1 1 Before the 2 UNITED STATES SENTENCING COMMISSION 3 Public Hearing 4 Thursday, February 16, 2012 5 Federal Judicial Center, Classrooms A-C 6 Thurgood Marshall Federal Judiciary Building 7 One Columbus Circle 8 Washington, DC 20002-8002 9 The hearing was convened, pursuant to 10 notice, at 8:39 a.m., before: 11 JUDGE PATTI B. SARIS, Chairwoman 12 MR. WILLIAM B. CARR, JR., Vice Chairman 13 MS. KETANJI BROWN JACKSON, Vice Chairwoman 14 CHIEF JUDGE RICARDO H. HINOJOSA, 15 Commissioner 16 JUDGE BERYL A. HOWELL, Commissioner 17 MS. DABNEY FRIEDRICH, Commissioner 18 MR. JONATHAN J. WROBLEWSKI, Ex-Officio 19 Member of the Commissioner 20 21 22 COURT REPORTER: Jane W. Beach, Ace-Federal Reporters 2 1 PANEL I: Current State of Federal Sentencing 2 HONORABLE PAUL BARBADORO 3 United States District Judge 4 District of New Hampshire 5 MATTHEW AXELROD 6 Associate Deputy Attorney General 7 United States Department of Justice 8 CHARLES SAMUELS, Director 9 Federal Bureau of Prisons 10 RAYMOND MOORE 11 Federal Public Defender 12 Districts of Colorado and Wyoming 13 ROUNDTABLE I: Improving the Advisory Guideline 14 System 15 HONORABLE GERARD LYNCH 16 United States Circuit Judge 17 United States Court of Appeals for 18 the Second Circuit 19 HONORABLE ANDRE M. DAVIS 20 United States Circuit Judge 21 United States Court of Appeals for 22 the Fourth Circuit 3 1 ROUNDTABLE I (Continued): 2 HENRY BEMPORAD 3 Federal Public Defender 4 Western District of Texas 5 PROFESSOR SUSAN R. KLEIN 6 Alice McKean Young Regents Chair in Law 7 University of Texas School of Law 8 MATTHEW MINER 9 Attorney 10 Washington, DC 11 ROUNDTABLE II: Restoring Mandatory Guidelines 12 HONORABLE THEODORE McKEE 13 Chief United States Circuit Judge 14 Third Circuit Court of Appeals 15 HONORABLE WILLIAM K. SESSIONS III 16 United States District Judge 17 District of Vermont 18 MICHAEL NACHMANOFF 19 Federal Public Defender 20 Eastern District of Virginia 21 22 4 1 ROUNDTABLE II (Continued): 2 PROFESSOR FRANK BOWMAN III 3 Floyd R. Gibson Missouri Endowed Professor of Law 4 University of Missouri School of Law 5 MICHAEL VOLKOV 6 Attorney 7 Washington, DC 8 PANEL II: Comparing the Options, An Academic 9 Perspective 10 PROFESSOR SARA SUN BEALE 11 Charles L.B. Lowndes Professor of Law 12 Duke University School of Law 13 PROFESSOR MICHAEL TONRY 14 Russell M. and Elizabeth M. Bennett Chair 15 in Excellence 16 University of Minnesota Law School 17 PROFESSOR DOUGLAS BERMAN 18 Robert J. Watkins/Procter & Gamble Professor of Law 19 The Ohio State University Moritz College of Law 20 21 22 5 1 PANEL III: Comparing the Options, Community 2 Perspectives 3 MARY PRICE 4 General Counsel 5 Families Against Mandatory Minimums 6 MARC MAUER, Executive Director 7 The Sentencing Project 8 PANEL IV: Comparing the Options, Practitioners' 9 Perspectives 10 DAVID DEBOLD, Chair 11 Practitioners Advisory Group 12 LISA WAYNE, President 13 National Association of Criminal Defense Lawyers 14 JAMES E. FELMAN, Co-Chair 15 Criminal Justice Section 16 Committee on Sentencing 17 American Bar Association 18 19 20 21 22 6 1 P R O C E E D I N G S 2 (8:39 a.m.) 3 CHAIR SARIS: Good morning. Everyone 4 should be seated. We've got a long and great day 5 ahead. 6 Good morning. On behalf of the United 7 States Sentencing Commission I would like to welcome 8 all of you to today's important hearing on federal 9 sentencing issues, seven years after the Supreme 10 Court's decision in United States v. Booker. 11 Since 2005, the Supreme Court has issued 12 seven opinions that have significantly affected 13 federal sentencing, and the Commission currently is 14 in the process of studying and preparing a report on 15 what those effects have been. 16 Yesterday we held a hearing on federal 17 child pornography offenses. That hearing was 18 extremely informative and helpful to our study of 19 those offenses and their penalties, and I am sure 20 that today's hearing will be equally informative and 21 helpful to our study of post-Booker federal 22 sentencing. 7 1 In both the Commission's recently issued 2 report to Congress on mandatory minimum penalties, 3 and my October 12th, 2011, testimony before the House 4 Judiciary Committee's Subcommittee on Crime, 5 Terrorism, and Homeland Security, the Commission 6 stated its continued position that a strong and 7 effective sentencing guideline system best serves the 8 purposes of the Sentencing Reform Act. 9 As I stated at the subcommittee hearing, 10 the Commission continues to believe that a strong and 11 effective guidelines system is an essential component 12 of the flexible, certain, and fair sentencing scheme 13 envisioned by the Congress when it passed the SRA. 14 In light of increased sentencing 15 inconsistencies in sentencing practices that the 16 Commission has observed since Booker and its progeny, 17 and with the benefit of having several years of 18 experience under the advisory guideline system, the 19 Commission has suggested a number of ways in which 20 the current federal sentencing system may be improved 21 to ensure that it meets the purposes of sentencing 22 set forth in the SRA. 8 1 Specifically, the Commission suggested 2 that Congress enact a more robust appellate review 3 standard that (1) requires appellate courts to apply 4 a presumption of reasonableness to sentences within 5 the properly calculated guideline range; (2) requires 6 a greater variance from the guidelines be accompanied 7 by a greater justification for variance by the 8 sentencing court; (3) creates a heightened standard 9 of review for sentences imposed as a result of a 10 policy disagreement with the guidelines. The 11 Commission also suggested that Congress clarify 12 statutory directives to the sentencing court and the 13 Commission regarding how certain offender 14 characteristics should be considered under the 15 statutes 28 U.S.C. 994, and 18 U.S.C. 3553(a), that 16 are currently intentioned. 17 Finally, the Commission suggested that 18 Congress should require that sentencing courts give 19 substantial weight to the guidelines in sentencing 20 and codify the three-part sentencing process. 21 That does not mean, however, that those 22 suggestions are the only way to improve the current 9 1 advisory system, or that other types of guideline 2 systems that are consistent with the constitutional 3 holdings of Booker and its progeny should not be 4 considered. 5 It is for this reason that the Commission 6 is holding this important hearing today to hear 7 feedback about the Commission's suggestions, to hear 8 other ideas for improving the current system, and to 9 explore other possible guideline systems. 10 We look forward to hearing your 11 viewpoints, and I am sure they will be helpful to the 12 Commission as it prepares its upcoming report on 13 Booker. 14 Now I would like to introduce the rest of 15 the commissioners. Mr. Will Carr — some of you sat 16 here yesterday. This may not be necessary, but I 17 see some new faces out here, so here we go — Mr. Will 18 Carr, to my right, has served as vice chair of the 19 Commission since December 2008. Previously he served 20 as an assistant United States attorney in the Eastern 21 District of Pennsylvania from 1981 until his 22 retirement in 2004. 10 1 Ms. Ketanji Jackson, to my left, has 2 served as vice chair of the Commission since February 3 2010. Previously she was a litigator at Morrison & 4 Foerster, LLP; and was an assistant federal public 5 defender in the Appeals Division of the Office of the 6 Federal Public Defender in the District of Columbia. 7 Judge Ricardo Hinojosa served as chair and 8 subsequently acting chair of the Commission from 2004 9 to 2009. He is the chief judge of the United States 10 District Court for the Southern District of Texas, 11 having served on that court since 1983. 12 Judge Beryl A. Howell has served on the 13 Commission since 2004. She has also been a judge of 14 the United States District Court of the District of 15 Columbia since last year. 16 Dabney Friedrich, Ms. Friedrich, has 17 served on the Commission since December 2006. 18 Previously she served as an associate counsel at the 19 White House, as counsel to Chairman Orrin Hatch of the 20 Senate Judiciary Committee, and assistant U.S. 21 attorney in the Southern District of California, and 22 the Eastern District of Virginia. 11 1 And to my far right is Jonathan 2 Wroblewski, who is an ex-officio member of the 3 Commission, representing the Attorney General of the 4 United States. Currently he serves as director of 5 the Office of Policy and Legislation in the Criminal 6 Division of the Department of Justice. 7 So before we get going with our first 8 panel, I wanted to know if any of the other 9 commissioners had any remarks to make. 10 VICE CHAIR JACKSON: Could I say 11 something? 12 CHAIR SARIS: Commissioner Jackson. 13 VICE CHAIR JACKSON: I would just like to 14 say that I am extremely delighted that we are having 15 this hearing today, not only because it permits 16 feedback on the Commission's proposals for 17 strengthening the existing guideline system, but also 18 because it begins a dialogue about alternatives to, 19 and improvements to the particular set of guidelines 20 that we now have.