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S. HRG. 108–805

BLAKELY V. WASHINGTON AND THE FUTURE

OF THE SENTENCING GUIDELINES

HEARING

BEFORE THE

COMMITTEE ON THE JUDICIARY 

UNITED STATES SENATE

ONE HUNDRED EIGHTH CONGRESS

SECOND SESSION

JULY 13, 2004

Serial No. J–108–87

Printed for the use of the Committee on the Judiciary

(

(II)

COMMITTEE ON THE JUDICIARY 

ORRIN G. HATCH, Utah, Chairman 

CHARLES E. GRASSLEY, Iowa 

ARLEN SPECTER, Pennsylvania 

JON KYL, Arizona 

MIKE DEWINE, Ohio 

JEFF SESSIONS, Alabama 

LINDSEY O. GRAHAM, South Carolina 

LARRY E. CRAIG, Idaho 

SAXBY CHAMBLISS, Georgia 

JOHN CORNYN, Texas 

PATRICK J. LEAHY, Vermont 

EDWARD M. KENNEDY, Massachusetts 

JOSEPH R. BIDEN, JR., Delaware 

HERBERT KOHL, Wisconsin 

DIANNE FEINSTEIN, California 

RUSSELL D. FEINGOLD, Wisconsin 

CHARLES E. SCHUMER, New York 

RICHARD J. DURBIN, Illinois 

JOHN EDWARDS, North Carolina 

BRUCE ARTIM, Chief Counsel and Staff Director 

BRUCE A. COHEN, Democratic Chief Counsel and Staff Director 

(III)

C O N T E N T S 

STATEMENTS OF COMMITTEE MEMBERS 

Page

Hatch, Hon. Orrin G., a U.S. Senator from the State of Utah ............................ 1

prepared statement .......................................................................................... 161

Kennedy, Hon. Edward M., a U.S. Senator from the State of Massachusetts ... 7

prepared statement .......................................................................................... 164

Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont .................... 4

prepared statement .......................................................................................... 171

Sessions, Hon. Jeff, a U.S. Senator from the State of Alabama .......................... 8

WITNESSES 

Barkow, Rachel E., Assistant Professor, New York University School of Law, 

New York, New York ........................................................................................... 38

Bowman, Frank O., III, M. Dale Palmer Professor of Law, Indiana University 

School of Law, Indianapolis, Indiana ................................................................. 35

Cassell, Paul G., District Judge for the District of Utah, Salt Lake City, 

Utah ...................................................................................................................... 18

Mercer, William W., U.S. Attorney, District of Montana, Helena, Montana ...... 9

Piersol, Lawrence L., Chief Judge, District Court for the District of South 

Dakota, and President, Federal Judges Association, Sioux Falls, South Dakota ........................................................................................................................ 17

Steer, John R., Vice Chair and Commissioner, Sentencing Commission, Washington, D.C., and William K. Sessions III, Chief Judge, District Court 

for the District of Vermont, and Vice Chair and Commissioner, Sentencing 

Commission, Washington, D.C. ........................................................................... 13

Vinegrad, Alan, Covington and Burling, New York, New York ........................... 42

Weich, Ronald, Zuckerman Spaeder LLP, Washington, D.C. .............................. 39

QUESTIONS AND ANSWERS 

Responses of William W. Mercer to questions submitted by Senator Leahy ...... 51

Responses of William Sessions III and John Steer to questions submitted 

by Senator Leahy ................................................................................................. 58

SUBMISSIONS FOR THE RECORD 

Alschuler, Albert W., Julius Kreeger Professor of Law and Criminology, University of Chicago, Chicago, Illinois, letter ........................................................ 61

American Bar Association, Dennis W. Archer, President, Chicago, Illinois, 

letter ...................................................................................................................... 66

Barkow, Rachel E., Assistant Professor, New York University School of Law, 

New York, New York ........................................................................................... 69

Berman, Douglas A., Professor of Law, The Ohio State University Moritz 

College of Law, Marc L. Miller, Associate Dean for Faculty and Scholarship 

and Professor of Law, Emory University School of Law, Nora V. Demleitner, 

Professor of Law, Hofstra University School of Law, Ronald F. Wright, 

Professor of Law, Wake Forest University School of Law, joint statement .... 82

Bowman, Frank O., III, M. Dale Palmer Professor of Law, Indiana University 

School of Law, Indianapolis, Indiana, prepared statement and attachment .. 87

Page

IV

Brennan Center for Justice at NYU School of Law, Correctional Education 

Association, Drug Policy Alliance, Families Against Mandatory Minimums, 

Justice Policy Institute, Leadership Conference on Civil Rights, Maryland 

Jusstice Coalition, National Association of Criminal Defense Lawyers, National Association of Federal Defenders, National Association of Sentencing 

Advocates, National Black Police Association, National Council of La Raza, 

National CURE (Citizens United for Rehabilitation of Errants), Penal Reform International, Rebecca Project for Human Rights, The Sentencing 

Project, Virginia C.U.R.E., joint letter ............................................................... 123

Cassell, Paul G., District Judge for the District of Utah, Salt Lake City, 

Utah, prepared statement ................................................................................... 125

Families Against Mandatory Minimums Foundation, Washington, D.C., letter 143

Hillier, Thomas W., II, Federal Public Defender, Western District of Washington, Seattle, Washington, letter and attachment ......................................... 153

Lake, Sim, Chair, Judicial Conference Committee on Criminal Law, Houston 

Texas, letter .......................................................................................................... 166

Leadership Conference on Civil Rights, Wade Henderson, Executive Director 

and Nancy Zirkin, Deputy Director, Washington, D.C., letter ......................... 168

Mercer, William W., U.S. Attorney, District of Montana, Helena, Montana, 

prepared statement .............................................................................................. 174

National Association of Criminal Defense Lawyers, E.E.(Bo) Edwards, President and Barry Scheck, President-Elect, Washington, D.C., letter ................. 194

National Center for State Courts, Ronal M. George, President, Conference 

of Chief Justices, San Francisco, California, letter ........................................... 198

Piersol, Lawrence L., Chief Judge, District Court for the District of South 

Dakota, and President, Federal Judges Association, Sioux Falls, South Dakota, prepared statement .................................................................................... 199

Steer, John R., Vice Chair and Commissioner, Sentencing Commission, Washington, D.C., and William K. Sessions III, Chief Judge, District Court 

for the District of Vermont, and Vice Chair and Commissioner, Sentencing 

Commission, Washington, D.C., prepared statement and letter ...................... 203

Vinegrad, Alan, Covington and Burling, New York, New York, prepared statement ...................................................................................................................... 213

Weich, Ronald, Zuckerman Spaeder LLP, Washington, D.C., prepared statement ...................................................................................................................... 218

(1)

BLAKELY V. WASHINGTON AND THE FUTURE 

OF THE SENTENCING GUIDELINES 

TUESDAY, JULY 13, 2004 

UNITED STATES SENATE, COMMITTEE ON THE JUDICIARY, Washington, DC. 

The Committee met, pursuant to notice, at 10:06 a.m., in room 

SD–226, Dirksen Senate Office Building, Hon. Orrin G. Hatch, 

Chairman of the Committee, presiding. 

Present: Senators Hatch, Sessions, Cornyn, Leahy, Kennedy, and 

Durbin. 

OPENING STATEMENT OF HON. ORRIN G. HATCH, A U.S. 

SENATOR FROM THE STATE OF UTAH 

Chairman HATCH. We are happy to have you all here this morning, so we welcome you to the Judiciary Committee’s hearing examining the Supreme Court’s recent holding or decision in Blakely v. 

Washington and the future of the Federal sentencing guidelines. 

As one of the original cosponsors of the United States Sentencing 

Commission and a proponent of reducing sentencing disparity 

across the Nation, I have a strong interest in preserving the integrity of the Federal Guidelines against constitutional attack. However, I am also open because I want to hear what you good authorities have to say about this. 

As many here may already know, defendants are routinely sentenced by judges who decide sentencing facts based upon a preponderance of the evidence standard. Now, this has all changed in the 

last two weeks. On June 24, 2004, in Blakely v. Washington, the 

Supreme Court held that any fact that increases the maximum 

penalty under a State statutory sentencing guidelines scheme must 

be presented to a jury and proved beyond a reasonable doubt, even 

though the defendant’s sentence falls below the statutory maximum sentence. 

Although the Supreme Court explicitly stated in a footnote that, 

quote, ‘‘The Federal Guidelines are not before us and we express 

no opinion on them,’’ unquote, it also characterized the Government’s amicus brief as questioning whether differences between the 

State and Federal sentencing schemes are constitutionally significant. The ambiguity apparent in Blakely and the strong suggestions by the dissent that it will apply to the Federal sentencing 

guidelines has understandably created angst throughout the Federal criminal justice system. 

If Blakely were to apply to the Federal sentencing guidelines, you 

would have a clear double standard. Any sentencing fact that 

2

would increase a sentence would have to be presented to a jury and 

proven beyond a reasonable doubt, but any sentencing fact that 

would decrease a sentence would be decided by a judge by a preponderance of the evidence. Not only would this be incredibly confusing to everyone involved in this process, but I imagine that 

crime victims and their families would consider this one-way ratchet to be fundamentally unfair. 

In the last two-and-a-half weeks alone, the criminal justice system has begun to run amok. Some judges have thrown out the 

guidelines and are sentencing defendants with unfettered discretion. Other judges have adopted some of the guidelines, those 

guidelines that favor defendants, and ignored all guidelines that 

might increase a defendant’s sentence. Still other judges have convened juries to decide sentencing factors that might increase a sentence even though there are no procedures in place to govern such 

sentencing juries. Prosecutors are submitting verdict forms for juries that are over 20 pages in length because they cover every possible sentencing factor that might be applied in a particular case. 

While I believe most Federal judges are trying their hardest to 

address this issue deliberately and with the utmost fairness, I fear 

that some judges might view Blakely as an opportunity to selfishly 

garner judicial power in the hopes of restoring unlimited judicial 

discretion with respect to sentencing. Even among those judges 

with the best of intentions, however, there is legitimate disagreement about whether Federal sentencing guidelines will be subject 

to the proof and procedural requirements announced in Blakely. You have heard of circuit splits, but here we have splits within 

a single district. Not only have the Fifth and Seventh Circuit disagreed on this issue, but in my home State of Utah, district judges 

have adopted three different approaches to sentencing defendants 

in light of Blakely. As I am sure Judge Cassell will explain in m 

ore detail in his testimony, he found the Federal guidelines unconstitutional as applied in United States v. Croxford. But just yesterday, Judge Dee Benson, the chief judge of the Federal district 

court, upheld the Federal sentencing guidelines. 

I am heartened to hear that just yesterday afternoon, the Second 

Circuit en banc certified a set of three questions for the United 

States Supreme Court and urged it to adjudicate promptly the 

threshold issue of whether Blakely applies to the Federal sentencing guidelines. I hope the Supreme Court promptly considers 

this matter. 

I know we will hear more about what is going on in the courts 

from our witnesses, so I will not go on at length about these cases 

now. I would, however, like to mention just a couple of examples 

for those who have not been following the issue closely. 

I am sure we all recall Dwight Watson, the man who sat in a 

tractor last year outside the U.S. Capitol for 47 hours and threatened to blow up the area with organophosphate bombs. The day before the Blakely opinion, Mr. Watson was sentenced to a 6-year 

prison sentence. Less than a week after the Supreme Court’s opinion, he was re-sentenced to 16 months, which was essentially time 

served. He is now a free man. 

A defendant in West Virginia had an offense level that was off 

the sentencing charts. Although he would have been subject to a 

3

life sentence under the guidelines, the statutory maximum penalty 

was 20 years. He was given a 20-year sentence 3 days before 

Blakely was decided. A week later, his sentence was drastically reduced to 12 months. The judge did not rely on any relevant conduct 

or any sentencing enhancements in calculating the defendant’s sentence. In other words, he only applied a portion of the sentencing 

guidelines—those that he thought remained valid after Blakely. Blakely is potentially harmful to defendants, as well as to prosecutors. Right now, the Federal Rules of Evidence prevent extraneous information about prior bad acts from coming before a jury 

during a trial. But the Federal Rules of Evidence do not apply at 

sentencing hearings. If Blakely applies to the Federal sentencing 

guidelines, the rules may need to be amended to ensure that prior 

bad acts that constitute relevant conduct can be presented to a jury 

so that they can determine sentencing facts. 

In addition, it is possible that some here in Congress may respond by creating new mandatory minimum penalties to compensate for this unfettered discretion. The House already has legislation pending that would do exactly that. It may only take a couple of lenient sentences in high-profile cases to raise enough of a 

stir to increase mandatory minimum penalties. And I have to say 

I have real concerns about that. 

Another long-term problem for defendants is in negotiating plea 

agreements. Prosecutors who are better acquainted with sentencing 

nuances will be in a better position to dictate which factors will 

apply in the 97 percent of cases that plead out each year. This will 

result in greater disparity among equally culpable defendants 

across the Nation. 

I have been working with my colleagues on the left, as well as 

my counterparts in the House, to come up with a temporary bipartisan fix to this sentencing dilemma that now faces our Nation. Although we do not have any legislative language as of yet, we are 

looking at a proposal that is similar to one that Professor Frank 

Bowman, one of our witnesses today, proposed to the Sentencing 

Commission a couple of weeks ago. In addition to raising the maximum penalties within a guideline range to the statutory maximum 

penalty, we are considering some safeguards to prevent hanging 

judges from sentencing all defendants to the statutory maximum. 

As you can see, this is somewhat of a mess, some of which may 

have been created by us, and some of which may have by necessity 

been created by some of you. All I can say is that we need to get 

together and resolve these matters in ways that are in the best interest of criminal justice in our society. 

I have long had problems with the sentencing of the girlfriend 

couriers to big, stiff jail terms, while the pleading defendant drug 

king gets off with a much, much more minor sentence. I also have 

had lots of problems with sentencing people to Federal prison, at 

a cost of $30,000 to $40,000 a year to the taxpayers, who are not 

dangerous at all. 

I am hopeful that through some of these hearings, we can maybe 

come to some ways of making sure people pay proper penalties, but 

yet we don’t sock the taxpayers as much as we have been socking 

them, and that we do more justice in our sentencing approaches. 

A lot of judges hate the sentencing guidelines; they hate the manVerDate 0ct 09 2002 14:01 Apr 25, 2005 Jkt 020397 PO 00000 Frm 00007 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\20397.TXT SJUD4 PsN: CMORC
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datory minimums. I can understand why, but the judges themselves were one of the reasons why we went to that form of law 

because so many of them were disparate in their approach toward 

sentencing through the years. And some of them were downright 

dishonorable in some of the sentences that they gave. 

So this is an important hearing. We have got very important people here who should be able to enlighten this Committee and help 

us to go from here and do a better job than we have done in the 

past. 

[The prepared statement of Senator Hatch appears as a submission for the record.] 

With that, I will turn the time over to Senator Leahy, and then 

we will go to our witnesses. 

STATEMENT OF HON. PATRICK J. LEAHY, A U.S. SENATOR 

FROM THE STATE OF VERMONT 

Senator LEAHY. Well, thank you, Mr. Chairman. Of course, the 

main reason we are here today is because of the Supreme Court 

decision, not because of the decision of any of our panelists, other 

Federal judges, or decisions of people in the Congress. 

We should also point out that regardless of the reasonings for 

some of the mandatory minimums Congress passed—and I am sure 

I can find some that, in retrospect, I should not have voted on—

many of them were passed because a number of crimes were federalized and mandatory minimums made for great press release 

back home. 

It allowed members of Congress to show just how tough they are 

on crime. Many found it easy to take the latest issue appearing in 

the newspaper that day, whether it be violent car-jacking or anything else, and say, ‘‘let’s make a Federal crime out of this. Even 

though the State and local police are usually able to handle it fine, 

we will make a Federal crime out of it and add a mandatory minimum. And, by the way, let’s give a speech about the clogged-up 

Federal courts.’’ 

The Supreme Court’s ruling last month in Blakely v. Washington, 

I believe, threatens to crumble the very foundation of the Federal 

system of sentencing guidelines that Congress established 20 years 

ago in the Sentencing Reform Act of 1984. At that time, members 

of this Committee took the lead in crafting the Sentencing Reform 

Act. Today, we have to revisit that landmark legislation in the light 

of the Blakely decision. 

So to begin, I want to thank all of the witnesses who have taken 

the time to come here today. We have two very distinguished panels of experts. 

The issue in Blakely was the constitutionality of a State sentencing system that allowed the judge to impose an exceptional 

sentence in a kidnapping case above the standard guideline range 

because the judge found the defendant’s conduct involved deliberate cruelty. Those who have read the case would agree, I believe, 

that the defendant was deliberately cruel. 

In a five-to-four decision written by Justice Scalia, the Court held 

that this sentencing scheme violated the defendant’s Sixth Amendment right to a jury trial because the maximum sentence a judge 

5

may impose can only be based on the facts reflected in the jury verdict or admitted by the defendant. 

Unfortunately, though, Justice Scalia’s opinion raises more questions than it answers. We saw cogent dissents by Justice Breyer 

and Justice O’Connor, and they articulated many of the critical 

issues that are now going to flood our already burdened criminal 

justice system, starting with the obvious one: does Blakely apply to 

the Federal guidelines. 

The Seventh Circuit and several district court judges have already ruled, as the Chairman pointed out, that Blakely doomed 

some, if not all of the current Federal guideline system. The Fifth 

Circuit held that the guidelines survived Blakely. The Second Circuit, my circuit, effectively punted; they certified the question to 

the Supreme Court—something I don’t think they had done for 20 

years or more. 

Now, whether we disagree or not with Justice Scalia’s opinion, 

the Court has spoken and that is the law. Like Federal judges, 

prosecutors and defense attorneys who must now grapple with the 

scope and impact of the Blakely opinion, we in Congress are concerned. As I started reading over this material last night, I thought 

to myself, do we have a situation where we have created a prosecutor’s nightmare and a defense counsel’s dream? Many would read 

the Blakely decision to be just exactly that. 

So I hope that this hearing is going to be helpful. I want to find 

out whether we have a prosecutor’s nightmare and a defense counsel’s dream. I want to hear from the experts and petitioners who 

are testifying before us about what aspects, if any, of the Federal 

sentencing system can or are likely to survive Blakely. We need to 

explore what will happen to the thousands of criminal cases that 

are currently pending, and actually the hundreds of thousands of 

cases that were resolved pre-Blakely. 

Twenty years after the enactment of the Sentencing Reform Act, 

we have to remind ourselves about the core values and principles 

that explain the bipartisan popularity of the original Federal guidelines concept. The 1984 Act was enacted against a history of racial, 

geographical and other unfair disparities in sentencing. 

Congress sought to narrow those disparities, while leaving judges 

enough discretion to do justice in the particular circumstances of 

each individual case. The task of harmonizing sentencing policies 

was deliberately placed in the hands of an independent Sentencing 

Commission. The guidelines, as originally conceived, were about 

fairness, consistency, predictability, reasoned discretion, and minimizing the role of Congressional politics and the ideology of the individual judge in sentencing. 

Unfortunately, Justice Scalia’s decision in Blakely threatens a return to the bad old days of fully indeterminate sentencing when 

improper factors such as race, geography and the predilections of 

the sentencing judge could drastically affect the sentence. While I 

favor Federal judges exercising their discretion to do individual justice in individual cases, I don’t want to see us go back to the bad 

old days. 

I also think we have to avoid moving too far in the other extreme. In recent years, Congress has seriously undermined the 

6

basic structure and fairness of the Federal guidelines system. We 

have done it with posturing and ideology. 

There has been a flood of legislation establishing mandatory minimum sentences for an ever-increasing number of offenses. As I 

said, many of them should have been left in the State system, but 

many have become Federal offenses with mandatory minimums as 

determined by politics rather than any systemic analysis of the relative seriousness of different crimes. 

There has been ever-increasing pressure on the Sentencing Commission and on individual district court judges to increase guideline 

sentences. This culminated in the PROTECT Act, in which this 

Congress got the Commission out altogether, rewrote large sections 

of the guidelines manual, and also provided for a judicial blacklist 

to intimidate judges whose sentences were insufficiently draconian 

to suit the current Justice Department. 

We are all familiar with the assault on judicial independence 

known as the Feeney amendment to the PROTECT Act. It was 

forced through Congress, virtually no debate, and without meaningful input from judges, practitioners, prosecutors or defense attorneys. That process was particularly unfortunate, given that the 

majority’s justification for the amendment, a supposed crisis of 

downward departures, was unfounded. In fact, downward departure rates were below the range contemplated by Congress when 

it authorized the Federal sentencing guidelines, except for departures requested by the Federal Government, by the current Justice 

Department. 

Having a false factual predicate for forcing significantly flawed 

Congressional action has become all too familiar during the past 

few years. The attitude underlying too many of these recent developments seems to be that politicians in Washington are better at 

sentencing than the Federal trial judges who preside over individual cases, and that longer sentences are always better, no matter what the cost to society might be. 

Somewhere along the line, we appear to have forgotten that justice is not just about treating like cases alike. It is also about treating different cases differently. Blakely raises real practical problems that unfortunately are going to clog our Federal courts with 

procedural and constitutional nightmares. But we can use it as a 

springboard to discuss Federal sentencing practices thoughtfully. 

As we analyze Blakely’s implications, let’s keep in mind the simple 

principles of the 1984 Act, passed with strong support of Republicans and Democrats alike. We must respect the wisdom and good 

faith of Federal judges, while maintaining the safeguards of structure and transparency to their exercise of discretion. We must remember that consistency and predictability to sentencing are admirable goals. And let us avoid the further politicizing of sentencing. 

So I look forward to working with the Chairman and all members of this Committee to see if we can find our way out of this 

mess. 

Thank you, Mr. Chairman. 

[The prepared statement of Senator Leahy appears as a submission for the record.] 

Chairman HATCH. Thank you. 

7

I am going to turn to Senator Kennedy, who has been Chairman 

of this Committee, and then to Senator Sessions. Then we will 

move to our witnesses. 

STATEMENT OF HON. EDWARD M. KENNEDY, A U.S. SENATOR 

FROM THE STATE OF MASSACHUSETTS 

Senator KENNEDY. Thank you very much, Mr. Chairman, and 

thank you for having this hearing. It is enormously important. 

In preparing for the hearing, I went back over the time of the 

consideration of this Committee. It took 10 years for this Committee to actually report out the legislation which I introduced in 

1975, and it was reported out in 1984. It had days of hearings, and 

I think the legislation that was reported out tried to deal with 

what was the general challenge that we were facing at the time in 

terms of our sentencing system, characterized by unfettered judicial discretion. It was, in Judge Frankel’s words, ‘‘lawless.’’ 

Similarly situated defendants received dramatically different 

sentences. Sentences were subject to personal philosophies and biases of individual judges. As a result, substantial disparities based 

on race, ethnicity, geography and improper factors were prevalent. 

There was no truth in sentencing. Sentences handed down by 

judges did not always reflect the actual time a defendant would 

serve, and there was little transparency or accountability in the 

sentencing system. 

Now, we have to try and find what the next steps will be. We 

have a short-term challenge and a long-term challenge. I believe 

that any fair reading of the history of the Sentencing Commission 

would have to conclude it has been trying to improve the system 

and trying to find a middle ground. But time and time again, their 

efforts have been blocked. The Justice Department has worked to 

squeeze every bit of discretion and humanity out of the system, and 

now we have a backlash from the Supreme Court and the entire 

system is in peril and there is a real question about what we have 

to do next. 

It may, in the short term, make sense to do nothing and wait 

until the Supreme Court gives greater clarification. But over the 

long term, we have to examine the effectiveness of the mandatory 

minimums. We ought to look again at the disparity between crack 

and powder cocaine, which has been out there for years. We ought 

to take a look at the departure standards and we ought to take a 

look at the complexity of the guidelines. 

I think we have one last chance to fix this system and make it 

fair and effective. I look forward to working in a bipartisan way 

with our Chairman, who was very much involved in the development of the sentencing guidelines initially. We did it in a broad bipartisan way. Hopefully, we can do the same and get it right this 

time. I welcome all of our panelists here today. 

Thank you, Mr. Chairman. 

[The prepared statement of Senator Kennedy appears as a submission for the record.] 

Chairman HATCH. Well, thank you, Senator. 

Senator Sessions, we will wind up with you. 

8

STATEMENT OF HON. JEFF SESSIONS A U.S. SENATOR FROM 

THE STATE OF ALABAMA 

Senator SESSIONS. Thank you, Mr. Chairman. 

I was, like Mr. Mercer, a United States Attorney prosecuting 

Federal cases when this Congress passed the sentencing guidelines. 

I remember distinctly, as referred to in Justice O’Connor’s dissent, 

a bank robbery defendant going before one judge and getting 25 

years and going before another judge and getting probation. There 

were tremendous inconsistencies. 

Some judges just had an aversion to sentencing; they didn’t believe in sentencing. Some judges were tough sentencers. There was 

great disparity. There was racial disparity in the system, as Justice 

O’Connor mentions in her dissent to this Blakely case. 

The Congress, after great effort, passed the sentencing guidelines, which was a tremendous achievement, in my view. It worked 

in the real world. Mr. Steer and his commission and others have 

worked hard to make it a practical and workable system. It worked 

better than anybody would have thought. 

They predicted, you remember, Senators Kennedy and Hatch, 

that everybody would go to trial and nobody would plead guilty. 

Now, we have a higher number of guilty pleas than we ever had 

because people know what they are subjected to if they go to trial 

and what the options are. The outcome is not a mere crap shoot. 

I thought Apprendi was a bad decision. This Blakely decision is 

stunning in its impact. It undercuts the basic justice system. It is 

a complete confusion of law. It indicates to me that members of the 

Supreme Court do not understand how the criminal justice system 

works. They think juries are going to sit around and decide these 

issues. Juries come in, render a verdict, pick up their check and go 

home. Then the judge has hearings on the facts and renders opinions on what the appropriate sentence is going to be. 

They can’t bring this evidence before a jury during the trial because often it would bias the outcome of the case. It would impact 

a jury by causing them to be inflamed, perhaps, and to render a 

verdict of guilty or not on issues that are irrelevant to the case. 

So sentencing has always been in the province of the judge. 

Judges have always had the ability to sentence within the sentencing maximum range given by Congress or the State legislatures, and now we have this confused and dangerous ruling. 

Mr. Chairman, I read the Sixth Amendment: ‘‘In all criminal 

prosecutions, the accused shall enjoy the right to a speedy and public trial by an impartial jury in the state and district where the 

crime shall have been committed’’; have the witnesses and compulsory processes and assistance of counsel for a defense. I don’t see 

in there anything that says that a judge can’t consider facts and 

render a sentence based on that. In fact, that is the way it has always been for the most part. Some States allow juries to impose 

the sentences, but most scholars feel that is not the preferable way. 

It is better for the judge to impose sentences. 

I thank you for having this hearing. I am greatly troubled because this is a constitutionally based decision and it is certainly 

going to cause havoc in the criminal justice system. 

Chairman HATCH. Well, thank you, Senator. 

9

At this time, I would like to introduce our first panel. William 

Mercer, United States Attorney for the District of Montana, will be 

testifying on behalf of the United States Department of Justice. Before his current position, Mr. Mercer served as an Assistant U.S. 

Attorney in Montana for over 6 years and as counselor to the Assistant Attorney General and senior policy analyst in the Office of 

Policy Development for the U.S. Department of Justice. 

We certainly are happy to have you with us today and welcome 

you to the Committee. 

Second, we will hear testimony from Vice Chair and Commissioner of the U.S. Sentencing Commission, John Steer. Prior to his 

current position, Mr. Steer served as the general counsel for the 

Sentencing Commission and was legislative director for Senator 

Strom Thurmond and counsel for the Senate Judiciary Committee 

from 1979 to 1985. 

So we are happy to welcome you back and appreciate the service 

you give. 

Our next witness will be Chief Judge William Sessions, who has 

served as a district judge in Vermont since 1995. Before that, he 

was a partner with the law firm of Sessions, Kiner, Dumont and 

Barnes. Mr. Sessions served in the Office of the Public Defender for 

Addison County and as a professor at the Vermont Law School. 

We are sure happy to have you here, as well. 

The next witness will be Hon. Lawrence L. Piersol, Chief Judge 

of the United States District Court of South Dakota. Before becoming a judge, Chief Judge Piersol was a member of the South Dakota House of Representatives and practiced law with the firm of 

Davenport, Evans, Hurwitz and Smith. 

So, Chief Judge, thanks for being with us today. 

Our final witness for the first panel will be Hon. Paul G. Cassell, 

United States District Court Judge for the District of Utah. Before 

being appointed to the bench, Judge Cassell was a law professor at 

the S.J. Quinney College of Law at the University of Utah, where 

he continues to teach. Before that, he was an Assistant U.S. Attorney for the Eastern District of Virginia, an associate deputy attorney general in the U.S. Department of Justice, and clerked with 

Chief Justice Warren E. Burger and then-Judge Antonin Scalia. 

We are really happy to have you here, as well, Judge Cassell. 

You have played a pivotal role here lately in some of the thinking 

here, and so we are looking forward to benefitting from your experience. 

Now, we have an extremely talented and experienced panel of 

witnesses with us today and I am sure we are going to have an interesting discussion regarding this very, very important set of topics. I look forward to hearing each of your remarks. I would like 

each witness to please limit your remarks to not more than 5 minutes, and each Senator will have 5 minutes to ask questions of you. 

So we will start with you, Mr. Mercer, and go right across the 

table. 

STATEMENT OF WILLIAM W. MERCER, UNITED STATES 

ATTORNEY, DISTRICT OF MONTANA, HELENA, MONTANA 

Mr. MERCER. Chairman Hatch, Senator Leahy, members of the 

Committee, 19 days ago the Supreme Court in Blakely v. WashVerDate 0ct 09 2002 14:01 Apr 25, 2005 Jkt 020397 PO 00000 Frm 00013 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\20397.TXT SJUD4 PsN: CMORC
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ington cast doubt on some of the procedures of Federal sentencing 

reforms. The Blakely decision has caused a tremendous upheaval 

in the Federal criminal justice system and has put the constitutionality of Federal sentencing guidelines into question, and I can 

affirm this for the Senate today in my capacity as Chairman of the 

Attorney General’s Advisory Committee and the feedback that I 

have heard from colleagues all over the country. 

I am here today, first and foremost, to reaffirm the commitment 

of this administration to the principles of sentencing reform that 

unified this Committee 20 years ago and which we hope will once 

again unify the Committee today. 

Second, I am here to briefly lay out for the Committee why the 

United States continues to believe that the Federal sentencing 

guidelines system is significantly distinguishable from the Washington State guidelines system at issue in Blakely and meets all 

constitutional requirements. 

Because some lower courts have disagreed with our reasoning, I 

will, third, discuss the Department’s legal position on how Federal 

sentencing should proceed before the courts that find the Federal 

guidelines are implicated by Blakely. Finally, I will outline why we believe Congress should take the 

time to carefully consider any legislative proposals that try to remedy the current uncertainties surrounding Federal sentencing policy. 

Twenty years ago, this Committee coalesced around the noble 

idea of making the Federal criminal justice system fair, honest and 

more effective. Congress unified under the common recognition that 

unstructured criminal sentencing had evolved into a vehicle for disparity in actual punishment that simply could not be justified, and 

uncertainty in sentencing that was contributing to intolerable levels of crime. 

Offenders with similar criminal histories who committed similar 

offenses often received and served substantially different sentences. 

A substantial percentage of offenders were not sentenced to prison 

at all, and in many cases sentences were not sufficiently punitive. 

This system was incompatible with effective crime control. 

Under the Sentencing Reform Act of 1984, offenders with similar 

criminal histories who commit similar offenses receive similar sentences because sentencing courts are directed to evaluate specific 

enumerated factors in the guidelines and engage in a rigorous and 

appealable fact-finding to determine whether these factors are 

present in each case. 

The sentences handed down under the guidelines have been predictable. In addition, the guidelines structure allows for targeting 

longer sentences to especially dangerous or recidivist criminals. 

The structure designed to calibrate sentences is only part of the 

story. Congress has established important statutory purposes of 

punishment. Among other things, sentences must reflect the seriousness of the offense, promote respect for the law, provide just 

punishment for the offense, afford adequate deterrence to criminal 

conduct, and protect the public from further crimes of the defendant. 

The guidelines are tough, providing appropriately punitive sentences for violent, predatory and other dangerous offenders. We beVerDate 0ct 09 2002 14:01 Apr 25, 2005 Jkt 020397 PO 00000 Frm 00014 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\20397.TXT SJUD4 PsN: CMORC
11

lieve this type of tough sentencing is smart sentencing. While some 

critics have argued that Federal criminal sentences are too long 

and that we need to have smarter sentences, the facts demonstrate 

that they are wrong. 

The increase in Federal sentences under the guidelines and the 

increase in State sentences as States follow the lead of the Federal 

Government in adopting truth in sentencing regimes have resulted 

in significant reductions in crime, which is exactly what we would 

expect to observe. 

Sentencing policies contribute to the fact that our Nation is experiencing a 30-year low in crime. We do not believe that it is a coincidence that the sharp decreases in crime started in the 1990’s, 

shortly after the Supreme Court upheld the sentencing guidelines. 

Over the preceding decade, given the existing levels of crime and 

trends at the time the Sentencing Reform Act was adopted, statisticians estimate nearly 27.5 million violent crimes were not committed because of the promulgation of this Act. 

To try to resolve the current uncertainty in Federal sentencing 

policy created by Blakely in a manner consistent with the principles of sentencing reform, the Department of Justice intends to 

seek review of an appropriate case in the very short term before 

the Supreme Court and ask the Court to expedite review of the 

case. 

However, in the event that we are incorrect about the inapplicability of Blakely to the Federal sentencing guidelines, Federal prosecutors have begun to charge cases in a prophylactic fashion and 

a number of Department lawyers are analyzing policy options 

which might restore the system to its pre-Blakely status. 

Nonetheless, we think having the Court provide a definitive ruling on the application of Blakely to the Federal sentencing guidelines is one important answer necessary to address the somewhat 

chaotic state of events of the last two weeks. 

The Court in Blakely applied the rule announced in Apprendi v. 

New Jersey to invalidate under the Sixth Amendment an upward 

departure under the Washington State sentencing guidelines system that was imposed on the basis of facts found by the court at 

sentencing. The State contended that there was no Apprendi violation because Blakely’s sentence was within the 10-year statutory 

maximum. 

The Court rejected that argument, holding that the statutory 

maximum for Apprendi purposes is the maximum sentence a judge 

may impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant. The Court did not wholly invalidate the Washington State sentencing guidelines, nor did it invalidate the Federal guidelines. The Court reserved whether its Sixth 

Amendment holding applied to the Federal guidelines, stating that 

‘‘The Federal guidelines are not before us and we express no opinion on them,’’ close quote. 

Much has transpired in the 19 days since the Blakely decision. 

Even though the Supreme Court did not rule on the Federal sentencing guidelines, some lower courts have already—and we believe 

prematurely—invalidated them. Others have applied the guidelines 

in ways never contemplated by the Congress or the United States 

Sentencing Commission. 

12

The results in these cases have at times been quite disturbing. 

For example, two weeks ago, in West Virginia, a Federal judge reduced the sentence of a dangerous drug dealer from 20 years to 12 

months. The dealer, Ronald Shamblin, was not bit player, no courier and no low-level dupe. According to uncontested findings, 

Shamblin was a leader in an extensive methamphetamine and cocaine manufacturing and distribution conspiracy. He possessed a 

dangerous weapon during this crime, enlisted a 14-year-old to join 

his conspiracy, and obstructed justice. 

Because of the Apprendi decision, the court was limited to a maximum penalty under the statute as charged to 20 years’ imprisonment. Because of the court’s interpretation of Blakely, the court believed it was obligated to sentence Shamblin to no more than 12 

months’ imprisonment. 

In this and other cases, the court severed the aggravating elements from the sentencing calculation and applied only the base 

guideline sentence and the guideline mitigating factors in a manner we believe was a distortion of the Federal sentencing system, 

inconsistent with Congressional intent and policy. It is hard to see 

how such sentences promote respect for the law, provide adequate 

deterrence, or protect the public. 

On the other hand, some courts have continued to uphold and 

apply the Federal sentencing guidelines, awaiting definitive word 

from the Supreme Court. Still others have seen fit to invalidate 

some or all of the procedures of the Federal guidelines, but have 

nonetheless looked to the guidelines to mete out sentences consistent with Congressional intent and policy. 

We believe the Committee and Congress as a whole should be 

careful and deliberate in considering legislative proposals designed 

to address Blakely. In examining any short-term legislative proposals, we are guided by, and we suggest the Committee consider 

the following criteria, among others. 

One, will legislation provide a clear short- and long-term solution 

to the many pending litigation issues? Two, is the litigation consistent with the principles of sentencing reform that have been supported by both Republican and Democrat majorities of Congress for 

20 years and by Republican and Democrat administrations for 20 

years? Third, does the legislation address all of the constitutional 

issues that remain unresolved or is there a significant likelihood 

that the court will be reviewing Federal sentencing policies shortly 

even with the legislative change? 

I would be happy to try to answer any questions that the Committee may have. Thank you. 

[The prepared statement of Mr. Mercer appears as a submission 

for the record.] 

Chairman HATCH. Thank you. 

Mr. Steer, we will turn to you. 

13

STATEMENT OF JOHN R. STEER, VICE CHAIR AND COMMISSIONER, UNITED STATES SENTENCING COMMISSION, WASHINGTON, D.C., AND WILLIAM K. SESSIONS III, CHIEF JUDGE, 

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF 

VERMONT, AND VICE CHAIR AND COMMISSIONER, UNITED 

STATES SENTENCING COMMISSION, WASHINGTON, D.C. 

Mr. STEER. Mr. Chairman, members of the Committee, we wish 

to thank you for timely calling this hearing to assess the impact 

of the United States Supreme Court decision in Blakely v. Washington on the Federal sentencing guidelines system. 

If I could, I would like to ask that the joint written statement 

of Judge Sessions and myself on behalf of the commission be placed 

in the record and we will make a few remarks. 

Chairman HATCH. Without objection, we will put all full statements in the record. 

Mr. STEER. Thank you. 

I would like to note at the outset a point from our side of the 

table that has already been made from the dais, and that is that 

the Sentencing Reform Act was very much a bipartisan endeavor. 

The Congress ultimately passed it overwhelmingly. In the Senate, 

the vote was 99 to 1, as I recall, and the House vote was also an 

overwhelming endorsement. 

It called for creating a bipartisan sentencing commission in the 

judicial branch, and that is the manner in which we have worked, 

our group of commissioners. And I think as a former staff member, 

I can say that that is the way that the commission has tried to operate from the outset. That is significant because the matters that 

bring us together today are not partisan in nature. We all have a 

common interest in effective sentencing policy. We appreciate the 

way in which with respect to this issue you and your staffs have 

already started to get their arms around this issue, and we hope 

that that bipartisan, cooperative manner will continue. 

I have several substantive points that I would like to make, and 

then I will ask to yield to my colleague, Judge Sessions. 

First, as has also been noted, Blakely has precipitated considerable sentencing uncertainty and disparity. Of course, both of these 

phenomena are in tension with the Sentencing Reform Act goals. 

But this said, district and appellate courts are quickly moving to 

restore a measure of order. 

We can already see from examining our sentencing statistics that 

because many guidelines cases do not involve any sentencing enhancements, and because plea agreements and waivers will adequately handle many others, in fact, only a minority of cases will 

likely involve Blakely problems. Nevertheless, the situation is serious and legal certainty needs to be restored as soon as possible, 

preferably by the Supreme Court in a clarifying decision, but if necessary by Congress working with the commission, the Department 

of Justice and others to correct any unconstitutional system defects, if those be found. 

Secondly, we believe there is a reasonably good chance the Supreme Court can be persuaded to distinguish Blakely and not apply 

it to the Federal guidelines system. Thus, we are very pleased that 

the Department of Justice plans a vigorous defense, including seeking expedited Supreme Court review. 

14

Now, why do we think that? To be sure, some would say we have 

an institutional bias. Well, I think that that is probably true. We 

believe that the Federal sentencing guidelines system is fundamentally, not perfect, but a good sentencing system that has brought 

about many improvements. 

We are currently engaged in a self-critical 15-year review project, 

a series of research reports that soon will be available to this Committee and others to highlight some of the important gains that 

have been made over the last 20 years, as well as point out some 

areas where work remains to be done. 

As to the legal issues, we think it is significant, of course, that 

the Supreme Court majority in both Blakely and in Apprendi, on 

which the former is based, specifically reserved the issues of applicability to the Federal guidelines. More significantly, in a long line 

of other cases, the Supreme Court has not only upheld the constitutionality of the Federal guidelines, but it has time and again validated the propriety of judges finding facts and guidelines factors 

relevant to determining the guideline sentence within the legislated statutory range. 

These prior cases include, for example, an important case, Edwards, in which the Court approved of judges finding drug type 

and quantity according to relevant conduct guideline rules, and another case, Watts, in which the Court even validated judges taking 

into account conduct in another related count of which the defendant was actually acquitted. It is difficult, if not impossible, to 

square these and other holdings with a literal extension of Blakely

language to the Federal guidelines system. 

Citing these and other precedents, as has been mentioned, the 

Fifth Circuit yesterday held that Blakely does not extend to the 

Federal guidelines. And although the Seventh Circuit went the 

other way a few days earlier, a strong dissent by Judge 

Easterbrook in that case makes the same points. 

Third, the Federal guidelines are different in a number of important respects from the Washington State guidelines at issue in 

Blakely. Time will not permit a complete recitation, but there are 

at least these differences. 

First, of course, they are not as a system affirmatively enacted 

by the legislature as statutory law, as the Washington State guidelines system is. But, rather, the Federal guidelines are sentencing 

rules promulgated by an independent commission within the judicial branch. 

Second, structurally they are very different. Unlike Washington’s 

system of relatively simple, quote, ‘‘standard guideline ranges,’’ end 

quote, that clearly correspond to the offense elements underlying 

jury verdicts, the Federal guidelines employ multiple steps in a 

much more nuanced fashion to construct a guideline range based 

in part on the elements of an offense, but largely on the judge’s determination and guideline scoring of the entirety of a defendant’s 

relevant offense conduct and its seriousness. 

And to account in a workable and a rational way for the fact that 

there are, for example, several hundred fraud and embezzlement 

statutes in the United States Code with widely varying statutory 

maximums, ranging from a few to 30 years, the sentencing judge 

in working through the guidelines uses one generic fraud and theft 

15

guideline, but he adjusts the guideline sentence based on characteristics of the offense. 

It would be highly inappropriate to assume that the standard 

guideline range, to analogize again to the Washington system, for 

each of these statutory offenses is derived solely from the Federal 

guidelines’ base offense level starting point and the defendant’s 

criminal history category. Yet, it is that very inapt rule that is now 

being urged upon the Federal courts. 

The Federal guidelines also differ markedly from State guidelines, including the State of Washington, in their level of detail. 

Now, this feature, of course, is an effort by both Congress and the 

commission to appropriately individualize punishment according to 

the distinguishing characteristics of offenses and offenders. A 

court’s departure authority further augments this key guideline 

feature. 

It would be a strange application of the Sixth Amendment jury 

trial right to consign all of these features and the bulk of these individualizing distinctions to the scrap heap of sentencing history. 

But for reasons of practicality, that may be a likely outcome of a 

literal Blakely extension to the Federal guidelines system. 

Mr. Chairman, with those points, I would like your permission 

to yield to Judge Sessions. 

Chairman HATCH. Thank you. 

Judge Sessions, we will turn to you. 

Judge SESSIONS. Thank you, Mr. Chairman, and I on behalf of 

the commission sincerely appreciate the invitation and the opportunity to speak on this extraordinarily significant issue. 

We have had a close working relationship with Congress, really, 

since its inception and clearly over the past 5 years, as long as I 

have been on the commission, and I want to say that we would be 

available and willing to assist in any way as you address these 

post-Blakely questions. 

Now, there is no question that the Blakely decision temporarily, 

at least, has caused significant troubles at the district court level. 

And I am speaking here not as a district court judge at this point, 

but as a sentencing commissioner. I have actually, for the record, 

recused myself in regard to any questions dealing with the constitutionality of the guidelines. 

But it has caused tremendous difficulties in Vermont. We postponed sentencings for approximately two weeks—in fact, we have 

not started re-sentencing yet—so that each side could develop responses to Blakely. We have asked for supplemental briefing before 

we actually address the Blakely issues. 

Blakely causes for those of us who are trial judges enormous difficulty in its application. The fact is the sentencing guidelines are 

a part of the legal culture. We are adjusted to the way they work. 

We are adjusted to the definitions. Now, we are put in a situation 

of having to try to shift that responsibility to juries. That creates, 

as Senator Sessions has indicated, enormous problems in regard to 

the kinds of evidence that juries would be told to consider, as well 

as the definitions. For us, to define such complex terms as loss or 

the various other enhancements that are applied universally today 

to a jury is going to create enormous difficulties. So we tread on 

these issues very delicately. 

16

I will say that there is an additional problem that comes up 

when you talk about intermittent kinds of solutions, and that is the 

ex post facto difficulty as well. Even if Congress was to do something right now, of course, that only resolves cases for offenses 

which were committed as of this date forward, which leaves us in 

the same hiatus period that existed. 

In fact, if you change the guidelines dramatically now, then we 

have a post-Blakely guidelines system and a pre-guideline system 

to be applied to all others. And then if eventually somewhere down 

the road there is a much more significant change in the guidelines, 

then there is a third guideline application or set of applications, 

which means that forever judges will have to be sensitive to the 

issue as to exactly when an offense was committed because you 

have to apply the guideline range, theoretically, that was applicable at the time the person committed the offense. 

Now, I know that there have been differences of opinion among 

district court judges. I know that the circuit split exists between 

the Fifth and the Seventh Circuits, and hopefully the Supreme 

Court will take up the challenge as laid out by the Second Circuit. 

But I want to tell you at this point respectfully that I think that 

the sky is not falling; that, in fact, we are not in the middle of a 

crisis. The reason that I say that—well, there are three separate 

reasons. 

The first is we at the Sentencing Commission are trying to follow 

closely all of the decisions, all of the developments in the law to 

be able to respond appropriately with some reflection and some deliberation. 

Second, the Department of Justice has developed policies which 

are going to be extraordinarily helpful at this point. Essentially, 

now, generally speaking, all defendants who are being indicted will 

be indicted on sentencing factors, and then as a result, when they 

come to a plea discussion—and, again, in our particular jurisdiction 

98 percent of all criminal cases are resolved by pleas. As a part of 

that plea arrangement, there are either stipulations to facts, sentencing enhancement facts, or waivers to permit the judge to sentence consistent with the guidelines. So from this point forward, it 

seems that those policies may very well reduce, quite frankly, the 

impact of Blakely until there is an ultimate resolution. 

Finally, the courts are stepping in. I want to say that I have only 

been a judge for 9 years. I have been on the Sentencing Commission for 5 years. Certainly, the reaction of judges universally at the 

beginning was one of criticism. I don’t think that is true any 

longer. I think, in fact, people rely and depend upon all of the factors that are laid out in the guidelines to weigh their sentencing 

decisions and, in fact, rely upon that, whether or not the guidelines 

are mandatory in nature or not. 

So my sense is that the judiciary as a body will react to this 

change; that ultimately, over a relatively short period of time, there 

will be some internal resolution either by consensus or by direction 

from the Supreme Court. So I guess what I would urge the Senate 

on behalf of the Commission is to step cautiously in this area. We 

would love as a commission to take a very active role in trying to 

advise you as to any changes which would be positive and construcVerDate 0ct 09 2002 14:01 Apr 25, 2005 Jkt 020397 PO 00000 Frm 00020 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\20397.TXT SJUD4 PsN: CMORC
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tive and will lead to the guidelines remaining in full force and effect. 

Thank you. 

[The prepared statement of Mr. Steer and Judge Sessions appears as a submission for the record.] 

Chairman HATCH. Well, thank you, Judge. 

Judge Piersol, we will turn to you. 

STATEMENT OF LAWRENCE L. PIERSOL, CHIEF JUDGE, 

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF 

SOUTH DAKOTA, AND PRESIDENT, FEDERAL JUDGES ASSOCIATION, SIOUX FALLS, SOUTH DAKOTA 

Judge PIERSOL. Good morning, Mr. Chairman and distinguished 

members of the Committee. Thank you so much for allowing me 

the privilege to appear before you. My name is Larry Piersol and 

I am the chief judge in the District of South Dakota, but I am appearing as the president of the Federal Judges Association that is 

an association comprised of about 70 percent of the members of the 

Article III judiciary, district and circuit judges. 

The Association was formed 20 years ago to preserve judicial 

independence. Of course, as you know, judicial independence is important for the public. It isn’t something just for judges at all, and 

it is surely at issue in whatever Congress may decide to do or not 

to do as a result of the Sixth Amendment principles announced in 

Blakely v. Washington. 

Now, Blakely issues are, as I see it, in two main areas. The first 

is the immediate issues that judges, as well as prosecutors, defendants and victims now face in charging, pleas, trials and 

sentencings. Secondly, the less immediate issue, although probably 

more important, is what, if anything, should be changed in the procedures and the substance of Federal sentencing law. 

With regard to the immediate issues, let me suggest that a temporary solution legislatively may not be necessary. The Fifth and 

the Seventh Circuits, as the Chair and others have indicated, has 

already ruled. The Second has certified questions to the Supreme 

Court. The Fourth Circuit is soon going to hear argument. Before 

long, there will be rulings from all the circuits on various issues. 

We all know that there are splits in circuits all the time. That is 

one of the bases for the Supreme Court taking jurisdiction. The district courts will simply be following what the circuits are telling 

them to do, unless and until the Supreme Court tells them otherwise. 

Also, in reading the testimony from the second panel, the testimony is at odds as to whether a temporary solution is necessary 

or desirable, as well as disagreeing on whether a temporary solution would meet the letter, aside from the spirit, of the Constitution. However, if a temporary solution is determined to be necessary, the Federal Judges Association stands ready to provide 

whatever information and input Congress might desire. I would 

also point out that we are not attempting to provide information 

or positions different than the Judicial Conference, although that 

is possible. But, rather, we are in close contact with our member 

Article III judges. 

18

The second area of issues is that whatever the reading of the 

Blakely decision, much of Federal sentencing law and practice has 

at least been put in question by the Blakely principles. As a result, 

now is the time, I would urge, for the examination of the good, as 

well as the troubling portions of Federal sentencing law. We urge 

that there be a thorough review of Federal sentencing law and policy by Congress. We hope we will be called upon to participate in 

that important process. 

The Sentencing Commission, prosecutors, defenders and academics can all provide helpful input, but we are the ones more 

than anyone who look the defendants and the victims in the eye 

not only at sentencing, but at motion hearings, at trials, at pleas, 

at revocation hearings, and resentencings if there is a revocation. 

For example, I sentence about 150 people a year as one Federal 

judge. We believe that we much to offer before you make whatever 

final decisions you make. 

Now, just one example. You know how complex Federal sentencing law is, how interrelated it is. But for one example, I 

chaired the Native American advisory group that reported last November to the Sentencing Commission. It was to study the impact 

of the sentencing guidelines upon Native Americans. Especially in 

non-Public Law 280 States—and that is a whole other area—the 

guidelines have a greater impact upon Native Americans. South 

Dakota is one of those States. For instance, we try juveniles, sexual 

abuse cases and many other cases, where white people are tried in 

State court. I use this one example only to illustrate the complexity 

of dealing with sentencing law, where each day and each sentence 

is crucial to the lives of many people. 

I would attempt to answer any questions that you might have. 

[The prepared statement of Judge Piersol appears as a submission for the record.] 

Chairman HATCH. Well, thank you, Judge. 

We will finally turn to Judge Cassell. Welcome, and we appreciate you coming. 

STATEMENT OF PAUL G. CASSELL, UNITED STATES DISTRICT 

JUDGE FOR THE DISTRICT OF UTAH, SALT LAKE CITY, UTAH 

Judge CASSELL. Thank you, Mr. Chairman, members of the Committee. I appreciate the opportunity to come here this morning and 

discuss the effects of Blakely v. Washington on our Federal courts. 

Because I have legal issues relating to Blakely pending in front of 

me right now, I will confine my remarks this morning to simply 

trying to describe what has been going on in the 19 days since the 

decision. 

As you indicated, Mr. Chairman, Senator Leahy and others, 

there seems to be a radically changing legal landscape almost hourly in this area. Because of that changing legal landscape, it is 

tempting to jump to terms like ‘‘chaotic’’ or ‘‘crisis’’ to describe what 

is going on, as some press accounts have done. 

Along with Judge Sessions, I agree that such terms are not appropriate. Federal judges around the country are working diligently 

now to try to sort out the implications of the Blakely decision. To 

characterize these processes as chaotic, I think, would overlook the 

19

skill, care and resourcefulness with which these issues are being 

dealt. 

At the same time, though, it is fair to say, as Senator Sessions 

and others have suggested this morning, that the criminal docket 

in our Federal courts is now operating under tremendous uncertainty after Blakely. And whether this uncertainty is so destabilizing as to require remedial legislation, I will leave it to others 

on these two panels to discuss. 

What I would like to do this morning is to focus on the ways in 

which Federal district courts around the country, and particularly 

in my home State of Utah, have been trying to deal with questions 

that Blakely raises. My testimony collects reports from various districts, so let me focus in on what we are doing in my own district 

of Utah to deal with the Blakely situation. 

My own approach was announced in United States Croxford on 

June 29. In that decision, I held that Blakely’s interpretation of the 

Sixth Amendment prohibited a judge from embarking on fact-finding that would increase a defendant’s sentencing guideline range. 

I concluded that Blakely made that approach unconstitutional. 

I then sketched out three different options that judges might 

have for dealing with the Blakely situation. The first option was to 

take matters that judges had made findings on before and submit 

them to a jury. The second option was to apply only the downward 

adjustments in the guidelines, but not the upward adjustments 

that Blakely rendered unconstitutional. And then the third option 

was to return to sentencing as it existed before the enactment of 

the guideline scheme in its entirety. 

I concluded that the Sentencing Reform Act, as has been drafted 

and enacted by Congress, did not authorize me to use either option 

one or option two. Instead, I concluded that, by default, I was required to use option three in my sentencing; that is, to determine 

an appropriate sentence looking at the guidelines as instructive, 

but not giving them the unconstitutional binding effect that would 

be problematic under Blakely. 

Several days later, my capable colleague, Judge Stewart, was the 

next to rule on this question. In United States v. Montgomery, he 

agreed with me that Blakely rendered the guidelines unconstitutional. But as a remedy, he selected option two; that is, he felt he 

could apply downward enhancements, but not upward enhancements. 

My capable colleague, Judge Kimball, has also wrestled with 

what to do with Blakely. In United States v. Adams, a three-week 

jury trial involving drug and money laundering charges, he put together a very detailed jury verdict form which submitted to the 

jury a number of questions that would ordinarily have been decided 

by a judge about how to apply the guidelines. Such things as drug 

amounts or the amount of money laundered, the role and the offense—he has now submitted those to a jury. 

Finally, the latest ruling from Utah came yesterday from our capable chief judge, Dee Benson. In United States v. OliveraHernanez, Judge Benson held that he would continue to apply the 

sentencing guidelines until he had a definitive statement from an 

appellate court. He wrote that, like reports of Mark Twain’s death, 

20

the predictions of the guidelines’ demise might be greatly exaggerated. 

However, he recognized that Blakely might also be seen as a 

giant wrecking ball heading directly for the sentencing guidelines. 

And as a result, he announced that he would impose a ‘‘backup’’ 

sentence in every case; that is, a guideline sentence and a nonguideline sentence, so that regardless of how the appellate courts 

resolve the issue, the position of the appropriate sentence would be 

announced. 

These four decisions from Utah provide a fair sampling of the 

kinds of responses that courts have developed for protecting the 

Sixth Amendment right to a jury trial, as explained in Blakely. Others here today can testify about whether the need for certainty 

and the need to avoid unwarranted sentencing disparity requires 

some kind of legislative quick fix. 

My concluding observations would be that even if Congress decides that some sort of quick fix is necessary this year, I hope that 

Congress will revisit this subject in future years. Nothing we do as 

judges is more important than imposing an appropriate criminal 

sentence, and I urge you to think of Blakely not as a problem not 

to be overcome, but rather as a spur for discussion about how our 

criminal sentencing system can be improved. 

Thank you, Mr. Chairman. 

[The prepared statement of Judge Cassell appears as a submission for the record.] 

Chairman HATCH. Well, thank you, Judge. Let me turn to you 

first. In footnote 9 of the Blakely opinion, the Supreme Court explicitly stated that, quote, ‘‘The Federal guidelines are not before 

us and we express no opinion on them.’’ Given this explicit mandate in footnote 9, did you feel that your decision was necessary? 

Judge CASSELL. I did, Senator. On Thursday, they announced 

their ruling, and then on Tuesday I had a sentencing. That sentencing involved a little 11-year-old girl who was going to explain 

her view about the situation. Now, the Justice Department and the 

defense attorneys had requested more time to brief these issues, 

but if I had granted their motion to delay that sentencing, that little girl would have waited several more weeks to have justice 

reached in that case. 

She was represented by a guardian that I had appointed to articulate her interests. He opposed the continuance, and I agreed 

with him that the sentencing should not be delayed and therefore 

I had to move forward and resolve the case in controversy that was 

presented to me by this objection on Blakely. 

Chairman HATCH. I have listened to your testimony and I appreciate your thorough sampling of what Federal courts across the Nation are currently doing to respond to Blakely. It will be extremely 

helpful to us to weigh our options on what actions are necessary 

to respond to Blakely. You make a point of saying that the judiciary is not in a state of crisis; in fact, a number of you have made 

that point. Yet, your testimony taken as a whole seems to contradict that very statement. 

Although I agree that most, if not all courts are working diligently to come up with a reasoned response to Blakely, it does 

strike me that the Federal criminal justice is fast approaching a 

21

state of crisis, or as Professor Bowman, who is going to testify 

later, puts it, ‘‘profound disarray.’’ It strikes me that we currently 

have an environment where uncertainty and disparity are rampant. 

Do you agree with that or do you not agree with that? 

Judge CASSELL. I think the point to focus on is the one that 

Judge Sessions and John Steer focused on a moment ago. We are 

certainly in a transition period and there are going to be some 

problems for all of us in the district courts and other courts in dealing with the Blakely issues. But once the Supreme Court gives us 

some guidance in this area, then I think at that point things will 

sort themselves out considerably. So what we’re dealing with is a 

transition period, and I guess I would simply urge Congress to 

think carefully about what to do in that transition period of time. 

Chairman HATCH. We could use your advice on that. 

Did you have a comment, Judge Piersol? 

Judge PIERSOL. I was thinking while you were talking about 

that. I was thinking about when Apprendi came out, there was a 

flurry of petitions by people who had already been sentenced, and 

so on, under Apprendi, and the circuits went through and worked 

through the different issues out of Apprendi. So there is a shortterm problem, but I don’t think that there is anything that, as I 

indicated, necessarily needs a short-term legislative fix, in part because I think the short-term legislative could itself become problematic and I think the courts will work this out. 

Chairman HATCH. Mr. Mercer, are you concerned that the 

Blakely decision is going to undercut the goal of the Sentencing Reform Act to do away with unwarranted disparities in sentencing? 

Mr. MERCER. Well, Mr. Chairman, I do think that there are significant concerns that when different circuits go in different directions, as we have seen in the course of the last three or 4 days, 

and when we have seen that even within specific judicial districts 

that some courts may be going to indeterminate sentencing, some 

courts may agree with the Department’s position that Blakely is 

not applicable to the Federal guidelines, I think there certainly is 

some risk that that will occur. 

The Committee should know, however, that even if district courts 

determine that they must essentially find that the guidelines are 

not severable and must sentence in an indeterminate scheme, the 

Department will be asking for a sentence that would be within the 

applicable guideline range. So the Department is on record in 

terms of trying to advance the principles of the Sentencing Reform 

Act even in this time of uncertainty. 

So is there a risk? I think there is certainly a risk, but I also am 

cognizant of the fact that we are only 19 days post-Blakely and the 

Department has spent more than half that time trying to provide 

advice to my colleagues around the country in terms of how we can 

advance those principles of the Sentencing Reform Act. As we get 

into August, I think it will be much clearer about what sort of legislative fix might be appropriate and whether something like that 

is necessary. 

Chairman HATCH. Now, Mr. Steer, some courts have applied only 

portions of the Federal sentencing guidelines after Blakely. For example, a court might apply the defendant’s base offense level based 

22

upon the facts in a plea agreement related to the offense of conviction, but will not consider relevant conduct, any specific offense 

characteristics, any upward adjustments under Chapter 3 of the 

guidelines, or any upward departures under Chapter 5 of the 

guidelines. 

As drafters of the guidelines, can you please tell the Committee 

whether you think it is appropriate for courts to apply only a portion of the guidelines? 

Mr. STEER. As a legal matter, I think it is probably best that we 

leave that to the courts to resolve. As a policy matter, clearly, that 

is not the way that the guidelines are intended to work. The guidelines typically start with a relatively low base offense level and 

build from there, using the characteristics of the offense, what we 

call specific offense characteristics, and other general adjustments 

to arrive at an appropriate guideline range. 

The guideline range for a serious white-collar offender that 

would typically be appropriate is considerably different and contains a range of sentences that are much more severe than the 

fraud range that would apply to someone who has maybe taken one 

Social Security check and cashed it when he was not the rightful 

owner. So that approach of simply taking the starting point and applying any downward adjustments is very much not the way in 

which the guidelines were intended to operate. 

Chairman HATCH. Thank you. My time is up. 

Senator Leahy. 

Senator LEAHY. I find this a little bit interesting, and based on 

what Mr. Mercer and others have said, I want to make sure I am 

correct. None of the five witnesses here are urging the Congress to 

step in at this time. 

Is that correct, Mr. Mercer? 

Mr. MERCER. Yes, that is correct. 

Senator LEAHY. Mr. Steer? 

Mr. STEER. Yes. 

Judge SESSIONS. That is correct. 

Judge PIERSOL. That is correct. 

Judge CASSELL. I am taking no position on that. 

Senator LEAHY. I just want to make sure. 

Judge Cassell, you said there was no crisis, but you just held the 

entire Federal criminal sentencing system unconstitutional. I am 

sure the defense counsels in your district are probably elated. Are 

the prosecutors sharing your excitement at this? 

Judge CASSELL. Well, I don’t think excitement is what any of us 

are— 

Senator LEAHY. Are they sharing your feelings on this? 

Judge CASSELL. Well, there is certainly, as I suggested, a great 

deal of angst in the criminal justice system about how this is going 

to play out. I guess what I am worried about, Senator, is people 

describing the system as chaotic. As you know from having been 

involved in the system for many years, there are always going to 

be shocks to the system. The Supreme Court ends up resolving 

many of those and I think we are in that kind of a posture here 

today. 

Senator LEAHY. I think one of the things that works is that, as 

you know, if all the criminal cases presently before the Federal 

23

courts today—if all of them said, okay, we want our right to a 

speedy trial and we want a trial, the whole system would collapse. 

You have to have pleas. I don’t know how a prosecutor works out 

pleas today. I have been both a defense attorney and a prosecutor. 

Today, in your court especially, I would much rather be the defense 

attorney than the prosecutor under these circumstances. 

Let me ask Mr. Mercer, in the amicus brief in Blakely, the Justice Department tried to distinguish the Federal guidelines from 

the Washington State guidelines by arguing that the Federal 

guidelines are written by an independent commission with substantial discretion. 

Let me quote from the brief, quote, ‘‘Because Congress entrusted 

to the commission the specification of the numerous facts that authorize differing punishments under the guidelines, there is a 

strong argument that the guidelines do not implicate the concerns 

addressed by Apprendi. Those concerns arise only when the legislature itself dictates the facts that control a defendant’s increased exposure to punishment, thereby effectively creating enhanced 

crimes.’’ 

Now, that is the Department of Justice’s position in defending 

the guidelines. But last year, the Department had a different position. It supported—and many people helped write—the so-called 

Feeney amendment to the PROTECT Act, in which Congress 

usurped the power of the Sentencing Commission and rewrote substantial portions of the Guidelines Manual, in effect cut out a great 

deal of the independence of the Sentencing Commission. 

So are these positions at odds with each other? 

Mr. MERCER. I think they are very separable, in fact, Senator. 

Senator LEAHY. But they are different. 

Mr. MERCER. I don’t think they are different. I think the position— 

Senator LEAHY. In the Supreme Court, you are defending the 

independence of the Sentencing Commission. In Feeney, you are 

saying they are too independent and we have got to cut in and 

make a legislative fix to remove independence. I mean, it has got 

to be one or the other, doesn’t it? 

Mr. MERCER. Well, certainly, this branch, the legislative branch, 

has the opportunity to govern in a variety of ways, whether it is— 

Senator LEAHY. I am asking about the Department of Justice’s 

position. They have taken two different positions here, one defending the independence of the Sentencing Commission and the other 

supporting legislation to substantially change the independence 

and take away the independence of the Sentencing Commission. 

On those two positions, not what Congress does, but what the 

Department of Justice does, are you inconsistent? 

Mr. MERCER. Sentencing at the Federal level and sentencing in 

Washington State are something that can be differentiated. Washington has two different classes that establish the classification of 

the particular crime. In the Federal system, like in the State of 

Washington, the legislative branch has the authority to act in a 

particular way to set minimums and maximums. The same thing 

happens with the legislative branch here. The narrow question that 

we were addressing before the Supreme Court certainly is not 

something that draws into conflict what this body did— 

24

Senator LEAHY. Apparently, you were taking the position because 

you were trying to protect the Federal system. It wasn’t just the 

Washington State system. You were trying to protect the Federal 

system with the idea that Blakely may be applied to the Federal 

system as well as the State system. 

So aren’t you in a position where, in trying to defend the Federal 

system as being independent today, last year DOJ was saying we 

want to cut back that independence? Let me ask you this: You 

don’t see any inconsistency. Is that your statement? 

Mr. MERCER. My statement is that nothing that we argued in 

front of the Supreme Court would suggest that all authority to 

make determinations about sentencing, including minimum penalties, standard review, those sorts of things, are all delegated to 

the Sentencing Commission. 

So, no. I think in terms of both what the Washington State statutes allow for and what the Federal statutes allow for and what 

we argued in front of the Supreme Court, they are not inconsistent. 

Senator LEAHY. Do you see any noticeable differences on working 

out plea agreements since Blakely? 

Mr. MERCER. I do think, Senator, that you have raised a number 

of important points. Of juries are in a position to make findings 

about everything that is in this 491-page manual—and Commissioner Steer has talked about what governs loss calculations. Juries 

would be having to consider what constitutes reasonably foreseeable pecuniary harm. The Government would be in the position of 

needing to prove that beyond a reasonable doubt. 

And all jurors making those conclusions for any enhancement 

that is in this book—and I think that there are going to be significant implications and that is why in my earlier statement I said 

we are sort of waiting for the precincts to report here. 

Senator LEAHY. But my question was are you seeing, as the press 

has reported today, that in some districts plea bargaining and 

pleas are at a standstill? 

Mr. MERCER. I wouldn’t say standstill, but I would say that it is 

certainly a more— 

Senator LEAHY. The press is wrong? 

Mr. MERCER. There isn’t as much certainty that we had 21 days 

ago in the current context, and that certainly makes it difficult for 

defendants to know and prosecutors to know exactly how to proceed. That is why we are monitoring this very carefully and we will 

be looking forward to working with this Committee. 

Senator LEAHY. You are the expert here. I don’t have to worry 

about those press accounts saying that in some districts it is at a 

standstill. The press is wrong? 

Mr. MERCER. Well, it is really a case-by-case basis. I mean, do 

I think that right now this is having a significant implication for, 

say, cases where we are charging gun crimes? There aren’t a lot 

of upward adjustment factors that are applicable above and beyond 

the base offense level in a case like that, and there are some lowlevel fraud cases where that is the case. 

But then there is another class of cases where, if this book has 

a number of upward adjustment factors, then I think it is going to 

be increasingly difficult for the parties to understand the parameters of what we are dealing with. So on a case-by-case basis, it is 

25

much more difficult today to resolve things by pleas or to give 

Blakely waivers because of the decision in the short term. 

We will be in touch and hoping to collaborate very closely with 

you and the staff on these issues. 

Senator LEAHY. My time is up. I will go back to that press account and find out where they are wrong. 

Chairman HATCH. Senator Sessions. 

Senator SESSIONS. This is a big deal. I don’t think it should be 

minimized. I hear, well, we will just minimize this. I think Mr. 

Cassell said this decision was a spur to discussion. I think it is a 

lot more than a spur to discussion. Judge Piersol says courts will 

work this out. Well, I am not sure about that. I think it is a big 

deal. 

I will just ask all of you the panel, if you can think in the history 

of American criminal law of a decision that has had more impact 

on the practical working-out of justice in a court than this one. 

Judge CASSELL. I can, Senator. 

Senator SESSIONS. All right. 

Judge CASSELL. I think the Miranda decision— 

Senator SESSIONS. I don’t agree. I thought you might say that. 

[Laughter.] 

Senator SESSIONS. It is right up there with it. I will say that. I 

think it is beyond Miranda because it affects every case, and most 

cases didn’t have a Miranda problem, frankly, but a lot of them 

did. 

Sir? 

Judge PIERSOL. Sir, I would say this doesn’t affect every case. I 

have sentenced some people already and this didn’t have anything 

to do with the sentencing. It does affect some cases, yes. 

Senator SESSIONS. Well, maybe it doesn’t affect every case. It is 

important though, when it affects such a large number of cases on 

a routine basis that go on in our courts. So I think it is a big deal 

there. 

When you have four judges in the District of Utah all rendering 

different opinions, it is pretty close to chaos, it seems to me. And 

I think Senator Leahy is correct. We do have a problem with pleas, 

and certainly, predictability that we didn’t have before in many, 

cases. 

I think it is imperative that the courts realize that it is not some 

theoretical world in which they operate. Out here in the real world, 

cases are being tried everyday and lawyers are having to decide 

whether to plead or not, what sentence to expect their client may 

get, and how to advise their client. I don’t think there is any doubt 

that Senator Leahy is correct that this has caused great concern. 

Judge Sessions, you have handled pleas, and Judge Piersol. 

When a person comes in and pleads guilty, they are advised of the 

maximum statutory penalty, are they not? 

Judge SESSIONS. Yes, they are. 

Senator SESSIONS. They know they have guidelines, but they are 

advised that 10 years—in this case in Washington, a 10-year maximum statutory offense; no matter what a guideline says, a sentence cannot exceed the 10 years. So they are advised of that, are 

they not? 

Judge SESSIONS. They are. 

26

Senator SESSIONS. So they are told what the maximum sentence 

is when they enter a plea of guilty. And 98 percent in your district 

plead. That may be a little high, but it is not far off; over 90 percent plead in America today. They are not being misled. They are 

aware that a judge could go above maybe the base level offense, are 

they not, Judge Piersol? 

Judge PIERSOL. They are told that the judge has the ability 

under the guidelines system to depart upward or downward. In addition, they are told, of course, what the maximum penalty is. And 

if there is a mandatory minimum, they are told what this is, too, 

and that the mandatory minimum overrides the sentencing guidelines, with the exception of the circuit-breaker. 

Senator SESSIONS. But at the plea, they are not specifically told 

what the guideline range is going to come out to be? 

Judge PIERSOL. That is correct. They are not. 

Senator SESSIONS. They are told the maximum sentence, which 

I think is what the Sixth Amendment—if there is any power there, 

I think that is what it refers to. So I think this opinion is just bad 

law. I am just shocked. I can’t imagine Justice Scalia rendering 

such an opinion. 

Judge Cassell, you are thoughtful on these issues. What is the 

impact, for example, if a State does not have a sentencing guideline 

and a judge can give—say Washington State didn’t have it and a 

judge could walk in and give 10 years under the old law in which 

a judge’s sentence was unreviewable. Does this alter that historic 

procedure? 

Judge CASSELL. There certainly are some implications there. I 

think I may have to defer on that question because in Utah we 

have a situation similar to what you are describing and I might see 

that kind of an issue come before me. 

Senator SESSIONS. Well, it seems to me if you can’t go above a 

guideline range, then how can a judge impose a maximum sentence 

without any statement? 

I don’t know who has been in this business the longest. Judge 

Piersol, you must have or you wouldn’t be elected president of that 

association. Before the guidelines, were you a judge then? 

Judge PIERSOL. No, I wasn’t. 

Senator SESSIONS. I will just ask, before the guidelines, a sentencing judge in the Federal system could give the maximum statutory sentence and not have to state a basis for that decision and 

it was unreviewable on appeal. Is that not correct? 

Judge PIERSOL. That is my understanding, and I have only done 

a few. 

Senator SESSIONS. And under the guidelines that Senator Hatch 

and Senator Kennedy and others passed, you have review of sentencing on appeal. A judge, if he goes outside even the guideline 

range, has to defend it and it is reviewable by an appellate court. 

That was to help criminal defendants, to give some objectivity, was 

it not, and did it not do that? 

Judge PIERSOL. I believe so. 

Senator SESSIONS. So I don’t know how this opinion came out. 

Mr. Mercer, are your prosecutors now charging cases and putting 

in a whole lot of new charges and facts in the indictment that they 

would not have done before to try to comply with this system? 

27

Mr. MERCER. The memo issued by the Deputy Attorney General 

instructs all Federal prosecutors to charge within any charging document, indictment, information, any sort of offense characteristic 

that would increase the sentence. So, yes. 

Senator SESSIONS. Does that have the danger of making a trial 

arguably less fair for a defendant, in that more dirt is thrown in 

against the defendant in the indictment itself than otherwise would 

be the case? 

Mr. MERCER. I am sure that as we proceed here, there will be 

conversations about whether trials need to be bifurcated and 

whether we need to have a guilt stage and then a stage where this 

sort of thing happens. But we will be arguing that in front of district courts, and I imagine on a different case-by-case basis we will 

see what the outcome is. For instance, in a fraud case, I don’t think 

the fact that we would say the loss equals $250,000 is something 

that would require bifurcation. 

Senator SESSIONS. Well, isn’t it true that as a practical matter, 

you try a case, say a fairly complex fraud case, and the jury returns a verdict of guilty, you then sit down and work on the facts, 

where the guidelines may play, how much the loss might be? People take memoranda from the defense lawyers on what should this 

be and how much should be counted, and the judge renders a ruling that is reviewable on appeal. Is that not correct? 

Mr. MERCER. That is correct. 

Senator SESSIONS. Wouldn’t it be very difficult for a jury to be 

involved in all of that? 

Mr. MERCER. I think there isn’t any question that it is going to 

complicate the work of juries. Again, this manual sets forth a number of characteristics that may be relevant to what the individual 

defendant has done that are going to increase the sentence over the 

base offense level. 

Given this ruling, we are now, as you say, Blakely-izing all of our 

pleadings in order to make sure that we have got the opportunity 

to have the jury make those findings. But the standard is going to 

be different; it is no longer preponderance of the evidence. In some 

of these cases, particularly complex cases, market loss cases where 

the number of victims and the amount of loss is extraordinary, it 

is going to certainly complicate proceedings. 

Senator SESSIONS. It is going to be beyond a reasonable doubt, 

is it not? 

Mr. MERCER. That is right. 

Senator SESSIONS. That is a stunning change in itself. I forgot 

that. 

Chairman HATCH. Senator, you have made a lot of good points. 

Your time is up, however. 

Senator SESSIONS. My time is up. I am sorry. 

Chairman HATCH. At this time, I want to submit into the record 

the following letters, articles and written testimonies: the Federal 

Public Defenders; National Association of Criminal Defense Lawyers; the American Bar Association; Professors Douglas Berman, 

Marc Miller, Nora Demleitner and Ronald Wright; and a New York 

Times editorial dated June 29, 2004, by Kate Stith and William 

Stuntz. 

Senator Kennedy, we will turn to you. 

28

Senator KENNEDY. Thank you very much, Mr. Chairman. 

I think on this Committee we have enormous diversity, reflecting 

different philosophies, but I am enormously interested in how 

much Senator Sessions and I look at certain aspects of this consistently, and that is about trying to stay away from unfairness and 

inconsistency. that was the concept behind the guidelines, to have 

fairness, consistency and transparency. The good Senator went into 

a number of different areas on that issue, but this is an underlying 

factor which we wanted in the guidelines. 

I was enormously distressed, quite frankly, with the Justice Department and its proposals on the Feeney amendment. We had 

taken 10 years to develop these guidelines. We had days and weeks 

and months of hearings and markups. And then right out of the 

blue, with eight minutes of debate in the House of Representatives, 

and without an hour of hearing here in the Senate, without an 

hour’s consideration, without a single witness, it was tagged onto 

the Amber safety bill, which was obviously a matter of enormous 

importance to families, and just jammed through the Senate of the 

United States over the opposition of the Judicial Conference, the 

American Bar Association and the U.S. Sentencing Commission. 

We spent a lot of time trying to deal with a complex issue dealing with criminal law. We spent a lot of time trying to do it. We 

might not have gotten it exactly right, but it did reflect, as has 

been pointed out here, about as good an effort here, with 99 members of the Senate in support of it. 

Mr. Mercer, did you support the judge-specific reporting in that 

proposal in the Feeney amendment? 

Mr. MERCER. I chaired at the time something called the Attorney 

General Advisory Committee’s Subcommittee on Sentencing Guidelines, and we had taken a look—in fact, I am going to make sure 

to leave a copy of this article. I wrote an article in the Federal— 

Senator KENNEDY. I would be interested in that, but this is the 

one specific aspect on that, on the judge-specific reporting that was 

included in the legislation. There was strong, strong opposition. It 

is called basically black-listing. You can characterize whatever you 

want, but I just want to know your position on that. 

Mr. MERCER. Well, we categorically deny that there is any sort 

of judicial blacklist. That statute has two doors. 

Senator KENNEDY. I am not asking about how many doors. I am 

just asking did you write it or do you support— 

Mr. MERCER. Oh, no, no, but— 

Senator KENNEDY. Did you support the judge-specific reporting 

provisions in the Feeney amendment, yes or no? This is pretty simple stuff. 

Mr. MERCER. The provision says that the Department of Justice 

needs to promulgate a directive that would allow all cases that resulted in adverse sentencing departures to be reported for appellate 

consideration. And the Attorney General issued that memorandum 

and that is the protocol we have. 

Now, sentencing decisions are the same as any other adverse decision. They need to be reported to the Department of Justice for 

consideration. There is no blacklist. 

Senator KENNEDY. There is a listing of those judges that— 

Mr. MERCER. No, no, there isn’t. 

29

Senator KENNEDY. And how do you know? If no one keeps a list, 

how in the world do you know who is doing what? 

Mr. MERCER. Because if there is an adverse decision in a particular judicial district, if there is a downward departure that undercuts the purposes of the Sentencing Reform Act by saying this 

defendant is all of a sudden going to get a different sentence than 

contemplated by the commission, a memorandum is written saying 

this occurred; let’s make a determination about whether an appeal 

needs to be taken. 

That is the same as whether we have an adverse decision in a 

civil case. That is the way we refer these matters for determinations by the Solicitor General. The way the Sentencing Reform Act 

was written, no appeal can be taken unless the Solicitor General 

authorizes an appeal. 

Senator KENNEDY. Well, can I ask you, Judge Piersol, why was 

there such concern about that particular provision? 

Judge PIERSOL. Well, I can speak for a lot of judges that I talked 

to, and that is because the judges felt there was a black-listing. 

That is why. 

Senator KENNEDY. Do you think this ought to be an area that we 

take another look at? 

Judge PIERSOL. I would hope so. 

Senator KENNEDY. Let me just ask quickly, because my time is 

going to be up, just for the panel, who do you think we ought to 

listen to or talk to in terms of these issues that we are looking at 

over a longer period of time? 

I mean, the idea that we are going to act quickly is, I think, 

probably extremely unlikely, particularly from what we have 

heard. We have got another panel with some differing views. 

Who should we really listen to? Each of us sort of outlined the 

different areas that we looked at. I mentioned the mandatory minimums and the disparities in the crack/powder departure standards, 

complexity of the guidelines. Who do you think we can get the best 

information from in terms of trying to look at how we can best 

meet our responsibilities? 

The red light is one, but I would ask each of you to maybe just 

take 30 seconds and tell us what we can do? 

Judge SESSIONS. If I could respond to that, I think this is such 

a significant issue that it is going to take extensive research and 

development, it seems to me. Turning to judges, turning to prosecutors, turning to the Department, turning to defense lawyers, turning to probation officers and victims, I think you need to look at 

all of the areas. 

But I also think, and I mean I really believe that the United 

States Sentencing Commission is chartered with the responsibility 

of advising Congress in regard to changes of this magnitude. My 

feeling is that the Sentencing Commission should take an active 

leadership role in addressing sentencing issues in the future. 

Judge PIERSOL. I agree with what Judge Sessions says. All those 

groups should be consulted; most of all, I would say the Sentencing 

Commission and the judges. 

Senator KENNEDY. Judge Cassell? 

Judge CASSELL. And I would say—maybe somewhat selfservingly—the district court judges. As has been mentioned, we are 

30

the ones who end up sentencing people everyday and hopefully 

have some insights. 

Mr. STEER. Senator, I agree, and I think you provided the answer 

to a large degree in the Sentencing Reform Act. It describes a process by which all those who are involved in the criminal justice process are to be involved in shaping sentencing policy. 

Senator KENNEDY. Mr. Mercer? 

Mr. MERCER. I think that amount of consultation is a good idea. 

There just may be a need, come the summer, for some sort of action, and we will look forward to talking about that. 

Senator KENNEDY. Thank you, Mr. Chairman. 

Senator SESSIONS [PRESIDING.] Thank you, Senator Kennedy. I 

would just note that Congress did create the guidelines and we 

have a responsibility to monitor how they are working. If they have 

problems, we ought to fix them. We have not done that. I have offered legislation to modify the crack/powder cocaine problem. I 

haven’t gotten much support for it yet, but the perfect is the enemy 

of the good. This is a good first step. 

I don’t mean to say that the guidelines are perfect. They need to 

be monitored by historical accuracy and realistic experience, and 

we ought to alter them when it is appropriate to do so. I know Mr. 

Steer and I have talked about that before. 

Senator Durbin, thank you, and we will recognize you. 

Senator DURBIN. Thank you, Mr. Chairman. 

Thank you to the panel for your testimony. 

A few years ago, a Governor in Illinois decided, for reasons of 

conscience, that he could no longer approve death penalties in my 

State. That decision by that one person caused, I think, a national 

and international discussion about the death penalty which was 

long overdue. I think a lot of us at the State and Federal level have 

taken a new look at it, as we should have. It was comfortable to 

stay with the old process, but now we have to question the old 

process and whether it fits the needs of justice. 

It strikes me the same thing is happening here. Apprendi and 

Blakely are causing us to take 19 years of accepted practice when 

it comes to sentencing guidelines and to step back and say is it 

fair, does it work. We don’t like to face these questions. We would 

rather just continue with the status quo, but we have no choice 

now. Blakely has thrown this all up for grabs. 

Judge Sessions, it is not in your testimony; you said this in a 

statement attached to it that you felt that there was a general consensus and support—I don’t want to misstate your position—a general consensus and support by judges of sentencing guidelines. Sitting next to you, Judge Piersol said now is the time for an examination of the good, as well as the troubling portions of the Federal 

sentencing law. 

It seems to me that those two statements are not consistent. And 

to hear one from the Sentencing Commission and another representing the Federal judges reflects, I think, the need for this debate. I can tell you that whether it is the Feeney amendment or 

just the sentencing guidelines or the mandatory minimums, many 

Federal judges have come to me and said, I have been put in unconscionable situations when it comes to sentencing because of esVerDate 0ct 09 2002 14:01 Apr 25, 2005 Jkt 020397 PO 00000 Frm 00034 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\20397.TXT SJUD4 PsN: CMORC
31

tablished guidelines and because of mandatory minimum sentencing. 

So I would ask each of you if you would comment on that. Is it 

time for us to take a fresh look at the whole concept and ask ourselves some hard questions as to whether justice has been served? 

I would ask Judge Piersol and Judge Sessions. 

Judge PIERSOL. Well, I think I was suggesting that it is time to 

look. I would say—and I am speaking personally for myself now because the association hasn’t taken a specific position on this. But 

I have sentenced 1,500 people or so, so I have got a little experience. 

I would say that the concept of sentencing guidelines is a generally accepted concept. That doesn’t mean it is working as well as 

it could or should, because any time you sentence somebody where 

the sentence, in your best judgment, is inappropriate, that is a 

tragedy. 

Senator DURBIN. Has that happened to you as a judge sentencing? 

Judge PIERSOL. Yes. 

Senator DURBIN. Under the guidelines? 

Judge PIERSOL. Yes. 

Senator DURBIN. Where you felt that what you did was not just? 

Judge PIERSOL. Yes, and I can’t imagine that there is a judge 

who has sentenced for very long that wouldn’t say that. So the real 

problem is, speaking personally, there isn’t enough latitude. There 

is a need for sentencing guidelines, but they are not guidelines. 

That is a euphemism. They are not guidelines at all. They have the 

force of law. So there is need for a system similar to what we have, 

but it is not one that provides justice as often as it should. 

Senator DURBIN. Judge Sessions, have you been through the 

same experience? 

Judge SESSIONS. Sure, I have been through the same experience, 

and first I would want to say that Judge Piersol and I are great 

friends and we agree on just about everything in the world. So I 

think probably if asked to get down to basics, the agreement probably would be quite clear. 

What I meant by my comments is that most judges feel that the 

process, generally speaking, is fair, and it is fair for a number of 

reasons. Primarily, it provides consistency and a sense of an ability 

to understand what is happening by a defendant, so that they 

know exactly what the process is, what the ranges are, generally 

speaking. 

The other advantage of the guidelines is that they provide factors 

that judges should consider in weighing sentences that are universally applied. That is why the enhancements are so important because it allows judges to go beyond just dollar amounts and drug 

quantities that focus in upon those things. 

Now, having said that, the end product—these are, of course, 

mandatory guidelines and they are oftentimes based upon mandatory minimums; that is, how the drug quantity arrived at where it 

did. I know Senator Sessions has raised a bill in regard to low-level 

drug couriers as a part of the crack cocaine bill that he had proposed a couple of years ago. 

32

In those kinds of situations, oftentimes you are finding yourself 

restricted by mandatory minimums, in particular, and at that point 

you feel like you could be doing an injustice. But as to the general 

perception of the guidelines themselves, I think the vast majority 

of judges would say they like them. 

Senator DURBIN. I would like to really kind of sum up, and I am 

sorry I couldn’t get each panel member to express their own opinions on this. It seems to me that the guidelines are looking for 

some certainty and, as we have said here, eliminate unwarranted 

disparities in sentencing. But at the same time, the system is looking for justice which would protect warranted disparities. And the 

only person who can make that decision ultimately is the judge, or 

in Blakely’s suggestion, the jury as well. 

Can we get to the bottom of Blakely and Apprendi without addressing this core issue of whether or not we are serving justice, 

as opposed to just serving the need for certainty in sentencing? 

Judge PIERSOL. In my view, great injustice could come from some 

legislative solutions. Justice could also come from some legislative 

solutions. That is why you have such a heavy charge upon you and 

that is why we want to be at the table. 

Judge SESSIONS. And I would say that just like Congress now is 

addressing this particular issue as a result of Blakely, the Sentencing Commission chose a number of years ago—Judge Castillo 

was one of the driving forces in this—suggested that we review the 

guidelines, review how they are working and develop a 15-year 

study, a part of which has already been released in regard to the 

crack cocaine report, an idea that the Sentencing Commission itself 

internally is reviewing this to see if we can improve the process. 

Senator DURBIN. Thank you. Thanks, Mr. Chairman. 

Senator SESSIONS. Thank you. 

Well, it has been an excellent discussion and we thank you for 

that. 

Senator Leahy, do you want to comment? 

Senator LEAHY. Just one follow-up question to Judge Sessions 

and Mr. Steer. 

I realize this is broad-brush, but in your testimony you suggest 

that the Federal guidelines are different from the State guidelines 

because the Federal guidelines are promulgated by an independent 

agency in the judicial branch, not by the legislature. 

So just for the purposes of the question, assuming this might 

make a constitutional difference, then, of course, the question I ask 

is are you sufficiently independent. Think of three facts: first, the 

Congress has to approve the commission’s recommendations for 

changes to the Guidelines Manual. Secondly, the Congress has 

made a number of directives over the past few years telling the 

commission to make changes in the guidelines. 

Third, the Feeney amendment, backed by the Department of Justice, actually wrote guidelines and commentary without any input 

from either the commission or the Federal judiciary, as everybody 

from the Chief Justice on down has reminded me. 

Assuming there is a constitutional difference, because of your 

independence, from what is seen in Blakely are you sufficiently 

independent? 

33

Judge SESSIONS. Senator, you have asked questions of me in the 

past that are equally troubling. I think essentially we are as independent as Congress is willing to make us at this particular point. 

We are, I will say, an independent body in the sense that we deliberate independently. We clearly pass guidelines independently 

based upon our best assessment, and I think to the extent we are, 

in fact, an independent body. 

Of course, Congress has the power, the absolute power and the 

right to restrict the Sentencing Commission in any way it deems 

appropriate at this particular point. But to the extent that decisions are made independently by collaboration and, by the way, by 

consensus—this is the only body I have ever been on in which politics or your political background plays no part. It is done by consensus. To the extent, I believe that our decisions are made independently. 

Mr. STEER. Senator, if I could just add a footnote, I think the 

reason why that feature might be important—and we don’t know 

whether it is critical. Some judges have already examined it and 

found it insufficient. It is just one of the things that might be relied 

on in trying to distinguish the Federal guidelines from Blakely. But 

the reason why it might be important is it derives from a strong 

statement by the U.S. Supreme Court in the Mistretta decision that 

upheld the constitutionality of the guidelines. 

I think historically the Sentencing Commission wants to operate 

in a way and according to the vision that the Congress laid out in 

the Sentencing Reform Act. And so when we are constrained by 

overly detailed directives, we recognize that that is Congress’ prerogative. But as we are involved in working with you and your 

staffs in crafting legislation, we point out the need for flexibility. 

We prize our discretion as an institution just as judges for different 

reasons prize theirs in crafting an appropriate sentence. 

But I think the bottom line and the reason for it, and the reason 

why we feel like independence is important is Congress created an 

expert body here and we want to use that expertise to try to carry 

out the goals of the Sentencing Reform Act. 

Senator LEAHY. Thank you. Thank you, Mr. Chairman. 

Senator SESSIONS. Thank you. 

Well, Judge Sessions, I think you make a good point, what is justice? Many have asked this question. Consistency and predictability 

is part of it, at least. Judge Piersol sees occasions when he thinks 

that consistency created unfairness, but there are some situations 

in which I have seen judges, before the guidelines and when I was 

prosecuting cases, render sentences that were incomprehensible. So 

maybe we have made some progress. 

Mr. Mercer, I would just give you briefly an opportunity to comment on the Feeney amendment. Is that consistent with the Sentencing Guidelines, what the Department of Justice proposed or 

supported there? 

Mr. MERCER. Well, it is, Your Honor—yes, it is, Senator. 

Senator SESSIONS. That is proof that you are a good lawyer. You 

have been in court before. I can tell. 

Mr. MERCER. The whole principle of the Sentencing Reform Act—

the preeminent goal was to make sure that unwarranted disparity 

was minimized. I was noting for Senator Kennedy—and I will leave 

34

a copy of this—this article tracks downward departure rates. This 

is not an article that is trying to get at substantial assistance. 

The data in these charts are based upon Sentencing Commission 

data and they track year by year the rates in various districts. A 

place like Connecticut has never had a non-substantial assistance 

downward departure rate below 25 percent. In fact, in the current 

period, sort of year in, year out, it is right around 30 percent. Then 

you will see in that same table that a place like the Western District of Arkansas, in the 2-year period, was below 3 percent in both 

years. 

So the whole point of the PROTECT Act appears to be that unwarranted sentencing disparity threatens to undercut the purposes 

of the Sentencing Reform Act. If, in fact, both on an intra-district 

and on an inter-district basis you have outcomes that are generated 

based upon a number of circumstances that don’t comport with the 

Sentencing Reform Act, that is a problem. I think that goes to why 

the Congress said to the commission, we need to make sure that 

the purpose that departures would be rare is reinforced because 

these data suggest that that goal has sort of slipped away. 

Senator SESSIONS. Well, I just thank all of you. It has been a 

very, very good discussion. In view, since we have undertaken to 

direct sentencing from this Congress and have, in effect, done so 

to a large degree, we have a responsibility to listen to practitioners 

and those who are out there, and consider what is working and 

what is not and fix it when it is not working as well as it should. 

But I strongly believe that the Court ought not to be demolishing 

this wonderful work that Senator Leahy and his colleagues did 20 

years ago. 

Senator LEAHY. Thank you. 

Senator SESSIONS. Thank you so much. We will go to our next 

panel. 

As you take your seats, I will do the introductions. 

The first witness will be Professor Frank Bowman. He teaches at 

the Indiana University School of Law, has worked for the Department of Justice as a trial attorney in the Criminal Division, and 

was a deputy district attorney for Denver, Colorado. Professor Bowman also worked in the U.S. Attorney’s office for the Southern District of Florida. 

That should have kept you busy. 

Mr. BOWMAN. It did. 

Senator SESSIONS. What years? 

Mr. BOWMAN. 1989 to 1996. 

Senator SESSIONS. And where you were deputy chief of the criminal division and specialized in complex white-collar crime. He also 

served as special counsel to the United States Sentencing Commission in Washington, D.C., and was academic adviser to the Criminal Law Committee of the United States Judicial Conference. 

So welcome, Professor Bowman. You have a remarkable background on these issues. 

Second, we will hear from Professor Rachel Barkow. Professor 

Barkow is an assistant professor of law at the New York University 

School of Law. She clerked for Justice Scalia on the U.S. Supreme 

Court—and maybe you can explain this decision for us—and Judge 

Laurence Silberman of the D.C. Circuit. Professor Barkow’s reVerDate 0ct 09 2002 14:01 Apr 25, 2005 Jkt 020397 PO 00000 Frm 00038 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\20397.TXT SJUD4 PsN: CMORC
35

search and writings focus on criminal and administrative law, with 

an emphasis on the administration of criminal justice through the 

use of agencies and commissions. 

Professor Barkow, we welcome you to the Committee and look 

forward to hearing from you. 

Next is Ronald Weich. He is a partner in the firm of Zuckerman 

Spaeder. He has previously held positions as general counsel to the 

Labor and Human Resources Committee and as chief counsel to 

Senator Kennedy on this Committee. He also served as special 

counsel for the U.S. Sentencing Commission and as assistant district attorney in New York. 

Were you with Senator Kennedy when the guidelines were 

passed? 

Mr. WEICH. No. I joined Senator Kennedy’s staff in 1990. I was 

at the commission when the guidelines first became effective, and 

then in the early years of implementation I was with Senator Kennedy. 

Senator SESSIONS. Well, you have a valuable perspective, then. 

Our final witness will be Mr. Alan Vinegrad, a partner with Covington and Burling in New York. He is a former United States Attorney for the Eastern District of New York. He previously served 

as the office’s chief Assistant U.S. Attorney, chief of the criminal 

division, and chief of civil rights litigation, which should have given 

you some experience in the real world. So it is a delight to have 

you with us. 

Professor Bowman, would you start off, please? I must say that 

we are moving along. If you could attempt to hold your comments 

to four minutes, we would appreciate that. If you need an extra 

minute, that will be fine. 

STATEMENT OF FRANK O. BOWMAN III, M. DALE PALMER PROFESSOR OF LAW, INDIANA UNIVERSITY SCHOOL OF LAW, INDIANAPOLIS, INDIANA 

Mr. BOWMAN. Thank you to you and the other members of the 

Committee for inviting me to testify. 

The imposition of sentences in the Federal criminal justice system is a shared responsibility. We are here today because all of the 

institutions which share that responsibility have in some measure 

failed. The catalog of our collective failure is too long for detailed 

examination today, but its principal components, it seems to me, 

are these. 

First, we have taken a guideline sentencing system that was 

sound in its conception almost 20 years ago, and which incidentally 

I have long supported, and made it too complicated. As but one 

measure, the size of the Sentencing Guidelines Manual has quite 

literally doubled since 1987 until today. 

Second, the process of making sentencing rules, which was designed probably over-optimistically to minimize the influence of 

narrowly political concerns, has become a one-way upward ratchet. 

Raising sentences is common and easy. Lowering them is difficult 

and scarcely ever done. 

Third, the result is a system which remains for many cases an 

excellent vehicle for determining a proper sentence, but which too 

often generates sentences that seem to judges and to prosecutors 

36

and defense counsel like unjustly severe, or at least higher than 

necessary. 

It is thus no surprise to find, as many studies have done, including some that I have done myself, that judges, prosecutors and defense counsel routinely collude to evade the guidelines mandates. 

The response of national policymakers to this quiet rebellion by 

front-line legal professionals against the unreasonable sections of 

the guidelines has not been to moderate the rules. Instead, the 

trend has been to make the rules harsher and to enforce compliance by restricting judicial discretion and imposing greater centralized control even on the decisions of line prosecutors. 

Everyone involved intimately in the Federal sentencing process 

knows these things to be true, and every institution involved in 

Federal sentencing—the judiciary, most particularly included—

bears its share of the blame for this condition. But my important 

point this morning is not to assign blame, but rather to insist that 

we take a clear-eyed view of the problem that confronts us. 

We are gathered here this morning because Blakely v. Washington has thrown the Federal judicial system into unprecedented 

disarray. But Blakely is not the underlying problem; it is merely 

a symptom. I happen to think, with Senator Sessions, that Blakely

is a bad decision. It carries a dubious constitutional premise to absurd lengths and it is breathtaking heedless of both short- and 

long-term practical consequences. 

Senator SESSIONS. Well, don’t underestimate the problems with 

it now. 

[Laughter.] 

Mr. BOWMAN. I won’t. 

Senator SESSIONS. Well, you probably did, but go ahead. 

Mr. BOWMAN. That said, it also seems reasonably clear that although Blakely addresses a State sentencing system, it is really 

about, in my view, the Federal guidelines, by which I mean that 

Blakely cannot be understood except as an expression of a deep and 

abiding frustration with the current state of Federal sentencing, a 

frustration which I think is widely shared both inside and outside 

the judiciary. 

Now, I don’t know if the court will declare Blakely applicable to 

Federal sentencing guidelines, though it is really hard to see, 

frankly, how that result can be avoided, despite the earnest arguments by the commission and various other able judges. 

I do know that while we wait for an answer, the Federal criminal 

justice system is in turmoil. And here, too, I agree with you, Senator Sessions. I think that suggestions to the contrary ignore reality. Judge Cassell points out that in his district, four different 

judges have arrived at four entirely separate conclusions about how 

sentencing should be conducted, which leaves us with two questions: what should we do right now, and what should we do for the 

longer term? 

Now, yesterday morning, I probably would have favored immediate legislation because the turmoil in the courts is so crippling 

and because the prospect of even partial guidance from the Supreme Court in the near future seems to remote. 

Yesterday’s decisions by the Second and Fifth Circuits have altered my opinion somewhat. We now have rulings from three apVerDate 0ct 09 2002 14:01 Apr 25, 2005 Jkt 020397 PO 00000 Frm 00040 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\20397.TXT SJUD4 PsN: CMORC
37

pellate courts, one holding the guidelines constitutional, one holding them unconstitutional, and the third certifying the question to 

the Supreme Court. 

Now, I hasten to add that the fact that these courts have moved 

with such astounding speed—and it is astounding; in 19 days, we 

have 3 appellate opinions. But the fact that they have moved with 

such astounding speed is not an indication that everything is just 

fine and dandy with the system and that the system is coping. 

To the contrary, the actions of the circuit courts are the best evidence that we are in the midst of a national judicial train wreck, 

that the courts know it and that they think they need help really 

fast. Still, the existence of a circuit split of certification and a general outcry from the lower courts for clarification suggests that we 

might get rapid action from the Supreme Court. 

Accordingly, I think it would probably be sensible to wait not 

more than a week or two or three to see if the Court is really going 

to move quickly. If they do, by accepting a case and setting an expedited schedule for resolving it, it might be wise to wait and see 

what they do. 

Now, make no mistake. Even a rapid ruling by the Supreme 

Court is unlikely to resolve the current crisis unless, contrary to 

expectation, the Court finds that the guidelines are constitutional, 

despite Blakely. If, on the other hand, the Court invalidates the 

guidelines, one element of uncertainty will be removed. But we will 

then be without a constitutionally valid sentencing system and it 

is highly unlikely—and this, I think, is critical—it is highly unlikely the Court, in its opinion rendering the guidelines unconstitutional, will tell us much about how to create a new one. 

So if the Court sits on its hands or if it doesn’t, we are all likely 

to be back here in a few months looking for both short-term and 

long-term answers. In the short term, if legislation is to be considered either now or a month or 2 months from now, I think it should 

meet four criteria. 

First, it should be simple to draft and understand. Second, it 

should have easily predictable consequences. Third, it should solve 

or greatly ameliorate the litigation problem. Fourth, it must be 

easy to implement and not require extensive revision of current 

rules and practices. Any proposal that doesn’t do all four of those 

things should not be enacted. 

Now, I have put forward one legislative solution that I think 

meets these criteria. Others have made other suggestions and I am 

certainly happy to talk about those, should you like to do so, Senator Sessions. But I want to make one final point. There is no entirely satisfactory short-term solution to the problems of the Federal sentencing system. I repeat, Blakely is a symptom of profound, 

ongoing, systemic dysfunction. 

I believe two things. First, the orderly functioning of the Federal 

criminal system must be restored quickly, but once that is done, 

the underlying problems must be addressed. If they are not, the 

system will either collapse under the next judicial assault—and 

rest assured, there will be one—or perhaps worse, struggle on for 

years as an evermore punitive set of rules increasingly evaded or 

manipulated by the judges and lawyers who use them. 

38

We can do better than that. We can, if we listen to each other, 

if we respect the competence and the wisdom and the professionalism of all the participants in the sentencing process—judges, 

prosecutors, defense lawyers, sentencing commissioners and legislators—if we respect each other and if we listen to each other, we can 

build a sentencing system that the country can be proud of. We 

owe it to the country to try. 

Thank you. 

[The prepared statement of Mr. Bowman appears as a submission for the record.] 

Senator SESSIONS. Thank you very much. 

Professor Barkow. 

STATEMENT OF RACHEL E. BARKOW, ASSISTANT PROFESSOR, 

NEW YORK UNIVERSITY SCHOOL OF LAW, NEW YORK, NEW 

YORK 

Ms. BARKOW. Thank you, Mr. Chairman and members of the 

Committee, for inviting me to testify before you today. I am honored to have the opportunity to discuss with you how to fix the 

Federal sentencing guidelines so that they comply with the bedrock 

of our criminal process—the jury. 

In Blakely, the Supreme Court reminded us of the fundamental 

importance of the criminal jury. Before the state can take away 

someone’s liberty, it must obtain the approval of ordinary citizens. 

The jury system reflects America’s great respect for its people and 

the values of its communities. That is why 78 percent of Americans 

believe that the jury system is the fairest way of determining guilt 

or innocence, and almost 70 percent believe that juries are the 

most important part of our judicial system. 

Because the sentencing guidelines in their current form unconstitutionally interfere with the jury, reforming them should be an urgent priority. But any proposal for revising them must have as its 

primary goal the preservation of the Constitution’s jury guarantee. 

Before I offer my own proposal, I would like to spend just a moment addressing the proposal that Professor Bowman has offered 

because I believe that although it is quite ingenious in its design, 

it fails to meet that standard of what the Constitution requires for 

the jury. Its main goal is not to preserve the jury, but to preserve 

the guidelines in as close to their current form as possible. 

The guidelines under this proposal would allow judges to make 

crucial findings that would increase the range of punishment to 

which a defendant is exposed. The Court, in its decision in 

Apprendi, made clear that that is unconstitutional, and although 

Professor Bowman designed his proposal to fit within a loophole 

created by the Supreme Court’s decision in Harris, I do not believe 

that decision sweeps so broadly. In fact, five Justices in that case 

made clear that Apprendi does not allow judges to find facts triggering an increase in a defendant’s minimum sentence. 

So in my view, Congress can’t ignore the logic of Apprendi without defying its own independent obligation to uphold the Constitution. Because this proposal is such a calibrated effort to bypass the 

jury, I believe it would draw the ire of the Court. 

In addition to its constitutional problems, I believe there are policy issues with the proposal as well. The proposal would make senVerDate 0ct 09 2002 14:01 Apr 25, 2005 Jkt 020397 PO 00000 Frm 00042 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\20397.TXT SJUD4 PsN: CMORC
39

tencing ranges sweepingly broad, repeating the very situation that 

prompted Congress to enact the Sentencing Reform Act in the first 

place. In fact, the only real difference is that this proposal would 

also serve to increase sentences because it would raise the ceilings. 

But there is no evidence that an across-the-board increase of guideline sentences is justified or necessary at this time. 

I don’t think there is a need to adopt this kind of proposal because I think there is an alternative that both preserves the criminal jury’s role and meets the goals of the sentencing guidelines. In 

the short term, Congress can either opt to wait and see what the 

Supreme Court is going to do, or if it wants to act, I think the 

wisest course is to make the guidelines advisory, for as long as they 

have the force and effect of binding laws, they currently demean 

our jury system and undermine our criminal process. 

They require a multitude of sentencing increases on facts found 

by judges, including increases for uncharged and even acquitted 

conduct. As long as they remain in this state of confusion, you will 

see different district courts dealing with them in different ways, 

some of which may only look at the base level offenses with no increases, which I think does a disservice to the Government. So a 

voluntary guidelines system across the board would be fair for both 

sides. 

Now, I don’t believe that voluntary guidelines are a sufficient solution for the long term because they wouldn’t adequately address 

the problems of disparity and uncertainty that you spoke of. And, 

undoubtedly, they would lead to those conditions again to at least 

some extent. I believe there are some sentencing factors—using a 

firearm in the commission of an offense, the terrorism enhancement—that are just too important to be left to judicial discretion. 

So as a longer-term solution, I recommend that Congress, with 

the commission’s assistance, identify those factors that are sufficiently important that they should trigger in all cases an enhancement of a specified length. Any factor of such importance is then 

required by the Constitution to be treated as an offense element to 

be found beyond a reasonable doubt by a jury. 

Given the need to keep trials management, I would expect that 

Congress would not single out every existing guideline factor to be 

treated as an offense element, and those factors not identified as 

offense elements could then become part of a guidelines regime 

that is advisory. If, over time, the Sentencing Commission found 

there was a lack of judicial attention or compliance with some important factors, it could then recommend that Congress make those 

offense elements as well. 

Thank you very much for the opportunity to testify. I am happy 

to answer any of your questions. 

[The prepared statement of Ms. Barkow appears as a submission 

for the record.] 

Senator SESSIONS. Thank you. 

Mr. Weich. 

STATEMENT OF RONALD WEICH, ZUCKERMAN SPAEDER LLP, 

WASHINGTON, D.C. 

Mr. WEICH. Thank you, Senator Sessions. In the course of introducing me, you mentioned my Government experiences. Let me 

40

just add that in my private practice, I serve as counsel to the Leadership Conference on Civil Rights regarding criminal justice issues 

and as counsel to the Constitution Project, a non-profit organization that in this area intends to convene experts to develop recommendations for policymakers. I speak, though, as an individual 

here today, not on behalf of those organizations. 

Senator SESSIONS. I assume your people are happy with the 

chaos that has resulted. 

Mr. WEICH. No, no, actually not. Let me say the Leadership Conference, in particular, is disturbed because the Leadership Conference is about fairness in sentencing. There was a time when 

groups within the Leadership Conference supported mandatory 

minimum sentencing because they thought that was the only way 

to deal with unwarranted judicial discretion in which minorities 

were greatly disadvantaged. 

When the guidelines came in, civil rights groups understood that 

this was a more sophisticated way to channel judicial discretion 

and have fairness. The civil rights community continues to support 

guidelines. We have fought for more fairness, working with you 

and your staff, for example, on the crack/powder issue. But the 

Leadership Conference is not at all happy with the chaos, and neither is the Constitution Project or any other organization that I am 

affiliated with. 

Blakely is a very confusing decision for people who care about 

civil liberties and civil rights. On the one hand, there is a nugget 

of a principle there that I think we should all agree with, and I 

know you agree with, which is that if you are accused of committing a burglary, the government should have to put its proof to a 

jury and find you guilty beyond a reasonable doubt of a burglary 

before you are sentenced for a burglary. 

They can’t arrest and convict you for jay-walking, which might 

have a 10-year maximum sentence, and then ask the judge to sentence you to 10 years because after you crossed the street, you committed a burglary. That, of course, is something of an exaggeration, 

but it illustrates the kind of thing that is happening day in and 

day out in Federal court today, or at least until Blakely. That problem is what I think the Supreme Court intended to address in 

Blakely. 

That said, I, for one, think that the decision goes way too far in 

saying that every single factor that could possibly increase a sentence has to be put to a jury. That can’t be right. The trick, of 

course, is to find the middle ground, to determine what are elements of an offense that need to be put to a jury and what are sentencing factors that a judge should be able to consider and weigh 

and use in imposing a just sentence. Finding that middle ground 

is very difficult. As Justice Breyer said, the decision appears to 

knock out the middle of the policy spectrum, so that Congress and 

state legislatures have a much tougher job. 

You have, as everyone has said, a short-term and a long-term 

question before you. I think the short-term question has largely 

been answered, and to my mind the Justice Department was the 

reality check here. They are a party in every single criminal case 

in the country. If they had come in and said to the Congress they 

need a short-term legislative fix to deal with chaos or bedlam, then 

41

I think Congress would have appropriately acted. They have not 

said that. 

I heard Mr. Mercer refer to some possibility of coming back in 

the summer. I think that is wrong. I think they either ask for their 

legislative fix right now or the case is closed until presumably the 

Supreme Court acts at the end of this year and then the new Congress considers this at the top of its agenda next year. It is a very 

important subject. 

If you do anything short-term, I think, as Professor Barkow said, 

it should be advisory guidelines. That is a simple, elegant solution. 

You don’t even need to write it that way. You would simply suspend one section of the criminal law that makes the guidelines 

binding and leave in place the section—it is 18 U.S.C. 3553(a)—

which already says that the guidelines are one factor for a judge 

to consider in arriving at a just sentence. 

But in my testimony, I outline what I think are the serious, longterm issues that Congress and the commission and judges and defense lawyers and prosecutors need to grapple with. As Frank Bowman said, this system has been dysfunctional and unjust for a long 

time. 

Judge Sessions and Judge Piersol are right that everybody had 

come to figure out how to work with the guidelines, and in a rough 

way justice was meted out. But there were repeated instances of 

injustice that disturbed even the most hardened prosecutors and 

judges—long-term issues like crack/powder, long-term issues like 

the complexity of the guidelines. And I think the most fundamental 

issue here is Criminal Code reform. 

I will take just 15 more seconds. I was a state prosecutor in New 

York; that is where I began my legal career. New York State criminal law is based on the model penal code. You have assault in the 

first degree, assault in the second degree, assault in the third degree, and the legislature—this was decades ago—very clearly laid 

out what elements are a part of each of those offenses. 

So the presence of a gun or seroius bodily injury raises you from 

assault in the second degree to assault in the first degree. Those 

are elements. The jury has to find each of those elements beyond 

a reasonable doubt before you are subject to that maximum penalty 

that attaches. 

But the Federal Code a mish-mash, and it gets worse and worse 

because of the way that the Congress writes the Federal criminal 

law. I have a perspective on this from having been a staffer to this 

Committee. I can’t tell you how many times I sat in that ante room 

and staffers would gather to talk about the bill that was going to 

be marked up the next day and you would see somebody pull out 

an amendment that said, well, we will increase the maximum from 

10 to 20, or the minimum from 5 to 10, or direct the commission 

to raise a bare offense level in the guidelines manual by another 

seven levels. 

And I would say why? Have you asked the commission? Has the 

Justice Department asked for this? Have you looked at the empirical evidence? And the staffer often didn’t have an answer. There 

was one time, in particular, when the amendment said no less than 

5 years. And I said that is a mandatory minimum penalty and you 

don’t need that anymore. And he struck out ‘‘less’’ and put in 

42

‘‘more,’’ and changed ‘‘no less than 5 years’’ to ‘‘no more than 5 

years.’’ That is the sloppiness with which—and I say this, of course, 

with no disrespect to the Chair, but that is the sloppiness with 

which the Federal Criminal Code has been written in recent years. 

That needs to change. There needs to be fundamental reform to 

make the system fair. Blakely makes it more difficult, but it is an 

opportunity that the Congress must seize. 

[The prepared statement of Mr. Weich appears as a submission 

for the record.] 

Senator SESSIONS. Well, I think there are some problems in how 

we draft statutes. I don’t think they are quite as grim as you suggest. 

Mr. Vinegrad. 

STATEMENT OF ALAN VINEGRAD, COVINGTON AND BURLING, 

NEW YORK, NEW YORK 

Mr. VINEGRAD. Thank you, Senator Sessions. I thank the Committee for giving me the opportunity to be here before you today. 

The Blakely decision, I believe, warrants consideration of both 

short-term and potential long-term responses. In the short term, 

until the constitutionality of the Federal guidelines system is resolved, some action should be considered to remedy the unstable, 

if not chaotic, state of affairs in the Federal criminal justice system. 

Courts around the country are taking, and will likely continue to 

take many divergent approaches in response to Blakely, from upholding the guidelines, to declaring them unconstitutional, to declaring them unconstitutional only insofar as upward adjustments 

to the base offense level and then sentencing within that level, to 

authorizing or refusing to authorize juries to resolve disputed sentencing enhancements either as part of the trial or in a separate 

sentencing proceeding. 

The Department of Justice is asking all of its prosecutors to ask 

judges to announce three separate sentences in every case. Temporary legislation bringing some order to this process is something 

that should be seriously considered, particularly since the turmoil 

will not end if the Supreme Court declares the guidelines unconstitutional. It will, in fact, continue until a long-term legislative solution is found. 

Others have spoken about possible short-term solutions. I will 

focus my remarks here on potential long-term solutions, in the 

event the guidelines are held unconstitutional, because I believe it 

is important to start that dialogue now. 

My views on this issue rest on three basic premises. First, I believe the guidelines generally make sense to the extent that they 

promote uniformity and predictability in sentencing, with sufficient 

flexibility for judges to exercise discretion to impose more or less 

punishment based on the unusual facts of a given case. 

Second, juries can and already do have a role to play in determining certain basic facts that are relevant to sentencing. The 

most obvious example is in capital cases where juries control the 

determination. However, even in non-capital cases, in the wake of 

the Apprendi decision 4 years ago, juries in Federal cases have 

43

been called upon to decide a number of issues affecting the statutory maximum punishment. 

For example, juries determine the type and quantity of narcotics, 

whether certain violent crimes result in serious bodily injury or 

death, or whether a dangerous weapon was used to commit a bank 

robbery. I tried two such cases as a Federal prosecutor. 

If the Court holds the guidelines unconstitutional, then Congress, 

with the assistance of the Sentencing Commission, could designate 

other factors critical to the sentencing process that would increase 

a defendant’s sentencing guideline range and thus require a jury 

determination beyond a reasonable doubt. Such factors could include, for example, the amount of loss in a financial crime case or 

the number of guns in a gun trafficking case. Because these facts 

typically are already part of the proof in the guilt phase of a criminal trial, I believe that requiring juries to decide these issues would 

require little additional effort on the part of the various parties to 

the criminal trial process. 

On the other hand, I do not believe that juries should be called 

upon to decide the many other factors now contained in the sentencing guidelines. A single case can give rise to 5, even 10 or more 

specific issues under the guidelines, including alternative base offense levels, specific offense characteristics, upward adjustments 

and upward departures. 

Oftentimes, some of these factors are not fully developed or even 

known about until just before, during or after the trial. It is doubtful that a system requiring juries to decide all of these issues would 

be workable, let alone desirable. 

Instead, sentencing guideline ranges could be calculated based on 

the offense of conviction, as well as other critical factors either 

found by a jury or admitted by a defendant during a guilty plea. 

The size of the guideline ranges could be broadened to allow judges 

to take into account all the other aggravating factors that are relevant to the sentencing decision, such as role in the offense, the 

use of a special skill, or obstruction of the prosecution. 

Numerical values could continue to be assigned to these factors 

and could serve as non-binding guidance on how these factors 

should presumptively be taken into account in determining the defendant’s sentence. This sort of sentencing system would satisfy 

several competing objectives. 

First, it would preserve substantial uniformity in the sentencing 

of similarly situated offenders. Second, it would preserve the jury’s 

role in determining the basic facts that are essential to determining maximum punishment. Third, it would maintain the basic 

structure of the current guideline system with relatively narrow 

ranges of presumptive punishment for Federal crimes. 

Fourth, it would allow for a reasonable degree of judicial discretion in determining the ultimate sentence. Fifth, it would be relatively feasible to implement. And, finally, it would be constitutional, for it would satisfy Blakely’s requirement that factors that 

increase a defendant’s maximum punishment be proven to a jury 

beyond a reasonable doubt. 

Thank you. 

[The prepared statement of Mr. Vinegrad appears as a submission for the record.] 

44

Senator SESSIONS. Thank you. That was a very thoughtful discussion and I appreciate it very much. 

Mr. Vinegrad, I don’t know if just cutting the baby in half is a 

good solution here. 

Mr. VINEGRAD. Somebody told me that was the that kind of thing 

that happens in these halls. 

Senator SESSIONS. Well, we have decided this matter. Five members of the Supreme Court have apparently declared that the Sixth 

Amendment to the Constitution says that judges can’t consider factors to be used in sentencing, that it has to be decided by a jury, 

which is contrary to our history, and contrary to American policy. 

Anybody who has ever been in a courtroom knows that. 

Many States do not have guidelines at all, correct? I will ask you, 

Mr. Vinegrad and Mr. Bowman. You all have practiced. A jury 

comes in and renders a verdict, and the maximum penalty is 1 to 

20 years and the judge renders a sentence. Isn’t that correct? 

Mr. VINEGRAD. Yes, although an increasing number of States not 

only have guidelines, but others—and I believe Mr. Weich said 

this—have statutory schemes, like the one in New York, which do 

give increasing levels of punishment for certain types of crimes. 

Senator SESSIONS. Well, that is the way we have always done it. 

I mean, the Congress has always put the penalties there. We do 

have jury involvement in some areas, but fundamentally judges 

sentence. 

In the past, Mr. Bowman, you couldn’t even appeal. As long as 

a judge sentenced within the statutory limit, you couldn’t appeal. 

Isn’t that correct? 

Mr. BOWMAN. Certainly, prior to 1987, in the Federal system, 

you really couldn’t appeal. Indeed, the courts of appeals that ruled 

on the question customarily said that they lacked jurisdiction to reconsider the sentence of a district court judge within the statutory 

maximum so long as that decision was not based on some unconstitutional factor. That is certainly correct, Senator. 

Senator SESSIONS. That is the deal, so I am not giving up on this 

opinion. I think Justice O’Connor is going to prevail because her 

logic and her history is so compelling. 

Mr. Weich, to address your comment about the elements of the 

offense, maybe we are blurring somewhat the elements of the offense. However, if you commit a robbery and the maximum penalty 

for the robbery is 20 years and someone carries a gun and the 

judge says, well, you carried a gun in that robbery, I am going to 

give you 20 years, if you hadn’t carried a gun, I might have given 

you 10 years—I don’t see how a constitutional issue is implicated 

here. 

Mr. WEICH. I don’t think that it is constitutionally required that 

the presence of the gun in the crime be an element of the offense. 

I think that a rational legislature might decide that that is such 

an important fact in that crime that it is one which should be 

placed before a jury and then expose the defendant to more punishment if found. 

Senator SESSIONS. I agree that you could address it as an element of the offense, but I don’t know that it is necessary. 

Mr. Bowman, you made some excellent, thoughtful comments 

about the system being too complicated. Your second point was it 

45

seemed to be always an upward ratchet on sentence. But we want, 

do we not, the base offense to be moderately low and things that 

aggravate that offense add to the sentence? Isn’t that, as Mr. Steer 

suggested, the scheme of the guidelines, that if you make the base 

offense too high and the person has no aggravating circumstances, 

maybe you have imposed too long a sentence. Isn’t it inevitable 

that we would ratchet up the penalty? 

Mr. BOWMAN. Well, I think there are two points here, Senator. 

Certainly, your observation is a correct description of the guidelines 

as they function. We start with a base offense level, as Commissioner Steer talked about, and work upward from that point. 

But the point I was making was not a point about the design of 

the guidelines, but, in fact, how policymaking and rulemaking and 

guidelines-making has proceeded over the last 10 years or so. And 

the point I was making is that, for a variety of reasons far too complicated to go into right now, it has become politically very easy to 

raise the sentencing levels stated in the guidelines by either simply 

increasing base offense levels or adding additional enhancements. 

It has become very easy to do that, but it has become very difficult 

to do the reverse, to bring sentencing levels down. 

I think a terribly important point needs to be made here. I have 

been a supporter of the guidelines, both when I was in practice and 

in my life as an academic, relatively short though it has been. But 

I have been a supporter of the guidelines because I believe they 

achieve certainly and they achieve reasonable fairness. 

But what we have done is we have created a situation in which 

the input of the people on the ground—the judges, the lawyers, 

both prosecutors and defenders, the probation officers—the wisdom 

of people who actually face defendants everyday has not been listened to by people in Washington. And I don’t refer only to the legislature, but I also refer sometimes to the commission and sometimes certainly to the Department of Justice. 

National decisionmakers have not listened to the wisdom of the 

people who are actually doing the job out there, and sometimes the 

people who are actually doing the job out there convey to the people in Washington, look, we ought to raise some sentences of a particular class. When that message comes forward, that should be listened to. 

But sometimes, and increasingly over the past few years at least 

for some classes of cases, the people who really do the job out there 

are saying in every way they can to national policymakers that 

some kinds of sentences are too high; you should do something 

about that, you should reduce them. And that message is not getting through, Senator. 

Senator SESSIONS. Well, it is not getting through, I will admit to 

you. I have offered legislation to do that. The biggest complaint has 

been over crack cocaine penalties being too harsh, and I have offered legislation. I got Senator Hatch to agree with me and we 

have sponsored it. We can’t get cosponsors to reduce the penalties 

for crack cocaine. I would have thought it would have been easy. 

I think Congress deserves criticism there. 

We ought to be looking at all of this. We have sort of taken it 

over and set these ranges, and we can’t just say that we are never 

46

going to reconsider it. So I agree with you fundamentally. We need 

to listen to that and that is our responsibility. 

Professor Barkow, do I understand that since this is a symptom 

of the problem, according to Mr. Bowman, that we have this opinion, that Justice Scalia is of the view that if Congress doesn’t act 

like he would like them to, he can just create a way to strike down 

the whole guideline system? Is that what this judge who shows restraint is about? 

Ms. BARKOW. I, of course, would make no pretense to speak on 

behalf of Justice Scalia, but I do think that the opinions in Blakely

and Apprendi are comprised of an interesting coalition of Justices: 

Justice Scalia, Justice Stevens, Justice Souter, Justice Ginsburg 

and Justice Thomas. So you have five obviously very intelligent 

people who have looked at the history and the background of sentencing and at the role of the jury, and have found that these facts 

that require a sentence to be increased have to go to a jury. 

Now, I think it is important to note that the opinion does make 

clear that Justice Scalia and the Justices who joined the opinion 

are saying that there is no set way that Congress needs to respond 

to it and that you are free to make all of these same determinations in the future. 

All the opinion is really about is who finds those facts. In our 

system, who decides what a defendant really did? Who makes that 

decision? Blakely says that is what our jury is for. And it is not the 

neatest and most efficient way of deciding things, but it is a 

uniquely American tradition that I think we should be very proud 

of, and I think that opinion is a great testament to how we try to 

preserve it. 

Senator SESSIONS. We have never understood it that way. We 

have never understood that juries have to sentence. Sometimes 

they have and sometimes they haven’t. Most criminal justice reformers, as I recall, over the years have favored judge-sentencing 

rather than jury-sentencing, thinking juries are far more aberrational and are likely to not have the necessary experience or knowledge of how the prison system works. And so we have been encouraged to move away from jury-sentencing. 

Ms. BARKOW. Could I just clarify that it is not actually jury-sentencing that the opinion requires. It just says when something is 

an offense element and when it is a sentencing factor. When it is 

a offense element, you can set the sentence and it can be that when 

the jury finds the facts, a very specific sentence can follow and the 

jury need not have any discretion at all in terms of what the defendant ultimately receives as punishment. 

Senator SESSIONS. Right. Justice O’Connor dealt with that a little bit. She said it is not about whether sentencing is constitutional, only about, quote, ‘‘how it can be implemented.’’ In effect, as 

she notes, you make the cost so high and the difficulty so high that 

it is going to cause us a great deal of trouble as a practical matter. 

I don’t need to pursue that matter too much more, but maybe we 

better go back to the principles of the guidelines. 

Mr. Weich, do you think Congress needs to be more involved in 

monitoring how the guidelines work and listen to information from 

various sources as to how they are working and what can be done 

to improve them? 

47

Mr. WEICH. I certainly think that the Congress should be involved in monitoring. That sounds right in those terms. As Frank 

Bowman says, there have been voices crying out for some relief 

from what everyone agrees are unjust sentences. And hearings on 

the sentencing system have been few and far between over the 

years, so monitoring is a good thing. 

I think the Congress needs to be much less involved in micromanaging the commission. The point was made before about the 

Feeney amendment. There were lots of things that were wrong 

about that Feeney amendment, in my view. The fact that the Congress actually wrote guidelines is a bad thing. The fact that the 

Congress created what some call a judicial blacklist, I think, is a 

bad thing. 

But to my mind, the worst was when the Congress wrote guideline commentary in the voice of the commission. The statute reads 

that the commentary accompanying 2A1.-whatever shall read, we 

have written this guideline because of x, y and z, turning the commissioners into, as I say in my testimony, glorified ventriloquist 

dummies. And that is a big problem if the Justice Department is 

now going to defend the guidelines as court rules rather than legislation. You can’t create a commission of judges and other experts 

and turn them just into a mouthpiece for Congress. So monitoring, 

yes; micromanagement, no. 

Senator SESSIONS. You mentioned, Mr. Bowman, and I think Mr. 

Vinegrad, perhaps widening the discretion of a judge. It is now, 

what, 25 percent? 

Mr. VINEGRAD. Six months or 25 percent, whichever is greater. 

Senator SESSIONS. Yes. I have often thought that that is too tight 

a range. It means if a judge likes you, he gives you 16 years. If he 

doesn’t like you, he gives you 20 years. That is not a lot of range. 

Is that 25 percent? Yes. That is what the guidelines actually call 

for. 

Do you think justice would be enhanced, Mr. Vinegrad, if that 

range were widened from 25 percent? 

Mr. VINEGRAD. Well, if the Supreme Court would hold the 

present system unconstitutional, then the answer is yes. I think 

that would accommodate the need for judicial discretion in determining— 

Senator SESSIONS. If they would hold it unconstitutional? 

Mr. VINEGRAD. If they held them unconstitutional and something 

had to be done to change them, then I think in order to accommodate both the need for juries to have some role in finding the important sentencing facts, but have judges take into account all the 

various detailed enhancements and adjustments that are contained 

in the guidelines now, then, yes, I think that ranges should be 

broadened so that a judge has a greater ability to take into account 

those many factors than the judges have now. 

Senator SESSIONS. Well, if they did not declare it unconstitutional, do you still think the range should be widened? 

Mr. VINEGRAD. Well, what I think is that these rules, these 

guidelines have become, like the Criminal Code itself, extraordinarily complex, and far more complex than frankly they need to 

be. If you look at State analogs—and admittedly States are simpler 

institutions, but if you look at the Kansas system, for example, 

48

which has been discussed, including the Blakely decision, there are 

about half a dozen aggravating factors, half a dozen mitigating factors, and that is essentially the variation from what otherwise are 

the standard or presumptive sentences. 

To have the plethora of adjustments that are in the guidelines 

now, I think, has made this far too complex a process. So I would 

think that with a combination of simplification and expansion of 

the ranges, you would have a better system. 

Mr. BOWMAN. Senator, if I might answer that question, what has 

come to be known as the 25-percent rule, the piece of the Sentencing Reform Act that requires that the top of the sentencing 

range be no higher than 6 months or 25 percent below the bottom, 

is a classic example of the law of unintended consequences. 

There is no question why it was put it, at least I think, though 

I wasn’t there. I am sure that Congress was interested in making 

sure that the ranges within which judges could exercise their discretion were somewhat limited, as that was one of the objectives 

of the Act. And 25 percent sounds like a considerable range within 

which a judge can move, and I have made that same argument in 

defense of the guidelines for years. 

On the other hand, what happens when you actually go and do 

the math, if you will, is that if you start at the bottom with zero 

months and you go up to the top sentence allowed for by Federal 

law, which is essentially 30 or 40 years, and you try to work your 

way up mathematically going only 25 percent at a time, you have 

to have a very complicated system; you have to have a lot of boxes. 

When you create all those boxes, incentives arise to fill them and 

the result is the complexity that we see. Perversely, if we had 

wider ranges and a smaller number of boxes, that would in itself 

force simpler guidelines. 

Senator SESSIONS. It would allow judges who are complaining 

that they don’t have enough freedom, or who say that they have 

some intuitive feeling that a sentence is too harsh, to have a little 

more freedom, would they not? 

Mr. BOWMAN. They certainly would. 

Senator SESSIONS. Would that make the judges happier? 

Mr. BOWMAN. I think it would make them happier. I think it 

would make all of us who are interested in improving the system 

happier, because I have to say again this is a technical matter, but 

it is an important one. If indeed, after Blakely and the Supreme 

Court’s next decision—if indeed we get, as I hope we will, to the 

point of seriously thinking about how the Federal sentencing system can be improved, how the guidelines can be improved, one considerable structural impediment to doing anything meaningful is 

that 25-percent rule. As long as it is there, the guidelines will probably remain more complicated than they need to be. 

Senator SESSIONS. They are complicated, but a lot of it is the result of requests of professionals who say, well, with regard to this 

sentence, you didn’t put in that they took advantage of an elderly 

person that a judge would normally consider. It allows a judge to 

go upward, but a judge isn’t always required to go upward. I have 

been amazed at how well the courts have accommodated and followed fairly consistently these guidelines. 

49

Do you agree, Mr. Vinegrad? You have tried cases and supervised 

cases. When you want to estimate what a judge is going to do, are 

you pretty confident that they will follow the guidelines and, as a 

prosecutor and defense lawyer, pretty much confident of what the 

defendant may get if they are tried and convicted? 

Mr. VINEGRAD. Generally speaking, I think that is right, and I 

think the vast majority of judges conscientiously apply the guidelines as they are written. Frankly, to the extent that a sentence 

comes out of a case that is either unexpected, or worse, that one 

party thinks is wrong, they have a right of appeal, which to me is 

sort of the solution which is preferable to some of the other ones 

that we have seen lately in some of the sentencing legislation such 

as the PROTECT Act. 

If a party thinks that the sentencer exercised discretion in one 

way or the other wrongly, they can take an appeal. But I think in 

the vast majority of the cases—and the data from the Sentencing 

Commission proves this out—apart from cases involving cooperation where the government asks for the departure, judges are by 

and large sentencing within the guidelines. 

Senator SESSIONS. Any further comments on any of that? 

Mr. WEICH. Senator, may I include something in the record? Mr. 

Mercer on the first panel asked that a letter that he wrote at the 

time of the PROTECT Act be included in the record. That letter 

complains about specific cases where there are departures. That 

complaint is actually at the heart of the discussion here: how flexible should the guidelines be? The Department of Justice, I think, 

has been overly rigid about trying to squeeze out judicial discretion 

by limiting departures. 

I would like to include in the record an August 1, 2003, letter 

from the organization Families Against Mandatory Minimums, 

which, in the interest of full disclosure, is an organization that was 

founded by my wife, Julie Stewart. It is addressed to then-Chair 

of the Sentencing Commission, Judge Murphy, and it rebuts case 

by case the allegations of unwarranted judicial leniency. I think 

that for the record to be complete, this should be included as well. 

Senator SESSIONS. We would be glad to have that made a part 

of the record. 

I frankly think some judges have had coffee with their brothers 

and a few have decided they are not going to be very respectful of 

the guidelines. But for the most part, as I just said, I think judges 

are following it consistently. I don’t blame the Department of Justice, who is an advocate here, for being concerned if they note a 

trend by certain judges to consistently evade or skirt or avoid the 

guidelines. But that is not really the problem. I think we can deal 

with that and we can deal with most of these issues, but I still remain really disappointed in the Supreme Court’s ruling. 

I don’t think it is consistent with good constitutional law. It 

shows a lack of understanding of how criminal justice works in 

America. I don’t see how and when you would call a jury back to 

determine whether the white-collar fraud person was a manager or 

a leader. 

When would that happen, Mr. Vinegrad? 

Mr. VINEGRAD. Never, in my experience. 

50

Senator SESSIONS. Would they stay and continue the deliberations before the issues are ripe, or come back two weeks later? 

Mr. VINEGRAD. There actually is a drug statute that does call for 

that sort of determination in continuing criminal enterprise cases, 

where one of the elements is that somebody had an organizational 

role. But by and large, in the vast majority of Federal crimes, I 

agree with you that that is not something the jury is going to be 

called upon to decide. 

Senator SESSIONS. A judge determines now whether or not the 

white-collar crime defendant was a manager or not. They decide on 

their own. 

Mr. VINEGRAD. Correct. 

Senator SESSIONS. And it is subject to review on appeal if the 

evidence doesn’t support it, but it does not require a jury. I would 

say it is going to have a tremendous impact on the system if we 

can’t figure a way to avoid what appears to be the logical impact 

of Blakely. 

If anyone else has anything to add to this, we will keep the 

record open until next Tuesday. Senator Leahy indicated he will be 

submitting some questions to you, and I hope that you will be willing to answer those. Thank you for an excellent discussion. 

We are adjourned. 

[Whereupon, at 12:45 p.m., the Committee was adjourned.] 

[Questions and answers and submissions for the record follow.] 

[Additional material is being retained in the Committee files.]

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