1 1 UNITED STATES SENTENCING COMMISSION 2 PUBLIC HEARING 3 * * * * * * * * 4 WEDNESDAY, SEPTEMBER 9, 2009 5 AND 6 THURSDAY, SEPTEMBER 10, 2009 7 * * * * * * * * 8 The public hearing convened in the Hon. James Benton 9 Parsons Ceremonial Courtroom in the Everett McKinley Dirksen United States Courthouse, 219 South Dearborn Street, Chicago, 10 Illinois, at 8:45 a.m. Wednesday, September 9, 2009, and 9:05 a.m. Thursday, September 10, 2009, the Hon. Ricardo H. 11 Hinojosa, Acting Chair, presiding. 12 COMMISSIONERS PRESENT: 13 RICARDO H. HINOJOSA, Acting Chair WILLIAM B. CARR, JR., Vice Chair 14 RUBEN CASTILLO, Vice Chair WILLIAM K. SESSIONS, III, Vice Chair 15 DABNEY L. FRIEDRICH, Commissioner BERYL A. HOWELL, Commissioner 16 JONATHAN J. WROBLEWSKI, Ex-Officio Commissioner 17 STAFF PRESENT: 18 JUDITH W. SHEON, Staff Director BRENT NEWTON, Deputy Staff Director 19 20 21 Court Reporter: 22 KATHLEEN M. FENNELL, CSR, RPR, RMR, FCRR Official Court Reporter 23 United States District Court 219 South Dearborn Street, Suite 2144-A 24 Chicago, Illinois 60604 Telephone: (312) 435-5569 25 www.Kathyfennell.com 2 1 PANELISTS PRESENT: 2 HON. JAMES F. HOLDERMAN, JR., Chief District Judge, Northern District of Illinois 3 HON. JAMES G. CARR, Chief District Judge, Northern District 4 of Ohio 5 HON. GERALD E. ROSEN, Chief District Judge, Eastern District of Michigan 6 HON. JON P. McCALLA, Chief District Judge, Western District of 7 Tennessee 8 HON. KAREN K. CALDWELL, District Judge, Eastern District of Kentucky 9 HON. PHILIP PETER SIMON, District Judge, Northern District of 10 Indiana 11 PHILIP MILLER, Chief Probation Officer, Eastern District of Michigan 12 RICHARD TRACY, Chief Probation Officer, Northern District of 13 Illinois 14 HON. J. MICHAEL BROWN, Secretary of Justice and Public Safety, Commonwealth of Kentucky, Frankfort, Kentucky 15 DAVID M. KENNEDY, Director, Center for Crime Prevention and 16 Control, John Jay College of Criminal Justice, New York, New York 17 HON. DANNY J. BOGGS, Circuit Judge, Sixth Circuit Court 18 of Appeals 19 HON. FRANK H. EASTERBROOK, Chief Circuit Judge, Seventh Circuit Court of Appeals 20 HON. JEFFREY S. SUTTON, Circuit Judge, Sixth Circuit Court of 21 Appeals 22 HON. PATRICK J. FITZGERALD, United States Attorney, Northern District of Illinois 23 HON. EDWARD M. YARBROUGH, United States Attorney, Middle 24 District of Tennessee 25 3 1 PANELISTS PRESENT: (Continued) 2 CAROL BROOK, Federal Public Defender, Northern District of Illinois 3 JACQUELINE JOHNSON, First Assistant Federal Public Defender, 4 Northern District of Ohio 5 THOMAS W. CRANMER, Principal, Miller, Canfield, Paddock and Stone, Troy, Michigan 6 JAMES VAN DYKE, Executive Director, Salvation Army 7 Correctional Services Program, Chicago, Illinois 8 CARL WICKLUND, Executive Director, American Probation and Parole Association, Lexington, Kentucky 9 HON. ROGER K. WARREN, President Emeritus, National Center for 10 State Courts, Williamsburg, Virginia 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 4 1 TABLE OF CONTENTS 2 Wednesday, September 9, 2009 3 Opening Remarks................................... 6 4 Panel I. View From the District Court Bench 5 Hon. James F. Holderman, Jr. ..................... 15 Hon. James G. Carr................................ 23 6 Hon. Gerald E. Rosen.............................. 43 Q&A Session....................................... 66 7 Panel II. View From the District Court Bench 8 Hon. Jon P. McCalla............................... 82 9 Hon. Karen K. Caldwell............................ 96 Hon. Philip P. Simon.............................. 101 10 Q&A Session....................................... 112 11 Panel III. View From the Probation Office 12 Philip Miller..................................... 127 Richard Tracy..................................... 135 13 Q&A Session....................................... 142 14 Panel IV. Law Enforcement and Community Impact 15 Hon. J. Michael Brown............................. 152 David M. Kennedy.................................. 166 16 Q&A Session....................................... 178 17 Panel V. View From the Appellate Bench 18 Hon. Frank H. Easterbrook......................... 192 Hon. Jeffrey S. Sutton............................ 201 19 Hon. Danny J. Boggs............................... 211 Q&A Session....................................... 215 20 Thursday, September 10, 2009 21 Reconvene and Opening Remarks..................... 238 22 Panel VI. View From the Executive Branch 23 Hon. Patrick J. Fitzgerald........................ 240 24 Hon. Edward M. Yarbrough.......................... 254 Q&A Session....................................... 265 25 5 1 2 TABLE OF CONTENTS 3 Panel VII. View from the Defense Bar 4 Carol Brook....................................... 300 Jacqueline Johnson................................ 310 5 Thomas W. Cranmer................................. 335 Q&A Session....................................... 339 6 Panel VIII. Alternatives to Incarceration 7 James Van Dyke.................................... 353 8 Hon. Roger K. Warren.............................. 365 Carl Wicklund..................................... 376 9 Q&A Session....................................... 384 10 Adjourn 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 6 08:43:00 1 OPENING REMARKS 08:43:00 2 ACTING CHAIR HINOJOSA: Good morning. 08:43:03 3 It's a special honor for me to welcome you on behalf 08:43:06 4 of the United States Sentencing Commission to this public 08:43:09 5 hearing, which is the fourth in a series of regional hearings 08:43:13 6 that the Commission is holding across the country on the 25th 08:43:16 7 anniversary of the passage of the Sentencing Reform Act of 08:43:20 8 1984. 08:43:20 9 A special thanks on behalf of the Commission to every 08:43:23 10 single member of the panels that will be addressing us during 08:43:27 11 the next two days. We realize that every person that is on a 08:43:31 12 panel has a busy schedule, and it is certainly appreciated 08:43:36 13 that they have taken the time to be present here and share 08:43:40 14 their thoughts with us and the work that they have put into 08:43:43 15 their thoughts, and it is very much appreciated on behalf of 08:43:46 16 all the members of the Commission. 08:43:47 17 A special thanks to Chief Judge James Holderman and 08:43:51 18 all the judges of the Northern District of Illinois here in 08:43:54 19 Chicago for their hospitality and for letting us use this 08:43:58 20 courtroom. It is certainly appreciated also. And a special 08:44:01 21 thanks also to, of course, the administrative assistant to the 08:44:05 22 chief judge, Larry Collins, for letting the Commission, as I 08:44:09 23 indicated, use this courtroom and all the help, logistical 08:44:13 24 help, that has been given to us and the staff of the 08:44:15 25 Commission. 7 08:44:15 1 I also want to, of course, thank Chief Judge Frank 08:44:19 2 Easterbrook of the Seventh Circuit for his hospitality and his 08:44:24 3 assistance with regard to this particular event. 08:44:27 4 As I indicated, this is the 25th anniversary of the 08:44:29 5 passing of the Sentencing Reform Act of 1984, and I always 08:44:33 6 refer to that Sentencing Reform Act with an adjective 08:44:37 7 beforehand, I always call it the bipartisan Sentencing Reform 08:44:42 8 Act of 1984, which is an adjective that sometimes we don't use 08:44:45 9 as often these days with regards to any major piece of 08:44:48 10 legislation, but it was the work of Senator Kennedy, Senator 08:44:54 11 Thurmond, Senator Hatch, and actually the work of many others 08:44:57 12 who, through the years, had had issues and comments with 08:45:00 13 regards to the sentencing process in the federal criminal 08:45:02 14 justice system. 08:45:03 15 Having been a judge at the time for about four years 08:45:06 16 or had been on two years, more or less, by the time of the 08:45:09 17 passage of the Act and then was on five years before the 08:45:12 18 guidelines came into effect, I have to say that I shared some 08:45:16 19 of the concerns that were expressed by those who were in favor 08:45:20 20 of passage of the Act. And I also feel that 25 years later, 08:45:24 21 it is safe to say whatever issues we might have or criticisms 08:45:28 22 or whatever praise we might have for the system itself at the 08:45:32 23 present day, that we are certainly in a better situation than 08:45:35 24 we were before the passage of the Act. 08:45:38 25 It is clear that one of the things that the 8 08:45:41 1 Sentencing Reform Act did was create the bipartisan United 08:45:46 2 States Sentencing Commission, which, through the years, has 08:45:49 3 promulgated guidelines, amended guidelines, and not only 08:45:54 4 worked on the guidelines system but actually worked very hard 08:45:57 5 with regards to collection of information, reports to 08:46:03 6 Congress, training programs, and all the other things that the 08:46:06 7 Commission does with regards to working in the sentencing 08:46:09 8 field. 08:46:10 9 Another thing that we all have witnessed, being on 08:46:16 10 the bench as well as practitioners in the field, is that there 08:46:21 11 have been some changes since 1987, not only with regards to 08:46:26 12 the guideline system itself, but certainly with regards to the 08:46:29 13 size of the federal docket when it comes to felony sentencings 08:46:32 14 and the misdemeanor cases that are counted for purposes of the 08:46:37 15 guideline determinations.