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Regional Public Hearing Transcript

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Regional Public Hearing Transcript 1 1 THE UNITED STATES SENTENCING COMMISSION 2 PUBLIC HEARING 3 4 5 Tuesday, October 20, 2009 6 7 The public hearing convened in the Mineral 8 Room at the Hyatt Regency Denver at Colorado Convention 9 Center, 650 - 15th Street, Denver, Colorado, at 10 8:38 a.m., the Hon. Ricardo H. Hinojosa, Acting Chair, 11 presiding. 12 13 COMMISSIONERS PRESENT: 14 Acting Chair: Judge Ricardo H. Hinojosa 15 Vice Chair: William B. Carr, Jr. Judge Ruben Castillo 16 Judge William K. Sessions III 17 Commissioners: Dabney Friedrich Beryl A. Howell 18 Jonathan J. Wroblewski 19 20 STAFF PRESENT: 21 Judith W. Sheon, Staff Director 22 Brent Newton, Deputy Staff Director 23 24 25 2 1 I N D E X 2 Page 3 OPENING REMARKS Honorable Ricardo H. Hinojosa 3 4 5 VIEW FROM THE APPELLATE BENCH Honorable Deanell Reece Tacha 15 6 Honorable Harris Hartz 24 Honorable James B. Loken 30 7 8 VIEW FROM THE DISTRICT COURT BENCH Honorable John Thomas Marten 62 9 Honorable John L. Kane 69 10 VIEW FROM THE PROBATION OFFICE 11 Kevin Lowry 96 Ronald Schweer 110 12 13 VIEW FROM THE EXECUTIVE BRANCH B. Todd Jones 140 14 David M. Gaouette 159 15 COMMUNITY IMPACT 16 Diane Humetewa 190 Ernie Allen 206 17 Paul Cassell 215 18 October 21, 2009 19 RECONVENE AND OPENING REMARKS 256 20 VIEW FROM THE DISTRICT COURT BENCH 21 Honorable Robert W. Pratt 257 Honorable Fernando Gaitan, Jr. 261 22 Honorable Joan Ericksen 267 23 VIEW FROM THE DEFENSE BAR 24 Raymond P. Moore 313 Nick Drees 324 25 Thomas Telthorst 342 3 1 * * * * * * * * * * 2 ACTING CHAIR HINOJOSA: Good morning. 3 This is a very special honor for me on behalf of the 4 United States Sentencing Commission to welcome you to 5 this public hearing, which is really the fifth in a 6 series of regional hearings that the Commission is 7 holding across the country on the 25th anniversary of 8 the passage of the Sentencing Reform Act of 1984. 9 These hearings have been conducted much 10 in the same way as the initial Commission conducted 11 their hearings across the country as they were trying 12 to set up the initial set of guidelines. 13 I do want to thank, on behalf of the 14 Commission, all those individuals who have agreed to 15 serve on panels throughout the next -- today and 16 tomorrow, for taking time out from their busy 17 schedules. We know each one of you has something else 18 that you need to be doing, but we appreciate the fact 19 that you have taken time out from your schedules to be 20 here with us today and to share your thoughts on the 21 important work of the Commission and on the federal 22 sentencing in general. 23 As I just indicated, this is, obviously, 24 the 25th anniversary of the passage of the Sentencing 25 Reform Act of 1984. And when I refer to the Sentencing 4 1 Reform Act, I have often used the adjective in front of 2 it of bipartisan Sentencing Reform Act of 1984. I know 3 that sometimes today that's a hard thing to put in 4 front of legislation, a bipartisan piece of 5 legislation, but the Sentencing Reform Act of 1984 6 truly was. It was obviously debated in Congress for 7 about ten years. When it was finally passed in 1984, it 8 had the support and the hard work behind it of Senator 9 Kennedy, Senator Thurmond, Senator Hatch, Senator 10 Biden, and, actually, the support and it was the result 11 of the work of many individuals across the country who 12 felt that this system needed reform, this federal 13 sentencing system was in need of reform. 14 Having been a judge at the time of the 15 passage of the Sentencing Reform Act, I have to say 16 that I felt the same way with regards to the system 17 that we had at the time; and after 25 years, I have to 18 say that I do feel that the system we have in place 19 today is much better than the system we had before the 20 passage of the Act. 21 It is clear that one of the things that 22 the Act actually did was create the bipartisan United 23 States Sentencing Commission, which, through the years, 24 has promulgated guidelines, amended guidelines, and has 25 not only worked just on the guidelines themselves, but 5 1 actually worked very hard with regards to the other 2 responsibilities and duties that the Act sets for it. 3 We have worked with regards to the collection of 4 information, reports to Congress, training programs and 5 all the other matters that the Commission does with 6 regards to trying to fulfill its mission under the 7 statutes. 8 One of the things that we have witnessed 9 during the past 25 years is the changes that have 10 occurred with regards to federal sentencing in general 11 since 1987, not only with regards to the system itself 12 that was put in place by the Sentencing Reform Act, but 13 certainly with regards to the size of the federal 14 docket, criminal docket itself. When it comes to 15 felony sentences -- and, actually, we don't actually 16 see the number of misdemeanor cases being reported by 17 many, but, for example, in the Southern District of 18 Texas alone, there were 11,000 misdemeanor cases that 19 were handled last year. 20 The felony docket has doubled since 21 1987. The makeup of the defendants has changed 22 dramatically since we had the passage of the Sentencing 23 Reform Act. It is still true that 80 percent of the 24 docket continues to be drugs, firearms, fraud, and 25 immigration cases; however, the latest statistics for 6 1 the fiscal year of 2009 indicate that immigration cases 2 have overtaken the drug cases as the number one number 3 of felony cases being sentenced by about one or 4 two percent, which is the first time that drug cases 5 have ever become the second number of cases that are 6 being sentenced on the felony side. 7 The ethnic and racial background of the 8 defendants has changed. The fiscal year -- in fiscal 9 year 2008, 42 percent of the defendants were Hispanic. 10 So far this fiscal year that number is about 11 45 percent. The non-citizens for fiscal year 2008 was 12 about 40 percent. That has grown to about 42 or 13 43 percent this fiscal year. This is a very big change 14 from what it was during the passage of the Sentencing 15 Reform Act of 1984. 16 Some things have not changed. Obviously 17 drug traffic and immigration continue to be a sizeable 18 part of the docket. Men continue to represent the 19 great majority of the defendants. The age makeup has 20 not changed. The vast -- more than half of the federal 21 defendants are between the ages of 21 and 35. 22 And I also want to indicate that part of 23 the work of the Commission is to work on amendments, as 24 well as new guidelines. The new guidelines obviously 25 are in response to new congressional statutes as well 7 1 as directives from Congress. And I also, with regards 2 to the -- both the amending of the guidelines and 3 creation of new guidelines, it is hard to appreciate 4 how the Commission goes about its work with regards to 5 complying with all of the factors that we as district 6 judges in the courtroom have to comply with every time 7 that we sentence somebody. 8 The Commission does this at a national 9 level, and the appreciation that I've acquired for the 10 Commission's work is much different than it might have 11 been before I became a member of the Commission, 12 because as I have seen the processes and works during 13 this nine-month cycle that the Commission engages in 14 with regards to the creation of new guidelines and/or 15 promulgating amendments -- promulgation of guidelines 16 and passage of amendments to the guidelines, in many 17 ways mirrors exactly what I do -- what we do as 18 district judges every time that we sentence someone. 19 It requires input from prosecutors, defenders, the 20 public, obviously the executive branch speaks through 21 the prosecutors. At the same time, obviously, the 22 legislative branch has a lot to say with regards to 23 either the passage of legislation itself or directives 24 to the Commission. 25 And then after all this is done, then 8 1 the Commission decides what the appropriate guidelines 2 should be, considering all of the Title 18 § 3 3553(a) factors taken as a whole. 4 I think the appreciation also has come 5 from judges across the country after the Booker 6 decision. I think judges have -- and I hear this as I 7 travel, as we all hear it as we travel with Sentencing 8 Commission work, that sometimes you hear judges 9 indicate that they didn't know how much they 10 appreciated the guidelines until they became advisory, 11 and they have then realized the purpose of the 12 guidelines and how to proceed with regards to 13 considering the guidelines. 14 Part of the reason that we're having 15 these hearings is to hear from judges and practitioners 16 what their views are with regards to the present status 17 of the federal sentencing system, not just about the 18 guidelines but the system itself; and we look forward 19 to hearing from all of you who represent different 20 segments of the criminal justice community and 21 certainly will provide insight to the Commission that 22 is so important with regards to how we proceed.
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