Hearing of House Subcommittee on Crime, Terrorism, and Homeland Security: Implications of the Booker/Fanfan Decisions for the Federal Sentencing...

HEARING OF HOUSE SUBCOMMITTEE ON CRIME, TERRORISM, AND HOMELAND SECURITY: IMPLICATIONS OF THE BOOKER/FANFAN DECISIONS FOR THE FEDERAL SENTENCING GUIDELINES

February 10, 2005

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Mr. Scott. Thank you, Mr. Chairman, and I thank you for convening this hearing. This is our first Subcommittee meeting and I look forward to working with you during this session of Congress.

I am pleased to join you in convening this hearing on the implications of the United States Supreme Court's Booker and Fanfan decisions and the Federal sentencing guidelines. Since the Blakely v. Washington decision last June, the viability of the Federal and many State sentencing systems have been in jeopardy. That decision made it clear that sentences based on facts found by the court after the trial that were not admitted by the defendant or established during the trial deprived the defendant of their constitutional right to a jury trial.

We contemplated a range of options or approaches after the decision. They ranged from doing nothing to enacting an entire system of statutory minimums and maximums. However, we wisely, I believe, listened to the Council of Sentencing Experts and others suggesting that we give the courts a chance to further clarify the impact of the decision on the Federal system.

That further clarification came in the decision by a strangely divided Court in January through the Booker/Fanfan decision. That decision clarified that Blakely, indeed, was applicable to the Federal sentencing guideline system and found the system unconstitutional as applied. However, the Court delineated the aspects of the system that caused it to be unconstitutional, thereby excising the applicability of those factors, leaving the remainder of the system intact. Yet, the Court, as it properly tends to do, only answered the questions it considered to be properly before it at the time. Therefore, we are left with the issue of how the remaining system can operate consistent with its aims and purposes and the Court's decisions. Again, sentencing experts and others are advising that we await further clarification from the courts on the impact of Booker/Fanfan.

The early indications of this post-Booker/Fanfan/Blakely context is that the sky is not falling. The criminal defendants are being prosecuted and sentenced, and the sentencing guideline system is directing those sentences to essentially the same extent as it was before. So for those who found the sentencing guideline system acceptable as applied before Blakely, Booker, and Fanfan should still find the situation reasonably acceptable now. There are quirks and imperfections before the recent upheavals that required appellate court correction or clarification, and that is the situation we have today.

For others, including myself, the Federal sentencing guidelines as applied were not satisfactory. I am concerned about the growing minority percentage of a rapidly increasing Federal prison population serving excessively long sentences for minor roles in non-violent crimes due in large part to unfair application of mandatory minimums and other reasons. These problems are detailed in two recent reports from the Sentencing Project entitled ``Racial Disparity in Sentencing: A Review of the Literature,'' and ``The Federal Prison Population: A Statistical Analysis,'' along with a recently completed 15-year study of the U.S. Sentencing Commission, of which I have an executive summary and I would ask unanimous consent that those be introduced into the record of this hearing.

Mr. Coble. Without exception, it will be done.

[The material referred to is located in the Appendix.]

Mr. Scott. All of the credible data shows that minorities are less likely than whites to use illegal drugs of virtually all types, including crack cocaine, yet a grossly disproportionate percentage of the enforcement of the war against drugs falls on minorities, many of whom are bit players in the end stage of the drug trade whose involvement is based more on addiction than profit. Eighty percent of the crack prosecutions are against African-American defendants, while drug use data reflects that 60 percent of the crack is used by whites.

All of the research and demonstrations show that drug treatment and other alternatives to incarceration are much more effective and much cheaper than incarceration. Yet we continue to greatly increase our resources to lock people up, and more of these bit players get locked up for longer and longer periods while making no consideration to effective and less costly alternatives and only minimally increasing drug treatment as compared to the increases in enforcement and incarceration.

Report after report, including these by the Sentencing Commission and others, have pointed to these gross disparities in application of the drug enforcement and sentencing policies against minorities, and while we address the atrocities before us in Blakely and Booker and Fanfan, it is certainly time to look at these sentencing policies as they affect minorities.

So, Mr. Chairman, as we carefully contemplate what needs to be fixed in the Federal guideline system, I would invite consideration of this longstanding and shameful problem in our Federal law enforcement and sentencing applications and look forward to our witnesses' testimony for any guidance they may give us as we contemplate these and other challenges in our criminal justice system, particularly as it pertains to sentencing.

I yield back.

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Mr. Scott. Thank you, Mr. Chairman.

Mr. Wray, I was intrigued by your statement that the Federal guidelines have reduced crime. What portion of the violent criminals that are sentenced in America today are sentenced in Federal court?

Mr. Wray. Ranking Member Scott, I don't have that percentage. I can tell you that--and I believe what I meant to say, I am not sure if I said this or not, is that sentencing regimes like the Federal sentencing guidelines--in other words, I think I pointed out that a number of States have followed Congress's lead in adopting similar systems and it is our view that the combination of the Federal guidelines in the Federal system, and in the State systems which track in many ways the Federal system, have resulted in that reduction in violent crime.

Mr. Scott. And do you have some studies that show the pattern that those States that actually increase sentences had a larger reduction in crime than the general reduction that was going on all over the country?

Mr. Wray. I don't have that information for you today. I would be happy to try to provide that in supplemental questions. I do think there is information, if I recall correctly, that shows, for example, in California that there have been significant reductions in the wake of their adoption of a system like that.

Mr. Scott. I am saying I know there are reductions. We had Project Exile in Richmond, Virginia. When it went into effect, the crime rate went down. When you look at other cities similarly situated that didn't have Project Exile, the crime rate went down more. So my question is whether or not you see any pattern that there is a real effect on longer sentences and reduced crime. Just in some States did it go down. But in all States, the crime rate went down. There are plenty of studies that show there is no pattern at all and I was just wondering, in abolishing parole and all that kind of stuff, do you have any credible studies that back up what you said?

Mr. Wray. I do believe we have information that shows that the implementation of so-called truth-in-sentencing regimes across the country, both in the Federal system and in the majority of the States, have contributed to a significant reduction in violent crime. I would be happy to respond in supplemental written questions to provide more information if that would be helpful.

Mr. Scott. It would be helpful, and I would hope it would be in the form that would show a pattern, not just that you did it and crime went down, but you did it but crime went down in a pattern that suggests that the longer sentences had something to do with the reduction. So I look forward to that information.

Judge Hinojosa, you tried a lot of cases and I am sure you would recognize that the seriousness of a crime isn't always conveyed by the code section that was violated. Some people can violate the same code section and common sense tells you that one crime was much more serious than the other and that ought to be reflected in the sentence.

You still have the guidelines. In the present system with them being advisory and not mandatory, is it more likely or less likely that the defendant will get an intelligent sentence in the present system or with the mandatory guidelines?

Judge Hinojosa. I guess Congressman Coble pointed out how long I have been on the bench, more or less, by indicating who appointed me to the bench, so I have actually done sentencing both under pre-guideline system for close to 5 years and after the guidelines. I have to say that the guideline system was of great benefit to the sentencing process, which is the most difficult thing that a judge has to do.

Prior to the guidelines, you wanted to be consistent, you wanted to treat like defendants for like criminal law offenses more or less the same, but it was very difficult without having a guideline system and you spent a lot of your time trying to determine what you had done in a similar case with someone with a similar prior history with regard to their particular sentence because you wanted to be consistent, you wanted to be fair, and you wanted to give the type of sentence you were giving on a regular basis, but that was just you individually as opposed to all the other judges.

The guideline system under the Sentencing Reform Act was created to try to prevent those kind of problems and it had its effect. It is a difficult process, but I do think that the Federal guideline system provides the considerations under the Sentencing Reform Act. As they are now, as advisory, the Commission's position as well as my position continues to be that the Booker decision, and I may have misspoken with regard to Congressman Coble's question, does indicate that the guidelines have to be consulted and considered with regard to every sentence, which would therefore mean substantial weight should be given to them, and I do think that it is important to do that.

As a judge, you have to make the findings on the record within the guideline system, or if not, you cannot just generally say, I have considered the guidelines but I have decided to proceed with this sentence because we will go right back to the situation we were beforehand.

Mr. Scott. The present situation gives you flexibility. Is that helpful in assessing an intelligent situation? I mean, some people similarly situated actually come into your court charged under different code sections, and you look at it and it is exactly the same behavior.

Judge Hinojosa. There is flexibility, obviously, under the Booker decision, but I strongly believe after the number of years that I have sentenced individuals under the guidelines system that there was flexibility within the guidelines system. I did not have to proceed with relevant conduct unless I made a finding that I was convinced that that was the individual's relevant conduct. With regard to role in the offense, I can make adjustments upward or downward depending on what I saw the evidence is like with regard to every single finding under the guidelines.

I do have to say those were decisions I would make without ever telling an individual when I would sentence somebody before the guidelines system whether there was a firearm involved, what kind of drugs were involved, the amount of the drugs involved. Those were all factors with no transparency in the pre-guidelines system. But I do think there was some discretion within the guidelines system that we have failed to state within the past in the system itself because the judge still had to make those findings.

Mr. Coble. The gentleman's time has expired.

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Mr. Scott. Thanks, Mr. Chairman.

I had just a couple of technical questions if we do something. There is an old adage, slightly rephrased, that we might abide by and that is don't just do something, stand there. [Laughter.]

If we do something, what would happen to a pre-sentence report. Pre-sentence reports, under mandatory guidelines, would be useless, I would imagine. Is that right, Judge?

Judge Hinojosa. Well, under the present system, the pre-sentence report still, according to the rules, needs to be prepared as it was being prepared beforehand.

Mr. Scott. And under the voluntary guidelines, you could still consider the pre-sentence report today. But if we had mandatory guidelines, it would be--the findings in the pre-sentence report, since they were not found by a judge, could not be used.

Judge Hinojosa. Well, they would always be found by a judge, Congressman, because these are just recommendations from our probation officers. The advantage to that system, when it was created, was we have always had pre-sentence reports. After the guidelines, obviously, they were geared toward recommendations of the guidelines findings. But eventually, it is the judge's decision.

The advantage to the present system is there is a report that is given to the prosecution and the defense. There is a period of time within which they can object to it. Then there is a period within which the probation office responds to it. And then there is an actual hearing before the court. But as most probation officers find out, it is the judge who makes the decision, not the probation officer.

Mr. Scott. If the guidelines were made somehow mandatory, you couldn't use the pre-sentence report without a finding by a jury along with the facts in the pre-sentence report.

Judge Hinojosa. It would depend on what the defendant had admitted at the time of the guilty plea or what the jury verdict had been with regard to the charge and the way it was worded in the instructions to the jury at the time of the conviction. And so it might very well be that the determinations would be made under Blakely and under Booker constitutionally.

Mr. Scott. But if we don't do anything, you can consider the information in a pre-sentence report today, if we don't do anything?

Judge Hinojosa. Well, what it appears to me that Justice Breyer and the five members of that majority were doing was saying, yes, you the other majority have said Blakely applies to the Federal guidelines with regard to sixth amendment rights, but since they are now advisory, the judges can continue making the findings under the standards of proof that they have used in the past and under the same methods of determining the guidelines system without having to have a jury determine these because these are now advisory and are being considered as one of the factors within 3553(a), although a very strong factor and one obviously that the Commission feels deserves substantial weight.

Mr. Scott. If there is a guilty plea, obviously, you didn't find anything by a jury beyond a reasonable doubt. How do you consider the various factors today without any findings?

Judge Hinojosa. In my case, as to what procedure I am following, I am following the same procedure and making the findings in the same fashion as I did beforehand. It is open. It is a discussion of the factors that need to be considered, opportunity for both sides to come forward with whatever information they have so that the court can make the decision here.

And I do have to say that under the old system, I made those decisions without ever having to tell a soul that I was doing that, and there was no standard with regard to beyond a reasonable doubt or a preponderance and those factors were all being considered.

Mr. Scott. Mr. Bowman, did you want to comment on that, or on both of those questions, what do you do with the pre-sentence report and a guilty plea?

Mr. Coble. And, Mr. Bowman, if you would as quickly as you can because we do need to adjourn, but go ahead, Mr. Bowman.

Mr. Bowman. Another way of putting what Judge Hinojosa is saying, which may help clarify this, is at least my understanding of what Booker has held, and I think this is what Judge Hinojosa is saying, as well, is that after Booker, everything essentially remains--in terms of procedure in the courts--everything remains exactly as it was before Booker. Factual determinations must be made. A sentencing hearing must be held. A guidelines determination must be made. Everything remains exactly as it was up to the point at which the guideline determination is made and the judge then has to decide whether to sentence inside that range or outside that range.

So procedurally, if you leave things exactly as they are, if you don't disturb Booker, the Booker mechanism seems to be one in which the fact-finding process is exactly the same as it was before.

Mr. Scott. Mr. Chairman, could I ask one other quick question, and that is to Mr. Wray on the cooperation credit. Can you say a word about the policy implications of requiring defendants to waive attorney-client and other privileges?

Mr. Wray. Sure, Ranking Member Scott. The issue of attorney-client privilege waiver comes up most typically, at least in my experience, in the context of corporate fraud cases. I am not aware of very many instances that I have seen where anyone is asking for such a waiver in the context of an individual defendant. But has not been the Department's policy to insist on such a wavier.

It is, however--there are cases where a defendant, typically a corporate defendant, that is, a company that is under investigation, will choose to do that to demonstrate how cooperative they are being and how helpful they are being, and we want to make sure that when companies and institutions do that, they get appropriate credit for doing that, because we recognize that is a very significant step that is not to be taken lightly.

Mr. Scott. May I have unanimous consent to request documents be added to the record?

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http://frwebgate.access.gpo.gov/cgi-bin/getdoc.cgi?dbname=109_house_hearings&docid=98624.waisais