22 come to rather [] accidentally.
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1 There are varying degrees, and
2 we've heard on the degree of federal district
3 court compliance with the guidelines, but on
4 the whole a very high level of generality.
5 Faithfulness to the guidelines remains high
6 and the predictions that Booker would wreak
7 havoc have been largely disproved. A federal
8 court guidance has provided a modest but
9 fairly effective check on our reasonableness
10 in connection with the guidelines.
11 And although concerns remain about
12 disparity, it's not clear [] that that much
13 new concern about disparity is really
14 attributable to Booker. In some ways the
15 concerns about disparity are the continuing
16 concerns and not necessarily severe ones that
17 have been with us for about 20 years now.
18 Now I thought about this
19 equilibrium. There may be some clever deity
20 up here who -- up there who decided some years
21 ago that the pre-Booker guidelines needed to
22 be revised in order to make them somewhat
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1 advisory and therefore designed this scheme
2 whereby somebody would discover or rediscover
3 a Sixth Amendment principle that hadn't
4 received much attention. That principle can
5 be dramatically applied to guidelines. And
6 the logical consequence of that application
7 would be a kind of revised system we have now,
8 a kind of second Sentencing Reform Act.
9 Well, if that was the divine plan
10 then it was based on a theology which escapes
11 me. In some ways this really is an accident.
12 Obviously there were important constitutional
13 principles underlying the application of the
14 Sixth Amendment, but to borrow some language
15 from Dean Cole's written remarks, there's a
16 complicated relationship and a difference
17 between the constitutional and the normative.
18 It is not as if the motivating Sixth
19 Amendment principle that led to Booker had to
20 do with a desire to make the guidelines more
21 advisory. The relationship between the Sixth
22 Amendment and the remedial outcome we have is
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1 kind of complicated and was not entirely
2 foreseeable.
3 Therefore, what has the
4 manifestations of a pretty stable equilibrium
5 in the system we have right now, it obviously
6 rests on a rather odd and shaky legal
7 foundation, and we have to allow for the
8 possibility that Congress may act. Three
9 years ago I think many of us were under the
10 impression that Congress would act very, very
11 quickly. And, other things being equal, we
12 may all be relieved that it didn't on the
13 theory that a quick reaction may not have been
14 a very good one.
15 I have no inside information or any
16 expertise as to whether Congress will act in
17 whatever foreseeable future one imagines, but
18 I think the possibility remains worth
19 considering.
20 If Congress does act, it could end
21 up Bookerizing the guidelines in any one of
22 the numerous ways the various lawyers and
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1 academics have suggested. It could, on the
2 other hand, change the guidelines in ways that
3 have little to do with Booker, but simply take
4 the occasion of Booker, you know, to
5 implement. No one knows what the final
6 product is going to look like.
7 To the extent that Congress does
8 relegislate things, it may choose to render
9 statutory many things which are now
10 substatory, the guidelines. And in that
11 regard I think the Commission might well just
12 consider, at least as a kind of a side bet, as
13 a kind of hedging strategy, how to think about
14 future guidelines in such a way as to ease and
15 optimize a possible congressional action or
16 adoption.
17 In that regard one could speak of
18 many virtues that the Commission might have in
19 mind that it wants Congress to have in mind in
20 terms of an ideal sentencing structure. But
21 in the interests of simplicity I will focus on
22 only one virtue and, speaking in a circle, as
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1 I often do, the virtue I want to stress most
2 of all is simplicity.
3 We can imagine Congress replacing
4 the guidelines with statutory rules of
5 sentencing that amount to subcalibrations of
6 the current statutes defining federal crimes.
7 One thing of course we always have to keep in
8 mind is that the guidelines themselves have in
9 many ways become a federal criminal code to
10 supplement or to make up for the absence of a
11 coherent federal criminal code. That's the
12 big background to all this.
13 One reason for the complexity of
14 the guidelines is that it is doing the work
15 that Congress perhaps should have done over
16 the last 30 or 40 years, for example, in
17 refining, and just to focus on one very
18 important aspect of criminal law, refining
19 them, rationalizing in some way the mens rea
20 requirements of federal crimes, which are a
21 total mess in terms of actual statutory rules
22 and Supreme Court interpretations thereof.
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1 This wouldn't be the worst result,
2 but regardless of whether the current
3 complexity of the guidelines is justifying a
4 general matter of jurisprudence, and there are
5 many reasons to think it isn't, it's
6 inconceivable that Congress could simply
7 render statutory the current guidelines or
8 anything approaching the current guidelines in
9 their complexity if Congress decided that the
10 solution was to basically move up guideline
11 structures into actual legislation.
12 Therefore, to the extent that we --
13 and this is going to be a very
14 circumloquacious sentence -- to the extent
15 that we might consider the possibility that
16 Congress might see the guideline structure and
17 say, 'Hey, maybe we can kind of adopt a lot of
18 that into legislation,' well, legislation will
19 have to be simpler than the guidelines are now
20 and therefore simplification of the guidelines
21 is, I think, a virtue to keep in mind.
22 Therefore, again as a side bet to a
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1 possible virtue, not necessarily of the major
2 drug in force, as the Commission continues to
3 revise the guidelines, keeping in mind the
4 possibility of a leaner, cleaner system of
5 guidelines, something much less complex than
6 what we have now I think would be a good idea.
7 In that regard an interesting irony
8 which has been the remarked on in the last few
9 days at some points, has been that some of the
10 complexity of structure of the current
11 guidelines that arise from the old parole
12 guideline structure. The great irony there of
13 course is nothing regional about this remark,
14 is that the guidelines of SRA rejected parole,
15 but borrowed a lot of the structure of the
16 parole guidelines, at least in terms of their
17 complexity, into the guidelines we have now
18 and yet again rejected the premises.
19 Now this irony is interesting
20 because, as you've heard before and I think
21 you'll hear again today, [we] really are not
22 removed to a parole system in the future, we
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1 may well choose to agree that the push in the
2 guidelines and any SRA towards a much more
3 attributive, best actus reus system is
4 something of an over correction to the old
5 pre-guidelines, pre-SRA law. And the talk
6 we've heard about enhancing the role of
7 evidence-based practices in federal criminal
8 justice is part and parcel of the general idea
9 that it's more utilitarian, it's not
10 rehabilitation-focused practices, or to bring
11 fraud in.
12 So, again, the irony that the
13 parole guidelines’ -- which we paid lip
14 service to -- rehabilitative and utilitarian
15 goals remain in some ways the historical
16 source [of] more complexity.
17 To just briefly restate my concern
18 about complexity and make one final point
19 about evidence. If you look at the guidelines
20 now, they are indeed one of the more
21 interesting criminal codes in the United
22 States. I know they're not a criminal code.
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1 I'm using that term somewhat metaphorically.
2 But, again, to emphasize that they are in some
3 ways the replacement for the federal criminal
4 code that never got written.
5 One reason for the complexity, and
6 I'm putting aside, because you don't need to
7 hear more about it, the whole matter of drug
8 quantities, is that the originators of the
9 guidelines, the driving forces, the people who
10 drove the SRA, had in mind the highly
11 attributable, again, actus reus based system,
12 and conceived the idea that criminal actions
13 could be described with great, great
14 persuasion. And this goes way beyond the drug
15 quantities. Because all the verbs and adverbs
16 and adjectives that go into the descriptions
17 of human conduct that underlie the guidelines.
18 It's a very impressive achievement and yet in
19 some ways it's an access of real human
20 capacity to understand or, you know, discern
21 the significance of the nuances of human
22 conduct. Its complexity is sometimes beyond
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1 what we could have expected of Shakespeare.
2 If we might imagine Congress acting
3 in the future and maybe taking the occasion to
4 think about the relationship between
5 guidelines and the nonexistent federal
6 criminal code, it may well be that the
7 Commission could revise the guidelines to make
8 them look a bit more like a criminal code but
9 a somewhat simpler criminal code. And I think
10 that's just a kind of broad generalization
11 that the Commission might keep in mind.
12 I also want to pick up on one point
13 that Mr. Mitchell, one of our speakers
14 yesterday, mentioned. Because of the odd
15 causation of the situation we are in now, in
16 the remedial severability decision made in
17 Booker, we have some perfectly sensible
18 guidelines which have the effect of being
19 advisory, but are still written or half
20 written in mandatory terms. I'm putting aside
21 the mandatory minimums. I'm talking about the
22 guidelines themselves.
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1 This would be a considerable
2 literary challenge but one worth considering,
3 and that is if we somewhat -- if the
4 Commission somewhat conformed the language of
5 the guidelines to the current equilibrium and
6 tried to write them in such a way that they
7 were cast more in terms of advisory guidance,
8 because right now they are rhetorically a
9 somewhat mixed model, and in that regard, once
10 again, depending on the choice of alternatives
11 that Congress settles on, the Commission might
12 well be helping Congress in its future role.
13 I guess two final points. First,
14 the irony about using evidence-based
15 practices, as the Commission might consider,
16 is that in some ways focusing on
17 rehabilitative or other utilitarian concerns
18 might be a better justification for complexity
19 than the current actus reus based guidelines
20 are.
21 On the other hand, the debate
22 within the community of academics and
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1 policymakers who focus on evidence-based
2 practices has moved things more in the
3 direction of simplification of evidence-based
4 practices, simplification of predictive
5 instruments, and therefore incorporation of
6 these instruments is a very, very attractive
7 prospect I think for the Commission.
8 My last, last point about this
9 equilibrium. There are other jurisdictions
10 which have approached the kind of equilibrium
11 that the federal system has approach[ed],
12 somewhat accidentally, but then so quite
13 deliberately. It's the other states. This
14 equilibrium looks remarkably like many of the
15 state systems, give or take various parts and
16 give or take versions of mandatoriness. In
17 some ways it resembles Virginia's, which is
18 largely regarded as a very, very successful
19 Commission-guideline structure which is
20 advisory and which is not proven to have
21 greatly exacerbated disparity. There is
22 resemblances to a number of others. And it
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1 isn't that different what might be viewed as
2 the kind of central consensus that's going on
3 in state sentencing these days and that's the
4 model penal code structure, which is
5 presumptive and not voluntary, but again those
6 differences may turn out to be less than meets
7 the eye.
8 [Inaudible.]
9 I thank you.
10 ACTING CHAIR HINOJOSA: Thank you,
11 Professor Weisberg.
12 Professor Zimring.
13 PROFESSOR ZIMRING: Well, the two
14 characteristics that distinguish me from my
15 two distinguished co-panelists are, one, I'm
16 elderly. I'm old enough so that we were
17 kicking around versions of a proposed federal
18 criminal code in 1978, 1979, and 1980, and
19 putting together Marvin Frankel and Hans
20 Zeisel and Norval Morris, and saying, "Okay,
21 fellows, you be the commission and show us how
22 to make guidelines." So I have had a long and
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1 disastrous career in criminal sentencing,
2 which I bring to you.
3 The other reputation that I bring
4 is as an empiricist. So one of the
5 occupational hazards of inviting an elderly
6 empiricist to make a statement here is that
7 you're going to get empirical big pictures,
8 and that's where I want to focus my few
9 minutes with you, with only a brief
10 introduction.
11 There's one other thing that
12 separates me from the two people to my left
13 here, and that is their characteristic good
14 manners. If I was one of the Seven Dwarfs I
15 would clearly be Grumpy, as central casting
16 would be concerned, and one of the things that
17 I would be grumpy about is the performance of
18 the incarcerated sentencing in the federal
19 criminal justice system over the 25 years
20 since 1984.
21 It's part of a larger picture. The
22 larger picture is the epic failure of American
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1 law and practice to rationalize imprisonment
2 over really the last 35 years of American
3 life. In 1972 there were 205,000 people in
4 prison. There are now 1.5 million in prison;
5 2.4 million is when you include jails and
6 juvenile facilities. Okay.
7 What has been the contribution of
8 this Sentencing Commission and of sentencing
9 guidelines to the problematic proliferation of
10 federal imprisonment, and how can the
11 Commission help solve the larger morass that I
12 see as criminal justice in the United States
13 in 2009.
14 I organized in my written
15 statements my own thoughts on the topic as a
16 good news and bad news joke. And the good
17 news is that the sentencing guidelines are not
18 the major cause of the metastasis of
19 imprisonment in the federal system. Nor were
20 they singularly pernicious when compared with
21 many state systems over the last 25 years.
22 If the 1984 legislation that
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1 created this Commission had never passed
2 Congress, much, maybe most of the unprincipled
3 growth in federal imprisonment would have
4 happened anyway. You have seen the
5 performance of Congress independent and
6 sometimes in conflict with the Commission over
7 this period of time. There's plenty of
8 empirical evidence that there's plenty of
9 blame to go around.
10 The bad news in my good news and
11 bad news joke is that the structure of the
12 1984 legislation and substantive decisions by
13 the Commission have contributed to federal
14 mass incarceration in regrettable fashion.
15 And the short list of the three
16 problems that I want to focus on are: The
17 undermining of other-than-prison federal
18 sentencing alternatives, and I'm going to use
19 that as my major point of emphasis; the
20 abolition of routine, late-term consideration
21 of altering release dates in long federal
22 sentences; and, third, the proliferation of
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1 boxes -- what my colleague Professor Weisberg
2 was talking about gently as "complexity" -- in
3 federal sentencing grids that both
4 mischaracterizes the reality of sentencing
5 decisionmaking and concerning the assumption
6 of imprisonment.
7 Okay. Of those three it is the
8 first which is the subject of my little
9 empirical lecture. Nonprison sentences were a
10 very common occurrence in federal criminal
11 justice after felony convictions in the 1970s
12 and early 1980s. They have since become an
13 endangered species. And I would argue that
14 the guidelines and the grids are one principal
15 cause of this unfortunate shift. And I think
16 that the emphasis on predictable equality of
17 outcomes has also worked against parsimony in
18 federal felony convictions at the lower end of
19 the seriousness scale.
20 Now the empirical demonstration of
21 all this is a one-page figure which was passed
22 out, I hope, earlier. This compares sentences
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1 delivered after felony conviction by federal
2 district courts in 1979 with those which your
3 Commission reported for fiscal 2008.
4 Prison is the dark bar in Figure 1.
5 It goes from 44 percent of all felony
6 conviction sentences to 90 percent by itself
7 and 93.7 percent with probation of felony
8 outcomes. That is to say, probation without
9 confinement, and that is the lightest-colored
10 bar in these two time periods, goes from four
11 cases in every ten in 1979 to one case in
12 every 16 in 2008.
13 Prison and probation were almost
14 statistically equal partners in the federal
15 landscape in 1979. By 2008, the dominant
16 prevalence of prison was more than ten to one.
17 Now I'm going to get specific on
18 how guidelines and grids might influence that,
19 but let me pause for a minute and put these
20 comparative statistics in some comparative
21 context.
22 This is Guinness Book of World
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1 Records stuff. Talking about a country that
2 has not undergone a political revolution and a
3 criminal justice system which is discretionary
4 in its imprisonments but pretty consistent in
5 terms of jurisdiction but not case mix, there
6 has never been a 30-year movement from that
7 kind of diversity to that kind of singularity
8 in sentencing outcome that I can find anywhere
9 in the statistically-reporting world. So
10 that's a big change.
11 But, again, the good news is it's
12 not all because of the Sentencing Act of 1984
13 and the guidelines. What's your piece of that
14 responsibility?
15 In the first instance, a guideline
16 grid in a very odd sense can't be neutral in
17 its effect on the choice between incarceration
18 and nonincarceration outcomes. That's
19 something we've learned in the last 25 years.
20 A grid structure is biased in favor of
21 incarceration because it invites consequences
22 that are palpable and quantifiable. The more
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1 boxes you've got on the chart, the more you
2 have to fill them with something that seems
3 like something. And palpability is one of the
4 great comparative advantages of incarceration.
5 So unless a grid draws a thick line
6 through boundaries being incarcerative and
7 nonincarcerative categories and expresses a
8 strong bias against incarceration or does
9 both. My text here would be Minnesota. The
10 methodology of guidelines probably encourages
11 the assumption of prison in marginal cases. I
12 think that's true of sentencing commissions
13 generally. But whether or not that's
14 generally true, few who have observed the
15 history of the impact of the federal
16 Commission and its guidelines from its very
17 start through at least the mid-1990s would
18 come to any other conclusion.
19 So on that question, creating a
20 system where whatever the questions are, no
21 matter the diversity of cases, whatever the
22 question is, prison is the answer in federal
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1 sentencing in 2009.
2 Some aspects of that are
3 particularly regrettable. Most developed
4 countries regard short terms of imprisonment
5 as suspiciously lacking any crime-preventive
6 values and high in costs both to offenders and
7 to the punishing agency. I think that general
8 notion is correct and I think the fill-in-the-
9 blanks, got to have something for the
10 category, short imprisonment sentence should
11 be one early target of correctional reform.
12 But enough on short prison sentences.
13 One of the other major structural
14 changes in the 1984 Act was the shift of
15 sentencing time setting, time to release from
16 the back end of the federal system, which was
17 federal parole, to making those decisions at
18 the front end, saying that when judges issue
19 sentences, that also determines by and large
20 release dates. Parole release decisionmaking
21 was suspicious because it was supposed to be
22 based on predictions of dangerousness or
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1 judgments about retribution and
2 rehabilitation. Oddly enough, some of the
3 sentencing guidelines that you folks inherited
4 were from the federal parole release
5 guidelines and had some prediction of
6 dangerousness components as well.
7 Okay. The new federal system did
8 away with routine review of long sentences
9 after an offender had served a large part of
10 his term. And I don't think that that was
11 rational or followed from doubts about
12 rehabilitation or prediction of dangerousness.
13 Because sentencing judges often use prison
14 time as a symbolic currency and because people
15 change and so do circumstances and
16 governmental priorities over 15- and 20-year
17 periods, it is rational to have power to
18 review appropriate release dates for long-
19 sentence prisoners and such a review need not
20 be tied to theories of either rehabilitation
21 or prediction of dangerousness.
22 Some of the prison terms issued in
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1 the heights of the federal war on drugs were
2 excessive by almost any civilized standard.
3 To not have any safety valve, a release date
4 reset for 15- and 30-year prison terms is an
5 act of compound unreason, completely
6 independent of one's feelings about parole as
7 a theory of imprisonment.
8 To right this wrong Congress would
9 have to act, but the Commission can and should
10 show Congress the way. And can provide an
11 institutional setting for reset and for doing
12 so on a rational basis.
13 The third point in my written
14 testimony overlaps but does so, I think, []
15 less politely with the concern that Professor
16 Weisberg indicated. I think that one
17 structural problem with the federal sentencing
18 guideline is the impossible number of separate
19 cells created in the sentencing grid. I think
20 it's a problem in itself. I think it's
21 symptomatic of deep dysfunction at the core of
22 the current federal system.
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1 The multiplication of boxes in the
2 guideline grid was motivated again by a felt
3 need to minimize sentencing disparity, but the
4 emphasis on offender characteristics, which is
5 necessary to create one of the two multi-
6 section axes in the grid, is precisely what
7 the critics of parole had most objected to in
8 the parole system. So in a funny sense if you
9 have all those record characteristics, you're
10 getting the worst of both worlds. No
11 reexamination times, but prediction of
12 dangerousness as one important axis for
13 sentence determination.
14 The price list of punishment
15 outcomes on the other grid, the amount of
16 money in the larceny crimes, the amount of
17 drugs is more complex than in any other
18 guideline system and fundamentally
19 unprincipled. A smaller number of cells and a
20 wide sentencing set of options within each
21 category would improve the federal system
22 whether it be done by legislation or
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1 reexamination by the Sentencing Commission.
2 All of those changes cumulatively
3 would only undo a very small part of the
4 enormous overreach of federal and state mass
5 imprisonment, but they would be, it seems to
6 me, a responsible and balanced agenda for a
7 sentencing commission that begins its second
8 quarter century of existence.
9 End of sermon.
10 ACTING CHAIR HINOJOSA: Thank you,
11 Professor Zimring.
12 Are there any questions?
13 COMMISSIONER WROBLEWSKI: Thank
14 you, Judge.
15 And thank you all for being here.
16 When I came to my place an hour or so ago and
17 I saw the figure, the first thing I did was
18 circle 1979 fiscal '08 and then wrote down
19 "paradigm shift." And I think that you've
20 testified, Professor Zimring and also
21 Professor Weisberg, that the world really did
22 change around then in sentencing and changed
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1 dramatically. And we went from I think
2 Professor Weisberg called it utilitarian, some
3 people call it a therapeutic model, some
4 people call it a rehabilitative model, to the
5 retributist's model where we look to the actus
6 reus and we have the price list, as you point
7 out.
8 PROFESSOR ZIMRING: Well, no, I
9 wouldn't characterize the federal guidelines
10 like that. They would be if there was only
11 one axis. You've got one axis which is
12 retributive and one axis which is prediction
13 of dangerousness, the criminal record one. So
14 it's a paradigm shift, but it's a multiply-
15 complex and internally-inconsistent current
16 paradigm.
17 COMMISSIONER WROBLEWSKI: But you
18 would agree, wouldn't you, that the paradigm
19 shift towards the retributist model, which
20 includes not just the guidelines but also
21 mandatory minimum sentencing statutes, was a
22 large contributing factor to all of the
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1 increased use of imprisonment to actually some
2 of this that's right here? A large measure
3 was this?
4 PROFESSOR ZIMRING: I think yes,
5 but I think that, for instance, short
6 sentences don't have an obvious explanation in
7 a retributive model. The long ones do. So at
8 the deep end of the pool I think you've seen a
9 shift from limited retributism to unlimited
10 retributism --
11 COMMISSIONER WROBLEWSKI: And --
12 PROFESSOR ZIMRING: At the shallow
13 end of the pool, I wouldn't characterize it as
14 retributive. I would characterize it as
15 saying whatever the question, prison is the
16 answer.
17 COMMISSIONER WROBLEWSKI: I don't
18 know if you heard any of the testimony earlier
19 today or yesterday from the judges --
20 PROFESSOR ZIMRING: I did today,
21 but not yesterday.
22 COMMISSIONER WROBLEWSKI: The
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1 district judges I think, by and large, have
2 said, and again as Professor Weisberg pointed
3 out, that they're relatively pleased with
4 where we are. And it was suggested by both
5 Professor Weisberg and by you, Professor
6 Zimring, that perhaps it's time for a really
7 big change, whether that's moving back towards
8 the utilitarian model or reforming the
9 criminal code or addressing this enormous
10 change that we've seen in terms of
11 imprisonment policy. You're talking about a
12 big, big change. And the judges don't seem to
13 be, at least the district judges don't seem to
14 be too excited about that.
15 So my question to -- and this is
16 actually to all three of you -- should -- do
17 you think the Commission should make it one of
18 its priorities to promote another paradigm
19 shift, whether that's back to the utilitarian
20 model, to some sort of balance, to some sort
21 of COBRA form, something like that?
22 Should we try to find -- if we do
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1 go that way, should we try to find a balance
2 between utilitarian and retributist model or
3 should we move in an extreme, as we've moved
4 over the past 30 years? And this really is to
5 Professor -- to Dean Cole.
6 You talked about using district
7 judges as a resource. And what I really want
8 to ask you is Judge Kozinski suggested that
9 district judges really aren't the right
10 resource. He talked about trial judges being
11 in some sense too close to the individual
12 case. And of course part of that may be part
13 of the reason why they think we're doing quite
14 well exactly the way we are. So should we
15 really be using trial judges as the resource
16 in looking about whether we go to big change
17 or small change?
18 DEAN COLE: Well, I think that with
19 the court standards on appellate review of
20 sentences, that that's where the action is
21 going to be, in the district court. And
22 getting the increasing buy-in from sentencers
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1 is I think a very important thing.
2 I think that in terms of paradigm
3 shifts, if the Commission could encourage
4 sustained discussion that led to some emerging
5 consensus, that there are some alternatives to
6 imprisonment which can be sold to Congress as
7 being real punishment but that have lower cost
8 than sending people to prison, that that would
9 be an enormous contribution. And this may be
10 one of those situations in which, you know,
11 you shouldn't let a good crisis pass.
12 The fact that the prison capacity
13 issues are as they are, the economic situation
14 in many jurisdictions -- in all jurisdictions,
15 I think means there's an opportunity to maybe
16 get people's attention to focus on things and
17 say are there new technologies that make it
18 feasible to restrain people's liberty in a way
19 that's cheaper; is there a chance to calibrate
20 fines for a wider range of offenders, so that
21 those can be sold as adequate replacements for
22 prison that make everybody better off. That
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1 would be the paradigm shift I would look at.
2 I mean retributism, utilitarianism,
3 the great thing about it is, you know, these
4 things end up overlapping. People can be one
5 or the other and argue for very similar
6 results, but in terms of making a real change
7 I think that would be something worth some
8 consideration.
9 PROFESSOR WEISBERG: Can I just
10 respond? I didn't think I had argued for a
11 paradigm shift, but maybe it sounded that way.
12 I thought I had suggested that -- well, call
13 it a paradigm adjustment had occurred and that
14 it might be possible to solidify whatever
15 gains we associate with it, you know, if we
16 kept in mind the possibility of congressional
17 reaction and, again, try to take advantage of
18 -- and take ownership of an equilibrium that
19 might have happened accidentally.
20 In that regard I actually would
21 like to kind of throw a question back to my
22 colleague, Professor Zimring, and let me just
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1 phrase it this way. If there is, as there
2 clearly is, some greater discretion being
3 exercised, if it is tilted in the direction of
4 downward departures as opposed to upward
5 departures or variances, one of the terms, if
6 the Commission were to consider developing a
7 stronger, clearer guideline on an in-out
8 decision, to the extent that it could do so,
9 you know, under current statutory law, so that
10 we might tilt somewhat back in the direction
11 of lesser imprisonment.
12 If we took up a question which
13 occupied the panel just before us here,
14 namely, the question of what exactly is a low-
15 level offender by definition, and once we
16 determine that definition, what's the
17 empirical data on that, if we did some of
18 these things, I ask the Professor, is it
19 possible that if we have two or three or four
20 or five years of experience, you've see the 90
21 move somewhat closer to the direction of 44?
22 PROFESSOR ZIMRING: Well, to the
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1 general direction of 44, but the question is
2 how far would it go. How far. Let's -- let
3 me begin by changing the subject briefly and
4 saying that rather than holding a meeting to
5 suggest paradigm shifts with the district
6 judges, who I did hear earlier this morning,
7 the first thing that you should do [with]
8 district judges is exactly what the Federal
9 Judicial Center has been doing for a hundred
10 years, which is getting them together for the
11 sentencing sessions. But part of the new
12 curriculum should be empirical stuff.
13 I mean the point about Figure 1 is
14 that rather than your getting a seal of
15 approval from that from the testimony, they
16 didn't know what the outcomes looked like
17 because everybody's forgotten -- it's not that
18 there was a paradigm shift -- they've
19 forgotten that 1979 existed. Nobody knew.
20 That's one of the wonderful things about
21 having historical statistics, how large this
22 gap was. I would venture to guess that the
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1 members of the Commission who are here this
2 morning didn't know the shift had been quite
3 that big. I was surprised to find that you
4 had a one-to-one relationship. I thought what
5 you would find is 20 or 30 percent probation.
6 But probation and fines were the
7 majority share of felony outcomes. And that
8 suggests that the first thing that you should
9 do with actors in the system is start a
10 conversation and do some research. When you
11 read the Commission's research, it's pretty
12 ahistorical to begin with. It's Commission
13 versus earlier Commission, not versus anything
14 else. And it is also subdivided in ways so
15 that you don't get the entire big picture.
16 You get instead zones.
17 I kept wondering, my God, how did
18 the 11 circuits become zones A, B, C, and D in
19 the federal system. I also then wondered how
20 come zone D is 81 percent of all the zones.
21 That seems like a funny way of doing mapping.
22 So that there is an educational and
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1 conversational process that one can start.
2 Then I can go to answer Bob
3 Weisberg's question, how far could a system
4 with more flexibility and more data-centrism
5 really go. How much of this is a political
6 shift which simply reflects how people think
7 and how much of these are systematic biases
8 which have exacerbated that? My guess is a
9 little less than half the change we've seen
10 has been piling on, to use the football
11 penalty, and that a little more than half the
12 change has been a shift in sediment that would
13 express itself in any systematic organization
14 of sentencing power, so that I would be
15 delighted if the best case of these
16 discussions were to get us back to a situation
17 that was 68 percent incarcerative outcomes
18 instead of the 44 percent of back when the
19 lion was laying down with the lamb.
20 ACTING CHAIR HINOJOSA: Professor
21 Zimring, I do want to thank you for mentioning
22 the Federal Judicial Center's Sentencing
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1 Institutes. And the Commission has always
2 participated with them as well as the Criminal
3 Law Committee in setting those up. And we
4 work jointly with them.
5 The one thing that is not shown on
6 this chart, for example, in fiscal year 2008
7 versus 1979, I hate to say it, but I almost go
8 back to 1979 as a judge since I came on in
9 1983, what it doesn't show is the complete
10 change of the make-up of the defendants. In
11 fiscal year 2008, 40 -- at least 40 percent
12 and maybe as high as 41 percent of the
13 defendants that were sentenced for these
14 statistics were noncitizens of the United
15 States, which therefore means that they were
16 unlikely to have been bonded out and,
17 therefore, means that many of them may have
18 received substances of time served, which
19 therefore puts them in the prison situation
20 versus probation, since most of them cannot be
21 put on probation because in all likelihood
22 they will be deported. And so there would be
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1 no way to place them on probation.
2 And I think when you look at these
3 figures, and as interested as you are in
4 empirical work, it's very important to note
5 some of these factors that go into these
6 figures as 1979 and the make-up of the
7 defendants in that point.
8 As a matter of, for fiscal year
9 2009, the first quarter shows that the
10 noncitizens of the United States have gone up
11 to, I think, about 44 percent. And the
12 Hispanics are now 45 point some percent, all
13 driven by the fact that immigration cases have
14 gone up a lot from when we started in 1979.
15 The other thing that doesn't show
16 here, and I think you articulated it, it isn't
17 necessarily the guidelines that have caused
18 this, drugs have always been the highest
19 percentage of the four types of drugs -- cases
20 that make 80 percent of the docket.
21 Immigration being second. In this fiscal year
22 it was 32 percent for drugs and 28 percent for
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1 immigration. I have to say that the first
2 quarter of fiscal year 2009 is now
3 immigration, 34 percent, and drugs, 32
4 percent.
5 What we also show for this fiscal
6 year 2008 that of the drug cases, which made
7 32 percent of the cases, 70 percent of those
8 by statute were not entitled to probation
9 because of the type of statutes that they were
10 convicted under.
11 If you take out the noncitizens
12 from that group, 80 percent of the defendants
13 in the drug-trafficking cases were not
14 entitled to probation because of the statutes
15 that they were convicted under. So there is
16 an interesting change from 1979 to 2008. The
17 only thing that I caution is that when you put
18 out this information, then you realize that
19 there has been a complete shift with regards
20 to the type of person that is being charged in
21 the federal system and their availability for
22 sentence is being time served. And, you know,
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1 so there are differences, but I think you
2 acknowledge that, that there's been a lot of
3 changes with regards to the type of cases that
4 have been brought up in the statutory
5 framework.
6 And I guess to Dean Cole, you
7 mentioned, and it's shown here, the fines.
8 Well, the time that I've been on the bench,
9 the number of defendants that hire their own
10 lawyers as opposed to getting court-appointed
11 defense counsel has become a very small number
12 of the defendants in the federal system
13 actually hire their own lawyers. And so using
14 fines as an alternative to incarceration would
15 benefit perhaps certain type of defendants,
16 which would make a very small part of the
17 criminal docket, and would definitely lead to
18 the discussion of you're treating some people
19 with money different as opposed to the vast,
20 vast majority of the defendants who can't even
21 afford to hire their own lawyer.
22 And so that perhaps -- I think
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1 that's one of the reasons why the fines have
2 gone down, because by statute we are required
3 to impose a fine in every federal case unless
4 we find that they would not be able to pay for
5 it.
6 PROFESSOR ZIMRING: Yeah. I know,
7 but the 15 percent in Figure 1 were people
8 where the fine, and no incarceration, was the
9 most serious outcome there. So what it was is
10 41 percent probation plus 15 percent fines and
11 other, and this is fines and other.
12 Let me go back and say, sure, there
13 has been changes in the character of cases in
14 federal criminal justice, but one thing --
15 ACTING CHAIR HINOJOSA: Type of
16 defendants.
17 PROFESSOR ZIMRING: Yeah. But now
18 hold it. The one thing that distinguishes the
19 federal criminal justice system in 1979 and
20 2009, from us poor slumps in the state
21 systems, is that the federal system is totally
22 discretionary. The cases you get are the
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1 cases that U.S. Attorneys want to pursue. And
2 in my prior life, at the University of
3 Chicago, one of the happier things that I
4 sponsored was Richard Fraze's research on
5 declination in the federal system that was
6 published in 1980 and will show you the system
7 of selection that existed for the time that is
8 at the beginning of this Figure 1.
9 There had been shifts in that, but
10 again you're getting the cases that the U.S.
11 Attorneys want you to get. And, again, if
12 there had been a shift from 44 percent to 62
13 percent imprisonment, then I think the changes
14 in the mix and the question of how much of
15 this is policy and how much of this is -- but
16 what you have here is a change from one to one
17 to ten to one. And it will be heroic beyond
18 my capacity to believe that you've had a
19 change in the mix of defendants that could
20 explain even half of that. I think you've had
21 a choice in philosophy that explains a little
22 bit more than half of that, but I also think
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1 that you have now a system which almost
2 guarantees that no matter what the case is the
3 modal outcome, the assumption that begins the
4 sentencing process is incarceration. And that
5 I find both disturbing and potentially
6 reversible.
7 VICE CHAIR CARR: Professors
8 Zimring and Weisberg, following up on what
9 Commissioner Wroblewski was asking, as I look
10 at the legislative history of the Sentencing
11 Reform Act, it appears to me that the old
12 parole system was scraped in part because it
13 was deemed a coercive rehabilitation system
14 and that Congress was finding that we don't
15 know how to rehabilitate people and we don't
16 know how to measure whether or not we've
17 rehabilitated people, so rehabilitation went
18 to the bottom of the heap and it became a more
19 retributive system.
20 Twenty-five years later, do you
21 think that with some evidence-based outcomes,
22 we're starting to see that we maybe do know
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1 how to rehabilitate people and that we might
2 do better going forward with alternatives to
3 incarceration or perhaps shorter terms of
4 incarceration with more intensive reentry
5 provisions because the science has changed as
6 to whether or not we know how to lessen
7 recidivism?
8 PROFESSOR WEISBERG: Focusing in
9 particular on your second point about the
10 reentry after some incarceration. I think a
11 lot of the problem is the word
12 "rehabilitation," which perhaps quite
13 deservedly received a very tainted reputation
14 some years back.
15 I -- I'm not sure if any kind of
16 incarceration rehabilitates. If the
17 definition of rehabilitation is making the
18 person less crime prone than he or she was
19 going in. In some ways because of the
20 perfectly legitimate retributive foundation to
21 our criminal justice system and perhaps
22 equally legitimate incarcerative and deterrent
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1 concerns, not rehabilitative concerns, we have
2 to put people and a lot of people in prison,
3 the question isn't whether prison
4 rehabilitates them, it doesn't. The question
5 is whether we can mitigate the
6 antirehabilitative effects of imprisonment.
7 And by that I mean not just the bad things
8 that happen to them in prison, but the bad
9 things that happen to them by virtue of them
10 not being out of prison and, you know,
11 benefitting from family life and jobs,
12 whatever.
13 So in some ways it's damage
14 reduction. In that sense, sure, the theme of
15 the movement towards evidence-based practice
16 has certainly been the efficacy at the margin
17 of reentry programs, not focused on
18 rehabilitation in the old discredited romantic
19 sense, but certainly focused on the
20 feasibility of some programs, drug rehab and
21 some vocational training to some extent, and
22 also the behavioral incentive and
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1 disincentives of holding that out as a carrot,
2 at least at the margins towards the end.
3 PROFESSOR ZIMRING: Yeah. And I
4 would just want to emphasize sort of the
5 double nonsequitur that was involved. I think
6 that you've accurately described the history,
7 and that is the coercive rehabilitation as a
8 criterion for release from prison was a
9 particular worry in the mid-1970s, California
10 determined that sentencing is one byproduct of
11 that; the Sentencing Act of 1984 is another.
12 The problem there was not even a
13 rejection of rehabilitation, not by the
14 inmates, the problem was that it turned
15 prisons into acting schools. And the sort of
16 Damocles of not knowing a release date was
17 something that -- And they said, besides, you
18 can't predict dangerousness that well from in-
19 custodial requirements.
20 Having said that, the first non
21 sequitur that you get is that that's precisely
22 what federal sentencing is doing if you look
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1 at the right-hand axis of the term being
2 sentences that occurred, and all the
3 background characteristics are what the parole
4 guidelines were using when Peter Hoffman
5 drafted them to predict release behavior,
6 they're now predicting initial sentence.
7 The other non sequitur that I would
8 want to underline is just because you want to
9 go out of the business of doing that, you're
10 not going to look to either rehabilitation
11 programs or to static predictions of
12 dangerousness in determining how long time
13 should be served, doesn't mean that you
14 shouldn't reexamine prison sentences 15 or 20
15 years into their service. There are lots of
16 other reasons you might want to do that. And
17 the fact that as you were taking out the
18 rehabilitate trash you also got rid of the
19 safety valve that is necessary to rationalize
20 a system, is a little detail that it seems to
21 me we've waited about 25 years too long to
22 notice.
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1 ACTING CHAIR HINOJOSA: On that
2 note I guess we'll thank you all very much,
3 and really appreciate your candid conversation
4 with us. And thank you for taking your time
5 from your schedules, because I know you're
6 busy, for sharing these thoughts with us.
7 PROFESSOR ZIMRING: Thank you for
8 having us.
9 ACTING CHAIR HINOJOSA: And we'll
10 have a very short break. We'll start at a
11 quarter till 12:00.
12 (Recess taken from 11:45 a.m. to
13 11:54 a.m.)
14 ACTING CHAIR HINOJOSA: The next
15 panel is "Community Impact." And the next
16 speaker will be Larry Fehr who is the Senior
17 Vice President for Corrections and Reentry
18 services at Pioneer Human Services, a
19 nonprofit organization in Washington State,
20 and that serves individuals released from
21 prison. Prior to his position there, [he] was
22 the executive director of the Washington
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1 Council on Crime and Delinquency for 16 years,
2 and during which time Washington State adopted
3 its Sentencing Reform Act. He is the current
4 Chair of the American Correctional
5 Association's Community Corrections Committee.
6 We also have Dr. Michael Finigan,
7 who is the Founder and firm President of the
8 Northwest Professional Consortium Incorporated
9 NCP Research, an Oregon-based research and
10 evaluation firm. He has been involved in
11 research and in evaluation in the criminal
12 justice area since 1986. And his work has
13 focused on substance abuse treatment and
14 prevention. And he currently serves as
15 principal and investigator on a cost-benefit
16 evaluation of California drug courts.
17 In addition we have Caroline
18 Fredrickson, who is the Director of the ACLU's
19 Washington Legislative Office. As Director
20 she leads all federal lobbying for the
21 national ACLU, the nation's oldest and largest
22 civil liberties organization. And prior to
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1 joining the ACLU, Ms. Fredrickson was the
2 general counsel and director for NARAL,
3 Prochoice America. And she has years of
4 experience as a senior staff run on Capitol
5 Hill.
6 And so we appreciate all of you
7 taking your time to be here with us and to
8 share your thoughts. And we'll [start] right
9 with Mr. Fehr.
10 PROFESSOR FEHR: Thank you very
11 much. I will begin by noting that I am keenly
12 aware that this is the final panel of the
13 public hearing and the one between you and
14 your lunch and perhaps flights back home, so
15 I'm going try to be extremely brief in my
16 comments. I did provide written comments in
17 advance.
18 I want to thank you for including
19 this Community Impact perspective in the
20 public hearings. I want to begin by noting
21 that in terms of my community credentials, the
22 reason perhaps I was asked out [to] join you,
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1 is that I helped manage a large nonprofit
2 organization in the other Washington,
3 Washington State. We have 61 locations in
4 Washington State, helping people overcome the
5 challenges of criminal history, chemical
6 dependency, homelessness, and unemployment.
7 Now we provide services and only those and I
8 believe the outcomes bear this out, that by
9 address[ing] the needs of our clients in a
10 more holistic fashion we'll achieve improved
11 outcomes.
12 But prior to that, as was noted, I
13 also spent part of my life and career as a
14 policy advocate at the state level, the
15 hallmark of which was the adoption in 1981 of
16 the Washington State sentencing format. It
17 was implemented July 1 in 1984. I've also
18 been a criminal justice and corrections
19 adjunct professor for 20 years.
20 And so what I would like to do in
21 my brief comments is to talk generally about
22 sentencing-related issues, because I am
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1 concerned about that. A lot of my life has
2 been focused on trying to better understand
3 those issues. But then specifically make some
4 suggestions in regard to community corrections
5 and reentry, which is of course my passion.
6 The Council of State Governments,
7 for example, in their report on reentry
8 identified Pioneer as the largest local
9 offender reentry program in the country. So
10 we do have some expertise in this arena that I
11 do hope to share.
12 Well, to get on with it, first of
13 all, after 25 years, the major objectives and
14 goals of the Sentencing Reform Act treated
15 those things that I cared so much about, as I
16 went to begin my career, trying to improve the
17 justice system, of fairness and
18 proportionality and reducing disparity, and
19 improving transparency, certain
20 predictability, those goals I think the
21 evidence clearly shows that the Federal
22 Sentencing Reform Act has largely achieved
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1 those very important goals. And so I begin by
2 acknowledging that and applauding them.
3 I do think, however, and in the
4 interests of time, that I will focus on the
5 areas I think could benefit from additional
6 attention and revisions.
7 First of all, in terms of general
8 sentencing-related issues, I'll have three. I
9 believe that we should continue to urge
10 Congress to repeal mandatory minimum sentences
11 in order to expand the so-called safety value.
12 I know this has been an issue for this
13 Commission for some time. The Former
14 President of the American Society of
15 Criminology, Michael Tonry, stated it
16 succinctly, mandatory penalties do not work.
17 If Congress does have the political
18 will to eliminate or reduce the number of
19 mandatory minimums, certainly the options
20 available to expand the safety valve by
21 revising criminal history criteria and
22 clarifying acceptance of responsibility
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1 standards and applying it to the mandatory
2 minimums offenses, I think worthy objectives.
3 Speaking of drug offenses, the
4 second idea I would like to suggest to you is
5 that we continue to urge reform of sentences
6 regarding crack cocaine. I am very pleased
7 that the acting chair of the Commission
8 testified [at] the end of April to Congress
9 very directly on this issue, that the
10 Commission continues to believe that there is
11 no justification for the current statutory
12 penalty skew for powder cocaine and crack
13 cocaine offenses. I couldn't agree more.
14 Like some of you perhaps, I spent
15 part of my career trying to research and
16 illuminate racial and ethnic disparities in
17 the justice system. Remember that our state
18 supreme court, the Justice Commission -- for
19 example, I chair the Research Committee, and
20 there is no more blatant example in the
21 justice system than this disparity as it
22 disproportionately impacts racial and ethnic
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1 minorities. It clearly is an example of
2 reform that is needed and needed soon.
3 The third and final general area
4 that I would urge your consideration of is the
5 examination of the role of prosecutorial
6 discretion in sentencing outcomes. In the
7 consideration this is -- and I think it's
8 something that's been suggested previously,
9 consideration of advisory guidelines for U.S.
10 Attorneys. So we know that charging and
11 pleading decisions made by the U.S. Attorneys
12 result in 96 percent of the time in
13 convictions that are obtained by a guilty
14 plea. Many commentators have been concerned
15 by this displacement or hydraulic effect of
16 discretion by structuring discretion of judges
17 flowing, therefore, more to the U.S.
18 Attorneys.
19 And you had previous testimony,
20 [Rodney Engen] I know was at the Atlanta
21 hearings talking about this. One thing I
22 think was mentioned and it may be something
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1 worth looking at, when we adopted sentencing
2 guidelines in Washington State, we also
3 adopted prosecutorial guidelines that were
4 voluntary. And some of the primary
5 prosecuting offices in the state, like in
6 Seattle, King County, had fairly rigorous
7 guidelines already. We use that as an example
8 and adopted it statewide for all prosecutor
9 offices on charging and negotiation practices.
10 And it's been operating since 1983, I
11 believe.
12 And some research on it, for
13 example, by researchers at the University of
14 Washington that are Minority and Justice
15 Commission funded to analyze disparate
16 prosecutorial decisionmaking, found that few
17 disparities by race of offender in various
18 recommendations of deputy prosecuting
19 attorneys existed. It might be worth taking a
20 look at.
21 I am going to now focus on the
22 three suggestions or areas that I believe are
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1 warranted for further consideration as it
2 relates to community-based corrections and the
3 reentry programming of offenders.
4 When I started working in this
5 field there were fewer than 200,000 people in
6 state and federal prisons in the country. As
7 you have heard repeatedly today, there are
8 close to two million. Adult incarceration
9 rates have either quadrupled or quintupled
10 during that period of time, depending on who
11 you talk to.
12 It's not surprising that the costs
13 of incarceration have skyrocketed as well.
14 One of the best research, unfortunately it's a
15 little dated now, 2002, found that in the 20-
16 year period beginning in 1982, the total costs
17 of correctional budgets totaled $9 billion, by
18 2002 they had escalated to $60 billion -- now
19 seven years ago. We know it's much more now.
20 So one thing is dramatically increasing.
21 One thing that hasn't changed a
22 whit is the return-to-prison rate, the
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1 recidivism rate. Based on the best research
2 that's been done, by the Bureau of Justice
3 Statistics, over a fairly lengthy period of
4 time, we now know that 67 percent, two-thirds
5 will be rearrested within a two- -- excuse me
6 -- a three-year period of time and that 51
7 percent will be sent back to prison. And that
8 hasn't changed over this period of time that
9 Professor Zimring referred to as mass
10 incarceration.
11 So regardless of whether you
12 believe that this increased reliance on
13 incarceration is a good thing or bad, one
14 thing is certain, to paraphrase Jeremy Travis'
15 book title, they all come back; 95 to 97
16 percent, at least of all federal offenders,
17 for example, come back. And the vast majority
18 come back in a relatively short period of
19 time.
20 And yet this issue of reentry is
21 one that is only now becoming -- well,
22 Newsweek magazine called it an international
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1 movement, and certainly [Time] before that,
2 given the statistics that we had presented.
3 So I include some information here
4 that I think is very startling about the
5 Federal Bureau of Prisons. They do an
6 extraordinarily excellent job in many, many
7 aspects, but the statistics that are startling
8 to me was that over a 40-year period, from
9 1940 -- talk about a historical perspective --
10 from 1940 to 1980, you had the same number of
11 federal inmates who were in prison, about
12 24,500. That didn't change. Then in the
13 1980s it was doubled, then in the 1990s it
14 more than doubled. So today we have over
15 202,000 inmates in the federal system alone.
16 That's more than was in all state and federal
17 prisons when I began my career.
18 So the federal system is
19 overcrowded. Director Lappin reports 36
20 percent overcrowding in their system. And
21 then if that isn't a significant issue, we
22 need to, therefore, I believe, one, expand
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1 alternatives to incarceration in the federal
2 sentencing guidelines. This is what Professor
3 Zimring referred to as the endangered species,
4 of alternatives to incarceration.
5 And I would like to thank the
6 Commission for bringing attention to this
7 issue by hosting a symposium on the topic last
8 year and, I believe, for proposing
9 alternatives to incarceration as a policy
10 issue in the amendment current cycle. Let me
11 give you one example.
12 In our residential reentry centers,
13 which used to be called halfway houses in the
14 old days, community correctional centers.
15 These are federal programs. We used to have
16 judges have the ability to make a direct
17 commitment to our residential reentry centers,
18 a very structured, accountable program in the
19 community as an alternative to prison.
20 It's my understanding that as of
21 December 2002, I think the year was, because
22 of a memo from the Office of General Counsel,
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1 the Department of Justice, it was argued at
2 least that judges lack that authority to make
3 a comment to a community-based residential
4 program. So, essentially, -- and this is an
5 interesting debate that Professor Zimring had
6 with you about probation or prison. And I
7 make a hyperbolic statement in my written
8 testimony, that giving judges the choice
9 between probation and total confinement is
10 like giving the doctor a choice between an
11 aspirin and a frontal lobotomy.
12 There has to be a continuum of
13 correctional sanctions and services that are
14 provided that make sense for people beyond
15 those two extremes. And increasingly of
16 course the currency of sentencing is
17 incarceration. So expanding alternatives I
18 think is a very worthwhile goal.
19 And, by the way, the assertion that
20 it is somehow an easier time in the community
21 as compared to prison time lacks a perspective
22 of someone who's familiar with those two types
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1 of correctional environments.
2 In prison everything is decided for
3 you. When to wake up, what you have to eat,
4 where you're going to be during that day.
5 Very little individual responsibility
6 involved. Once you get out into a community-
7 correction environment there's all kinds of
8 supervision and structure that is imposed upon
9 you to make your own decisions. To find a job
10 in our Federal Residential Reentry Centers
11 within two weeks -- that's our guideline. If
12 they don't make a movement and are successful,
13 not everyone is sent back to prison, but they
14 can if they're not making progress toward
15 finding employment within a two-week period of
16 time.
17 I had two daughters graduate from
18 college in recent years and I wouldn't have
19 wanted to impose that standard on them. But
20 we do it and we do it in the vast majority of
21 cases that come before us.
22 Dealing with recovery is hard, it's
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1 not easy work. Reuniting with family that has
2 been estranged is not easy. So community
3 correctional time, the inmates will tell you,
4 is harder time than prison time, so for what
5 it's worth.
6 The second recommendation I suggest
7 is to expand federal drug treatment courts and
8 to create a diversionary option. Again,
9 according to Director Lappin's testimony in
10 Congress last month, 53 percent of all inmates
11 in federal prisons are serving sentences for
12 drugs. It's a little bit different figure in
13 terms of the number of court findings, but the
14 number of people who are actually in federal
15 prison are 53 percent currently. Over half of
16 those federal drug offenders have no or very
17 minimal criminal history, yet 95 percent of
18 all the prisons convicted of federal drug
19 offenses are sentenced to incarceration -- 95
20 percent. Again, according to Director
21 Lappin's testimony in Congress.
22 The current approach as I
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1 understand it, at least, of prison first and
2 drug courts or reentry courts later, I believe
3 is insufficient and overly restrictive. There
4 are 22,100 drug courts around this country now
5 operating. I know my friend Michael will talk
6 about his research more in that regard. They
7 have proven to be very effective alternatives
8 to incarceration, where you reduce recidivism
9 and not just postpone it for a period of time
10 while in prison.
11 Fifth, I believe, similarly
12 speaking, that we should expand the
13 Residential Drug Abuse Program, RDAP, which is
14 the voluntary six- to 12-month program for
15 selected federal prisoners with substance
16 abuse problems. And, again, Dr. Lappin
17 reported that there's a waiting list of 7,000
18 inmates to get into that drug treatment
19 program.
20 I think we should encourage
21 Congress to more fully fund that program,
22 which has been proven to reduce recidivism,
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1 and that the Bureau should be encouraged to
2 make the program available to all qualifying,
3 nonviolent prisoners. That would be certainly
4 addressing again this overwhelming issue of
5 the reason for the growth of incarceration at
6 the federal and state level, and that is drug
7 offenders.
8 Finally, I wanted to focus more
9 squarely on increasing the capacity of
10 Residential Reentry Centers. This is the
11 phrase that the federal government came up
12 with in terms of the Bureau of Prisons to
13 refer to a community correctional facility.
14 Residential Reentry Centers is what the
15 current jargon is.
16 In the average length of stay in
17 those centers right now, we operate three in
18 Washington State, actually, of those we offer
19 ten in the state of those, is 101 days in
20 FY08. Yet we know that those people who do
21 transition through the halfway houses are less
22 likely to recidivate than those who are
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1 released directly to the street.
2 And with the advent of evidence-
3 based practices, with great research being
4 done, I am very proud that within our own
5 state, Washington State Institute for Public
6 Policy, has been a real leader on the cost-
7 benefit analysis associated with evidence-
8 based practices, showing policymakers how they
9 can save money and reduce recidivism at the
10 same time. With the advent of the Second
11 Chance Act, passed last year, one provision of
12 which didn't get a lot of notoriety, it allows
13 the Federal Bureau of Prisons to send a person
14 to a Residential Reentry Center for up to one
15 year. It used to be a maximum of six months.
16 I mentioned that the average length
17 of stay is about three months. Now I can't
18 imagine that there are very many, if any,
19 federal inmates who need to be there for a
20 year. But where are they instead? They're in
21 prison. And we know that we can do a better
22 job of reintegrating that individual back into
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1 the community if we have a chance for him
2 being in a very structured -- or her -- to be
3 in a very structured environment, a very
4 accountable environment, but also one that has
5 access to services that they need.
6 So in order to accommodate that
7 increase of average length of stay, Congress
8 is going to need to appropriate additional
9 funds to provide more opportunities for
10 certain of these offenders in the community.
11 Believe me, it's not easy to site and get
12 zoning approval for such programs in
13 neighborhoods, but we do it all the time. And
14 it can be done. It needs to be done more in
15 this country.
16 So that's my final comments. I do
17 think that the Sentencing Reform Act has
18 largely achieved its goals of more certain and
19 proportional punishment, less disparate and
20 inequitable sentencing. Those are important
21 goals. I don't diminish them. However, we
22 can and should do more.
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1 In addition to focusing on
2 consistency and exceptions, which we
3 inordinately do, I think, we focus on how
4 consistent we are to the guidelines and what
5 are the exceptions and reasons for it, we need
6 to start focusing more on costs and
7 effectiveness of those sentences.
8 And something I don't have in my
9 written comments, -- maybe a paradigm
10 clarification. I think that we should
11 consider having as a specific goal of the SRA
12 reducing recidivism. I don't believe it
13 currently is there. And yet the public is
14 overwhelmingly in support of reducing the
15 likelihood of criminal victimization in the
16 future, which is what reducing recidivism is
17 all about.
18 So I know I've taken up too much
19 time as it is. I do hope you'll consider
20 those recommendations based on a person who
21 has spent part of his life in planning and
22 advocacy and public education around justice
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1 issues and, in part, providing direct services
2 to people, who are coming out of our prisons.
3 So thank you very much.
4 ACTING CHAIR HINOJOSA: Thank you,
5 Mr. Fehr.
6 Dr. Finigan.
7 DR. FINIGAN: Thank you. Mike
8 Finigan. I am the President and Founder of
9 NPC Research. We've been going about 20 years
10 now, I think.
11 We have become known -- I think I
12 was asked to this kind of because we've become
13 known around the country for our research on
14 drug courts. We do other things, but we've
15 done a lot of drug court research or problem-
16 solving courts, as the more general idea is.
17 Now we have done studies under the
18 auspices of the Bureau of Justice Assistance,
19 National Institute of Justice, SMSA,
20 foundations such as Robert Wood Johnson, and
21 many statewide administrative office of the
22 courts have hired us: Maryland, California,
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1 Michigan, Missouri, Indiana, New York, Nevada,
2 Oregon, Vermont, and Guam. There was a period
3 of time there when I thought we were just
4 doing M states, just Oregon, Michigan, and
5 apparently we do other things, too.
6 And what I'm -- I'm going to focus
7 on the studies we have done, particularly,
8 although I do want to mention some other folks
9 that I think have done good work. Because at
10 this point in time we are up to having either
11 completed or are in the middle of completing a
12 hundred different drug court evaluations over
13 the last six years. So we have kind of a
14 critical mass of looking across the country,
15 using pretty much the same methodology. We
16 developed a methodology that was -- and I'll
17 describe it quickly in a second -- was focused
18 not only on the outcomes but also on the
19 processes and procedures that go on in a
20 particular court at the local level.
21 And, again, at the other side on
22 costs and cost benefit. So we integrate sort
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1 of processed outcome cost-benefit all in one
2 model. And if you're familiar with a search,
3 doing something in a hundred different
4 locations the same way has advantages in terms
5 of understanding and doing some analysis for
6 public policy.
7 So I assume that one of the reasons
8 I was asked to talk as a researcher is the
9 question of whether problem-solving courts,
10 the more general buzzword right now, and drug
11 courts, specifically, might be a good,
12 alternate model that would reduce recidivism,
13 reduce drug dependency, drug and alcohol
14 dependency, and might be an alternate model
15 just to being put in jail or prison.
16 And I'm going to provide you with
17 more or less some answers on that in just a
18 second.
19 Actually I want to focus -- and I'm
20 going to do this real quickly because I
21 understand that we're on short time here --
22 but on four major policy questions related to
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1 drug courts and problem-solving courts.
2 The first is do they reduce
3 rearrest reconviction, the recidivism
4 question. Particularly whether that's a
5 universal finding, because you probably heard
6 the drug courts have researched this pretty
7 well, the GAO report in 2005 basically said
8 yeah, they do, but is that a universal
9 finding, is it the model everywhere that
10 always shows that it reduces rearrest? And
11 you can guess by the way I'm phrasing that the
12 answer will be no. But is a universal model
13 always effective?
14 And, the second part of that of
15 recidivism is that does recidivism last, is it
16 longer term or is it just a short-term
17 phenomena? Okay? So that's recidivism.
18 I also might want to talk about
19 what is maybe the core often of the logic
20 model of drug court, is its effect on
21 treatment, the folks who use treatment. That
22 was the second major policy thing I wanted to
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1 suggest to you: The question of whether a
2 drug court and problem-solving courts
3 generally are a way of more efficiently
4 providing treatment to an offender population,
5 or not.
6 The third thing that I want to
7 quickly talk about, I'm going to do this stuff
8 quickly, is the cost-benefit stuff that we
9 have, as Washington State Institute of Public
10 Policy, that we specialized in. The question
11 is does it cost the taxpayers more money. Do
12 they save money? And I'll talk -- based on a
13 100 studies, I'll talk about that.
14 And then finally in the last but
15 not at all least, the one I think is the most
16 important right at the moment research is
17 under what conditions does this model work.
18 Under what kinds of procedures, under what
19 kinds of policies, under what kinds of
20 practices, is it effective, more or less
21 effective, or ineffective? And with what
22 populations, is it your more serious
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1 offenders, is it your lightweights, is it your
2 most seriously addicted, and so forth? That's
3 a lot of issues to try to cover, and we don't
4 have all the answers at this point in terms of
5 the research.
6 But let me -- just let me quickly
7 suggest. As I said, I think I'll give you a
8 quick understanding of our approach which is
9 common in all these studies I'm going to
10 talking about, which is we do a very strong
11 process. We go into the local court, we
12 understand that court, we understand its
13 practices. It's the way it handles clients.
14 And we have to do that in order to understand
15 the question of what works under what
16 conditions. You see what I mean? You have to
17 know what they're doing. And we don't just go
18 in and look at a bunch of data and walk away
19 and not know much about the courts. Some
20 studies do that. We don't.
21 We look at outcomes, not only
22 recidivism issues, but other outcomes as well.
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1 And then, finally, from the beginning are
2 doing all of this in order to price it, to
3 come up with a cost estimate that we can use.
4 And there are many ways economists approach
5 cost in the public policy arena, and in some
6 ways, one said, that if you get three
7 economists in a room, you come up with 12
8 different opinions. And I think that's partly
9 true. But we take a specific approach which
10 is a cost-to-the-taxpayer approach.
11 In other words, we're not trying to
12 measure some more general social costs, which
13 gets you big numbers, but it's hard to relate
14 to specific budgets. So we try to ground them
15 in the local budget, in the local taxpaying
16 situation, only taxpayer money. Taxpayer
17 money not spent on it, then we're not
18 interested in it, okay? So just that caveat
19 with what we're talking about.
20 We look at both what we call
21 investment costs and outcome costs.
22 Investment costs are how much does the
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1 taxpayer put into. And then income costs are
2 obviously are there any benefits down the road
3 that are cost offsets, where might mitigating
4 some of those initial costs.
5 We do something that's unusual, and
6 I think it's important to understand, that
7 remark I'll make in just a minute. Is that we
8 follow -- we have a comparison group and the
9 treatment group. It's rare to do random
10 assignment. There are some random
11 assignments, but it's rare. Because there are
12 a lot of issues that you probably are aware
13 of.
14 But we do a propensity-matching
15 approach that matches people based upon their
16 likelihood of having been chosen to be in drug
17 court based upon their profile. And that's a
18 pretty good matching quasi-experimental
19 design-and-matching technique.
20 But then not only do we follow the
21 clients who went through drug court, we follow
22 the comparison group through the criminal
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1 justice system with just as much rigor, so we
2 wind up coming [up] with something that's
3 interesting.
4 Now I'm going to talk about what
5 our drug court clients are doing within the
6 system, we get a window really how cost-
7 effective or not cost-effective the business
8 as usual is in probation [] in handling those
9 cases. So it's sort of a two for one, in a
10 sense, you kind of see both sides.
11 Well, let me go quickly back to
12 those four things that I suggested here. One,
13 the first question is does it reduce
14 recidivism, the GAO study, Wilson's meta
15 analysis, a number of other people including
16 our own data that say, yeah, it does. The
17 model seems to reduce or less[en]
18 incarceration.
19 It doesn't make them free of the
20 arrest. I mean let's not kid ourselves. You
21 know, they do go back, a certain proportion go
22 back into the system. But it reduces that
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1 amount or delays it in something significant
2 way.
3 Is it universal? No. Over a
4 hundred studies, I can tell you there are some
5 drug courts that have spectacular success in
6 doing that. There are drug courts that have a
7 statistically significant effect, but it's
8 what we call small effect science. It's
9 modest. But it's still there. Nothing to say
10 no about.
11 There are some that are in that
12 right direction, but it's not significantly
13 different. And over -- right now we have
14 about 60 completed studies. We have found
15 four drug courts that in the medical world
16 would be called doing harm. Let's say they're
17 making things worse, you know. And I know the
18 drug court don't want me to say that, but
19 wouldn't you expect that? I mean it depends
20 on how a model is implemented whether it's
21 going to be effective or not. And so you're
22 going to find some implementations of the drug
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1 court model that just were wrong, you know,
2 just really did worse.
3 So we always have issues when we go
4 back to clients -- of course we're often
5 looking at either the state or the feds, which
6 helps. But then say, you know, your drug
7 court stinks. There haven't been a lot, but
8 we have had that experience.
9 So are they universal? No. Are
10 they long term? Well, we don't have a lot of
11 long-term studies. We did a study of actually
12 Multnomah County, Oregon, the longest lasting
13 drug courts that we've got. We looked over --
14 actually it was a 14-year period, but for a
15 variety of reasons it was compressed into a
16 10-, 11-year period. We looked at the whole
17 population. It wasn't a sample. We said, you
18 know, whoever is eligible for drug courts, for
19 all those years, we're going to see -- we're
20 going to follow them. The ones who did the
21 drug courts, the ones who didn't. We're going
22 to see what happened. So, you know, it was
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1 actually a first attempt to look at the whole
2 impact on a system over a period of time.
3 And it seemed to suggest that the
4 drug court effect on recidivism persisted. So
5 that would be good news.
6 So, yeah, it's not universal. It
7 depends on how things are implemented, but it
8 does seem to be a real effect over the long
9 term.
10 The second major question: How
11 does it affect treatment? Is it an efficient
12 way of handling the treatment of an offending
13 population -- substance abuse treatment I'm
14 talking about here? And that's probably the
15 core of the logic model.
16 There is some evidence, by the way,
17 that we have that it isn't just treatment
18 that's doing this, that there are some other
19 effects of that whole model that are having an
20 effect on recidivism. But the question is is
21 it treatment.
22 Well, again, the studies that we've
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1 done mostly suggest that -- all these
2 different courts -- mostly suggest that people
3 get into treatment quicker, they spend more
4 time, more days in treatment than the
5 comparison group, which usually stay in
6 probation, they complete treatment at higher
7 rates. So it does seem -- we particularly --
8 we just published a study on the family drug
9 courts, which is a SMSA cross-site evaluation,
10 and that's one of their clear conclusions
11 under those conditions, is the treatment was
12 vastly more efficient and more proven than
13 even the drug court model. So on the whole
14 that does seem to be -- I mean like most
15 researchers, we think more studies need to be
16 done, but that on the whole seems to be true.
17 Third, cost benefit. Are these
18 drug courts to the taxpayer, and here that's
19 what we're saying, cost beneficial to the
20 taxpayer. And the answer is that they mostly
21 are. Clearly if you have some drug courts
22 that are doing harm, that's not cost
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1 beneficial. You already know the answer that
2 not every condition do they save the taxpayer
3 money, but mostly they seem to. And we have a
4 range that we publish. And you will see
5 again, once again, it's like the look at
6 recidivism, some of them do very well, some of
7 them do modestly well, and there are handful
8 that don't do well at all.
9 One of the things that was
10 interested about our following of both the
11 comparison group with the treatment group
12 through the criminal justice system and
13 assessing costs on that basis is that on some
14 cases we found that the investment cost, that
15 is what is the cost that you put into that
16 case to put them through the drug court route
17 versus probation, that the investment cost was
18 actually less going through drug court. That
19 was a surprising finding. We never expected
20 -- you know, we expected the offsets might
21 balance it out, but the -- and this is not
22 true universal. Understand I'm talking over
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1 what is a -- you know, a substantial minority
2 where it costs less.
3 In part, and I don't know if this
4 makes sense to you or not, in part because the
5 standard probation in that particular local
6 jurisdiction's criminal justice system is
7 expensive. That's really what the cause was,
8 is that they -- these cases flowed -- standard
9 supervision, without the drug court -- flowed
10 in and out of the system. They had bench
11 warrants and they had continuances. I mean
12 when you look at that case, it was a pretty
13 costly case at the time. You see what I'm
14 saying? So that was probably a testimony to
15 the cost of that particular justice system
16 locally.
17 Finally, under what conditions, and
18 this is I guess the one that interests me most
19 right now after all these years of doing drug
20 court researches. You know, I'm sort of tired
21 of, well, do they work or not, you know, I
22 mean that's -- I think we've pretty much
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1 answered that. But under what conditions do
2 they work?
3 And because we have so many studies
4 done the same way, we're in a position now to
5 begin to really look, and we did a study for
6 the National Institute of Justice on 18 sites.
7 That was our first study, and now we're
8 working on a 50-site study, which is going to
9 have much more power. In 18 sites you can't
10 really have much -- you can't have very
11 sophisticated statistics, but you can once you
12 get up to 50 or 60.
13 But what we're beginning to see are
14 patterns of when, what procedures, what
15 practices are effective, cost-effective, and
16 are associated with more effective drug
17 courts. And I gave you some information. I
18 can give you more information on what those
19 are. I don't have time to go into the details
20 of that, but I think that's the most exciting
21 part to researchers right now, is to be able
22 to go back to the field and say: Here are the
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1 practices that are actually effective. Here
2 is how a drug court model ought to be
3 organized.
4 So the question -- let me go back
5 to the original question and I'll end with
6 that, which is -- are problemsolving courts a
7 model, drug courts in particular -- by the
8 way, I say it that way because drug courts
9 have been researched fairly well. A few of
10 those modestly well, and we have had the nut
11 house. So, you know, it's hard to talk about
12 the model in a general way.
13 But the question is is it an
14 effective alternative to the sentencing, is it
15 an effective alternative for people coming out
16 of jail or prison, or being arrested for the
17 first time. The answer is probably so, but it
18 needs to somehow develop standards, that the
19 field needs to have standard practices based
20 on best practices and research, that
21 standardize the model to a certain degree
22 across the country. In other words, not in
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1 every case does a drug court work as
2 effectively as it should, but in most cases.
3 Thank you.
4 ACTING CHAIR HINOJOSA: Thank you,
5 Dr. Finigan.
6 Ms. Fredrickson.
7 MS. FREDRICKSON: Thank you very
8 much for having me here to testify for the
9 American Civil Liberties Union.
10 I am very proud to be here on
11 behalf of the ACLU's 53 affiliates nationwide
12 and on more than 500,000 members. I'm going
13 to talk about a couple of issues that you've
14 heard much about, not just in the past several
15 days but over the course of your existence,
16 the disparity between crack and powder cocaine
17 in sentencing and mandatory minimum sentences
18 for drug offenders.
19 And on these issues current federal
20 sentencing law threatens basic constitutional
21 guaranties of due process, equal protection,
22 and freedom from disproportionate punishment.
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1 The injustice that the current
2 federal sentencing laws exact is
3 disproportionately felt by people of color,
4 violating basic principles of fairness upon
5 which our criminal justice system must be
6 based and undermining public trust and the
7 legitimacy of government.
8 We bring the crack/powder disparity
9 to your attention, fully aware that you have
10 previously examined it and recommended that
11 Congress reform this unfair and destructive
12 law, and we do indeed commend you for
13 advocating that correction.
14 Today we urge you to recommend
15 change to Congress yet again. The ranks of
16 those opposed to the current federal
17 sentencing law are rapidly swelling. There
18 are increasing numbers of voices in favor of
19 eliminating the disparity and mandatory
20 minimums on the federal bench, on Capitol
21 Hill, in the Oval Office, and most recently in
22 the Department of Justice.
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1 We are encouraged by this growing
2 support for reform, but we are also certain
3 that this body, the definitive authority on
4 federal sentencing, must raise its voice once
5 again before Congress will act.
6 In the written testimony we
7 submitted for this hearing the ACLU raised
8 four arguments for abandoning the current
9 cocaine sentencing scheme. One, it has led to
10 unjustifiable racial disparities and harmed
11 primarily African American communities.
12 Despite Congress' rational for establishing
13 drastically differential sentencing for the
14 two forms of the same substance, there is no
15 connection between crack use and violence.
16 And, third, myths about crack's unique
17 chemical effects have been fully debunked.
18 And, fourth, the sentencing scheme fails to
19 implement Congress' intent because it does not
20 focus on high-level drug traffickers.
21 In addition, we identified
22 increasing political support for reforming our
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1 cocaine sentencing laws, including the recent
2 testimony of Assistant Attorney General Lanny
3 Breuer, who testified of the Department of
4 Justice's support for eliminating the crack
5 powder disparity.
6 And, finally, we urged in our
7 submitted testimony that this body should
8 support Representative Jackson Lee's Drug
9 Sentencing Reform and Cocaine Kingpin
10 Trafficking Act of 2009.
11 We traced the progress of the
12 United States Supreme Court decisions of the
13 past two years and concluded that the
14 executive and judicial branches have joined in
15 this call for change. And now we urge the
16 Commission to join the President and the
17 judiciary once again and assist Congress by
18 pointing the way to needed reform.
19 Today the ACLU asks you to urge
20 Congress to eliminate mandatory minimum
21 sentences for all drug offenders. Mandatory
22 minimums hinder this Commission's work. They
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1 establish inappropriate, artificial floors,
2 below which this body cannot set narcotics
3 penalties. You are thus prevented from using
4 empirical bases to determine the true harms of
5 criminal offenses, which undermines your
6 ability to fulfill the Commission's mandate.
7 Crack cocaine mandatory minimum
8 sentences developed in the wake of a flood of
9 misinformation, illustrate the need for the
10 Commission and Congress to base sentences on
11 facts, not fear. Only when sentences reflect
12 a review of the best pharmacological and
13 social science evidence will the perception
14 and reality of racial bias be eliminated. As
15 long as mandatory minimums exist and the
16 sentencing guidelines are keyed to the
17 mandatory minimums, Congress will be dictating
18 a result that is not based on your expertise
19 and your comprehensive analysis.
20 The elimination of mandatory
21 minimums will further strengthen this
22 Commission's work by increasing the discretion
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1 of sentencing courts to apply the advisory
2 guidelines freed from the restrictions of
3 congressionally-mandated minimums.
4 We ask you to include a request for
5 Congress to do away with mandatory minimum
6 sentences for drug offenses along with your
7 recommendation to eliminate the unjust crack
8 powder disparity.
9 In support of this recommendation
10 I'd like to briefly tell you about the impact
11 of these policies on an African American woman
12 named Eugenia Jennings. Sometimes only the
13 narratives of those who have suffered the
14 brunt of these policies can really bring the
15 point home. And many of you, and particularly
16 the Acting Chair, may have heard Ms. Jennings'
17 brother, Cedric Parker, testify before the
18 Senate Judiciary Crime Subcommittee on April
19 28th of this year
20 Ms. Jennings has been in jail since
21 2000. And absent commutation, will remain in
22 jail until 2019. Her life story and the
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1 circumstances leading to her 21-year sentence
2 epitomize the damage that the crack powder
3 disparity and mandatory minimums inflict on
4 individuals and on our society's most basic
5 commitment to fairness.
6 As the Obama Administration's new
7 Drug Czar Gil Kerlikowske -- must be a friend
8 of yours, I imagine -- stated regardless of
9 how you try to explain to people it's a war on
10 drugs or a war on a product, people see a war
11 as a war on them.
12 Ms. Jennings first found herself
13 around illegal drugs early in her childhood.
14 Because her own mother was unable to care for
15 her, she lived with a surrogate family whose
16 other children all abused drugs and alcohol.
17 In addition to the substance abuse that
18 surrounded her as a child, Ms. Jennings was
19 physically abused by her surrogate mother.
20 She was also sexually abused by one of her
21 half-brothers, by her step-father, by a
22 neighbor, and by a prostitute with whom she
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1 was left alone at age seven.
2 Seeking refuge at age 13, Ms.
3 Jennings moved in with her boyfriend, [who]
4 also lived in a house soaked with alcohol and
5 drugs. She was addicted to crack by the time
6 she was 15 and incarcerated for the first time
7 at 18. Ms. Jennings sought treatment while in
8 prison and got clean, but relapsed into
9 addiction after her release which resulted in
10 the 21-year sentence she is currently serving.
11 Ms. Jennings is serving 21 years
12 for two counts of distributing crack cocaine.
13 She had two priors for the same offense and
14 was charged as a career offender, receiving a
15 sentence intended for major drug kingpins.
16 Her first two offenses involved less than two
17 and a half total grams of crack. Her second
18 two offenses involved 1.3 and 12.6 grams,
19 respectively.
20 Ms. Jennings was a 23-year-old
21 mother of three when she received her 21-year
22 sentence. If it had been powder cocaine
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1 instead of crack cocaine, Ms. Jennings would
2 have completed her sentence and could be here
3 today to tell you her story. [She] is
4 currently sober. [She’s] an avid student and
5 a model employee in prison. Were she out of
6 prison today she could be building a new life
7 for herself and her three children. She has
8 paid a nine-year debt to society for her
9 crimes and she has turned herself around,
10 defying the harrowing conditions of her life.
11 But because of the crack powder disparity and
12 the harsh mandatory minimums, she cannot start
13 building her new life and she cannot be
14 present in her children's lives for another
15 decade.
16 Now under the disparity and
17 mandatory minimums tied the federal judge's
18 hands when he sentenced her, but when the
19 Honorable G. Patrick Murphy announced her
20 sentence, he articulated far more eloquently
21 than I can the injustice of Ms. Jennings' 21-
22 year sentence.
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1 "Ms. Jennings," he said, "I'm not
2 mad at you. The fact of the matter is nobody
3 has ever been there for you when you needed
4 it, never. You never had anybody who stood up
5 for you. All the government's ever done is
6 just kick your behind. When you were a child
7 and you had been abused, the government wasn't
8 there. When your step-father abused you, the
9 government wasn't there. When your step-
10 brother abused you, the government wasn't
11 there. But when you got a lot of crack, the
12 government's there. At every turn in the
13 road, we failed you and we didn't come to you
14 until it was time to kick your butt." That's
15 what the government has done for Eugenia
16 Jennings.
17 We at the ACLU were encouraged by
18 Gil Kerlikowske's statement that the
19 administration is not at war with people in
20 this country, but this drug policy we're
21 talking about today that regularly and
22 systematically punishes African Americans more
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1 severely than Caucasians and that usurps this
2 body's ability to implement its expertise has
3 been in place for over 20 years. It has
4 failed and reform is long, long overdue.
5 Therefore we call on the Commission
6 to urge Congress to eliminate the unjust crack
7 powder disparity and do away with the baseless
8 mandatory minimums for narcotics.
9 We recognize that this will be an
10 incremental process to correct these failed
11 policies, but we do believe that the first
12 step should be the passage of Representative
13 Jackson Lee's Drug Sentencing Reform and
14 Cocaine Kingpin Drug Trafficking Act of 2009.
15 We hope that in recommending its
16 passage to Congress the Commission will
17 emphasize that the Jackson Lee bill is only
18 the very first step towards an end that will
19 only be achieved when mandatory minimums are
20 also eliminated.
21 Thank you very much for convening
22 this hearing and for have the ACLU here.
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1 Thank you.
2 ACTING CHAIR HINOJOSA: Thank you
3 very much.
4 Any questions?
5 COMMISSIONER HOWELL: I have a
6 couple. Dr. Finigan, I was just curious about
7 the extent -- I mean I know you've been
8 studying a hundred different drug courts, and
9 I'm just curious about the extent you're
10 finding any drug courts at the federal level
11 versus the state level. And are there many
12 drug courts at the federal level?
13 DR. FINIGAN: There are not many,
14 no. And, in fact, we --
15 COMMISSIONER HOWELL: And are there
16 federal -- are any of the hundred drug courts
17 that you're saying, any at the federal level?
18 DR. FINIGAN: I'm sorry?
19 COMMISSIONER HOWELL: Are any of
20 them at the federal level?
21 DR. FINIGAN: No. They're all at
22 the state or local level. I mean they're --
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1 usually we've been hired by state
2 administrative office of the courts to look
3 within their state, the drug courts that are
4 developed. Usually they have a statewide drug
5 court administer. But no, we have -- we have
6 been approached by them a couple for one
7 times, by the feds, but we have not done that.
8 COMMISSIONER HOWELL: And so none
9 of the -- you haven't actually studied any of
10 the reentry programs that some courts around
11 -- federal courts around the country are
12 implementing?
13 DR. FINIGAN: No, we have not.
14 Again, I think it's similar to the whole
15 problem-solving court model. So that's -- but
16 I'm just testifying on what is essentially the
17 adult drug court model as been implemented.
18 COMMISSIONER HOWELL: Ms.
19 Fredrickson, thank you very much for being
20 here. You know, our Chairman has now
21 testified before the Senate and the House
22 talking about the Commission's positions and
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1 statistics underlying our positions on the
2 crack powder disparity and urging a change in
3 the statutory mandatory minimum. Is there
4 more that you'd like us to do or that you're
5 requesting in your urging us to recommend to
6 change than the testimony we've already given?
7 MS. FREDRICKSON: Well, I think I
8 think that the continued reiteration is
9 important. The Commission really has done a
10 huge amount, and we are -- really want to
11 commend you for all you have done in moving
12 this issue forward, keeping it on the
13 congressional agenda, but until there's an
14 actual change I think this commission will
15 need to continue in increasing urgency, to ask
16 for the legislation to be passed.
17 There are more and more people who
18 are coming to the realization that this policy
19 is extremely flawed, but again I think the
20 Commission itself is really where expertise
21 resides. Your voice is critical. And even
22 though I'm sure you feel like you're getting
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1 hoarse from saying over and over that this
2 policy needs to be changed, I think we all
3 need to continue to fight this battle, and the
4 Commission is really our leader in this, so
5 thank you for that.
6 COMMISSIONER WROBLEWSKI: One quick
7 question. First of all, let me thank you all
8 for being here. We appreciate you traveling
9 all this way and giving over your time.
10 One quick question for Mr. Fehr
11 relating to halfway houses. You indicated
12 that the average time that clients in your --
13 that offenders in your program stay is about a
14 hundred days. And the head of the Bureau of
15 Prisons has testified that their research
16 shows that the optimum stay is between 90 and
17 120 days and then to go and serve a period in
18 home confinement before they're ultimately
19 released. And he's testified that it's
20 ineffective and sometimes actually
21 counterproductive to stay much more than 120
22 days. Do you agree with that, disagree, and
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1 why?
2 DR. FINIGAN: Well, just to
3 clarify, to begin with, it's not -- in my
4 programs, I operate in Washington State, that
5 they average 101 days in fiscal year 2008. It
6 is nationally, that is the national average.
7 And to come up with that measure is
8 simply -- there's a whole variety of outlying
9 lengths of stay. And we were receiving people
10 who would come in for 30 days and 45 days in
11 numbers. It's really important to begin the
12 process of renegotiating in that period of
13 time, to get them employed; to have them
14 access substance abuse treatment, if that's
15 appropriate; mental health services, if that's
16 appropriate; reunification with family; and
17 other kinds of beneficial activities within a
18 short period of time.
19 So the average now is, as I said,
20 101 days. Congress in its wisdom believed
21 that maximum amount of time was insufficient
22 at six months. And they argued that this
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1 should be increased up to a year, knowing full
2 well that by do the average length of stay
3 would be somewhat less than that.
4 I think this is where evidence-
5 based practices in terms of validated and
6 numeralized risk and needs assessments can be
7 very useful to determine who needs a longer
8 period of time and who could benefit from it
9 than others. So I mention that. I can't
10 imagine that there are very many, if any,
11 federal inmates who need a year in a community
12 residential placement. But I do argue that
13 there are many who would benefit by having
14 more than having 101 days in such a placement.
15 Thank you.
16 ACTING CHAIR HINOJOSA: Thank you
17 all very much. And we realize that you all
18 are performing work for other groups and it's
19 really nice of you take the time and effort to
20 be here with us today and share your thoughts.
21 And we certainly appreciate the written
22 comments that you all have submitted also.
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1 Thank you all very much.
2 MS. FREDRICKSON: Thank you.
3 PROFESSOR FEHR: Thank you.
4 DR. FINIGAN: Thank you.
5 ACTING CHAIR HINOJOSA: We're also
6 very fortunate to have in the room today Dean
7 Larry Kramer, who's the Dean of the Stanford
8 Law School. He and Kara Dansky, who is the
9 Executive Director of the Stanford Law
10 Criminal Justice Center, have been extremely
11 helpful with regards to having these hearings
12 here. And we could not have had a better
13 venue than this for these hearings. And we
14 certainly appreciate your openness and your
15 willingness to work with us and your desire
16 from the very start to have us here. And so
17 on behalf of the entire Commission we want to
18 say thank you very much and we hope to some
19 day come back because it has been a great
20 place to have this hearing.
21 And, Dean Kramer, if you'd like to
22 say something.
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1 DEAN KRAMER: I just wanted to say
2 thank you for coming. Thank you all for
3 coming. I'm glad the hearings went well. We
4 would absolutely be delighted to host you
5 again any time you want to come, hopefully
6 next time while we're in session because I
7 think a lot of students would like to have
8 come. I'd love for them to have the chance to
9 see how the Commission actually works, because
10 it's such an important part of the criminal
11 justice system. And, again, we're just
12 really, really happy you came and look forward
13 to seeing you again soon
14 ACTING CHAIR HINOJOSA: Dean Kramer
15 and Ms. Dansky, thank you so much for putting
16 up with us and we hope we haven't been too
17 much of a bother.
18 (Cell phone ringing.)
19 ACTING CHAIR HINOJOSA: And I don't
20 know where the marshals are, but they usually
21 jump whenever this happens in the courtroom.
22 (Laughter.)
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1 ACTING CHAIR HINOJOSA: Thank you
2 all very much. And on behalf of the
3 Commission I want to thank every single person
4 who has participated as a presenter with
5 regards to our hearings and certainly everyone
6 who has been here and has been interested, and
7 we appreciate the comments, the suggestions,
8 the direction that you all have presented.
9 And it has been extremely helpful and will
10 continue to be so. Thank you all very much.
11 (The hearing was adjourned at 12:52
12 p.m.)
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