```

[Senate Hearing 106-1047]
[From the U.S. Government Publishing Office]

                                                       S. Hrg. 106-1047

     OVERSIGHT OF THE UNITED STATES SENTENCING COMMISSION: ARE THE 
                           GUIDELINES BEING 
                               FOLLOWED?

=======================================================================

                                HEARING

                               before the

               SUBCOMMITTEE ON CRIMINAL JUSTICE OVERSIGHT

                                 of the

                       COMMITTEE ON THE JUDICIARY
                          UNITED STATES SENATE

                       ONE HUNDRED SIXTH CONGRESS

                             SECOND SESSION

                               __________

                            OCTOBER 13, 2000

                               __________

                          Serial No. J-106-112

                               __________

         Printed for the use of the Committee on the Judiciary

                   U.S. GOVERNMENT PRINTING OFFICE
74-414                     WASHINGTON : 2001

For Sale by the Superintendent of Documents, U.S. Government Printing Office
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                       COMMITTEE ON THE JUDICIARY

                     ORRIN G. HATCH, Utah, Chairman
STROM THURMOND, South Carolina       PATRICK J. LEAHY, Vermont
CHARLES E. GRASSLEY, Iowa            EDWARD M. KENNEDY, Massachusetts
ARLEN SPECTER, Pennsylvania          JOSEPH R. BIDEN, Jr., Delaware
JON KYL, Arizona                     HERBERT KOHL, Wisconsin
MIKE DeWINE, Ohio                    DIANNE FEINSTEIN, California
JOHN ASHCROFT, Missouri              RUSSELL D. FEINGOLD, Wisconsin
SPENCER ABRAHAM, Michigan            ROBERT G. TORRICELLI, New Jersey
JEFF SESSIONS, Alabama               CHARLES E. SCHUMER, New York
BOB SMITH, New Hampshire
             Manus Cooney, Chief Counsel and Staff Director
                 Bruce A. Cohen, Minority Chief Counsel
                                 ------                                

               Subcommittee on Criminal Justice Oversight

                STROM THURMOND, South Carolina, Chairman
MIKE DeWINE, Ohio                    CHARLES E. SCHUMER, New York
JOHN ASHCROFT, Missouri              JOSEPH R. BIDEN, Jr., Delaware
SPENCER ABRAHAM, Michigan            ROBERT G. TORRICELLI, New Jersey
JEFF SESSIONS, Alabama               PATRICK J. LEAHY, Vermont
                     Garry Malphrus, Chief Counsel
                    Glen Shor, Legislative Assistant

                            C O N T E N T S

                              ----------                              

                    STATEMENTS OF COMMITTEE MEMBERS

                                                                   Page

Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont, 
  prepared statement.............................................    74
Sessions, Hon. Jeff, a U.S. Senator from the State of Alabama....     2
Thurmond, Hon. Strom, a U.S. Senator from the State of South 
  Carolina.......................................................     1

                               WITNESSES

Hernandez, Carmen D., National Association of Criminal Defense 
  Lawyers, Washington, DC........................................    56
Kirkpatrick, Laird, Attorney General Designee to the U.S. 
  Sentencing Commission, and Counsel to the Assistant Attorney 
  General, Criminal Division, U.S. Department of Justice, 
  Washington, DC; accompanied by Denise O'Donnell, U.S. Attorney, 
  Western District of New York...................................    44
Murphy, Diana E., Chair, U.S. Sentencing Commission, Washington, 
  DC.............................................................     4
Otis, William G., Former Assistant U.S. Attorney, Eastern 
  District of Virginia, Falls Church, VA.........................    65
Steer, John R., Vice Chair, U.S. Sentencing Commission, 
  Washington, DC.................................................    14

                                APPENDIX
                         Questions and Answers

Responses of Diana Murphy to Questions from Senator Leahy........    79
Responses of John R. Steer to Questions from Senator Thurmond....    81
Response of John R. Steer to Questions from Senator Leahy........    82
Responses of Laird Kirkpatrick to Questions from Senator Thurmond    83
Responses of Laird Kirkpatrick to Questions from Senator Leahy...    87
Responses of Carmen Hernandez to Questions from Senator Leahy....    90
Responses of William G. Otis to Questions from Senator Thurmond..    96

                 Additional Submissions for the Record

Appeals on Departure Issues, tables..............................   128
Committee on Criminal Law of the Judicial Conference of the 
  United States, Greenville, SC, letter..........................   107
Criminals Sentenced Below Guidelines Range, graph................   125
Departure Rates Excluding Southwest Border Districts, exhibits...   126
Otis, William G., essay..........................................   113
San Antonio Express, October 14, 2000, ``U.S. sentencing 
  debated'', article.............................................   124
The State, Columbia, SC, October 15, 2000, ``Judges under 
  scrutiny for ignoring federal sentencing guidelines'', article.   122
U.S. Sentencing Commission, ``Federal Sentencing Guidelines'', 
  overview.......................................................   109
Washington Times, November 19, 2000, ``Sentencing lapses'', 
  article by Senator Thurmond....................................   123

 
     OVERSIGHT OF THE UNITED STATES SENTENCING COMMISSION: ARE THE 
                       GUIDELINES BEING FOLLOWED?

                              ----------                              

                        FRIDAY, OCTOBER 13, 2000

                               U.S. Senate,
        Subcommittee on Criminal Justice Oversight,
                                Committee on the Judiciary,
                                                    Washington, DC.
    The subcommittee met, pursuant to notice, at 10:12 a.m., in 
room SD-226, Dirksen Senate Office Building, Hon. Strom 
Thurmond (chairman of the subcommittee) presiding.
    Also present: Senator Sessions.

 OPENING STATEMENT OF HON. STROM THURMOND, A U.S. SENATOR FROM 
                  THE STATE OF SOUTH CAROLINA

    Senator Thurmond. The subcommittee will come to order.
    I am pleased today to hold this oversight hearing on the 
Sentencing Commission. When I chaired this committee in the 
1980's, one of our most important objectives in the crime area 
was to reform sentencing. At the time, there was no consistency 
in the length of time Federal criminals received or how long 
they actually served in prison.
    Through the Sentencing Reform Act of 1984, we created the 
Guidelines System, which established ranges within which the 
offender could be sentenced based on his conduct and 
characteristics. The fundamental purpose was to provide similar 
punishment for similarly situated defendants. Contrary to many 
people's expectations at the time, the Guidelines have 
succeeded for over a decade in making sentencing fairer and 
more equitable for criminals and victims alike.
    Today, the purpose of the Guidelines is being threatened by 
the increasing trend of sentencing criminals below the range 
established in the Guidelines. Sentences lower than the 
Guidelines provide, called downward departures, should be rare 
because they are permitted only for factors not adequately 
considered by the Commission.
    Although we would expect these cases to be more rare as the 
Commission has reformed the Guidelines, just the opposite is 
occurring. Just in the past 8 years, the number of downward 
departures has increased steadily from 20 percent to about 35 
percent of cases, which is more than 1 out of 3. If the trend 
continues much longer, we will see more criminals being 
sentenced below the Guidelines than within them.
    Downward departures are rising most severely in illegal 
immigration cases. However, the trend is much broader. These 
departures are rising annually for drug trafficking and even 
firearms violations.
    The Clinton Justice Department apparently has shown little 
concern about this trend toward reduced and more inconsistent 
punishment.
    It would seem that as judges grant departures for more and 
more creative reasons, the number of appeals should increase. 
In fact, the number of Guidelines cases the Government appeals 
have actually declined since 1993. Of the over 8,000 downward 
departures last year, the Government appealed only 19. Of 
course, if the Government does not appeal a judge's wayward 
sentence in a criminal's favor, it will never be corrected, no 
matter how egregious.
    Also, there is a great disparity in how U.S. attorneys 
apply the Guidelines. Prosecutors can ask the court to reduce a 
sentence based on a defendant's substantial assistance in their 
efforts to solve crimes. However, U.S. attorneys vary 
drastically in how often they seek departures for substantial 
assistance, and apparently even in how they define what 
constitutes cooperation with the Government. The Department of 
Justice should be concerned about great disparities because 
this also undermines the consistency the Guidelines were 
intended to create.
    The Sentencing Commission and the Department of Justice 
must address these problems. They cannot be ignored. Criminals 
are getting a break as fairness in sentencing is becoming more 
elusive every year. The Commission has worked hard since it was 
reconstituted late last year to effectively address directives 
from the Congress and other issues. It needs to consider 
important matters in the coming year.
    I look forward to the testimony as we review the status of 
the Commission and whether the Guidelines are being adequately 
followed.
    Senator Sessions.

STATEMENT OF HON. JEFF SESSIONS, A U.S. SENATOR FROM THE STATE 
                           OF ALABAMA

    Senator Sessions. Thank you, Mr. Chairman. I appreciate 
very much the opportunity to be with you. This will be a most 
interesting discussion for me. I was a Federal prosecutor when 
you led the effort to pass the Sentencing Guidelines. There is 
no doubt in my mind that the Sentencing Guidelines were the 
most historic change in law enforcement ever rendered in this 
century, the last century, or whatever century we are in.
    The fact was that in the late 1970's and into the 1980's, 
we had a lot of judges who just didn't believe in sentencing. 
But they were appointed with lifetime appointments. You could 
try a case and prove a person guilty of the most serious crime 
and go into the sentencing phase and a judge would simply give 
them probation or a light sentence, and there was nothing that 
could be done about that. There was no way to appeal. There was 
no consistency.
    I remember as an assistant U.S. attorney and as a U.S. 
attorney having criminal defense lawyers going before one judge 
and citing that a similar defendant down the hall they had 
represented 6 months before got probation, whereas this judge 
may have been considering 10 or 15 years in jail. It was a 
system out of control and without consistency. It raised 
suspicions that some people were being sentenced heavier than 
others because of their background, their lack of wealth, their 
lack of articulateness, attractiveness, or whatever came about. 
And it was a very frustrating time.
    This Senate acted with historic--it was a historic act when 
you created these Guidelines. I don't think a single State had 
anything like it. If they did, it was only very few that had 
such a procedure to sentence. Since then, a number of States 
have followed similar guideline practices.
    I believe the conduct of the Sentencing Guidelines is a 
matter of integrity and discipline on the part of the 
Department of Justice and the judiciary and that if it is not 
worked at on a daily basis with determination and consistency, 
the integrity of the Guidelines can be undermined and we could 
be in a worst position than we were before we started. So I 
salute you.
    I also want to commend the Sentencing Commission for 
accomplishing a substantial amount of work in the short time 
the commissioners have been appointed last year. The amendments 
to the Guidelines and the resolution of the circuit conflicts 
have shown that the new complement of commissioners is serious 
about their business. They are fulfilling their duty.
    I am also impressed by the Commission's fulfillment of 
another part of its duty, public integrity. It would be very 
easy for the Commission to avoid publishing data concerning 
whether the Guidelines are being adhered to. It would be 
politically expedient to shy away from criticism of the 
Department of Justice or what might be considered criticism of 
judges who may be too lenient in seeking and approving an 
excess amount of downward departures.
    A downward departure is a circumstance in which the 
Guidelines call for, let's say, a minimum sentence of 5 years 
and a judge gives 3 years or 2 years. They depart downward from 
the approved Sentencing Commission standard. Of course, the 
prosecutor, if they didn't recommend it themselves, could 
appeal that, though as Senator Thurmond noted, there have been 
only 19 appeals out of some 8,000 cases. So we were not having 
many appeals here.
    As long as the critical data that we are having and finding 
is being produced by the Commission is constructive--and I 
believe the data we have been reviewing is constructive--I 
think it is the duty of the Commission to produce that data. 
While it may make some uncomfortable, being a sentencing 
commissioner is a big job. It requires a strong leader to 
fulfill the duty of that office, for only if that duty is 
fulfilled with integrity will we have an effective criminal 
justice system that delivers equal justice under law.
    So I commend the Commission for dealing with these issues 
and publishing this data that raises, I think, some serious 
questions about the Department of Justice's sentencing policy 
and to some degree the attitudes of certain Federal judges. I 
look forward to working with the Commission and the Department 
of Justice to ensure that the growth of downward departures is 
curbed because, like you, Senator Thurmond, I don't want to get 
to the point where half the cases are being sentenced below the 
Sentencing Guidelines.
    So at bottom we are talking about a question of integrity 
and discipline and attention to detail that is required of 
every assistant U.S. attorney, every U.S. attorney, the 
Attorney General of the United States and his or her staff, as 
well as the judiciary who handle these cases, and probation 
officers who can help judges.
    I have been in these situations, and I know Federal judges 
who would not approve an improper plea. I know judges who look 
the other way; I have heard of judges who look the other way in 
the face of improper pleas. I opposed a judge for the ninth 
circuit in the John Huang case who I believed did not follow 
the Sentencing Guidelines. He did not have any enhancement for 
a position of trust. He didn't have an enhancement for 
international activities.
    And I don't think that is good, even though it may have 
made some people happy that John Huang got probation. I don't 
think he should have gotten probation and I didn't think under 
the Guidelines he was entitled to probation. So it is a 
dangerous thing if judges and prosecutors get in cahoots and 
just sort of look the other way and ignore facts and don't 
proceed in a proper way.
    Mr. Chairman, again, let me express on behalf of the 
thousands of Federal prosecutors throughout this country my 
great appreciation for your historic leadership in creating the 
Sentencing Guidelines system that has worked exceedingly well. 
If it is time for us to improve it and to fix it in some way, I 
am open to that, but I believe in it and I think it was indeed 
a historical act that you helped make a reality.
    Thank you very much.
    Senator Thurmond. Thank you very much.
    Our first witness is the Chair of the Sentencing 
Commission, Judge Diana Murphy. Judge Murphy is also a judge on 
the U.S. Court of Appeals for the Eighth Circuit and has served 
on the Federal bench since 1980.
    Our second witness is Mr. John Steer, vice chair of the 
Sentencing Commission. Mr. Steer has had extensive experience 
with the Guidelines from their inception. He served as general 
counsel of the Commission from 1987 until he was confirmed as 
vice chair of the Commission last year.
    I also welcome other commissioners who are present.
    I ask that each of you please limit your opening statements 
to 5 minutes, and we will place your written statements in the 
record, without objection. We will start with Judge Murphy.
    Judge Murphy.

     PANEL CONSISTING OF HON. DIANA E. MURPHY, CHAIR, U.S. 
SENTENCING COMMISSION, WASHINGTON, DC; AND JOHN R. STEER, VICE 
       CHAIR, U.S. SENTENCING COMMISSION, WASHINGTON, DC

               STATEMENT OF HON. DIANA E. MURPHY

    Judge Murphy. Thank you, Mr. Chairman. I am happy to be 
here to tell the story of this hard-working Commission that the 
President and the U.S. Senate put into being in the middle of 
last November. I have been asked to talk about what we have 
been up to since we were appointed, and Vice Chair Steer has 
been asked to comment on some of the data on downward 
departures.
    We also have other members of our Commission here. We 
happen to be having an economic crimes symposium at George 
Mason University Law School today, so we are all in town. And I 
would like to call attention to Vice Chair Reuben Castillo, 
Vice Chair William Sessions, and Commissioner Joe Kendall. We 
have got some of our ex officio members here. One of them is 
going to be on the second panel, I understand, Laird 
Kirkpatrick, from the Department of Justice, and then Michael 
Gaines from the U.S. Parole Commission. And the remaining 
commissioners, Sterling Johnson and Michael O'Neill, are 
presiding at the economic crimes symposium across the river 
this morning.
    There is a lot to say about what we have done and it is in 
the written statement that will be in the record, so I will try 
to use the time in the best way.
    Both Chairman Thurmond and Senator Sessions have referred 
to the fact that one of the responsibilities of the Sentencing 
Commission is to keep data on all of the sentences that are 
given. And that is a very important function that we have, and 
we furnish information about that data when we are asked to.
    And you have expressed some interest recently in data 
relating to downward departures and the Commission itself has 
not yet had an opportunity to study that data and to discuss 
it. So my colleague, Mr. Steer, is going to be talking about 
some of his thinking on first look at this data today, but it 
is his own view and the whole of us haven't had a chance to 
talk about it with each other yet.
    We really have two main goals. One is to maintain and 
strengthen the Federal Guidelines System. Obviously, we all 
believe in it or we wouldn't have come in to work at the 
Commission. We also want to strengthen our working relationship 
with the Congress and with the other groups that are important 
to the sentencing system.
    When we came into office in the middle of November, there 
really had been a vacuum of time in which there wasn't a 
Commission and we had an awful lot of work waiting for us--all 
the legislative directives that had been built up and new 
statutes without sentencing guidelines.
    We met in Washington immediately only 2 days after our 
appointments, and since that time we have met once, or many 
times twice a month in Washington to work. And we also have met 
with the Criminal Law Committee. We have participated in the 
National Sentencing Institute. We have participated in national 
training for probationers and practitioners in correct 
guideline application. We have gone out and spoken with judges 
and other groups.
    I can say that this is a group of very hard-working people 
that listen to each other and that listen to all of the people 
that are trying to talk to us about the Guidelines and about 
proposed options that we have under study.
    We have some charts here that show the various things that 
we did in this cycle--No Electronic Theft Act, telemarketing 
fraud, identity theft, wireless telephone cloning, sexual 
predators, methamphetamine, firearms.
    Senator Sessions. In other words, those are new laws which 
were passed by Congress for which no guidelines had been 
approved by the Commission?
    Judge Murphy. In many cases, or in some cases there was a 
concern in Congress that the Guidelines weren't strong enough 
or there was some need to reexamine them, and so we worked in 
all of these areas.
    And just to take the No Electronic Theft Act, of course, 
you all are very familiar with it, but there were great 
complexities there because the copyright industry and the 
trademark industry had very different ideas about it. At any 
rate, I won't go into the detail of it, but we did accomplish 
what seems to have worked out pretty well.
    We also did a number of circuit conflicts, and those take a 
lot of time. And I would say that is where we have gotten the 
most feedback at this point on it, and maybe that is not 
surprising. We have learned that we need to set up new means of 
communication. The judges have complained that they don't 
really know what we are studying. And we said, well, we publish 
in the Federal Register to the whole world. Well, that wasn't 
accessible enough for them.
    So we have investigated a way to let judges know more about 
what we are up to, so that if they want to express their views, 
they can, by publishing all of our notices on the J-NET. And we 
also have in our written testimony the very many things that we 
have underway for our coming cycle ready for promulgating 
amendments for May 1. And it covers a lot of areas, but this 
whole economic crimes, money laundering, counterfeiting area 
works somewhat together and that is why we are having the 
symposium to help us study appropriate measures to deter crime 
and to sentence appropriately.
    We are hoping that as you reach the conclusion of this very 
busy year that we are going to get our full budget request 
because we get a lot of requests from Congress and from other 
people for data, as exemplified by what your interest is today. 
And we see the new laws that Congress is coming up with and 
some of them have emergency amendment authority with a 60-day 
time line for us to respond. We are down in our staff by 20 
percent. We really need to get the staff back up and we hope we 
will receive our full budget request.
    Just finally I would say that I will, of course, be happy 
to answer any questions. Something new is coming up all the 
time. It is not just from the Hill, but the Supreme Court 
creates new work. With the Apprendi decision in June, that is 
going to be more work for Congress; it is going to be more work 
for the Sentencing Commission, and we appreciate your support.
    Again, Mr. Chairman, I want to thank you for coming to our 
investiture in January and speaking at it. It was very 
important to us. Thank you for your support.
    [The prepared statement of Judge Murphy follows:]

                 Prepared Statement of Diana E. Murphy

    Mr. Chairman, members of the Subcommittee, I am Diana Murphy, Chair 
of the United States Sentencing Commission (the ``Commission'') and a 
judge on the United States Court of Appeals for the Eighth Circuit. I 
appreciate the opportunity to testify today about the ongoing work of 
the Commission, and we thank you for your continued support of the 
agency.
    As you know, on November 15, 1999, a full complement of seven 
voting commissioners was appointed to the Commission, and I am proud to 
serve as Chair of this important agency. Our appointment ended an 
extended and unprecedented hiatus of more than a year during which the 
Commission was without any voting commissioners. We take our new 
responsibilities so seriously that we convened the day after our 
appointment in Washington, D.C. for two days of meetings and adopted a 
very ambitious policy agenda for the abbreviated guideline amendment 
cycle that ended May 1, 2000. I am particularly proud of how quickly 
and thoughtfully the new Commission has acted in less than a year to 
address many of the policy issues we found on our plate upon our 
appointment.
    As a group, we bring extensive and varied experience to our new 
jobs. Among the seven voting and two non-voting members of the 
Commission, five are federal judges, three have prosecutorial 
experience, two have criminal defense experience, two formerly were 
police officers, and several have had prior experience working as 
congressional staff. We all have two goals in common: (1) to strengthen 
the Commission's good working relationship with Congress and others in 
the federal criminal justice community, and (2) to maintain and improve 
the federal sentencing guideline system.
    In order to achieve those goals, the new Commission has made it a 
priority to reach out to all who have an interest in the federal 
criminal justice system and to listen to their views about the 
sentencing guidelines and related issues and to engage in an open 
dialogue. This oversight hearing is one opportunity for us to conduct 
that dialogue, and it is in fact the second congressional hearing at 
which we have been invited to testify. We have also met with a number 
of members of Congress throughout the past year, as well as key staff. 
In turn we have instructed members of our staff to keep Congress fully 
informed of our work.
    The new Commission has also met regularly with the Criminal Law 
Committee of the Judicial Conference, the Probation Officers' Advisory 
Group, the Practitioners' Advisory Group, and the Federal Public 
Defenders to gain their insights on the matters before us. We have 
worked closely with the Department of Justice through its ex officio 
member, and have obtained informal feedback when appropriate from 
representatives of concerned industry groups and relevant federal 
agencies. Throughout the amendment process, we held regular public 
meetings, published in the Federal Register for comment all of our 
proposed amendments, and conducted a public hearing in March so that 
concerned constituents could testify about proposed amendments.
    In order to obtain input in a more informal way, Commissioners have 
attended and spoken at numerous seminars on sentencing issues around 
the country so that we can hear what users of the guidelines have to 
say about them. Just last week, all seven commissioners attended the 
National Sentencing Policy Institute in Phoenix, Arizona, where we were 
able to interact with many of the federal judges who use the guidelines 
every day. Because of this interest in our work, we are about to begin 
posting all of our official notices on the J-NET so that those judges 
who have an interest will be better informed about our ongoing work. We 
are committed to taking a very inclusive approach to our decision 
making process.
    With that brief introduction, I would like to focus my testimony 
today on three areas. First, I would like to report on the work we 
accomplished during the last guideline amendment cycle that ended May 
1, 2000. Second, I would like to provide an overview of the policy 
development work we are planning for the current guideline amendment 
cycle, including the beginning of an extensive new research endeavor. 
Finally, I would like to address the Commission's critical budget 
situation and its need for the full $10.6 million that it requested for 
fiscal year 2001.
 newly appointed commissioners address critical backlog of legislation
    With no voting commissioners for 13 months, from October 1998 
through mid November 1999, the Commission could not fulfill its most 
important ongoing statutory responsibility under the Sentencing Reform 
Act--to update and promulgate amendments to the sentencing guidelines 
for federal criminal offenders. Even before the earlier Commission went 
out of business, it found it difficult to promulgate amendments in 1997 
and 1998 because it operated with only four voting members for much of 
that time, requiring a unanimous vote. See 28 U.S.C. Sec. 994(a).
    As a result of these chronic commissioner vacancies, important 
sentencing policy issues had gone unaddressed over several years. Those 
issues arose in a number of contexts. Crime legislation enacted by the 
105th Congress specifically directed the Commission to make changes to 
the sentencing guidelines for a number of criminal offenses, most 
notably in the areas of intellectual property infringement, 
telemarketing fraud, fraudulent cloning of wireless telephones, 
unlawful identity theft, and criminal sexual offenses against children. 
Other recently enacted crime legislation did not contain express 
instructions to the Commission but did make changes in the substantive 
criminal law, such as in the areas of firearms and methamphetamine 
offenses. In addition to these legislative items, a large number of 
conflicts among the United States Circuit Courts of Appeal regarding 
interpretation of the guidelines accrued during the absence of voting 
commissioners. As you are aware, the United States Supreme Court 
declared in Braxton v. United States, 500 U.S. 344 (1991), that the 
Commission has the initial and primary responsibility to eliminate 
conflicts among the circuit courts with respect to guideline 
interpretation.
    We were confronted with a very abbreviated time frame in which to 
begin addressing them because of our mid-November appointments. The 
Sentencing Reform Act requires the Commission to submit amendments to 
the sentencing guidelines to Congress by May 1 in any given year for a 
180 day review period. The May 1 submission to Congress is the 
culmination of a careful deliberative process that typically starts in 
June or July of the previous year.\1\ So you can see the challenge we 
faced by being appointed in mid November, well into that cycle.
---------------------------------------------------------------------------
    \1\ See generally 18 U.S.C. Sec. 994; 5 U.S.C. Sec. 553; USSC Rules 
of Practice and Procedure.
---------------------------------------------------------------------------
    As I mentioned at the outset, we met immediately after our 
appointment and began to address the outstanding policy issues and to 
select those which were especially urgent that could be dealt with in 
the shortened amendment cycle. Although we recognized that there were 
many important sentencing policy issues facing the federal criminal 
justice system, we unanimously agreed to focus our efforts during our 
initial amendment cycle on the two areas of most pressing concern: (1) 
addressing the significant backlog of crime and sentencing related 
legislation enacted by the 105th Congress that required implementation 
by the Commission and (2) resolving a limited number of circuit 
conflicts on the application of the guidelines.
    The outreach to our varied constituents, preparation by staff, and 
our own careful deliberations served us well for the many decision 
making votes we made throughout the amendment cycle. As a result we 
made great progress in clearing the backlog of crime legislation. On 
May 1, 2000, we submitted to Congress fifteen amendments to the 
guidelines that cover a wide range of criminal conduct that has been of 
great concern to Congress and other members of the federal judicial 
system. These amendments are scheduled to become effective November 1, 
2000 (with the exception of the amendments implementing the NET Act and 
the Telemarketing Fraud Prevention Act of 1998, which are already in 
effect).
    Although I cannot go into great detail on each of the amendments 
here, I would like to highlight some of the amendments:
    Intellectual Property Offenses.--The No Electronic Theft (NET) Act 
of 1997, Pub. L. 105-147, expanded the scope of the criminal copyright 
infringement provisions to include infringement that occurs through 
electronic means, regardless of whether the defendant benefited 
financially or commercially from the crime. In addition, Congress 
directed the Commission to ensure that the guideline penalties for all 
intellectual property offenses generally provide sufficient deterrence 
and specifically provide for consideration of the retail value and 
quantity of infringed items. In response to the Act, the Commission 
promulgated an amendment to USSG Sec. 2B5.3 (Criminal Infringement of 
Copyright or Trademark), that modifies the sentencing enhancement in 
Sec. 2B5.3(b)(1) to use the retail value of the infringed item, rather 
than the retail value of the infringing item, as a means for 
approximating pecuniary harm in most cases. Among other things, the 
amendment also increased the base offense level and added a sentencing 
enhancement of two levels (which represents an approximate 25 percent 
increase in sentence), and a minimum offense level of level 12, if the 
offense involved the manufacture, importation, or uploading of 
infringing items. The Commission believes that these changes will 
result in significantly more severe sentences for those offenders 
specifically targeted by the Act: offenders who upload infringing 
material, such as counterfeit software, to illegal Internet sites, 
thereby making them readily available for others to download illegally 
at no cost.
    Telemarketing Fraud.--In The Telemarketing Fraud Prevention Act of 
1998. Pub. L. 106-160, Congress strengthened criminal statutes relating 
to fraud against consumers, particularly the elderly. In addition to 
providing enhanced penalties for conspiracies to commit fraud offenses 
that involve telemarketing, the Act directed the Commission to provide 
substantially increased penalties for persons convicted of 
telemarketing offenses. The previous Commission promulgated temporary 
amendments to the guidelines that provide for three separate sentencing 
enhancements for fraud offenses that involve mass marketing, a large 
number of vulnerable victims, and the use of sophisticated means to 
carry out the offense. The Commission repromulgated this emergency 
amendment as permanent so that it would not expire by November 2000.
    Identity Theft.--The Identity Theft and Assumption Deterrence Act 
of 1998, Pub. L. 105-318, criminalized the use or transfer of an 
individual's social security number, date of birth, credit cards, and 
any other identification means (including unique biometric data), 
without that individual's authorization to do so, in order to commit 
any federal or state felony. In addition, the Congress directed the 
Commission to review and, if appropriate, amend the guidelines to 
provide an appropriate penalty for each offense under 18 U.S.C. 
Sec. 1028, relating to fraud in connection with identification means. 
In response to the Act, the Commission promulgated an amendment to the 
fraud guideline, USSG Sec. 2F1.1 (Fraud and Deceit), that, among other 
things, provides a sentencing enhancement and minimum offense level of 
level 12 for offenses involving (1) the possession or use of equipment 
that is used to manufacture access devises, (2) the production of, or 
trafficking in, unauthorized and counterfeit access devises, such as 
stolen credit cards, or (3) affirmative identity theft (i.e., 
unlawfully producing from any means of identification any other means 
of identification). The Commission believes that this amendment will 
address Congress's primary concern that penalties be significantly 
increased for offenses involving the illegal use of an individual 
victim's means of identification, even if no economic loss accrues to a 
financial or credit institution.
    Telephone Cloning.--The same amendment that implemented the 
Identity Theft Act also addressed the Wireless Telephone Protection Act 
of 1998, Pub. L. 105-172. That Act, among other things, eliminated the 
intent to defraud element for defendants who knowingly use, produce, or 
traffic in certain equipment used to clone cellular telephones, and it 
clarified the statutory penalty provisions for cellular telephone 
cloning offenses. Congress also directed the Commission to review and, 
if appropriate, amend the guidelines to provide an appropriate penalty 
for offenses involving the fraudulent cloning of wireless telephones. 
In response to the Act, the Commission added sentencing enhancements to 
the fraud guideline that recognized that offenders who manufacture or 
distribute are more culpable than offenders who only possess them.
    Sexual Offenses Against Children.--The Protection of Children from 
Sexual Predators Act of 1998, Pub. L. 105-314, created two new crimes: 
(1) the transmittal of information identifying minors for criminal 
sexual purposes; and (2) the distribution of obscene materials to 
minors. The Act also provided increased statutory penalties for 
existing crimes that address sexual activity with minors and child 
pornography and expressed Congress's zero tolerance for the sexual 
abuse and exploitation of children. In addition, the Act contained six 
directives to the Commission, many of which directly respond to 
recommendations the Commission made a few years ago in a report to 
Congress on sexual abuse and exploitation. In response, the Commission 
has undertaken a comprehensive reassessment of the guidelines 
pertaining to sexual offenses involving minors and passed a multi-part 
amendment to the guidelines for sexual abuse, child pornography, and 
obscenity distribution offenses that implements many of the directives 
in the Act. The amendment provides sentencing enhancements in six 
guidelines if the offense involved (1) the use of a computer or other 
Internet-access devise and/or (2) the misrepresentation of a 
participant's identity. These separate enhancements--each representing 
about a 25 percent increase in guideline punishment levels--reflect the 
concern of Congress and the Commission over the increased access to 
children provided by computers and the Internet, and the anonymous 
nature of on-line relationships, which allows some offenders to 
misrepresent their identities to the victim. In addition to adding 
these enhancements to the statutory rape guideline, the amendment also 
increased by three levels the base offense level in USSG Sec. 2A3.2 
(Criminal Sexual Abuse of a Minor (Statutory Rape)) if the offense 
involved a violation of chapter 117 of title 18, United States Code 
(relating to transportation of minors for illegal sexual activity) 
(this latter change represents about a 40 percent increase in guideline 
punishment level).
    Methamphetamine Trafficking.--The Methamphetamine Trafficking 
Penalty Enhancement Act of 1998, Pub. L. 105-277, increased the 
penalties for manufacturing, importing, or trafficking in 
methamphetamine by reducing by one half the quantity of pure substance 
and methamphetamine mixture required to trigger the separate five and 
ten year mandatory minimum sentences in the drug statutes. Although the 
Act contains no directives to the Commission, the Commission 
promulgated an amendment that conforms methamphetamine (actual) 
penalties to the more stringent mandatory minimums established by the 
Act. In taking this action, the Commission followed the approach set 
forth in the original guidelines for the other principal controlled 
substances for which mandatory minimum penalties have been established 
by Congress. (No change was made in the guideline penalties for 
methamphetamine mixture offenses because those penalties already 
corresponded to the mandatory minimum penalties as amended by the Act.)
    Firearms Offenses.--Congress addressed certain serious firearms 
offenses in Public Law 105-386, which amended 18 U.S.C. Sec. 924(c) to 
create a tiered system of sentencing enhancement ranges. Each range has 
a mandatory minimum and presumed life maximum for cases in which a 
firearm is involved in a crime of violence or drug trafficking offense. 
The pertinent minimum sentence in that tiered system is dependent on 
whether the firearm was possessed, brandished, or discharged. The Act 
also changed the mandatory minimum for second or subsequent convictions 
under section 924(c) from 20 to 25 years, and it broadly defined the 
term ``brandish.'' Although the Act did not contain any directives to 
the Commission, the legislation required the Commission to promulgate 
amendments to the guidelines to incorporate the tiered statutory 
sentencing scheme into the guideline pertaining to section 924(c).
    The Commission also resolved five circuit court conflicts by 
promulgating amendments to the guidelines that (i) clarify that the 
enhanced penalties in USSG Sec. 2D1.2 (Drug Offenses Occurring Near 
Protected Locations or Involving Underage or Pregnant Individuals) 
apply only when the defendant is convicted of an offense referenced in 
that guideline; (ii) clarify that the enhancement in the fraud 
guideline for ``violation of a judicial or administrative order, 
injunction, decree, or process'' applies to false statements made 
during a bankruptcy proceeding; (iii) prohibit post-sentencing 
rehabilitation as a basis for downward departure at any resentencing; 
(iv) clarify that a court can base an upward departure on conduct that 
was dismissed or uncharged as part of a plea agreement, and (v) define 
the parameters of conduct that may warrant a downward departure in an 
extraordinary case based on aberrant behavior, as well as delineating 
types of cases for which a downward departure based on aberrant 
behavior is prohibited. In addition, the amendments in response to the 
Sexual Predators Act and the firearms legislation described above 
addressed two other circuit conflicts; thus, in total we resolved seven 
such issues.
    As you can see by the shear volume of amendments, we had a very 
busy and productive first amendment cycle. But what you cannot see from 
a written list is how well this group of commissioners is working 
together. Each commissioner approached the guidelines discussions in a 
manner that was open minded and respectful of differing views. The 
commissioners listened to each other and to all interested parties. 
They were always well prepared and committed to improving the 
guidelines. Indeed, I am pleased to report that every vote we have 
taken to date--whether it be a vote to publish a proposal or to 
actually promulgate an amendment--has been unanimous except in two 
instances when it was six to one. Thus, Congress can be assured that 
the Commission is speaking with a unified voice with the amendments we 
submitted for your review on May 1.

               PRIORITIES FOR THE CURRENT AMENDMENT CYCLE

    Shortly after our congressional submission, the commissioners held 
a retreat so that we could reflect on the work we had just completed. 
We reviewed both our work product as well as the processes we used to 
reach our decisions and we were overall quite satisfied. We also took 
that opportunity to start planning our priorities for the coming 
amendment cycle and to begin thinking about the longer term.
    After publishing in the Federal Register a tentative list of policy 
priorities and receiving public comment from a variety of constituents, 
once again we have set a very ambitious policy agenda.
    Economic Crime Guidelines.--This year, the Commission hopes to 
complete a comprehensive reassessment of the economic crimes 
guidelines. Economic offenses account for more than a quarter of all 
the cases sentenced in the United States federal district courts. The 
Commission has received comment from the Federal Judiciary, the 
Department of Justice testimony and survey results that indicated that 
the sentences for these offenses were inadequate to punish 
appropriately defendants in cases in which the monetary loss was 
substantial. After approximately one year of data collection, analyses, 
public comment, and public hearings, a comprehensive ``economic crimes 
package'' was developed to revise the loss tables for fraud, theft, and 
tax offenses in order to impose higher sentences for offenses involving 
moderate and large monetary losses. Related amendments would 
consolidate the theft, fraud, and property destruction guidelines and 
clarify the definition of loss for selected economic crimes. Working in 
conjunction with the Criminal Law Committee of the Judicial Conference, 
a field test of the proposed loss definition by surveying federal 
judges and probation officers and applying the new definition to actual 
cases was conducted. Among the findings of the field test, more than 80 
percent of the judges stated that the proposed loss definition produced 
results that were more appropriate than the current definition.
    The Commission has planned a Symposium on economic crimes, 
``Federal Sentencing Policy for Economic Crimes and New Technology 
Offenses'' for October 12-13, 2000. The Criminal Law Committee, the 
American Bar Association White Collar Crime Committee, and the National 
White Collar Crime Center have agreed to be co-sponsors. The symposium 
is designed to (1) discuss current sentencing issues pertaining to 
economic crimes; (2) identify how new technologies are being used to 
further ``traditional'' criminal activity, e.g., fraud, and the novel 
forms for criminal activity new technologies have created, e.g., denial 
of service attacks, cyberterrorism, and the misuse of data encryption; 
and (3) identify how new technologies impact law enforcement, and the 
sentencing policy implications of these offenses. With the advent of 
the Internet and increasing prevalence of computers in our daily lives, 
the Commission recognizes that technology is changing how traditional 
crimes are committed, making new types of crimes possible, and 
generally lowering barriers to criminal activity. All of this creates 
unique challenges to law enforcement and sentencing policy makers.
    The symposium will be held at the George Mason University School of 
Law, with approximately 175 invited guests from the federal legal 
community (federal judges, prosecutors, defense attorneys, and 
probation officers), academia, and technology companies such as AOL, 
Microsoft, and Yahoo. Deputy Attorney General Eric Holder and FBI 
Director Louis Freeh are scheduled to speak. Of course, we hope that 
you or a member of your staff can attend the symposium.
    Money Laundering.--This year the Commission also expects to address 
money laundering offenses. As you know, in the past a prior Commission 
passed an amendment to the money laundering guideline in 1995 that was 
subsequently disapproved by Congress. We expect to start anew, and are 
working closely with the Department of Justice and others on a new 
approach. We hope to develop a guideline structure that ties money 
laundering penalties more closely to the underlying offense conduct 
which generated the laundered proceeds. Penalties for money laundering 
offenses involving proceeds generated by drug trafficking, crimes of 
violence, terrorism, and sexual offenses might also be more severe than 
penalties for other money laundering offenses. I assure you that we are 
taking a careful and thoughtful approach to this.
    Counterfeiting.--The Commission also is working on another economic 
crime this year--counterfeiting bearer obligations of the United 
States. The Commission has received comment from the Department of 
Treasury and Secret Service that the current guideline, USSG Sec. 2B5.1 
(Counterfeiting), does not sufficiently deter or punish counterfeiting 
offenses in light of recent technologies changes. Historically, 
counterfeiting was accomplished using offset printing, which requires 
expensive equipment, a large indoor space to house the equipment, and 
persons with printing expertise. Now, increased availability and 
affordability of personal computers, ink jet printers, and other 
digital technology make it possible for great numbers of people to 
engage in counterfeiting. While counterfeiters previously made large 
``runs'' of counterfeit currency and typically maintained a sizeable 
``inventory,'' they now typically only print counterfeit currency on an 
``as needed'' basis.
    The Department of Treasury proposed specific modifications to the 
guidelines to address this changing technology. Commission staff also 
has recently completed a report on the impact of technology on 
counterfeiting sentences. We are in the process of reviewing Treasury's 
proposals as well as our staff's report and expect that we may be able 
to promulgate amendments to the guideline this amendment cycle.
    Sexual Offenses Against Children.--Because of the limited time 
available between our appointments on November 15, 1999, and the 
statutorily required May 1 date for submitting guideline amendments to 
Congress, we were unable to complete our response to the Sexual 
Predators Act directive requiring that the guidelines ``provide for an 
appropriate enhancement in any case in which the defendant engaged in a 
pattern of activity of sexual abuse and exploitation of a minor.'' The 
Commission is aware that a variety of legislation is pending in both 
the Senate and the House that, if enacted, would significantly impact 
our work in this area. This is an area of critical importance and a 
complicated one. You can be assured that the Commission shares 
Congress's concern about these particularly heinous offenses, and we 
fully expect to implement this remaining directive, as well as complete 
a proportionality review of the relevant guidelines, during this 
amendment cycle.
    Firearms.--During the last amendment cycle the Commission made a 
number of changes to the guidelines pertaining to firearms offenses in 
order to conform with recently enacted legislation. One item that we 
did not have time to address, however, was whether the current 
sentencing enhancement for offenses involving multiple firearms should 
be increased. The Bureau of Alcohol, Tobacco, and Firearms has 
requested that the Commission consider expanding the enhancement for 
multiple firearms in USSG Sec. 2K2.1 (Unlawful Receipt, Possession, or 
Transportation of Firearms) to differentiate among offenses with more 
than 50 firearms. The Commission is considering this proposal, as well 
as other possible modifications to the firearms guidelines.
    Nuclear, Biological, and Chemical Weapons.--Within the past few 
years there has been a growing interest by Congress, and the public 
generally, about the threat posed by criminal behavior that involves 
nuclear, biological and chemical weapons, materials, and technologies. 
Some congressional action in this area specifically relates to 
sentencing policy. For example, in section 1423 of the National Defense 
Authorization Act of Fiscal Year 1997, Congress expressed the sense 
that the sentencing guidelines were inadequate for certain offenses 
involving the importation and exportation of such material. Congress 
also recently created several new offenses in this area. Section 511 of 
the Antiterrorism and Effective Death Penalty Act of 1996 incorporated 
attempt and conspiracy into 18 U.S.C. Sec. 175, which prohibits the 
production, stockpiling, transferring, acquiring, retaining or 
possession of biological material. Section 201 of the Chemical Weapons 
Convention Implementation Act of 1998 also created a new offense at 18 
U.S.C. Sec. 229, which makes it unlawful for a person unknowingly to 
develop, produce, or otherwise acquire, transfer, receive, stockpile, 
retain, own, possess, use, or threaten to use any chemical weapon, to 
assist or induce any person to do so, or to conspire to do so. In light 
of these legislative developments, the Commission has formed a policy 
development team to examine the relevant guidelines and hopes to make 
any necessary modifications to the guidelines this amendment cycle.
    Criminal History.--The Commission has identified a number of 
circuit conflicts relating to Chapter Four of the guidelines, which the 
court uses to determine an offender's criminal history category. This 
suggests that certain provisions relating to criminal history are 
unclear and require clarification. In addition, we have received public 
comment requesting that the Commission examine the criminal history 
guidelines. As a result, the Commission has formed a policy development 
team to begin a review of the guidelines relating to criminal history. 
Although we do not expect to complete this work this amendment cycle, 
we hope to make significant progress in developing amendments that 
would resolve these circuit conflicts.
    Safety Valve.--The area of mandatory minimum sentences, 
particularly for drug offenses, has received a great deal of attention 
of late. For instance, in May 2000, the House Government Reform 
Subcommittee on Criminal Justice, Drug Policy and Human Resources asked 
me to testify about drug sentencing trends, mandatory minimum 
penalties, and how these statutory penalties interact with the federal 
sentencing guidelines. Because of short notice and a scheduling 
conflict, I asked Vice Chair John Steer to testify on my behalf. He did 
so, both orally and in writing. The Criminal Law Committee of the 
Judicial Conference suggested that the Commission update its August 
1991 report to Congress, Mandatory Minimum Penalties in the Federal 
Criminal Justice System, and a variety of other constituents, including 
members of Congress, have suggested that the Commission further study 
these matters.
    During this amendment cycle the Commission plans to begin analyzing 
the operation of the ``safety valve'' guidelines, USSG Sec. 5C1.2 
(Limitation on Applicability of Statutory Minimum Sentences in Certain 
Cases). We have been told a recidivism study conducted by the Bureau of 
Prisons will soon be available which could help inform our 
deliberations. We hope to work closely with Congress, the Department of 
Justice, the Bureau of Prisons, and others as we explore whether any 
adjustments to the safety valve would be advisable.
    Circuit Conflicts.--As I mentioned earlier, the Commission resolved 
five circuit conflicts during the last amendment cycle. Commission 
staff has identified approximately 40 remaining circuit conflicts. Such 
conflicts threaten the uniform application of the guidelines throughout 
the nation, and elimination of unwarranted sentencing disparity is a 
cornerstone of the Sentencing Reform Act. Although the Commission 
cannot reasonably expect to resolve all of these conflicts in one year, 
we have identified eleven circuit conflicts which we will address 
during this cycle.
    New Legislation.--The Commission also has been following closely 
the legislative developments of the 106th Congress and is prepared to 
implement any crime legislation as appropriate. For instance, Public 
Law No. 106-172 provided for the emergency scheduling of Gamma 
Hydroxybutyric Acid (GHB) as a Schedule I or Schedule II drug, and the 
addition of Gamma Butyrolactone as a List I chemical. The Commission 
also is mindful of and shares concerns over the increased use of 
ecstasy and other so called ``club drugs.'' The Commission has formed a 
policy development team to study whether the guideline penalties for 
these particular drugs are sufficiently severe and, if not, to develop 
appropriate amendments to the guidelines.

                        NEW RESEARCH INITIATIVE

    The Sentencing Reform Act requires the Commission to do much more 
than promulgate amendments to the guidelines. It requires the 
Commission to serve as an expert agency on sentencing policy. The 
Commission acts as a clearinghouse and information center for 
information on federal sentencing practices and is statutorily 
responsible for monitoring how well sentences imposed under the 
guidelines are achieving the purposes of sentencing as set forth under 
18 U.S.C. Sec. 3553(a). See 28 U.S.C. 995(a)(12), (a)(15).
    November 2002 will mark the 15 year anniversary of the guidelines. 
Since their implementation in November 1987, the guidelines have been 
used to sentence over 400,000 defendants. Soon we will experience the 
15 year anniversary and 500,000 defendants sentenced under the 
guidelines, and the Commission believes it prudent to step back and 
examine the operation of the guidelines over these years. We are 
undertaking an analysis that we hope will culminate with a published 
report sometime around November 2002. Questions that we hope to address 
include how well the guidelines are accomplishing the statutory 
purposes of sentencing, including crime control, as set forth at 18 
U.S.C. Sec. 3553(a)(2).
    The Commission believes that the federal sentencing guidelines have 
advanced the goals of Congress as expressed in the Sentencing Reform 
Act by providing certain, fair, and markedly more uniform punishment 
for similar offenders. This has strengthened the ability of the 
criminal justice system to combat crime. We hope that our empirical 
research will confirm our belief.

                COMMISSION FACES DIRE BUDGET CONSTRAINTS

    I discussed at the outset that the new Commission faced a 
substantial backlog when we arrived, and we have experienced renewed 
interest in many areas of the guidelines and in their impact. 
Unfortunately, we have been forced to tackle an unusually heavy 
workload at a time when the staff has been severely diminished because 
of the severe reductions in the Commission budget while there were no 
voting commissioners. As a result, we are busier than ever with far 
fewer resources, and we cannot accomplish what we have before us 
without receiving our full budget request to Congress.
    The Commission cannot meet all of its statutory obligations in a 
timely and thorough manner unless it receives the full $10.6 million 
that it requested for fiscal year 2001. In addition to the 
extraordinary heavy workload this year in terms of both policy 
development and research that I have outlined, the Commission must 
continue to perform its many other important statutory obligations. 
Because I am sure you are well aware of the numerous requirements 
imposed on the Commission by the Sentencing Reform Act, I will 
highlight just a few of them.
    In order to comply with the statutory requirement to collect and 
disseminate information concerning sentences, in fiscal year 1999, the 
Commission received court documents for more than 55,000 cases 
sentenced between October 1, 1998, and September 30, 1999. For each 
case, the Commission extracts and enters into its comprehensive 
database more than 260 pieces of information, including case 
identifiers, sentence imposed, demographic information, statutory 
information, the complete range of court guideline application 
decisions, and departure information. In 1999, as required by statute, 
Commission staff provided training on the sentencing guidelines to more 
than 2,200 individuals at 47 training programs across the country, 
including programs sponsored by the Commission, the Federal Justice 
Center, the Department of Justice, the American Bar Association, and 
other criminal justice agencies.
    The $10.6 million requested by the Commission for fiscal year 2001 
is the bare minimum necessary to restore staffing levels to that of 
fiscal year 1998, the last time the agency had a fully functional 
Commission in place. We appreciate the efforts that many members of 
this Subcommittee, and of the Full Judiciary Committee, have made on 
our behalf to increase funding for the Commission. However, your 
continued assistance is urgently needed. The $9.9 million mark approved 
by the Senate Appropriations Committee is not sufficient to get the 
Commission fully up and running.

                               CONCLUSION

    In closing, I assure you that this Commission is committed to 
working thoughtfully to accomplish as much as we reasonably can, not 
only during this amendment cycle but throughout our terms of 
appointment. I think we demonstrated our commitment last amendment 
cycle by working very hard in a very short time--less than six months--
to clear the significant backlog of crime and sentencing legislation 
that awaited our implementation. Every week brings new issues that 
require our careful attention. For example just days ago at the 
National Sentencing Institute, several federal judges raised serious 
questions about the impact of the recent Supreme Court decision in 
Apprendi v. United States, 120 S.Ct. 2348 (2000), on the 
constitutionality of current practices and certain mandatory minimums 
and guidelines for firearms and drug trafficking offenses. This is just 
one example of how new matters regularly occur to create unexpected 
work areas.
    We welcome this opportunity to report to the Subcommittee and value 
highly a good working relationship with Congress and others interested 
in federal sentencing. We thank the Subcommittee, and in particular 
Chairman Thurmond, for providing us the opportunity to share with you 
our accomplishments from the last amendment cycle and our goals for the 
current cycle.

    Senator Thurmond. Mr. Steer, do you have any opening 
comments?

                   STATEMENT OF JOHN R. STEER

    Mr. Steer. Yes, Senator, I do have some brief opening 
comments. I want to join with Judge Murphy, our distinguished 
chair, in thanking you for having this oversight hearing and to 
express on behalf of all commissioners our profound respect and 
gratitude for the leadership that you have shown over the years 
on sentencing and crime control issues generally.
    Senator Sessions, we appreciate your support of the 
Sentencing Commission and its work, and your interest in these 
issues as well.
    The focus of my remarks, as Judge Murphy indicated, is to 
present some data from the Sentencing Commission's research on 
trends in departures, and to offer some observations which are 
my personal observations at this point on some of the factors 
that may be underlying these trends. Before I get into the 
data, I just would like to briefly review for the committee the 
basic legal structure that governs departures from the 
Sentencing Commission.
     There is, first of all, the statute that this committee 
framed and Congress wrote as part of the Sentencing Reform Act 
and it basically says that a court must sentence within the 
Sentencing Commission unless there exists an aggravating or a 
mitigating circumstance of a kind or to a degree not adequately 
considered by the Commission in formulating the Guidelines that 
should result in a different sentence.
    In addition to that basic law, the Commission has added its 
own pronouncements with regard to departure circumstances 
throughout the guidelines manual in the form of policy 
statements and commentary. And then, of course, over the years 
the courts have added a vast and growing gloss, you might say, 
of departure decisions that provide the law in the respective 
circuits with respect to these issues.
    The Supreme Court itself has spoken directly to departure 
issues on two occasions, first in 1992 in the Williams case, 
which among other things basically stands for the proposition 
that courts must respect and generally follow Commission policy 
statements regarding circumstances that might warrant, or not, 
sentencing outside the guideline range.
    The second case, and probably no doubt the more important 
one, the Koon case in 1996, generally established a more 
deferential abuse of discretion review overall of departure 
decisions by the lower courts when those decisions are 
appealed.
    With that background, I would like to turn to the data. The 
first exhibit that we have here on the left basically just 
provides a change in the picture of cases, the kinds of cases 
that have been sentenced under the Guidelines over an 11-year 
period starting in the first full year of guideline application 
after the Guidelines' constitutionality was upheld in Mistretta 
in 1989, through fiscal year 1999, the last year for which we 
have complete data. Basically, the story of these pie charts is 
that over the years, relatively speaking, we have had somewhat 
less drug cases and more immigration and more fraud cases.
    The second chart on the right here shows the picture today, 
or in fiscal year 1999, of the way that the sentences fall out 
with respect to sentences within the range, upward and downward 
departures. As the data indicate, in fiscal year 1999 about 65 
percent of the cases were sentenced within the guideline range 
found by the court. Less than 1 percent were upward departures. 
About 19 percent were sentenced below the guideline range based 
on the defendant's cooperation and the motion of the Government 
finding substantial assistance by the defendant. And then this 
latter category, 15.8 percent, were sentenced below the 
guideline range for other departure reasons found by the court.
    I mentioned the Koon case. There has been a great deal of 
comment about what has been the effect of Koon on the rate of 
downward departures. This is one way of looking at the data. 
And basically in this chart we have, in the blue, going across 
the chart, the changing monthly rate of downward departures 
before and after the Koon case. The Koon case came down in June 
1996, and basically that dividing line is shown here.
    As you can see from this data, prior to the Koon decision 
downward departures were already on an increasing track and 
were growing at a rate of about 3 per month, if you look at the 
regression line track that our excellent statistician, Dr. 
Maxfield, has prepared here. After Koon, the rate of increase 
has changed dramatically and increased to about 9.5 per month. 
This chart also indicates that the rate of growth in overall 
cases has not been as fast as the rate of growth in downward 
departures from the Sentencing Guidelines.
    Mr. Chairman, as you mentioned in your statement, the 
trends in downward departures go across offense types. As you 
can see from this chart, there has been a growth in downward 
departure rates, an increase in downward departure rates in all 
of the major offense types--robbery, firearms, drug 
trafficking, fraud, and especially in immigration, which 
reflects the pressures that occur in the border States with the 
greatly increased volume of cases that have occurred there 
recently.
    Just to follow up on the immigration issues briefly, we 
have two charts here sequentially that will show a little bit 
more information about the growth of downward departures and 
the caseload growth in the immigration area.
    Immigration cases are basically of two types. Alien 
smuggling cases are shown in this first chart. The blue line 
plotted across here shows the increase in case volume. And as 
you can see, from 1992, the case volume sentenced increased 
from about 580 cases almost triple to about 1,500 cases 
sentenced for alien smuggling. The green bars indicate a 
declining rate of within-guideline sentencing, while the red 
bars show the increased rate of downward departures for reasons 
other than substantial assistance.
    Senator Sessions. Now, that is smuggling. That is not just 
an alien individual who crosses the border illegally. Those are 
smugglers who bring others with them?
    Mr. Steer. That is correct, Senator Sessions.
    This next chart deals with the other major category, the 
unlawful entry cases. Again, the volume of cases of this type 
has increased even more dramatically, about an eight-fold 
increase over that same time period.
    The combination of the green bars and the green-checked 
bars shows the within-guideline sentencing rate, and again 
there has been a decline there. The red bars show an increase 
in the downward departure rate in this type of cases.
    The green-checked area is a bit of a complicated picture 
here, but what we are trying to present here is to show that in 
these types of cases, in many instances the defendants are 
sentenced below what the Guidelines would have called for, but 
their sentence is capped by the statutory maximum.
    This is a result of a special procedure that has been 
initiated in a number of districts to limit the exposure of the 
defendant through a charge arrangement that basically caps the 
sentence. The current arrangement is at 30 months, and without 
that charge procedure the Guidelines would in these cases 
typically call for a much higher sentence.
    Senator Sessions. Well, that would be in violation of the 
traditional Department of Justice rule that the plea would be 
to the most serious offense, would it not?
    Mr. Steer. Well, I think that the Department will be 
prepared to comment on that. I think that what it reflects is 
arrangements that are made in districts because of the 
tremendous case volume.
    This next chart presents very quickly that there are 
varying rates of departure among the circuit courts of appeals. 
Generally speaking, the ninth circuit has the highest downward 
departure rate for other than substantial assistance. The third 
circuit has the highest rate of substantial assistance downward 
departures.
    Focusing specifically on the caseload growth in the border 
courts and the border districts and some of the other 
districts, these percentages indicate some of the States where 
you have had the highest percentage growth in cases sentenced 
under the Guidelines. You can see all the border courts are 
represented; also, others where there has been a tremendous 
increase either in immigration cases or drug cases. In many 
cases, the drug cases are methamphetamine.
    Here is a picture of the changes in departure rates over 
time, comparing the national data to the five border court 
districts. And you will see the effects of the heavy caseload 
volume there and the arrangements that have been made with 
respect to handling that volume, Arizona with a very high 
downward departure rate, and Southern California also in that 
area. Texas-South and Texas-West at least nominally appear to 
be similar to the national picture.
    Now, in my written statement I do make some observations 
about possible contributing factors. I will just briefly list 
them here, and perhaps either I or the Department of Justice 
can comment on them further in response to any questions you 
have.
    A number of those factors might be the Commission policies 
themselves over the years and things that the Commission has 
done or has not done; of course, the increase in volume in the 
border districts; policies and practices of the prosecutors on 
the front line; the appellate review practices of U.S. 
Attorneys and the Department of Justice; the effect of the Koon 
decision; and perhaps any number of other factors.
    Let me just say in conclusion that as I look at these data 
today, my personal observation is that this should not set off 
any alarm bells. The guideline system is still fundamentally 
sound, in my view, and is working. But what it indicates is it 
raises some questions and some areas of concern that the 
Commission and the Department of Justice need to explore 
together. It indicates areas where we need to work together 
over the coming months to address these issues of possible 
concern.
    Thank you, Mr. Chairman.
    [The prepared statement of Mr. Steer follows:]

                  Prepared Statement of John R. Steer

    Mr. Chairman and Distinguished Members of the Committee, I 
appreciate this opportunity to join my esteemed Chair of the U.S. 
Sentencing Commission, Judge Diana Murphy, in apprising the 
Subcommittee of the recent actions and plans of the Commission, and in 
sharing some observations about the operation of the sentencing 
guidelines within the federal criminal justice system. I would like, at 
the outset, to note for the record that the views I am about to express 
are my own and should not necessarily be attributed to my fellow 
Commissioners. While I have no doubt that the Commission as a whole 
will stand behind its data and excellent research staff, whose 
assistance in preparing this testimony I gratefully acknowledge, 
individual Commissioner conclusions from the data may well differ.
    Mr. Chairman, I commend you and the members of the Subcommittee for 
having this oversight hearing. I believe this is only the third such 
hearing by the Senate Judiciary Committee since the initial set of 
guidelines were submitted for congressional review in April 1987. Yet, 
although formal oversight hearings of the Commission and the guideline 
system by this Committee have been infrequent, over the years we have 
benefitted from, and are deeply appreciative of, a close working 
relationship with you, Chairman Thurmond, and with other members of the 
Committee on both sides of the political aisle. The legislation that 
authorized the Sentencing Commission and the ensuing system of federal 
sentencing guidelines--the Sentencing Reform Act of 1984 (``SRA'')--
stems directly and primarily from the bipartisan, collaborative efforts 
of this Committee. That legislation was enacted under the leadership of 
Senator Thurmond during his tenure as Judiciary Committee Chair and 
enjoyed the strong co-sponsorship of Senator Kennedy, who had 
introduced the first sentencing reform bill some years before in 1975, 
Senator Hatch, Senator Biden, and others.
    The initial set of sentencing guidelines was delivered to Congress 
on schedule in April 1987 and took effect on November 1, 1987. After a 
turbulent period of constitutional challenges, the U.S. Supreme Court 
upheld the legality of the guidelines and the Commission in January 
1989 Mistretta v. United States, 488 U.S. 361. The guidelines have been 
applied nationwide since that time; accordingly, by the end of this 
fiscal year, more than 500,000 defendants will have been sentenced 
under them.
    Like my colleague, Judge Murphy, my experience as a member of the 
Sentencing Commission has been relatively brief, beginning with our 
appointments in November of last year. However, the views and 
perspectives on guideline operation that I share with you today are 
also grounded in my more extended, prior experience as the Commission's 
chief legal officer, dating almost to our agency's inception. Much has 
happened over that period of time, and it has been my privilege to have 
been a part of the guidelines' historical development and evolution. 
Today, I hold steadfast in my belief that the grand sentencing 
experiment Congress and the first Sentencing Commissioners crafted was 
and remains a fundamentally sound concept. It is a system that has 
helped to bring about appropriately tough and more uniform punishment, 
thereby contributing positively and substantially to the fight against 
crime.
    Of course, as with any dramatic change, it has taken time for the 
various players in the federal criminal justice system to adjust to 
this new way of doing business, but on the whole, judges, probation 
officers, and attorneys have made a successful transition to guideline 
sentencing. This said, I believe the information that we are prepared 
to share with the Committee this afternoon shows that the guideline 
system demands continued, vigilant attention by the Commission, the 
Department of Justice, and the other institutional contributors within 
the federal criminal justice arena, in order for it to fully achieve 
the goals Congress intended.
    I understand that the Committee is particularly interested today in 
reviewing the degree to which the guidelines are being followed, or 
expressed a bit differently, whether the frequency of ``departures'' 
from the guideline range should be of concern. This issue, of course, 
relates directly to the question of whether the guidelines are 
effectively achieving one of the basic statutory goals Congress 
envisioned--``avoiding unwarranted disparities among defendants with 
similar records who have been found guilty of similar criminal conduct 
* * *''. 28 U.S.C. Sec. 991(b)(1)(B). See also 28 U.S.C. 
Sec. 994(f).\1\ As Judge Murphy indicated in her testimony, the 
Commission is in the early stages of a major research endeavor that we 
hope will comprehensively assess the effectiveness of the guidelines in 
meeting each of the statutory objectives enumerated by Congress. The 
information that I present today might appropriately be viewed as a 
preliminary and partial response to some of the research questions that 
we hope to examine more fully in this comprehensive assessment. Our 
data analysis and research efforts at the Commission are aided by a 
wealth of sentencing data sent to us by the courts on each case 
sentenced under the guidelines. This rich database of sentencing 
information is an invaluable resource, both for the Commission and the 
Congress, in considering proposed changes in sentencing policy, be they 
changes in the guidelines or in statutory criminal penalties.
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    \1\ Granted, whether the guidelines are adequately addressing 
unwarranted disparity is a broader and more complicated matter than the 
more limited issue of departure frequency. However, I believe most 
would agree that an excessive or geographically very uneven rate of 
guideline departures is likely to be at odds with the overarching goal 
of alleviating unwarranted sentencing disparity.
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    In my forthcoming data presentation, I will be discussing 
information from a series of exhibits attached to my testimony. I will 
begin by briefly discussing two pie-chart ``snapshots'' that, taken 
together, show changes in the types of offenses sentenced under the 
guidelines between FY 1989, the first year of nationwide application, 
and FY 1999, the last year for which we have complete statistical data. 
As the data in Exhibit 1 show, the federal caseload sentenced under the 
guidelines has grown dramatically,\2\  and there has been a relative 
shift among offense types over the course of this eleven-year period. 
Over these years, the caseload has changed toward proportionally fewer 
drug cases and proportionally more immigration cases. This reflects, 
among other developments, the increased law enforcement efforts in the 
southwest border districts aimed at illegal reentry and alien smuggling 
offenses.
---------------------------------------------------------------------------
    \2\ The guidelines apply to crimes committed on or after November 
1, 1987. In FY 1989, more than half of federal district court 
sentencings were guideline cases. The total number of guideline and 
pre-guideline cases sentenced in that year was about 38,000.
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    The next series of exhibits relate directly to a principal topic of 
today's hearing--whether the guidelines are being followed. I would 
like to introduce this empirical material by briefly reviewing the 
basic legal framework for application of the guidelines and the 
Commission's posture toward sentencing outside the prescribed guideline 
range. First, it is important to note that Congress expressly provided 
that courts must sentence within the applicable guideline range, with 
an important caveat. As stated in 18 U.S.C. Sec. 3553(b), the important 
caveat is that a court may impose a reasonable sentence above or below 
the applicable range (commonly know as a departure) upon finding ``an 
aggravating or mitigating circumstance of a kind, or to a degree, not 
adequately considered in formulating the guidelines that should result 
in a sentence different from that described.'' The court must give 
specific reason(s) justifying any departure sentence. 19 U.S.C. 
Sec. 3553(c). In formulating and amending the guidelines, the 
Commission has provided policy statement and commentary guidance 
regarding its basic approach to departures (see USSG Ch. 1, Pt. A4(b), 
Ch. 5, Pt. H, Intro Comment., Sec. 5K2.0), and also has given guidance 
regarding factors that may or may not be appropriate bases for 
departure in a particular case (see, e.g., USSG Sec. Sec. 5H1.1-5H1.12; 
5K2.1-5K2.18; Sec. 2F1.1, comment, n.11 (the latter suggesting 
circumstances that may warrant departure in a fraud case)).
    Over the years, the courts have added a vast and growing case law 
``gloss'' to these basic statutory and guideline pronouncements on 
departures. The U.S. Supreme Court has directly addressed departure 
issues on two occasions, first in Williams v. United States, U.S. 
193(1992) and, more recently, in Koon v. United States, 518 U.S. 
81(1996). In Williams, the Court established an important proposition 
that the courts are bound by Sentencing Commission policy statements 
forbidding departures on specific grounds, and the failure to follow 
such policy guidance may constitute an ``incorrect application of the 
guidelines,'' reversible under the sentence appellate review statute, 
18 U.S.C. Sec. 3742.
    The Koon case has come to be viewed as a landmark decision in 
guideline departure jurisprudence. In that case, the Court held that 
lower court departure decisions must be reviewed by the courts of 
appeal under a generally more deferential, ``abuse of discretion'' 
standard, out of respect for district court judges' ``institutional 
advantage'' in assessing whether a particular case is exceptional and, 
therefore, warrants a departure sentence. 518 U.S. at 90, 97. The Court 
went on to classify potential departure factors into four categories--
forbidden, encouraged, discouraged, or unmentioned--according to how 
the factors are characterized and treated in the Guidelines Manual.
    Under the Koon terminology, a factor may be ``forbidden'' as a 
basis for departure, in which case the court may not depart for that 
reason. A factor may be an ``encouraged'' basis for departure, in which 
case departure would be authorized unless the factor was adequately 
taken into account in the guideline calculus. A factor may be 
``discouraged'' as a basis for departure, in which case the court may 
depart only if the factor was present in an exceptional form or degree, 
thereby making the case sufficiently atypical to warrant departure. 
Finally, a factor may be ``unmentioned'' in the guidelines, in which 
case the court, bearing in mind the Commission's expectation that 
departures on unmentioned grounds will be ``highly infrequent,'' must 
consider the ``structure and theory'' of the guidelines to decide 
whether the factor was sufficient to take the case ``out of the 
Guideline's heartland'' and warrant departure. Id. at 95, 96.
    As these legal sources show, departures are an integral part of 
sentencing under the guideline system. A sentence outside the guideline 
range may be the legally appropriate sentence in situations where the 
guidelines do not adequately account for one or more important 
aggravating or mitigating factors that justify a different sentence. 
Clearly, then, as we examine today the question of whether courts and 
prosecutors are adequately following the guidelines, we should begin by 
acknowledging that ``departure'' is not inherently a ``dirty word.'' 
Nor should there by any hostility to departures per se. Like so many 
policy issues, the question is one of degree.
    In its development of the Sentencing Reform Act, Congress did not 
express concrete expectations about an appropriate rate of departures. 
However, the Senate Judiciary Committee Report did state that ``the 
bill seeks to assure that most cases will result in sentences within 
the guideline range and that sentences outside the guidelines will be 
imposed only in appropriate cases'' (emphasis added). S. Rep. No. 225, 
98th Cong., 1st Sess. 52 (1983).\3\
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    \3\ In a footnote, the Report went on to ``anticipate'' that judges 
would depart from the sentencing guidelines ``at about the same rate or 
possibly at a somewhat lower rate'' than the U.S. Parole Commission 
customarily set parole release dates outside its guidelines, which then 
was about 20% (12% above and 8% below). S. Rep. No. 225, supra, at 52, 
n. 71. A direct comparison between the two systems is difficult, 
however, for several reasons, including the advent of substantial 
assistance as a formally recognized, statutory departure under the 
sentencing guideline system (whereas the parole guidelines actually 
incorporate into the range determination a more limited form of 
cooperation), and the generally greater severity of the sentencing 
guidelines.
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    In constructing the initial set of guidelines, the first 
Commissioners also did not quantify specifically an expected rate of 
departures. That Commission did say, however, that it expected judges 
would not depart ``very often,'' despite their ``legal freedom'' to do 
so under the statute and the guidelines. USSG Ch. 1, Pt. A(4)(b). That 
expectation was based on several considerations, including (1) the fact 
that the Commission had made each guideline range as broad as the 
statute allowed, (2) the Commission's attempt to build into the 
guidelines those factors that pre-guideline sentencing data indicated 
had made a significant difference in sentencing, and (3) the intention 
that the guidelines would be amended in the future to add other factors 
that actual sentencing practice suggested were important. Id. With 
respect to this third consideration, the Commission in fact has added a 
number of factors to various guidelines over the years, often at the 
suggestion or direction of Congress, thereby accomplishing greater 
proportionality and individualization of guideline punishment levels. 
Granted, however, most of these additions have involved aggravating 
factors that added to sentence severity in applicable cases. Thus, the 
net effect of these amendments may have been to actually increase 
downward departures.

                       DEPARTURE TRENDS OVER TIME

    Turning now to the departure data that our research staff has 
assembled, the pie-chart in Exhibit 2 summarizes the distribution of 
sentences imposed in FY 1999, with reference to the applicable 
guideline ranges. As the exhibit indicates, in FY 1999, judges 
sentenced slightly less than \2/3\ (64.9%) of defendants within the 
guideline range found by the court. Slightly less than \1/5\ (18.7%) 
received a below-guideline sentence based upon the Government's motion 
certifying the defendant's substantial assistance in the investigation 
or prosecution of other criminals, 15.8% received a downward departure 
for other mitigating reasons recognized by the court, and .6% received 
a sentence above the guideline range based upon an aggravating factor 
found by the court.
    Exhibit 3 shows how these departure rates have changed over a 12-
year period, from FY 1988, the earliest year for which we have data, to 
FY 1999. The green bars show an almost steady decline in the rate of 
within-guideline sentencing. The red striped bars show that the rate of 
substantial assistance downward departures grew rapidly in the early 
years, but has been relatively flat since 1994, falling back a bit last 
year. As indicated by the solid red bars, there has been a virtually 
steady increase across the 12-year time period in the rate of other 
downward departures granted by courts, whereas the rate of upward 
departures has progressively decreased to the current .6% rate.
    Debate continues about the effects of the U.S. Supreme Court's 1996 
Koon decision on the rate of downward departures by the district 
courts. For example, the Commission recently participated in a 
Sentencing Institute in Phoenix at which departures and the impact of 
Koon were among the topics discussed. A judicial panelist there noted 
that the rate of downward departures has gone up less than 4% in three 
years, from 12% in FY 1997 (the first full year after Koon), to less 
than 16% in FY 1999. Granted, this is one way of looking at the data, 
while another might be to note that the aggregate 4% change also 
represents a proportional increase of about 33%. Still another way of 
examining the correlation of Koon with other downward departure rates 
is shown in Exhibit 4. This graph does not answer definitively the 
question of Koon's impact, but the data clearly show a distinct and 
sharp change in departure rates after Koon. Before that momentous case, 
downward departures already were increasing at a growth rate of 3 per 
month; in contrast, after Koon the average rate of increase was 9.5 per 
month. This figure also shows that the growth rate in downward 
departures post-Koon has exceeded the growth rate in the total number 
of cases sentenced.
    Looking at the growth in downward departure rates among offense 
types, Exhibit 5 shows that the greatest changes since 1992 have 
occurred in immigration and drug trafficking offenses. As was pointed 
out in Exhibit I, these two categories have the greatest number of 
cases sentenced under the guidelines; thus, the relative contribution 
of these two offense categories to the total number of downward 
departures is very substantial.
    Our next three exhibits focus more precisely on changes over time 
in downward departures rates for three major types of offenses 
sentenced under their respective sentencing guidelines--drug 
trafficking, alien smuggling, and alien unlawful entry. In each of 
these exhibits, we have excluded the substantial assistance downward 
departure cases (under Sec. 5K1.1 of the guidelines) in order to 
simplify the presentation. In Exhibit 6, the blue line shows that the 
number of defendants sentenced under the drug trafficking guideline 
grew by about 40% from 10,811 in FY 1992 to 14,605 in FY 1999. At the 
same time, the rate of within-guideline sentencings dropped from 90% at 
the beginning of this period to 77% at the end, while the rate of other 
downward departures grew from 9.1% to 22.4% over the same time frame.
    Exhibit 7 presents similar data for alien smuggling and harboring 
offenses: (1) the aggregate number of cases sentencing almost tripled, 
from 580 to 1,499; (2) the percent of within-guideline sentencings 
dropped from 89% to 62%; and (3) the downward departure rate 
accelerated from 2% to 37%. In examining these trends, it is important 
to know that, effective May 1, 1997, the Commission dramatically 
increased the guideline penalties for these offenses in response to 
specific directives from Congress in the Illegal Immigration Reform and 
Immigration Responsibility Act of 1996, Pub. L. 104-208, 110 Stat. 
3009-569. The ensuing, dramatic increase in downward departure rates in 
FY 1998 and FY 1999 correlates with the expected phase-in of these 
heightened penalty levels, suggesting (but not proving) that judges and 
prosecutors thought the upward revisions too severe in a substantial 
number of cases.
    The third graph in this series, Exhibit 8, depicts a somewhat 
complicated story of guideline sentencing patterns for alien unlawful 
entry cases. First, the number of such cases grew phenomenally across 
the eight-year period, from 652 in FY 1992 to 5,249 in FY 1999. This, 
of course, correlates with the increased law enforcement emphasis, 
particularly along the southwestern border, with respect to these 
offenses. The combined solid green plus green-checkered bars illustrate 
a decline over the same time period in within-guideline rates from 92% 
to 64%, while the red bars show a concomitant growth in downward 
departure rates from 5.4% to 35.8%. With the checkered portion of the 
green bars, we attempt to illustrate the effects of a prosecutorial 
initiative labeled in the graph as a ``Statutory Trump.'' This label 
corresponds to a case disposition procedure popularly known in the 
districts where it has been employed (primarily the Southern District 
of California but also several others) as a ``Fast Track'' procedure. 
Under this quid pro quo procedure, defendants arrested for illegal re-
entry agree to waive their rights to indictment, trial, appeal of 
sentence, and post-conviction appeal, and agree to not contest their 
deportation. In return, the Government agrees to charge the offense in 
a novel way so that the aggregate statutory maximum penalty caps the 
guideline sentence at 30 months (24 months under an earlier 
formulation). Without this ``statutory trump,'' the applicable 
guideline sentence would be substantially higher (typically within a 
range of 57-71 months for aliens re-entering after conviction and 
deportation for an aggravated felony). This procedure represents one of 
multiple accommodations, initiated by prosecutors and largely 
concurred-in by courts, in the southwest border districts, a matter 
about which I will subsequently elaborate.

                GEOGRAPHIC VARIATIONS IN DEPARTURE RATES

    Just as departure rates have changed over time, so also do they 
vary considerably among sentencing jurisdictions. Exhibit 9 presents 
within-guideline and departure sentencing rates for each judicial 
circuit for FY 1999. Three circuits, the Second, Third, and Ninth, have 
within-guideline rates of less than 60%, and jurisdictions within the 
Ninth Circuit as a whole sentence only slightly more than half of their 
cases within the guideline range. The Third, Sixth, and Eighth Circuits 
have the highest rates of substantial assistance downward departures, 
while the Ninth, Second, and Tenth have the highest rates of other 
downward departures.
    Attached to my testimony (but not presented in our enlarged graphs 
today) are two tables, Exhibits 10 and 11, showing the individual 
districts with the highest and lowest extremes, the within-guideline 
and departure rates for most districts tend to cluster fairly closely 
around the national averages. See U.S. Sentencing Commission, 1999 
Sourcebook of Federal Sentencing Statistics, Table 26, at 53.
    Looking further at the southwest border situation, one can see from 
Exhibit 12 that each of the states along the Mexican border has 
experienced phenomenal increases in its sentenced caseloads within the 
last eight years, and most of this growth has occurred with regard to 
immigration offenses. Several other states in the west and midwest have 
experienced very high increases in volume of either immigration 
offenses, drug trafficking (particularly methamphetamine) offenses, or 
both. Exhibit 13 charts the changes over time in within-guideline and 
departure rates for each of the five southwest border districts in 
comparison to the national averages. The two Texas border districts are 
at least superficially similar to the national trends, although there 
are some indications that accommodations in guideline applications are 
occurring in those districts in response to huge caseload volume. The 
other three border districts show substantially higher downward 
departure rates than the national average.
    While participating in the Sentencing Institute in Phoenix about 
two weeks ago, we Commissioners had an opportunity to visit with the 
Arizona federal district court judges and learn about their difficult 
problems in coping with a greatly increased volume of immigration-
related offenders. We heard, for example, that each of the district 
court judges in Tucson is faced with over 1000 criminal cases per year. 
We also had occasion to interact during the Institute with several 
judges from other border districts, as well as with a number of 
prosecutors, defense attorneys, and probation officers from these 
districts. During these various conversations, we received considerable 
feedback that the sentencing guideline for unlawful entry cases needs 
to be adjusted to provide penalties more proportionate to the 
seriousness of these cases.
    Clearly, the southwest border districts face exigencies that help 
explain the very high guideline downward departure rates and other 
accommodations--typically initiated by the several U.S. Attorneys and 
concurred in by the judges--that are occurring in those areas. One can 
have concern about the manner of guideline application and sentencing 
practice in some of these areas while also understanding the need for 
increased judicial and other system resources in order to handle the 
greatly increased caseloads.

                OBSERVATIONS AND SUGGESTED IMPROVEMENTS

    The data heretofore presented suggest a number of factors that are 
contributing to the increase in downward departure rates and my 
experience at the Commission suggests several others. I would like to 
briefly discuss some of these factors for the Committee. My focus 
herein is on the so-called ``other downward departures,'' i.e., those 
granted for reasons other than a defendant's substantial assistance.
    1. Koon and its Progeny.--The impact of the U.S. Supreme Court's 
Koon decision on departure determinations and their appellate review 
has been momentous, in my opinion. Koon has had the effect, as the 
Supreme Court no doubt intended, of loosening appellate scrutiny of 
front-line, district court departure decisions. The resultant, more 
flexible appellate scrutiny probably has encouraged more district court 
departure decisions and made it marginally more difficult for the 
Department of Justice to successfully appeal downward departure 
decisions that prosecutors may believe unwarranted.
    Despite Koon's probable impact on departure trends, neither the 
empirical departure data nor the subsequent appellate decisions 
suggest, in my judgment, that the Koon decision is substantially 
problematic in meeting Sentencing Reform Act goals. At the same time 
that Koon has decreased the role of the appellate courts in policing 
district court downward departure decisions, it has shifted greater 
responsibility in this area to the Department of Justice and, 
especially, the Sentencing Commission. Advised by the Department of 
Justice, the Commission must monitor and act where necessary to counter 
excessive or otherwise unwarranted departure actions. Consequently, the 
policy effects of Koon, at least at this point in time, point mainly to 
the need for greater vigilance by the Department of Justice and the 
Commission.
    2. Prosecutorial Charging and Plea Bargaining Initiatives.--While 
Koon probably has been an important contributor to the recent growth in 
downward departure rates, the overall biggest set of influences, in my 
judgment, has been an array of prosecutorial charging and plea 
bargaining initiatives. For the most part, these widely varying 
practices have sprung from different U.S. Attorneys and line 
prosecutors acting with little or no guidance, centralized tracking, or 
oversight management by the Department of Justice. To help illustrate 
the importance of these prosecutorial practices, I have one final 
exhibit that I would like to share with the Committee. Exhibit 14 
portrays changes over time in the most frequently cited reasons for 
non-substantial assistance downward departures, as gleaned from 
district court sentencing orders. Judges often give more than one 
reason for their departure decisions, but the data summarized in this 
graph indicate that the two largest categories of reasons are 
agreements to deportation involving unlawful aliens (including various 
``Fast Track'' plea arrangements) and plea agreements generally, both 
of which stem from prosecutorial initiatives of acquiescence. Whether 
motivated by caseload volume or other factors, the actions of 
prosecutors have greatly influenced the growth in downward departure 
rates.
    The Sentencing Reform Act's legislative history suggests that this 
Committee, at least to some extent, considered the potential for plea 
practices to undermine or hinder guideline goals. The legislation 
directed the Commission to write policy statements to guide courts in 
evaluating the accepting plea agreements, which the Commission has 
done. See USSG Ch. 6, Pt. B. The Committee Report indicates an 
expectation that, guided by these policy statements, courts would use 
their authority to review and reject, if necessary, plea agreements 
that result in ``undue leniency or unwarranted sentencing 
disparities.'' S. Rep. No. 225, supra, at 167. In practice, however, 
courts rarely have exercised their authority to reject plea agreements 
and plea recommendations, no doubt for a variety of reasons. Judges 
rely on attorneys in today's more adversarial system of sentencing 
practice to generally achieve mutually acceptable results through the 
plea process; they often face substantial case processing pressures; 
they themselves may prefer a more lenient result; and they are 
inherently disadvantaged in calling witnesses and finding facts that 
might support a greater sentence when the prosecutor already has agreed 
to a lower sentence, perhaps including a sentence below what the 
guidelines prescribe. For these and other reasons, the plea agreement 
review process does not appear to be functioning as well as may have 
been hoped.
    3. Government Appellate Review Practices.--Another factor possibly 
contributing to downward departure increases over time may be the lack 
of vigorous appeal practices by prosecutors in the field and at the 
Department of Justice. Under the statute governing appellate review of 
sentences, the Government may appeal a sentence adverse to its 
interests only upon the approval of the Attorney General, the Solicitor 
General, or a designated deputy solicitor general 18 U.S.C. 
Sec. 3742(b). Consistent with this policy, the Department of Justice 
has established procedures which line prosecutors and their supervisors 
must follow in securing the requisite, highest-level approval for 
Government appeal initiatives. Of course, under these policies, the 
initial decision to pursue an appeal begins with the line prosecutor. 
The Commission has no data on how often Assistant United States 
Attorneys seek, or decline to seek, the Department's approval to appeal 
sentences, including downward departures. However, as part of our 
monitoring of the appellate review processes, we do collect data on the 
frequency with which the Government actually exercises its legal right 
to appeal. These data show that since 1993, the Government has tended 
to appeal downward departures less and less often, despite their 
relative success rate (generally 50% or higher). Specifically, of the 
total number of cases involving sentencing issues resolved by federal 
courts of appeals in FY 1999 (4068), the Government had appealed a 
downward departure in only about 20 such cases, down from a high of 
over 40 such appeals out of 4,327 appellate decisions in FY 1995.
    Understandably, the Government wants to pick its fights carefully, 
and as indicated supra, Koon probably has had the effect of making 
those fights somewhat more difficult. Nevertheless, the low, and 
generally declining, frequency with which downward departure appeals 
are being pursued suggests that the Department of Justice and 
prosecutors generally are not as aggressive as perhaps they could be in 
carrying out their appellate review responsibilities under the SRA.
    4. Sentencing Commission Training and Guideline Amendment 
Initiatives.--Under the SRA, Congress gave the Sentencing Commission 
important responsibilities to train judges, probation officers, and 
attorneys in how to apply the guidelines. Over the years, the 
Commission has endeavored to diligently carry out this responsibility. 
One judicial panelist at the recent Phoenix Sentencing Institute 
observed that, in the early 1990s when Commission training staff 
introduced him as a newly appointed judge to guideline sentencing 
practices, staff emphasized guideline application but said virtually 
nothing about how to depart. The judge was no doubt accurate in his 
observations of Commission training program content in the early 1990s, 
but much has changed since that time. At least since the mid-1990s, 
Commission staff have presented information--in a neutral, non-advocacy 
fashion--about departure authority, procedures, and jurisprudence, in 
addition to the correct mechanics of guideline application. Over the 
years, individual Commissioners also have given greater emphasis to the 
subject of departures in their various remarks to judges and other 
audiences. These various training initiatives no doubt have had an 
effect, in the overall scheme of things, on departure practices.
    The Commission's policymaking function of amending the guidelines 
in response to departure decisions of the courts also has evolved over 
the years. Relatively early in the history of guideline application, 
the Commission responded aggressively to several appellate court 
departure decisions that Commissioners believed would undermine the 
goal of reducing unwarranted disparity.\4\ Some commentators criticized 
these actions as premature and/or unwarranted. Subsequently, after the 
appointment of successor Commissioners in the mid-1990s and the Koon 
Supreme Court decision, the Commission affirmatively embraced that 
decision as the ``law of the land'' \5\ and took several other 
amendment actions that encouraged departures.\6\
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    \4\ See, e.g., USSG Appendix C, Amend. 386 (stating that a 
defendant's youth, in and of itself, was not ordinarily relevant as a 
basis for downward departure; also that a defendant's physical 
appearance or physique was not ordinarily relevant as a basis for 
downward departure); and 466 (forbidding downward departure based on a 
defendant's lack of guidance as a youth and similar circumstances).
    \5\ See, e.g., USSG Appendix C, Amend. 585 (citing Koon with 
approval).
    \6\ See, e.g., USSG Appendix C, Amend. 583 (broadening the grounds 
for downward departure based on diminished capacity), and 562 (inviting 
downward departure in certain alien unlawful entry cases).
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    The point is that the Sentencing Commission, in a number of ways, 
has been a contributing player in the mix of factors that may have 
affected departure rates. How one views these various changes in 
Commission action and attitude depends, of course, on where one sits. 
While still relatively new in our respective terms, the current 
Commission has already faced several discrete departure issues in our 
first guideline amendment cycle. For example, we proposed a compromise 
on departures based on a defendant's aberrant behavior that should 
curtail downward departures in several circuits but may increase them 
slightly in others; we foreclosed courts' ability to depart in their 
initial choice of the applicable guideline before determining the 
applicable guideline range; and we encouraged upward departures in a 
number of case circumstances. I expect that this group of Commissioners 
will continue to wrestle with a wide variety of departure issues as 
they are brought to our attention by others and by our own ongoing 
monitoring of the case law and data.
    No doubt there are other factors affecting downward departure 
growth rates that could be postulated. For example, the advent of the 
``safety valve'' for low level drug defendants, various Commission 
amendments that have increased guideline penalties (e.g., in the alien 
smuggling offenses--see infra), and variety of other causes may have 
played a role. I have mentioned four factors that the data and my own 
experiences suggest may have been contributors, to a greater or lesser 
degree, along the way.
    The question then arises: What should be made of all of this? No 
doubt some would react to the data and other information I have 
presented by fully applauding the trends, both with respect to the 
increase in downward departures generally and the various geographic 
variations. Others may survey the same scene, particularly the regional 
variations, and see a guideline system that already is broken beyond 
repair. Still others might react to the data by seeing some reason for 
concern, particularly if the trends continue unabated, while also 
seeing a guideline sentencing scheme that remains fundamentally sound. 
While our current Commissioners have not had an opportunity as a group 
to carefully evaluate and discuss these data, I believe most would 
associate themselves with this latter view.
    The Sentencing Commission clearly has a continuing responsibility 
under the SRA to carefully monitor court sentencing practices and to 
take appropriate actions, through the guideline amendment process or 
through other avenues, when these practices substantially vary from SRA 
goals. The Department of Justice and U.S. Attorneys, in my view, need 
to pay closer attention to these same goals when carrying out 
prosecutorial functions and institute concerted actions to ensure their 
attainment. Both the Commission and the Department need to 
cooperatively share sentencing data, discuss the implications, and act 
to ensure that the guideline sentencing system is as just and effective 
as possible.
    Mr. Chairman and Members of the Committee, recognizing that 
periodic oversight by an interested Congress is also a very important 
part of this process, I wish to thank you again for holding this 
hearing and inviting us to participate in it. I will be glad to join 
with Judge Murphy in answering any questions you may have.

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    Senator Thurmond. Senator Sessions, before we begin 
questions, do you have any comments?
    Senator Sessions. I thought it was very interesting that we 
are looking at, and I think it is important to consider the 
immigration matters, but also important to look at the numbers 
on nonimmigration cases, too. It looks like you have a 40-
percent, 50-percent increase across the board on issues such as 
robbery, firearms, and other cases where the departures have 
been downward.
    Mr. Chairman, you do your questions now, if you would like, 
and I will follow you.
    Senator Thurmond. Thank you.
    Judge Murphy, are you concerned about the increasing number 
of downward departures from the Guidelines, and do you view 
this trend as a problem?
    Judge Murphy. Well, Senator, as I say, the Commission 
hasn't been able to study these data. You know, we have 
certainly looked at them briefly. We haven't talked about it. 
As Mr. Steer has pointed out, departures are an inherent part 
of the guideline structure, but we need to monitor them because 
one of the main goals of your statute, the Sentencing Reform 
Act, is to prevent disparity in sentencing, and so obviously 
that is something that the Commission has to be looking at.
    We hope by the fall of 2002 for the 15th year of the 
operation of the Guidelines to have conducted a review to see 
how well the Guidelines are doing in terms of the goals of the 
Sentencing Reform Act. So this is an area that, of course, we 
will be looking at.
    If you take out the substantial assistance, our data show 
that 82 percent of the offenders are being sentenced within the 
guideline range. And looking at our data, it shows that the 
most serious offenders are getting very serious sentences. Some 
of the lesser ones are getting lesser sentences.
    The Southwest border problems have been brought to 
congressional attention. They have also been brought to our 
attention, and we have seen the great rise in disparity there 
which accounts for an awful lot of it, although I notice that 
of those States that Mr. Steer had on his chart, three of them 
are within the eighth circuit and that is not the Southwest 
border where there has been such a great increase in drug 
trafficking. These courts are really hard-pressed to handle it 
all, and that accounts for part of the disparity there. So this 
is something that we will be looking at. We do have data on the 
reasons that judges give for departing, and this isn't part of 
what you have looked at yet. We will be looking at all of this.
    Senator Thurmond. I have a question for Judge Murphy and 
Mr. Steer, both. Has the Justice Department expressed concern 
to the Commission in the past few years about the increasing 
trend in downward departures?
    Judge Murphy. Well, the Justice Department has been working 
with us mainly through, of course, the ex officio member that 
is under the statute part of our Commission working on the 
issues that come up. And I would say that in my experience on 
the Commission since November, the Justice Department has 
expressed concerns about departures, expressed concerns about 
possible guidelines that would not accomplish something that 
would be a deterrence for crime. So I haven't seen any 
softening, if that is what the concern is.
    Senator Thurmond. Mr. Steer, do you want to answer that 
same question?
    Mr. Steer. Mr. Chairman, under the statute the Department 
of Justice is required to report annually to the Commission on 
areas of concern and the issues that they want us to address. 
As Judge Murphy indicated, they do that regularly through the 
ex officio designee of the Attorney General.
    I don't recall a letter that expresses a generalized 
concern about departure trends, but certainly there have been, 
as Judge Murphy indicated, a number of specific issues that the 
Department has brought to the Commission and on which we have 
worked together.
    Senator Thurmond. Mr. Steer, does the Department of Justice 
need to maintain oversight over the U.S. attorneys' offices 
regarding sentencing cases that need to be appealed to make 
certain that the Guidelines are not undermined by unwarranted 
downward departures?
    Mr. Steer. Mr. Chairman, I think the answer is clearly, 
yes, that they do need to do that. You mentioned in your 
opening statement some of the data that we presented from our 
appeals databank that indicate the rate at which appeals are 
being taken from downward departure cases, and generally that 
rate has been declining and is very low overall relative to the 
total number of downward departure decisions that are rendered.
    Senator Thurmond. Mr. Steer, do you believe the Department 
of Justice should encourage U.S. attorneys to be more 
consistent in how they apply substantial assistance and how 
they define what it means?
    Mr. Steer. Yes, Mr. Chairman, I do. I think it should be 
recognized that the Department has undertaken a number of 
initiatives in the substantial assistance area. Arguably, more 
could be done. Substantial assistance, without a doubt, in my 
view, is a critically important law enforcement tool.
    Congress made the decision that the downward departure for 
substantial assistance would be made only upon motion of the 
Government. In my view, that was the correct decision, and the 
Commission has followed suit and I think that was the correct 
course of action.
    What that means, though, because it is so important in the 
scheme things, is it, I think, warrants very close and 
continued monitoring from the Department of Justice down 
through the U.S. attorneys to the field to ensure that these 
departures are made in appropriate cases where they do further 
the goals that Congress had in mind, and at the same time 
substantial assistance downward departures are not used in 
cases where that kind of assistance has not been rendered as 
another way of achieving a lower sentence.
    Senator Thurmond. Mr. Steer, it seems that downward 
departures are being given for more and more creative reasons. 
For example, one of the top reasons for downward departures is 
for a defendant's mitigating role in the offense, but he can 
already get the benefit of this under a straightforward 
application of the Guidelines. Is this a problem?
    Mr. Steer. Well, it may be. I think that the data that we 
capture on the synopsis of the judge's reasons that the court 
indicates as reasons for downward departure--the shorthand in 
many instances may not indicate the full story. There may have 
been other factors that the court had in mind when it 
downwardly departed. But certainly the basic premise that you 
present is that when the Guidelines take a factor into account 
fully, then the court is not supposed to downwardly depart for 
that particular reason.
    Senator Thurmond. Senator Sessions.
    Senator Sessions. Thank you, Mr. Chairman.
    We are talking about an important issue. I believe the 
Department of Justice needs to be considering this and studying 
it to make sure they are consistent. And I think the judges 
need to watch it when we have a steady trend toward more 
departures for reasons outside of cooperation which should be 
properly utilized. So I am concerned about that.
    Judge Murphy, in general, we have many judges that come to 
the bench that have had no criminal experience. They have civil 
backgrounds, which is fine, but don't you think that the 
Guidelines help give them guidelines and help give them some 
comfort when they first walk into that courtroom and have to 
start sentencing people that are before them?
    Judge Murphy. Well, Senator Sessions, I am a convert to the 
Guidelines because I was appointed in 1980 under the old 
system. And like human nature, I guess, you know, you work in a 
system and you like it and you are suspicious of something new 
that comes along. But I am a big fan of the Guidelines and I 
think that they provide objective standards that are so useful.
    When I compare sentencing under the Guidelines to the prior 
difficulties that a judge would have in trying to make sure 
that you were dealing fairly with similar cases, it is vastly 
superior. And I think that the judges who have come on since 
the Guidelines have been in place accept them, and even those 
who were there before have used them.
    I know that you mentioned a case that I am not familiar 
with in the ninth circuit, and as an appellate judge I see 
cases sometimes where we reverse the judges because they 
haven't followed the Guidelines. But overall I think the 
judiciary has accepted them and see the value of them.
    Senator Sessions. I agree, I agree. Overall, the system 
accepted them, the appellate courts insisted that they be 
followed, and the Guidelines have been followed fundamentally.
    What we are seeing--and I think it is a bit troubling as a 
trend if it continues--could lead us to a point that we have a 
real concern. If you allow too many loopholes and you have 
8,000 cases and only 19 appeals and an awful lot of departures 
for novel reasons, then we could undermine that. I just think 
it is important that we do it.
    You mentioned your economic crimes conference. Are you 
reviewing economic crimes and considering changes in the 
Guidelines--I am just curious--for those kinds of cases?
    Judge Murphy. Yes; there has been a lot of concern about 
some of the Guidelines not punishing especially the higher-end 
economic crimes severely enough. There have been criticisms 
from a lot of judges about the loss tables, and I know that 
there was a package that was presented at an earlier time, 
money laundering, and so on, that didn't fare too well in 
Congress.
    Our staff has gone back and studied what the problems were 
there. We are working with the Department of Justice and other 
interested parties to come up with something that we hope will 
fly and that will be acceptable to Congress.
    On almost all of our votes this year, they were 7 to 0, and 
that wasn't because it is a lock-step group at all. It is seven 
independent individuals, but we spend a lot of time considering 
various options and talking them out, listening to people, and 
that was how we were able to come up with those votes.
    Senator Sessions. I think that is wise to consider that. My 
observation is we have muddled criminal law a lot. We have 
criminalized what would have been civil fraud in a lot of 
instances, perhaps, and maybe the defendant does not need a 
huge sentence, even though the large amount of money is 
significant, because the degree of criminality was not great.
    But there are a lot of crooks out there, really serious con 
men who, as soon as they are out of jail, will go right back to 
it again. I hope that you can continue to improve that area. I 
think in many instances it has been too light. This idea that 
only violent criminals need to go to jail is wrong. A lot of 
repeat economic criminals need to be in jail, too.
    Mr. Steer, I wanted to run through a few questions with 
you. You mentioned the Koon decision. There has been a shift. 
It also shifted some responsibility, or more, to the Department 
of Justice under Koon. Would you agree with that?
    Mr. Steer. In answer to your question, Senator, I think 
that Koon clearly, because it has necessarily meant that the 
courts of appeals were to be more deferential and more hands-
off in their reviewing of departure decisions, puts a greater 
responsibility both on the Department and the Commission to 
serve as a check through the policymaking process when there is 
found to be an excessive or unwarranted rate of departure or 
departures for circumstances that are inappropriate.
    Senator Sessions. We have seen a steady increase in 
departures. Let me ask you, do you think that at this point in 
time based on these trends that the Department of Justice needs 
to take seriously and try to address them, and that the 
Sentencing Commission needs to take seriously, and has the 
Sentencing Commission discussed it overall and does it have any 
plans to deal with the increase?
    Mr. Steer. Yes, it should be taken seriously by the 
Department and by the Commission. No, the Commission has not 
had an opportunity to discuss these issues overall. The data 
that we have presented today--as we indicated, the press of 
business has been so great since our initial appointment and it 
is not letting up. Nevertheless, I do think and hope, and I am 
sure the Commission will be considering these issues in 
conjunction with the Department of Justice in the future.
    Senator Sessions. Well, you mentioned in your statement, 
the written portion, that one of the problems involves the 
Department of Justice and the prosecutor, their lack of 
centralized tracking, oversight, and management of plea 
bargains around the country.
    And these numbers you have provided are pretty stunning. 
For example, the States with the lowest departure rates for 
other factors are Virginia-Eastern, 1.8; Alabama-Northern, 1.9. 
The ones with the highest departures are Arizona, 57; 
California-Southern, 49; Washington-Eastern, 40. Those are 
factors up to 20 times. Some may be driven by immigration, 
others are not. So I think your suggestion that we may be not 
having the uniformity of sentencing that we desired as a result 
of departures is a real and legitimate concern.
    Let me ask you, to your knowledge, is there someone in the 
Department of Justice who, to your knowledge, has 
responsibility for monitoring these kinds of issues, or was it 
only you that raised them and dug up these numbers?
    Mr. Steer. Well, the numbers were suggested by our data. I 
didn't have to dig. These are straight out of our annual 
report, redacted for the purpose of the hearing. I am not 
knowledgeable of the internal processes of the Department. To 
the best of my knowledge, there is not that single person, but 
certainly that question should be posed to the Department's 
witness.
    Senator Sessions. Thank you, Mr. Chairman.
    Senator Thurmond. Thank you.
    Senator Sessions. I thank both of you for your fine work on 
this issue. Justice needs to be even and fair. It should not be 
based on factors other than legitimate sentencing issues. I 
think the Guidelines have done a good job of identifying the 
most prominent sentencing issues, and most people today are 
sentenced according to that. We just need to maintain constant 
discipline and oversight, or I think these things can slip away 
from us.
    Thank you.
    Senator Thurmond. I wish to thank both of you for 
testifying today.
    Mr. Steer. Thank you, Mr. Chairman.
    Judge Murphy. Thank you.
    Senator Thurmond. Representing the Department of Justice is 
Mr. Laird Kirkpatrick. He is the Attorney General's designee to 
the Sentencing Commission and is counsel to the Assistant 
Attorney General for the Criminal Division. He is accompanied 
by Ms. Denise O'Donnell, the U.S. attorney for the Western 
District of New York.
    Mr. Kirkpatrick, please limit your remarks to no more than 
5 minutes. Your written statement will be included in the 
record, without objection. You may proceed.

 STATEMENT OF LAIRD KIRKPATRICK, ATTORNEY GENERAL DESIGNEE TO 
 THE U.S. SENTENCING COMMISSION, AND COUNSEL TO THE ASSISTANT 
    ATTORNEY GENERAL, CRIMINAL DIVISION, U.S. DEPARTMENT OF 
JUSTICE, WASHINGTON, DC; ACCOMPANIED BY DENISE O'DONNELL, U.S. 
             ATTORNEY, WESTERN DISTRICT OF NEW YORK

                 STATEMENT OF LAIRD KIRKPATRICK

    Mr. Kirkpatrick. Thank you, Mr. Chairman. We appreciate the 
opportunity to appear before you today at this hearing 
concerning the U.S. Sentencing Commission and Federal 
sentencing policy.
    We at the Department of Justice believe strongly that the 
U.S. Sentencing Commission and the Federal Sentencing 
Guidelines promulgated by the Commission play critical roles in 
the Federal effort to control crime. We are pleased to provide 
our views on current Federal sentencing policy, the important 
work being done by the Sentencing Commission, and the issues 
faced by the Commission in the coming years.
    Mr. Chairman, today's Federal sentencing system brought 
about by the Sentencing Reform Act of 1984 is very different 
from the inconsistent and uncertain system in place before the 
Act. It is a highly structured system that has brought greater 
uniformity and greater predictability to Federal sentencing.
    We think it is important to first express our overarching 
view that structured sentencing policy such as that under the 
Federal Sentencing Guidelines is far superior to the 
unstructured sentencing scheme that it replaced. And we would 
like to applaud you, Mr. Chairman, for your key role in passing 
the Sentencing Reform Act of 1984 which led to the creation of 
the Commission and the Sentencing Guidelines.
    Although the Sentencing Reform Act and the Federal 
Sentencing Guidelines have now been in place for well over a 
decade, we think there remains a critical role for the U.S. 
Sentencing Commission. The Sentencing Reform Act lays out many 
ongoing responsibilities for the Commission, responsibilities 
we think are vital to keeping the Federal Criminal Justice 
System working well.
    They include promulgation of new guidelines in response to 
new criminal legislation, monitoring the operation of the 
Federal Sentencing System, making adjustments to the Sentencing 
Guidelines as directed by Congress and as experience and 
research show to be necessary, and to serve as an important 
resource both to the Congress and the executive branch with 
respect to sentencing policy.
    We are particularly pleased that the Commission was 
reconstituted last year after an extended hiatus. We are 
exceedingly impressed with the ability and the dedication of 
the seven new voting members that are serving on the 
Commission. Speaking from a personal point of view, it is 
privilege to serve with these seven individuals.
    I think the Commission under Judge Murphy's strong 
leadership has accomplished a prodigious amount of work during 
its first amendment cycle, and the Commission only had 4 or 5 
months to do that work. The Department had urged the Commission 
to respond to the numerous congressional directives to enact 
new guidelines in response to new criminal legislation. We 
expected the Commission perhaps to deal with four or five of 
those directives. Instead, the Commission was able to amend 15 
guidelines in its first amendment cycle.
    We also urged the Commission to respond and attempt to 
resolve the numerous circuit conflicts in interpreting the 
Guidelines that were creating inconsistencies and disparities 
throughout the country. We thought the Commission might be able 
to deal with two or three during its first amendment cycle. It 
was able to resolve five of them.
    The Commission has now turned its attention to an ambitious 
new agenda of issues for the second amendment cycle, and the 
Department has put forth its issues which are accepted by the 
Commission as priorities to be considered during this amendment 
cycle. And we very much look forward to working with the 
Commission during the cycle to make the upcoming year an 
equally productive one.
    We believe that there are a number of areas where 
amendments are needed. I will just emphasize three in my 
testimony here today. The first is a very high priority for the 
Department of Justice, economic crimes. Economic crimes 
constitute nearly one out of four cases prosecuted in the 
Federal System, and serious questions have been raised as to 
whether the Guidelines for these offenses are appropriate in 
their current form or whether they need to be amended. We think 
it is vitally important that this area of law be 
comprehensively examined, and we commend the Commission for 
convening the 2-day conference that is now being held at George 
Mason Law School to explore these issues.
    Second, we think it is important that the Commission 
address the guidelines for money laundering offenses. This has 
been a source of contention and concern for almost 10 years. 
Congress has urged the Commission and the Department to work 
together, and we are doing so with the Commission and hope to 
be able to have guidelines in this area by the end of this 
amendment cycle.
    Third, we urge the Commission to continue its work 
implementing the Sexual Predators Act. Last year, the 
Commission made great strides in addressing the very serious 
problem of child exploitation and child sex crimes, including 
crimes facilitated by the Internet and involving interstate 
travel. As with economic crimes, the Internet and other 
technologies are changing the way sex crimes against children 
are being committed. We believe that it is critical that our 
laws keep current and that this devastating crime problem be 
forcefully addressed.
    Thank you, Mr. Chairman, for the opportunity to appear 
before you today, and I would be pleased to answer any 
questions that the committee may have.
    Senator Thurmond. Mr. Kirkpatrick, is the Attorney General 
aware that more and more criminals are receiving sentences 
below the Guidelines every year, and does she view this trend 
as a problem?
    Mr. Kirkpatrick. We are certainly aware of the statistics, 
Mr. Chairman. We have the same data that the Sentencing 
Commission does and we do monitor this and track it. We are 
concerned and are reviewing the situation. We do feel that a 
major part of the Department's resources in sentencing matters 
are to defend the Guidelines, to keep the sentences within the 
range.
    Apart from substantial assistance which we view as a law 
enforcement tool, and we will talk about that separately if you 
would like, the guideline sentences are within 84 percent of 
the cases nationwide. If you exclude the Southwest border, the 
sentencing within the Guidelines is even higher. And it is the 
Department on a case-by-case basis that is resisting efforts by 
defendants to have downward departures.
    So in a very high percentage of the cases, the Department 
is playing an active role to urge the court not to grant a 
sentence outside the Guidelines range. And we feel there is 
other data that should perhaps be put before this committee 
about the number of cases where it is the defendant that is 
seeking to have the sentence outside the Guidelines range and 
the Department is resisting.
    Last year, there were 4,000 cases that reached appeal 
alone. There were many more cases than that that were resolved 
at the trial level, but there were 4,000 cases where the 
defendants were trying to have a sentence outside the 
Guidelines range where the Department was responding to the 
defendant's appeal and urging that that sentence be confined to 
the Guidelines range and we won 80 percent of those cases. So I 
think the Department is playing a very key role in monitoring 
the Guidelines and trying to keep the sentencing within the 
appropriate Guidelines range.
    Senator Thurmond. Mr. Kirkpatrick, you state in your 
prepared testimony that the Commission should examine the trend 
in downward departures and determine whether there is cause for 
concern. Does the Department of Justice also have a duty to do 
its part to uphold the Guidelines?
    Mr. Kirkpatrick. We certainly do have a duty, Mr. Chairman, 
and we try to do that in every case where we feel a departure 
outside the Guidelines is inappropriate to represent the 
Government's view on that issue.
    I think what we are finding and what I was referring to in 
my testimony is a particular concern in the Southwest border 
States where that is what is playing the most significant role 
in driving the upward departure range. And we have discussed 
that issue with the Commission, put some of the Southwest 
border issues on the agenda of the Commission to see if there 
is a way to deal with the exigencies that are causing 
sentencing outside the Guidelines in that area. And we look 
forward to working with the Commission in this amendment cycle 
to deal with those issues.
    Senator Thurmond. Mr. Kirkpatrick, it appears that only a 
little over 60 percent of Federal defendants are sentenced 
within the Guidelines today. If the downward departure trends 
continue, does there reach a point where the Guidelines system 
is undermined?
    Mr. Kirkpatrick. We certainly would be concerned if it 
reached a higher point, Mr. Chairman, and that is why with 
substantial assistance we are monitoring that. And as your 
chart indicates, the substantial assistance departures are 
actually declining in recent years, a slight downward trend. We 
do monitor those, although we view those as an extremely 
important law enforcement tool that must be considered 
separately from the issue of departures on other grounds.
    The way we largely deal with departures on other grounds, 
in addition to litigating attempts by defendants to depart 
downward, is to try to treat these cases that involve new areas 
of law as a test case and try to persuade the courts that a 
certain type of downward departure is inappropriate.
    We have litigated, for example, the issue of whether post-
conviction rehabilitation should be a ground for downward 
departure. We won in some circuits, we lost in others. But we 
were ultimately successful by taking that issue to the 
Sentencing Commission last year and the Sentencing Commission 
agreed that that should not be an appropriate ground of 
downward departure and added it as a prohibited factor, and 
that amendment will become effective November 1.
    We also took two other issues to the Commission where we 
felt downward departures were inappropriate. One involved 
aberrant behavior, where we asked the Commission to adopt a 
guideline narrowing the definition of aberrant behavior as a 
basis for downward departure. Some circuits have given a very 
broad definition of that term. And the Commission did adopt a 
version that is narrower than many circuits were applying.
    The third issue that we took to the Commission last year 
had to do with a case from the third circuit, the Smith case, 
United States v. Smith, where the third circuit had taken a 
money laundering conviction and decided it really was more of a 
fraud conviction and sent it down to be sentenced under the 
fraud guidelines. That, in our opinion, very much undermines 
the guidelines structure if courts can pick and choose and 
sentence on a different guideline than the guideline of 
conviction.
    So we proposed to the Sentencing Commission that the rule 
be amended, the guideline be amended, and require judges to use 
the guidelines from the sentencing guideline index that is 
applicable to the crime of conviction. The Commission agreed 
with us. They changed the guideline, and that is now the law 
and that will prevent us having to litigate that Smith case 
issue throughout the country.
    Senator Thurmond. Mr. Kirkpatrick, as more defendants are 
sentenced below the Guidelines, it would seem that the 
Department would appeal more Guidelines cases. However, just 
the opposite has occurred. Should the Department place more 
attention on appealing sentencing decisions as a way to uphold 
the Guidelines?
    Mr. Kirkpatrick. We do, Mr. Chairman, attempt to take those 
cases up where we feel it can have a significant impact. The 
problem we are having is after the Koon case, the standard for 
appellate review of a sentencing judge's decision is now abuse 
of discretion, and it is very difficult to win those cases on 
appeal.
    In fact, of the cases that we are taking up, according to 
the Sentencing Commission data--it has it right in the green 
book that is being used as a basis for these charts--we are 
losing over 50 percent of those appeals. It is hard to persuade 
the appellate courts to reverse on an abuse of discretion 
standard.
    We are also finding that even if we win, it doesn't have a 
lot of precedential value. One court was reversed for abusing 
its discretion. That doesn't necessarily affect another court. 
So we find it more effective to litigate the legal issue--is 
this a permissible basis for downward departure--or to take 
that issue to the Commission. But we certainly urge the U.S. 
attorneys to bring cases to us where they feel an appeal has a 
possibility of success and we do take up a number of those 
cases.
    Senator Thurmond. Senator Sessions.
    Senator Sessions. Well, I am troubled by that philosophy. I 
think, first of all, you concede the case at hand if you don't 
appeal. Isn't that correct, the injustice that may have 
occurred?
    Mr. Kirkpatrick. I am sorry, Senator.
    Senator Sessions. On the appeals question, deciding to go 
to the Commission will not reverse the injustice that occurred 
in the trial court. It just may potentially help in the future 
those kinds of cases from occurring.
    Mr. Kirkpatrick. Well, usually, Senator, we have tried to 
litigate that issue beforehand, like post-conviction 
rehabilitation. We litigated that. We won that in some 
circuits, we lost it in others.
    Senator Sessions. You are talking about in general, but I 
am talking about real life. Real life is everybody knows what 
the Guidelines are. The judge doesn't like the Guidelines and 
he departs downward, for some reason. You have got 19 appeals 
out of 8,304 in 1999. If you don't appeal more than that, 
judges, in my experience, will get the message that they can do 
what they want to and nobody is going to appeal. Isn't that a 
problem?
    Mr. Kirkpatrick. Well, we are looking at that issue and we 
are willing to have further discussions with the Sentencing 
Commission about that issue. I think the statistics show there 
were 35 appeals back in 1993. I don't think there has been that 
dramatic a drop. So far this year, we have got about 20 and we 
may be back up to 35.
    But I think our view is that that is an effective tool. It 
is something we want to do. We want to appeal cases where we 
feel judges have really gone beyond their scope of discretion 
under the Guidelines. But given the resources we have, we find 
we are having more impact by litigating a legal issue or 
getting it simply resolved that that is an improper ground of 
departure.
    Senator Sessions. Well, one of the factors in gaining 
control of a system that may be slipping out of control is to 
use the appeal process. Wouldn't you agree?
    Mr. Kirkpatrick. I agree, Senator.
    Senator Sessions. And would you not agree that with regard 
to other reasons for other downward departure reasons that in 
1992, when I left office as U.S. attorney, there were 6.1 
percent downward departures for other reasons and now it is 
15.8 in 1999, which is a 150-percent increase in that area?
    I think all of us are concerned that that other reason can 
become the door through which too much can occur. So, that 
concerns me. Have you all discussed that in the Department of 
Justice that we have got a 150-percent increase in other 
departures?
    Mr. Kirkpatrick. We have, Senator, and we are monitoring 
that and the biggest source of those statistics is the 
Southwest border area. We are concerned about that.
    Senator Sessions. I think that is true, although I am not 
sure what to do about it, but that is true.
    If somebody would put up chart number C-3.
    If you look at the chart that has been produced there, on 
robbery you have got a 50-percent increase, or more. Look at 
firearms. This administration is beating up all of us on 
Congress on a regular basis; we don't do enough to pass more 
laws about firearms. But since this administration took office 
in 1992, you have got almost a doubling of downward departures 
in firearms cases.
    You do show the huge increase there in immigration, but the 
trend is up in every area, more than a 30-percent increase, I 
suppose, in economic fraud cases. But those are trends across 
the board, and I guess what I am asking you is do you think 
that there is a responsibility on behalf of the Department of 
Justice and the Attorney General to examine these numbers, to 
study what is happening, and to ensure that U.S. attorneys are 
watching these matters in their districts and attempting to 
have some uniformity here?
    Mr. Kirkpatrick. I agree totally, Senator. I think we do 
have that responsibility. I do feel that the Department is 
defending the sentencing system, though. We did not have a 
chance actually to review this document at a formal Sentencing 
Commission meeting and would like to supplement it with the 
cases where the Department was successful in resisting other 
downward departures.
    I mean, there are numerous motions for downward departure 
that we have been successful on. To some extent, this trend 
that you are seeing, going from 9 percent to 11 percent in a 
particular crime, are cases where we were unsuccessful in 
resisting the downward departure, and we remain concerned about 
that. We usually are opposed at the trial level.
    I do think the Koon case, as Commissioner Steer 
acknowledged, has created a very difficult problem for us. It 
has changed the standards that the appellate courts apply in 
reviewing our appeals and it has made it much more difficult 
for us to take those cases and be successful at the appellate 
level.
    And I think just institutionally the Department of Justice 
is concerned about its credibility. If we get down to a point 
of winning only 20 percent of the cases, we kind of lose our 
institutional credibility. I think we like to take cases up 
where we think we can win and we can persuade the appellate 
court that the case should be reversed.
    Senator Sessions. Well, let's take a case like John Huang, 
in California. I don't believe that the guidelines were 
followed. The U.S. attorney just knuckled under or agreed to a 
factor so that John Huang could be given probation and not 
serve a day in jail. So they were in cahoots, in my view, the 
judge and the U.S. attorney. Both knew, or should have known 
that in that high-profile case probation wasn't justified. But 
no appeal was taken, no complaint was rendered.
    All I'm saying to you is if the leadership is not strong 
from the Department on even high-profile cases, then the word 
is going to get out to assistants who maybe don't want to 
prepare for trial next week and spend all weekend getting ready 
for trial to just take this plea and let it go away.
    Your trials are down for the Department, are they not, 
throughout the country?
    Mr. Kirkpatrick. I don't have the statistics in front of me 
for that, Senator, but we would be happy to get them for you.
    Senator Sessions. Well, your budget has doubled since 1992. 
You have got a 19-percent increase in assistant U.S. attorneys. 
The number of cases tried to completion has declined by 40 
percent. So, that suggests to me that there has been an 
increased emphasis on pleas. Pleas are important. You can't try 
every case. Plea bargains have got to be done, but the trends 
are troubling to me, is all I am saying to you.
    And I hope that you will listen to the concerns here and 
realize that sometimes the Attorney General has got to send a 
signal that you have got to be more disciplined. The U.S. 
attorneys have got to supervise their assistants and look at 
these districts that have widely differing sentencing rates 
between districts and ask some of the most aberrational 
districts why they are so far out of shape.
    Mr. Kirkpatrick. We do share your concern, Senator, and we 
do hear your concerns and we share them. And we will continue 
to monitor the enforcement of the Guidelines.
    Senator Sessions. I will just ask you, has any U.S. 
attorney been called on the carpet to discuss these issues?
    Mr. Kirkpatrick. I would not be the one to do that, so I 
guess I can't answer the question whether somebody in the 
Department has. I do have with me Denise O'Donnell, from the 
Attorney General's advisory committee who is representing the 
U.S. attorneys nationwide, and perhaps she would want to 
respond to some of these issues herself.
    Senator Sessions. I am sorry to take the chairman's time. I 
am taking too much time. This is an issue of interest to me. 
Briefly, I would be delighted to hear from you, Ms. O'Donnell.
    Ms. O'Donnell. Well, thank you very much, Senator. I too 
would like to thank Senator Thurmond for the leadership that 
you have shown in this area, Senator, with the Sentencing 
Guidelines. Like Judge Murphy, I am a big fan of the Sentencing 
Guidelines.
    I can tell you, Senator Sessions, that the U.S. attorneys 
community is very grateful that we have someone sitting in the 
U.S. Senate who has been an assistant U.S. attorney, as well as 
a U.S. attorney.
    Senator Sessions. Assistant was the best job.
    Ms. O'Donnell. I agree with that.
    I have been in the Department of Justice for 15 years, 
Senators, and I can tell you that the U.S. attorneys today are 
as committed as they ever were during the last 15 years to the 
goal of uniformity in sentencing. We share your concerns.
    I believe that the factors that we have discussed here--the 
Koon decision and the particular situation on the Southwest 
border--are responsible for the great majority of the 
departures that we are seeing, and I think this hearing is 
demonstrating that today.
    I would like to talk for a minute about the Southwest 
border because the U.S. attorney in Arizona, Jose Rivera, has 
told me that last year, in 1999, there were over 550,000 Border 
Patrol apprehensions of illegal aliens in Arizona alone. Those 
individuals could be prosecuted if we had the resources to do 
that. We don't, but we are doing the best job that we can on 
the Southwest border issues.
    Congress has provided for a substantial increase in Border 
Patrol resources on the Southwest border, but we don't have the 
same kind of resources in the U.S. Attorneys' Offices and in 
the courts to address that kind of a workload and it has 
created an emergency crisis in terms of law enforcement on the 
Southwest border.
    And the response has been a troubling one in terms of 
uniformity in sentencing throughout the country, and I think 
that is a profound challenge for all of us to figure out how we 
can maintain uniformity in sentencing in those districts and at 
the same time meet this huge law enforcement challenge. And we 
have found so far that we can't unless we devise plea policies 
that will result in substantial departures for the individuals 
that we are prosecuting in those cases.
    In more direct response to your question, I don't know if 
we could call it calling people in on the carpet. Our problems 
in our districts are very different. I think you know, Senator 
Sessions, that the reason we have 93 U.S. attorneys is we have 
very, very different situations within our districts. We have 
different crime problems, we have different resources, we have 
different priorities, we have different partnerships with our 
State and local partners that determine the kinds of cases that 
we prosecute within our different districts.
    And that provides for on the investigation side and the 
prosecution side a great deal of difference between our various 
districts. Yes, because of that, we still have to find a way to 
wrestle with those problems and still result in a substantial 
uniform way of sentencing under the Sentencing Guidelines. And 
we are working very, very hard to do that within our districts.
    We on the Attorney General's advisory committee do discuss 
these issues. We haven't had an opportunity to share this 
particular data yet with the Attorney General or with the U.S. 
attorneys on the advisory committee. We have discussed the 
situation on tahe Southwest border. We have discussed the Koon 
situation, the extent to which our circuits vary with the kinds 
of departures that they are allowing and permitting judges to 
make, and these issues are issues of great concern.
    But I just want to really assure you that this is a very 
important issue to us and that we are committed to the goals 
that you have discussed here and brought up at these hearings.
    Thank you.
    Senator Thurmond. Ms. O'Donnell, I recognize that some 
districts must handle an ever-increasing number of aliens 
crossing the Southwest border. However, it appears that today 
almost half of those who are caught smuggling aliens across the 
border are being sentenced below the Guidelines, many with 
Government approval, even though Congress expressly ordered 
harsher penalties for alien smugglers in 1996.
    Should fast-track policies benefit alien smugglers?
    Ms. O'Donnell. Well, Senator, I don't think that I can 
answer the question quite in that form. I think we are not 
trying to benefit alien smugglers. What we are trying to do is 
enforce the Federal law which is in alarming proportions of 
cases in those districts.
    I think the real question to us is do we prosecute these 
cases in the best way that we can with the resources that we 
have, or do we have to back away from the challenge that it 
presents, or can we get more resources from Congress in order 
to do the job the way that we need to do it. Given the choices, 
which is either right now to do the cases under a fast-track 
system or not to do the cases in the record number in which we 
are trying to address the cases, it presents a very difficult 
situation for us.
    Senator Thurmond. Mr. Kirkpatrick, in some districts 
defendants get the benefit of a substantial assistance 
departure about 50 percent of the time, while in others they 
only get it 5 percent of the time. What specific action has the 
Attorney General taken during her tenure to encourage U.S. 
attorneys to have some consistency on how they define and seek 
to grant substantial assistance for cooperating with the 
Government?
    Mr. Kirkpatrick. Senator, we are concerned about having 
consistency with respect to substantial assistance motions. In 
the U.S. Attorneys Manual, it is required that within each 
district a supervising attorney or even a review committee has 
to approve substantial assistance departures. So, that is a way 
of ensuring consistency within each district.
    The U.S. Attorneys Manual goes on to say that the co-
defendants in a similar case--if you recommend a certain level 
of downward departure for one defendant, you have to make that 
proportionate to another defendant in that case. The issue you 
raise is disparities among the different districts. That does 
concern us. We are looking at that data.
    One thing we have found from that data is that sometimes it 
makes it look as though the disparity is greater than it is 
because the data only picks up substantial assistance 
departures made under 5(k)(1). It does not pick up substantial 
assistance under rule 35. Some districts that look like they 
don't have any substantial assistance departures compared to a 
district next door actually have the same level of departures, 
but they are simply doing it by rule 35.
    So we have found that the disparities are not quite as 
great as the data makes it appear. We have also found that 
sometimes the sentence length, despite differences in 
substantial assistance, is very close between districts. But we 
are concerned about this issue and are monitoring it and, in 
fact, have drafts of guidelines we are thinking to possibly 
promulgate to the U.S. attorneys.
    We are working with the Attorney General's Advisory 
Committee on Sentencing Guidelines, circulating possible draft 
criteria to define substantial assistance to further create 
uniformity among districts throughout the country.
    Senator Thurmond. Mr. Kirkpatrick, should an offender be 
able to get the benefit of a downward departure for substantial 
assistance when he only provides the prosecutor information the 
Government already knew?
    Mr. Kirkpatrick. Generally, that would not qualify, but 
there is some discrepancy, some disparity among districts on 
that issue. It is perhaps an issue that should be addressed by 
the Sentencing Commission and given further definition. We 
would be happy to work with the Commission on that.
    I don't know if Ms. O'Donnell has anything to add.
    Ms. O'Donnell. Well, the only thing I would add is if the 
individual is testifying, for instance, the Government may have 
known the information. But we require defendants to actually 
provide substantial assistance against another individual in 
order to qualify for a 5(k)(1.1) departure.
    I think the other point is that these departures are 
reviewed very carefully by the court. We are required to file 
memoranda under seal with the court explicitly describing the 
nature of the cooperation, the cases and the results of the 
cooperation, whether in our district or other districts, to 
provide a full record to the court before the court actually 
sentences the defendant and determines the amount of the 
departure.
    Senator Thurmond. Senator Sessions.
    Senator Sessions. Thank you, Mr. Chairman.
    That was a very interesting question. I am somewhat of the 
belief that two witnesses may be more valuable than one. Just 
because one has given the testimony first doesn't mean you 
might not want three witnesses testifying against the main 
culprit if you are moving along wisely. So, that is a difficult 
question. I am inclined to think that more than one person can 
get a benefit from a downward departure in a certain case, but 
you have to use good judgment in that.
    Thank you, Mr. Chairman.
    Senator Thurmond. I wish to thank both of you for being 
here today and you are now both excused.
    Mr. Kirkpatrick. Thank you.
    Ms. O'Donnell. Thank you very much.
    [The prepared statement of Mr. Kirkpatrick follows:]

                Prepared Statement of Laird Kirkpatrick

                              INTRODUCTION

    Mr. Chairman, members of the Subcommittee: My name is Laird 
Kirkpatrick, and I serve as Counsel to the Assistant Attorney General 
for the Criminal Division of the Department of Justice and also as 
Commissioner ex-officio on the Sentencing Commission representing the 
Attorney General. With me is Denise O'Donnell, United States Attorney 
for the Western District of New York, and Daniel French, United States 
Attorney for the Northern District of New York. We very much appreciate 
the opportunity to appear before you today at this hearing concerning 
the United States Sentencing Commission and federal sentencing policy. 
We at the Department of Justice believe strongly that the United States 
Sentencing Commission and the federal sentencing guidelines promulgated 
by the Commission play critical roles in the federal effort to control 
crime, and that Congress is to be commended for establishing the 
Commission and the procedures under which is operates. We are very 
pleased to be here today to provide our views on current federal 
sentencing policy, the important work being done by the Sentencing 
Commission an the Commission staff, and some important issues facing 
the Commission in the coming years.

CURRENT SENTENCING POLICY IS A SIGNIFICANT IMPROVEMENT OVER THAT WHICH 
            EXISTED BEFORE THE SENTENCING REFORM ACT OF 1984

    We believe it is government's first responsibility to protect the 
well-being of its citizens. For more than three decades now, this 
country has been struggling with the profound problem of crime. As you 
know Mr. Chairman, crime rates began to rise dramatically from historic 
norms in the early 1970s. And while the national violent crime rate has 
fallen significantly in each of the last seven years, crime continues 
to occur at an unacceptably high level. Just as importantly, as 
technological and social change has accelerated, new criminal threats 
continue to emerge. At the same time, new opportunities arise--as a 
result of technology and otherwise--to fight crime through innovative 
policies and strategies. Federal, state, and local governments have 
been working hard to develop and implement successful policies to 
combat crime. And it has become increasingly clear that an effective 
sentencing policy is one crucial element of any effective crime 
fighting policy.
    The federal sentencing system in place before the Sentencing Reform 
Act of 1984--the Act that created the Sentencing Commission--was almost 
entirely discretionary. Choosing a sentence for those convicted of 
federal offenses was left almost entirely to the unfettered discretion 
of federal judges and essentially was ungoverned by law. Beyond a 
statutory direction limiting the maximum sentence, individual judges 
had the choice to decide what factors in a case were relevant to 
sentencing and how such factors should be weighted. Not surprisingly, 
sentencing outcomes under this system were inconsistent from judge to 
judge and from district to district.
    In 1984, Congress found this discretionary system too often 
resulted in unacceptable outcomes and that inconsistent sentences were 
not compatible with effective crime fighting, equity or fundamental 
fairness. Mr. Chairman, today's federal sentencing system--brought 
about by the Sentencing Reform Act, as implemented by the Commission, 
federal judges, prosecutors, probation officers, and defense 
attorneys--is very different from the inconsistent and uncertain system 
in place before the Act. It is a highly structured system that has 
brought greater uniformity and greater predictability to federal 
sentencing. It is a system not without significant flaws, some of which 
I will touch on in a few minutes. But we think it is most important to 
first express our overarching view that structured sentencing policy--
such as that under the federal sentencing guidelines--is far superior 
to unstructured sentencing policy. And we believe sentencing guidelines 
are a key component of an effective structured sentencing policy.

   THE ROLE OF THE SENTENCING COMMISSION AND THE NEWLY RECONSTITUTED 
                         SENTENCING COMMISSION

    Although the Sentencing Reform Act and the federal sentencing 
guidelines have not been in place for well over a decade, we think 
there remains a critically important role for the United States 
Sentencing Commission to play now and in the years to come. The 
Sentencing Reform Act lays out many ongoing responsibilities for the 
commission--responsibilities we think are vital to keeping the federal 
criminal justice system working well. These include monitoring the 
operation of the federal sentencing system, making adjustments to the 
sentencing guidelines as directed by Congress and as experience and 
research show necessary, and serving as an important resource that, 
together with Congress and the Executive Branch, can ensure that the 
country has effective crime control and sentencing policies.
    Guidelines amendments ensure that federal sentencing policy is up 
to date and as Congress and the Commission intend by resolving 
interpretive conflicts among the courts, responding to changing 
criminal justice priorities, and making the guidelines as workable as 
possible for real practitioners. The commission's extensive monitoring 
and research capabilities track the federal criminal justice system and 
specifically the way of the guidelines are applied within the federal 
criminal justice system. These capabilities are invaluable tools to 
track the cases flowing through the federal criminal justice system and 
the effectiveness of various crime and sentencing policies. And the 
Commission's training programs help to educate practitioners--judges, 
probation officers, prosecutors, and defense counsel--on the mechanics 
of guideline application. All in all, the commission and its staff help 
to ensure that federal sentencing policy is as effective and efficient 
as possible.
    We are especially pleased that the Commission was reconstituted 
last year after an extended hiatus and that it is working hard to 
address the significant backlog of congressional directives and 
important pending sentencing issues. Under Judge Murphy's strong 
leadership, the Commission has quickly found its footing, and in about 
six months after being confirmed by the Senate in late 1999, it has 
already sent to Congress important sentencing guideline amendments 
addressing issues like child sex offenses and methamphetamine 
trafficking. The Commission has now turned its attention to examining a 
new agenda of issues, and we look forward to working with the 
Commission to make this upcoming fiscal year a productive one.

                      SENTENCING ISSUES OF CONCERN

    As the Commission moves into the new fiscal year, there are many 
serious sentencing policy issues of concern to us, to other federal 
criminal justice practitioners, and to the nation at large. Some of 
these issues deal with individual sentencing guidelines and particular 
classes of crime; others with the guidelines as a whole; and still 
others with national and macro trends in sentencing and corrections. We 
believe the commission is in a unique position to address all of these 
types of issues, and we believe it must make time for all of them. Let 
me address each briefly.

1. Individual guidelines and crime types
    As I stated earlier, one of the Commission's important 
responsibilities is to amend the guidelines as needed to bring about 
the most effective, efficient, and just sentencing policy. We believe 
there are many individual guidelines and specific crime types that call 
out now for guideline amendments. I will mention just three here, 
although there are many. First, the Commission has been studying for 
several years sentencing policy for economic crimes. These crimes 
constitute nearly one out of every four cases prosecuted in the federal 
system, and serious questions have been raised as to whether the 
guidelines for these offenses are appropriate in their current form or 
whether they need to be amended. We think it is vitally important that 
this area of the law be comprehensively examined, and we commend the 
Commission for convening a two-day conference, to be held next month, 
to explore the many issues surrounding sentencing policy for economic 
crimes. We also commend the Commission for seeking to develop guideline 
amendment proposals to address many of the issues that have already 
been raised surrounding sentencing policy for economic crime and for 
striving to vote on such proposals in this amendment year.
    Second, we think it is important that the Commission address the 
guidelines for money laundering offenses. Significant concern has been 
raised around these guidelines--from Congress and otherwise--and we 
have begun working with the Commission to develop proposals that 
address the areas of concern.
    Third, we urge the Commission to continue and finish its work 
implementing the Sexual Predators Act. Last year, the Commission made 
great strides in addressing the very serious problem of child 
exploitation and child sex crimes, including sex crimes facilitated by 
the Internet and those involving interstate travel. As with economic 
crimes, the Internet and other technologies are changing the way sex 
crimes against children are being committed. We believe it is critical 
that our laws keep current and that this devastating crime problem be 
forcefully addressed.

2. The guidelines as a whole
    As I said, in addition to crime- or guideline-specific issues 
facing the Commission, we believe there are a number of issues 
impacting the guidelines as a whole that need thorough examination. 
Again, let me mention just a few here. First, over the last five to ten 
years, fewer and fewer cases are being sentenced within the sentencing 
range dictated by the guidelines. In 1990, well over 80 percent of all 
federal criminal cases resulted in sentences within the guideline 
sentencing range. That number has steadily declined over the last ten 
years. In fiscal year 1999, only 65 percent of cases were sentenced 
within the guideline range. We think the Commission ought to seriously 
examine this trend and determine whether there is cause for concern 
and/or some reform.
    Second, over the past several years, the number of federal criminal 
cases arising from the southwest border states has increased 
significantly. This has been a result of increased resources requested 
by the President and provided by Congress going back five or more 
years. Unfortunately, this increased enforcement has not been 
accompanied by commensurate increases in judges, defense attorneys, 
probation officers, or prosecutors. This has resulted in a number of 
districts, including the Southern District of California, the District 
of Arizona, the District of New Mexico, and some of the districts in 
Texas, where court personnel face caseloads that cannot be processed 
through the very labor intensive sentencing procedures mandated by the 
guidelines for most cases. Different border districts have confirmed 
and addressed these caseload issues with different strategies, each of 
which raises policy matters concerning the concerning the guidelines, 
uniformity in sentencing, and crime control. We at the Department of 
Justice have been examining some of these issues recently, and we 
believe that further discussion if needed.

3. National and macro sentencing issues
    Finally, we believe that the Sentencing Commission ought to 
seriously examine a number of national, macro trends in sentencing and 
corrections policy. While the Commission has seen the guidelines as its 
primary responsibility, we believe that some of these broader areas are 
certainly also within the Commission's mandate, and we hope Judge 
Murphy and the other commissioners will make time to address them. Let 
me again mention just two.
    First, as most people here are now well aware, at this moment, 
there are somewhere around two million people in our nation's prisons 
and jails. While there is nothing scientifically significant about this 
number, it is nonetheless a startling number and should cause us to 
being to serious examine our national sentencing and corrections 
policies. Of equal or greater concern for those working in the federal 
criminal justice system, in a time of decreasing crime rates, the 
growth in the federal prison system is actually accelerating. These 
facts, together with realization that tens of thousands of prisoners 
are being released from federal prisons into our communities each 
year--and over 600,000 prisoners nationwide are being released into the 
community--are cause for out attention. We think the United States 
Sentencing Commission ought to be leading the examination of these 
matters, and we look forward to the chance to work with the Commission 
on them in the near future.
    Second, as we have seen all around us and as I have referred to 
already, technology is changing our society. Emerging technology 
present vast new opportunities for increased productivity. Successful 
private sector companies are using technology to deliver better 
products and services less expensively. Criminals of all stripes are 
using technology to prey on victims--using the Internet to lure 
children from state to state to commit sex offenses; committing 
securities and other types of frauds using advanced telecommunications; 
or laundering drug proceeds using the international banking system 
facilitated by technology. We believe that in the public sector we must 
also use technology to find new ways of addressing crime and of making 
our criminal justice system more productive.
    At the Department of Justice, we are already utilizing new 
technologies to root out and prosecute crime and in the operations of 
the Federal Bureau of Prisons. However, in the coming years, as new 
technological development accelerates, we believe that sentencing and 
corrections will be fundamentally transformed. In addition to the 
development of technologies we cannot now even imagine, existing 
technologies such as tracking and location systems, treatment regimens, 
and risk assessment vehicles will all continue to develop and present 
vast new opportunities to make sentencing and corrections much more 
effective in controlling crime and to result in better outcomes for 
victims, offenders, and society as a whole. We again urge the 
Commission to be at the forefront of these technologies changes and 
help lead up to these new opportunities.
    Mr. Chairman, I thank you again for giving me the opportunity to be 
here. I would be happy to respond to any questions the Subcommittee 
might have.

    Senator Thurmond. Our next witness is Ms. Carmen Hernandez, 
who serves on the board of directors of the National 
Association of Criminal Defense Lawyers. She has been a 
criminal defense attorney for nearly 2 decades.
    Our final witness is Mr. Bill Otis. In 1974, Mr. Otis 
joined the Criminal Division of the Justice Department and 
later moved to the U.S. Attorney's Office for the Eastern 
District of Virginia, where he was chief of appeals from 1993 
to 1999.
    We ask that each of you speak for no more than 5 minutes, 
and we will place your written statements in the record, 
without objection. We will start with Ms. Hernandez.

 PANEL CONSISTING OF CARMEN D. HERNANDEZ, NATIONAL ASSOCIATION 
  OF CRIMINAL DEFENSE LAWYERS, WASHINGTON, DC; AND WILLIAM G. 
   OTIS, FORMER ASSISTANT U.S. ATTORNEY, EASTERN DISTRICT OF 
                   VIRGINIA, FALLS CHURCH, VA

                STATEMENT OF CARMEN D. HERNANDEZ

    Ms. Hernandez. Good morning, Mr. Thurmond. Good morning, 
Mr. Sessions. Thank you very much for inviting me.
    The Sentencing Guidelines were born of a very noble concept 
to provide fairness in sentencing, to eliminate unwarranted 
disparity, and to bring the sentencing process into the open, 
to bring it out of the dark room of the Parole Commission into 
the open.
    Very wisely, I think, you retained the discretion of 
Federal judges to depart, and that is what has provided the 
fairness in the Guidelines. That is the theory. I am here to 
tell you that in practice the Guidelines have created a 
problem, although the testimony before me doesn't seem to have 
brought it out. In fact, sentences on defendants are very harsh 
these days, I mean, make no mistake about it.
    Almost 90 percent of Federal defendants who are convicted--
and that is all types of crimes, from class A misdemeanors to 
the most serious offenses--go to jail. The mean sentences for 
crack offenders, for example, are 10 years, even though drug 
offenders, almost 90 percent of them, do not involve guns or 
violence and almost 50 percent of them are first-time 
offenders.
    The flaw, I believe, at the core of the Guidelines is that 
it has transferred authority and discretion from Federal 
judges, who are constitutional officers, article III judges who 
are appointed by the President and confirmed by you, to 
prosecutors over whom there is absolutely no authority in 
Congress or the President really to hire. They may be good, 
they may be bad.
    And the decisions made by prosecutors are made in the 
darkness of their offices, just like the decisions made by the 
Parole Commission. A Federal judge who departs has to, 
according to the Guidelines, give reasons, make a statement. 
His decision is appealable, his decision can be reversed by a 
Federal court. The decisions of Federal prosecutors for the 
most part are unreviewable. So I want to suggest to you that, 
if anything, you should make changes to give Federal judges 
more discretion, not less discretion.
    The second bad thing in practice that has coincided with 
the Sentencing Guidelines is that there is an increased 
disparity in the racial and ethnic makeup of the Federal prison 
population. Almost 39 percent of Federal prisoners are now 
Hispanic. Much of that is due to our immigration laws, but it 
is an issue.
    Almost 27 percent of Federal prisoners are black. That is a 
disparate impact which I suggest to Congress you should review. 
It is inconsistent with the primary purpose of the Guidelines 
to bring fairness and to take away unwarranted disparity, and 
much of that disparity can be attributed to the crack statute 
and to the immigration policies. And I truly commend to the 
Congress that you take a look at these issues.
    I understand that your greatest concern today is to discuss 
departures, and so I will tell you that departures are probably 
the only thing in the Guidelines from my perspective that is 
working properly and according to the way Congress intended.
    I will tell you that, in fact, in most districts, with the 
exception of a handful of them that involve either the border 
States or districts that have a lot of immigration cases, the 
departure rate, excluding substantial assistance, is less than 
10 percent. Congress intended that departures be around 20 
percent. And we all know the statistics, if you don't really 
look at what is underlying the statistics, can lie, and I think 
this is that situation.
    You shouldn't be concerned about substantial assistance 
departures. For every substantial assistance departure, you 
have convicted, in essence, another person. It means that you 
got cooperation to convict another person. So you should not be 
concerned about substantial assistance departures. I think that 
there aren't enough, in fact, departures of the other kind.
    I am really happy to answer any questions you have about 
what happens in the border districts because what is happening 
in the border districts is that they have become almost 
municipal courts. Sixty immigration defendants who are looking 
at jail time are brought into a courtroom, pled, and sentenced. 
The type of thing that you see in traffic courts in America is 
what is happening in the border districts. If you are going to 
have those kinds of policies, you ought to provide more funds.
    De novo review would be a very bad thing, in general, for 
sentencing issues. It would, in fact, make courts of appeals 
who are not adept at that the sentencing court. That just 
doesn't make any sense. They don't have the institutional 
knowledge. They have to write an opinion every time they would 
sentence. They can't make fact-finding.
    Nevertheless, after Koon, courts of appeals are still 
applying a de novo standard to the extent that they review 
application of the guideline. If a departure ground is one that 
is prohibited by the Guidelines, the court of appeals is still 
looking at it as a de novo issue. Is it a violation of the 
guidelines? Is it a violation of law?
    Another issue that has been raised here is in terms of 
post-offense rehabilitation departures. I must tell you that 
only 194 cases out of 55,000 cases involved post-offense 
rehabilitation. It is not something that defense attorneys can 
generate because the presumption in drug cases is that 
defendants are detained. We cannot have them do any kind of 
funny rehabilitation when they are in jail. Immigration 
defendants are detained.
    Just to bring some focus----
    Senator Thurmond. You have exceeded your time, so wind up 
as soon as you can.
    Ms. Hernandez. Yes, sir. Thank you very much.
    The first appellate court in the Nation to uphold the post-
offense rehabilitation ground was the fourth circuit in an 
opinion written by Judge Wilkins reversing the district court. 
I just want you to understand that it is a perfectly legitimate 
and integral part of the Sentencing Guidelines.
    I really have a lot of answers for a number of the 
questions you have asked and I would be prepared to respond to 
them.
    [The prepared statement of Ms. Hernandez follows:]

               Prepared Statement of Carmen D. Hernandez

    Mr. Chairman and Distinguished Members of the Subcommittee, the 
Sentencing Reform Act and the Sentencing Guidelines were born of a 
noble concept that federal sentencing should be fair and certain and 
honest. You set up a system that in theory at least was designed to 
avoid unwarranted disparity among persons convicted of similar crimes. 
At the same time you wisely built into the system through the departure 
mechanism the flexibility to permit individualized sentencing--a 
venerable tradition in the federal system--so that a United States 
District Court Judge when he or she imposes a sentence can account for 
factors that the Sentencing Commission had not considered, and indeed 
no commission sitting in Washington, D.C. could ever consider, those 
factors that Justice Kennedy so eloquently referred to as ``the human 
failings that sometimes mitigate, sometimes magnify, the crime and the 
punishment to ensure.'' \1\
    As in so many things, theory and reality diverge.

  I. TRANSFER OF DISCRETION FROM ARTICLE III JUDGES LEAVES UNFETTERED 
                   DISCRETION IN FEDERAL PROSECUTORS

    The reality of the Sentencing Guidelines is that they are flawed at 
their very core. The Guidelines have transferred discretion and 
authority and responsibility from constitutional officers, the men and 
women who have been appointed by the President and confirmed by you to 
serve as judges of the lower federal courts to persons who have no 
express constitutional role, the prosecutors, who are hired without the 
careful scrutiny given to federal judges. And history has taught us 
time and again, and continues to teach us--and the founding fathers 
knew this well when they set up our system of checks and balances--that 
you cannot leave such power unchecked in the hands of anyone, least of 
all in the hands of men and women whose decisions are made in the 
privacy of their offices, who are caught up in an adversarial role, and 
whose public function often serves as a stepping stone to higher 
political or judicial office.
    Indeed, although Congress intended to take sentencing decisions 
away from the darkness of the Parole Commission into the openness of 
the courtroom, sentencing decisions are now mostly resolved in the 
darkness of the prosecutors' office and the probation department rather 
than in a public courtroom at the time that the person convicted of a 
crime appears for sentencing by a federal judge.
    Very recently for example, you held hearings in the case of Wen Ho 
Lee to determine whether federal prosecutors were doing the right 
thing. These hearings were no doubt held because of the case's 
notoriety, the issues involved and because the ultimate resolution--a 
guilty plea to a single count with an agreement to time served of some 
10 months--seemed completely out of proportion to the charges which 
involved a multi-count indictment with potential life sentences. The 
judge in the Lee case was without authority to hold such a hearing.
    In the run-of-the-mill drug case where the process runs its course 
without the light of media scrutiny, a defendant is much less 
fortunate. Defendants are left at the mercy of the prosecutor's good 
will in most cases because of the operation of the Guidelines. The 
burden at sentencing requires merely proof by a preponderance of the 
evidence. Judges must consider drug quantities not proved at trial, 
quantities not charged, and even quantities that are not part of the 
same offense but merely part of a similar scheme as the offense of 
conviction. The information presented at sentencing is often based upon 
the stories of other defendants who seek to have their own sentences 
reduced in return for offering ``substantial assistance'' in the 
prosecution of others.\2\ Furthermore, these procedural rules worsen 
the problem because the guideline system for scoring drug, fraud and 
other offenses focuses on the amount of drugs almost to the exclusion 
of all other factors relating to culpability. This has resulted in the 
imposition of disproportionately harsh sentences on those who are 
merely peripheral agents of the drug kingpins and middlemen whom 
Congress sought to punish harshly with mandatory minimum sentences. 
Thus, a person, who quite often is young, poor, undereducated or 
addicted to drugs, and increasingly female, and is paid $200 by a drug 
trafficker for transporting 50 grams of crack from one city to another 
is subject to the same mandatory minimum 10-year sentence as the 
trafficker who controls the drug organization and will receive the bulk 
of the profit.\3\
    Congress cannot hold hearings in every one of the 55,408 federal 
convictions obtained last year. Yet by transferring so much sentencing 
power to federal prosecutors, the Sentencing Guidelines prevent federal 
judges from asserting any check on the almost unfettered discretion 
that prosecutors hold over the life and liberty of persons accused of 
crimes in this country. In so doing, the Sentencing Guidelines have 
also limited our ability as citizens to defend ourselves from 
unwarranted charges that result from unscrupulous, or vindictive or 
ill-founded prosecutions.

A. The racial disparity of the federal prison population has increased 
        since the Guidelines went into effect
    At the same time, the Sentencing Guidelines are not accomplishing 
the ideals of uniformity and fairness. Since 1987 when the Guidelines 
went into effect, there has been an increase in the racial disparity of 
the federal prison population. That is what the Sentencing Commission 
found and stated in its 1995 Annual Report.\4\ This is the exact 
opposite of the uniformity and fairness that Congress set out to obtain 
under the Sentencing Reform Act of 1984. It is wrong and needs to be 
corrected.

            1. Mandatory minimum penalties are being disproportionately 
                    applied
    One of the causes of this racial disparity again seems to lie at 
the transfer of power to federal prosecutors that allows them to 
control departures below mandatory minimum sentences, a power which 
Senior Circuit Judge (and former Senator from New York) James Buckley 
has referred to as an ``extraordinary power.'' \5\ In a 1991 Report to 
Congress, the Sentencing Commission found that mandatory minimum 
penalties were being applied disproportionally to Blacks and Hispanics. 
The Commission found that substantial assistance departures that allow 
judges to sentence below the mandatory minimum were more likely to be 
granted to Whites than to Blacks or Hispanics. This disparity could not 
be accounted for by considerations related to the nature of the offense 
and the prior criminal record of the defendant.\6\ In fact, the 
Sentencing Commission was unable to identify any relevant factors--such 
as the severity of the offense or the extent of the cooperation--that 
would explain the disparity. These findings were confirmed in a 
subsequent study conducted in 1998 by staff at the Sentencing 
Commission.
    Again, the lack of any check on the prosecutor's discretion in this 
area is problematic. Federal prosecutors have chosen to exercise this 
extraordinary power in a very secretive and effectively unreviewable 
manner. In plea agreements, federal prosecutors reserve onto themselves 
the absolute power to determine whether the defendant has provided 
substantial assistance. At the same time, federal prosecutors refuse to 
spell out in writing the magical quantum of assistance which will 
satisfy them that a defendant has sufficiently cooperated and is to be 
rewarded with the departure motion. In some districts, the decision is 
further insulated from review and disclosure because it is made by 
Departure Committees made up of prosecutors whose names are not 
disclosed and whose deliberations are kept secret. A defendant can only 
challenge the decision if he can prove that it was made with 
unconstitutional motive or in bad faith. Such claims are nearly 
impossible to prove in any case but are particularly difficult to prove 
where the decision is made behind closed doors. Once again, it is 
difficult to reconcile this reality with Congress' intent to make 
sentencing fair and uniform and open.

            2. Recent sentencing policies increase disparity
    Congress must address the growing racial and ethnic disparity in 
the federal prison population. During the past decade Congress has 
continued to increase penalties for certain crimes in the face of the 
indisputable evidence that the majority of persons convicted of these 
crimes are Blacks and Hispanics. As in the criminal law, it is no 
defense that Congress had deliberately ignored the problem.
    The enhanced penalties for the crack form of cocaine continue to be 
one of the primary reasons for the disparate increase in the number of 
Blacks imprisoned in federal institutions. Last year, 84.7% of persons 
convicted of these offenses were Black.\7\ These numbers are 
particularly stark because federal statistics reflect that more than 
40% of crack users are white. In 1995, at Congress' direction, the 
Sentencing Commission published a book detailing the problem, including 
the fact that this form of cocaine is the only drug where the penalties 
are inverted so that bulk importers and distributors of the powder form 
of cocaine, the basic ingredient for making crack cocaine, receive more 
lenient sentences than the street dealer. Congress has yet to act on 
the recommendations made by the Commission.
    Penalties for immigration offenses have become so harsh that in 
many cases they exceed the penalties for violent offenses. Congress 
continues to increase the penalties for immigration offenses. The 
Sentencing Commission, at the express direction of Congress and in the 
exercise of its own discretion, has also increased the offense levels 
and other enhancements for immigration offenses. This is a major cause 
for the disparate increase in the number of Hispanics in the federal 
prison population.
    As with addiction in drug offenses, it is clear that at the core of 
many immigration offenses are issues of poverty and persecution in the 
home country of these persons that are not present in other criminal 
offenses. Persons who act of such desperate circumstances are not as 
likely to be deterred and are not as deserving of harsh punishment as 
others whose criminal conduct is motivated by more mundane reasons. 
Equally important, this seems to be an expensive exercise in futility. 
Enhanced penalties do not seem to be reducing the violation of our 
immigration laws.
    It has been clear for some time that these enhanced penalties are 
merely filling our jails and costing us greatly without reducing the 
conduct which we seek to prevent.\8\
    Congress and the Sentencing Commission need to look at this problem 
and act to correct the racial and ethnic disparity in the federal 
prison population which is being created.

  II. FEDERAL SENTENCES CONTINUE TO BE RATCHETED UP TO REQUIRE PRISON 
    TERMS IN AN INCREASING NUMBER OF CASES AND LONGER SENTENCES OF 
                              IMPRISONMENT

    The Sentencing Commission has amended the Guidelines approximately 
600 times since 1987. Fewer than a dozen of those amendments has 
involved reductions in (1) the term of the prison sentence to be 
imposed for a given offense, (2) the enhancement value of a given fact 
or circumstance, or (3) the likelihood of imprisonment for any given 
offense. Indeed when it comes to federal sentencing, Congress and the 
Commission seem to have a single tool--a ratchet that permits sentences 
to be increased but never reduced.
    The ``upward ratcheting'' of federal sentences may explain why the 
United States recently reached the 2 million mark in the number of 
persons in prison. Our rate of incarceration is greater than the rate 
of incarceration in South Africa at the height of apartheid. We have 
the highest per capita rate of incarceration of any industrialized 
nation in the world. It should be clear, therefore, that the Sentencing 
Commission has been no slouch when it comes to requiring the 
imprisonment of persons convicted of federal criminal offenses.

  III. DEPARTURES PRESERVE SOME MEASURE OF FAIRNESS IN THE GUIDELINES

    Departures are the one area of the Sentencing Guidelines where 
Congress granted federal judges discretion to adjust sentences to take 
into account individual aspects of the crime and the person committing 
it that the Commission did not. The discretion is not unlimited. It is 
cabined by a number of restrictions imposed by the Commission. For 
example, the Commission has established that a person's diminished 
capacity may warrant a departure unless ``the defendant's criminal 
history * * * indicate[s] a need for incarceration to protect the 
public.'' U.S.S.G. Sec. 5K2.13.
    Without the discretionary authority to depart, all crimes 
regardless of the circumstances would have to be sentenced exactly the 
same. The secretary who aids her boss in processing the fraudulent 
claim for fear of losing her job must receive the same sentence as the 
boss who profited and devised the fraudulent scheme because she is 
responsible for the same amount of loss as he is. The Guidelines permit 
district courts in such a case to depart downward in recognition of the 
fact that the amount of loss in her case overrepresents the severity of 
her offense. Without the authority to depart, one size must fit all, 
predetermined by the body of experts sitting in Washington, D.C.
    The national downward departure rate of 15.8% is well within the 
level envisioned by Congress when it first enacted the Sentencing 
Reform Act. It is misleading, moreover, to include departures for 
substantial assistance in the general departure rates. Substantial 
assistance departures are within the sole discretion of prosecutors and 
were enacted by Congress as a tool for prosecutors. One must also be 
careful in comparing departure rates across states or circuits because 
of the unique mix of cases and circumstances. A case in point is the 
departure rate in immigration cases in some of the border states. The 
increased departure rate reflects the overwhelming number of cases in 
those districts. Such overwhelming case load increases have required 
district courts and prosecutors to fashion a remedy to keep the system 
afloat. For example, approximately half the cases in the District of 
Arizona involved immigration cases. In the District of Arizona with 
1,483 immigration cases, district courts granted departures at a rate 
greater than the norm for other districts.
    But one cannot ignore the impact of immigration cases on those 
statistics both in terms of caseload and in terms of the unique 
circumstances that were not likely to be considered by the Commission 
in formulating the guidelines. For example, the number of immigration 
cases in that one district exceeds the number of all cases in the 
entire First Circuit (1,337 total cases in 1999). The immigration cases 
in Arizona also exceed the number of all federal cases in the combined 
two districts in the state of Virginia (1,305 total cases in 1999). I 
am told that in some of the border districts, federal sentencing of 
immigration offenses resembles the procedures that are used in 
municipal courts to deal with traffic offenses in state courts 
throughout the United States. Sixty immigrant defendants are brought 
into a courtroom and mass sentencings are conducted. To compare 
departure rates in Viriginia's districts or the First Circuit with 
those in the District of Arizona is to compare apples and oranges.
    Moreover, the number of immigration cases in Arizona almost tripled 
since 1997 (608 cases in 1997). Knowing the pace at which new federal 
judges are appointed, I am quite certain that judicial resources did 
not keep pace with the exploding case load.
    Lastly, departures are the one area of the Guidelines where the 
Commission can see if its sentencing policies are working or whether an 
adjustment needs to be made. The high departure rate in immigration 
cases generally and in Arizona in particular reflects a problem with 
the most commonly applied immigration guideline. The guideline for 
cases involving reentry after deportation (U.S.S.G. Sec. 2L1.2) 
includes a 16-level bump if the defendant was previously deported based 
on an aggravated assault. This is such a gross measure that it 
encourages departures. The 16-level bump--the most severe in the 
Guidelines--does not differentiate between a prior number conviction, 
for example, or a $20 sale of a small amount of marijuana. Moreover, 
when Congress broadened the definition of an ``aggravated felony'' in 
the immigration code (in its attempt to address immigration policy), it 
tacitly changed the scope of the enhancement in the Sec. 2L1.3 
guideline. Yet that enhancement has not been modified by the Sentencing 
Commission to address unintended consequences of the immigration 
amendment. In light of the statutory mandate in 18 U.S.C. Sec. 3553(b) 
to depart where circumstances are not adequately considered by the 
guidelines, a district court would be derelict if it did not depart in 
such cases.
    The drug cases in Arizona also tend to involve circumstances unique 
to such border states, such as a higher percentage of defendants who 
merely served as ``mules.'' A combination of the application of the 
relevant conduct guidelines and the particular circumstances of these 
circumstances tend to generate more downward departures.
    For these reasons, the high departure rates in the few districts 
such as Arizona provide the Commission with the type of information 
that Congress intended the Commission to amass and use to adjust the 
guidelines. These departure rates do not reflect an avoidance of the 
law by federal judges but rather their conscientious compliance with 
the Congressional mandate to impose a guideline sentence unless the 
court finds a circumstance not adequately considered by the Commission 
that warrants departures.

                                ENDNOTES

    1. Koon v. United States, 518 U.S. 81, 116 S. Ct. 2035, 2053 
(1996).
    2. Somewhere in a federal prison sits a man serving a sentence of 
life for his involvement in a marijuana conspiracy. Under the federal 
system, that means he will not be released from jail until he dies. 
There is no reduction in sentence for doing ``good time,'' nor early 
parole, nor is a motion to reduce the sentence available to him. At 
trial the government introduced evidence that the man sold 10 ounces of 
marijuana. The jury had so much difficulty with the evidence that 
twice, the judge had to deliver to the jury an Allen charge, a 
statement which tells the jury, after it has informed the court that it 
is having difficulty reaching a verdict, to try harder to reach a 
verdict. Only after the second Allen charge did the jury convict and 
then it convicted of a single count of conspiracy and acquitted of all 
the remaining charges. At sentencing, the government claimed that the 
conspiracy involved 1000 kilograms of marijuana--despite having only 
proved 10 ounces at trial--and that the defendant was therefore subject 
to a mandatory life sentence of life based on his two prior 
convictions. In dissent from the 7th Circuit's decision that it would 
not review the case en banc, Chief Justice Posner eloquently stated 
what should be obvious:

        [T]he difference between the standard of proof by a 
      preponderance of the evidence, a standard that in this case 
      permitted the judge to send the defendant away for life if 
      he thought the odds 51-49 in favor of the defendant's 
      having sold the 1,000 kilograms, and proof beyond a 
      reasonable doubt, is so large that there is room for an 
      intermediate standard that can be practically, not merely 
      conceptually, distinguished from the extremes.
          * * * * * * *
        Conceivably the intermediate standard of proof would 
      reduce the number of errors both in favor of and against 
      defendants, for it would induce the government to conduct a 
      more thorough investigation in preparation for the 
      sentencing hearing, thus putting before the judge a more 
      complete and accurate picture of the facts. More thorough 
      investigation implies, I acknowledge, a cost to the 
      government, a cost that might in turn reduce the 
      government's ability to prosecute the guilty or obtain 
      adequate sentences in every case. Few benefits come without 
      a cost. But to imprison for life a person who sells 10 
      ounces of marijuana is a miscarriage of justice of 
      sufficient magnitude to warrant some expenditure of 
      resources to prevent.

United States v. Rodriquez, 73 F.3d 161, 163 (7th Cir. 1996).
    3. The emphasis of quantity to determine the mandatory minimum 
penalties flows from the statutory scheme established in 21 U.S.C. 
Sec. 841. The Sentencing Guidelines follow this scheme without 
sufficient reducing the sentence of those persons who are much less 
culpable.
    4. ``Traced over time, the relative proportion of Whites in the 
defendant population has steadily declined since 1990, while increasing 
considerably for Hispanics, and to a lesser degree for Blacks.'' U.S.s. 
Annual Report 46 (1995). See also U.S.S.C. Annual Report 33 (1996). 
That trend continues into today:

----------------------------------------------------------------------------------------------------------------
                                                                      Whites          Blacks         Hispanics
                                                                     (percent)       (percent)       (percent)
----------------------------------------------------------------------------------------------------------------
1995............................................................            39.2            29.2            27.3
1996............................................................            35.9            28.4            31.0
1997............................................................            34.7            27.1            33.7
1998............................................................            32.0            26.5            37.0
1999............................................................            30.8            26.2            39.0
----------------------------------------------------------------------------------------------------------------

    5. United States v. Jones, 58 F.3d 688, 691-91 (D.C. Cir.), cert 
denied, 116 S.Ct. 430 (1995) (Buckley, J.)
    6. United States Sentencing Commission, Special Report to the 
Congress: Mandatory Minimum Penalties in the Federal Criminal Justice 
System ii, 82, 89 (1991).
    7. United States Sentencing Commission, Annual Report 69 (1999). 
Seventy percent of these offenses did not involve a gun possession, id. 
at 74, and thirty-one percent of these offenders were in the lowest 
criminal history category. Id. at 72.
    8. Jonathan P. Caulkins et al., Mandatory Minimum Drug Sentences: 
Throwing Away the Key or the Taxpayers' Money? (RAND 1997).

                          CARMEN D. HERNANDEZ

    Ms. Hernandez is a member of the Board of Directors of the National 
Association of Criminal Defense Lawyers (``NACDL'') and chairs its 
Post-Conviction and Sentencing Committee. She is also a member of the 
United States Sentencing Commission's Practitioners Advisory Group. Ms. 
Hernandez has been a criminal defense attorney for nearly two decades. 
During much of that time, she has repesented indigent defendants in 
federal court. Following law school, she served as a law clerk to the 
Honorable Herbert F. Murray, United States District Judge for the 
District of Maryland. She received a J.D. with honors in 1982 from the 
University of Maryland School of Law and a B.A. from New York 
University in 1975. Ms. Hernandez has taught as a adjunct professor at 
the University of Maryland School of Law and at the Columbus School of 
Law, and Catholic University of America. She also lectures nationally 
on federal sentencing and criminal defense trial issues. She is the co-
author of the chapter on departures in Practice Under the Federal 
Sentencing Guidelines (P. Bamberger & D. Gottlieb, eds., 2000).
[GRAPHIC] [TIFF OMITTED] T4414A.015

    Senator Thurmond. Mr. Otis.

                  STATEMENT OF WILLIAM G. OTIS

    Mr. Otis. Mr. Chairman and Senator Sessions, I am grateful 
for your invitation to appear here today and speak about 
improving the implementation of the Federal Sentencing 
Guidelines.
    Although some of the things I will have to say will be 
critical of the Commission and the Department of Justice, I 
want to make it clear from the outset that I have great respect 
and affection for many of my former colleagues in the 
Department of Justice and I think the country is well served by 
them over the long haul, and also for my friends on the 
Sentencing Commission and its staff.
    The question posed in this hearing is whether the 
Guidelines are being followed. Increasingly, they are not. 
Indeed, they are on the brink of being effectively nullified by 
rampant downward departures. That trend must be reversed.
    Mr. Chairman, under your leadership, but with strong 
bipartisan support, Congress took a giant step for the rule of 
law by adopting the Sentencing Reform Act. Among the Act's 
principal purposes were to reduce unwarranted disparity in 
sentencing so that the length of the sentence would no longer 
so much depend on the draw of the judge, and to require more 
serious sentences for particularly dangerous kinds of crimes.
    To achieve those objectives, Congress intentionally cabined 
the previously sprawling discretion of district judges to 
impose sentence almost entirely without recourse to established 
standards. At the same time, Congress realized that there would 
be the occasional rare case featuring some factor the 
Sentencing Commission had not adequately considered. In such a 
rare case, but only then, it allowed the judge to depart from 
the Guidelines.
    In the late 1980's and early 1990's, the Federal Criminal 
Justice System implemented this new approach with great 
success, despite significant resistance from some judges and 
many members of the criminal defense bar. By and large, rules-
based sentencing prevailed.
    In recent years, we have seen how that approach has paid 
great dividends to the substantial benefit of our citizens. 
Hundreds of the most dangerous criminals are now serving 
substantial prison terms with no parole. And not surprisingly, 
the crime rate has been headed down. One part of this 
accomplishment was keeping unwarranted downward departures in 
check. The Sentencing Commission, the Federal judges, and the 
Department of Justice all played a key role in doing that.
    First, the original Sentencing Commission, under the 
leadership of Judge Wilkins, understood the peril that free-
floating downward departures posed to the central purposes of a 
determinant sentencing system. It wrote the Guidelines and 
their commentary to steer judges away from departing, except in 
rare and clear-cut cases.
    Second, with some notable exception, district judges 
accepted these new limits on their discretion. Admittedly with 
an occasional nudge from the courts of appeals, they came to 
understand that the Guidelines preserve a reasonable place for 
discretion in sentencing even as they shift the balance more 
toward consistency and accountability. They came to realize, in 
other words, that the rule of law is better than the luck of 
the draw.
    Finally, the Justice Department demonstrated its 
determination to meet the resistance it knew that the new 
regime would face from practitioners who had become used to 
practicing the old way. The Department recognized, as Judge 
Wilkins once said, that the battle cry of the defense bar would 
be depart, depart, depart, and that the Department's response 
to excessive departures should be appeal, appeal, appeal. For 
that reason, through the early 1990's, the Department and the 
U.S. Attorneys' Offices were aggressive and largely successful 
in taking appeals of excessively lenient sentences.
    But trouble is brewing. The Guidelines are being 
increasingly swallowed by downward departures. These 
departures, both in absolute numbers and as a percentage of all 
sentences, have increased every year from 1992 through 1999. At 
the beginning of the 1990's, sentences were imposed within the 
Guidelines range about four-fifths of the time. Last year, it 
was less than two-thirds.
    The current Guidelines compliance rate, therefore, is a 
little over 60 percent. That means that, as we speak, we are 
perilously close to sliding back to the subjective, 
idiosyncratic, and gratuitously lenient sentencing of the past, 
but less honest than the past system because the public has 
been led to believe that now we have rules, when increasingly 
as a practical matter we don't.
    This slide has not been uniform, however. In my own former 
jurisdiction, the Eastern District of Virginia, it is nowhere 
in evidence. While the national Guidelines compliance rate 
hovers at about 60 percent, in Eastern Virginia it is above 90 
percent. And while nationally downward departures not linked to 
a defendant's cooperation are given in about 16 percent of the 
cases, in Eastern Virginia they are given in fewer than 2 
percent.
    Now, what are the reasons for this slide in the Nation? It 
began when the Sentencing Commission, whose term recently 
ended, replaced clear guidance about the limited role of 
departures with more ambivalent language, creating increased 
wiggle room for judges who wanted to take it, and in many 
jurisdictions they did.
    Fuzzy language in the Guidelines expanded into gigantic new 
loopholes, and downward departures sprang up for novel reasons 
that range from questionable to ridiculous. In one case I 
litigated, for example, the judge allowed a downward departure 
because the defendant was overweight. Meanwhile, the Justice 
Department showed no serious determination to combat these 
trends by taking the necessary appeals.
    Despite the lack of leadership from the Sentencing 
Commission and the Department, Eastern Virginia has avoided 
this ominous trend, for two principal reasons. First, our court 
of appeals has demonstrated a clear willingness to correct 
unwarranted departures. Chief Judge Wilkinson, together with 
other leaders on the court such as Judges Wilkins, Williams, 
Luttig, Traxler, and until his recent death the great Judge 
Donald Russell, have been uncompromising in requiring district 
courts to abide by the Guidelines in letter and in spirit.
    And, second, our outstanding U.S. Attorney Helen Fahey has 
maintained the commitment of her predecessors to public safety, 
the rule of law, and to full implementation of the Guidelines 
that serves both. Our 90-percent Guidelines compliance rate is 
largely a result of those two factors.
    Now, I know I am over my time so I will try and finish up 
quickly.
    What is needed is a more resolute commitment to appealing, 
with the circuit courts generally ready to stand behind the 
rule of law in sentencing and elsewhere. It is particularly 
curious and unfortunate the Department of Justice is taking 
fewer and fewer appeals of departures just as the need to 
appeal has become greater and greater.
    As you have pointed out, Mr. Chairman, in fiscal 1999, the 
number of downward departures have ballooned to more than three 
times to the number 6 years earlier. Yet, the number of 
Government appeals have dropped by almost half. The figures 
speak for themselves. Out of more than 8,000 downward 
departures that year not owing to a defendant's substantial 
assistance, the Government appealed 19 times, or less than one-
quarter of 1 percent.
    Senator Thurmond. Your time is about up. Could you put the 
rest in the record?
    Mr. Otis. Yes, I certainly will, Mr. Chairman. I will be 
happy to answer your questions.
    [The prepared statement of Mr. Otis follows:]

                 Prepared Statement of William G. Otis

    Mr. Chairman and distinguished Members of the Committee, I am 
grateful for your invitation to speak today about improving 
implementation of the Federal Sentencing Guidelines. The question posed 
in this hearing is whether the guidelines are being followed. 
Increasingly they are not. Indeed they are on the brink of being 
effectively nullified by rampant downward departures. That trend must 
be reversed.
    Mr. Chairman, under your leadership, but with strong bi-partisan 
support, Congress took a giant step for the rule of law by adopting the 
Sentencing Reform Act. Among the Act's principal purposes were to 
promote more uniformity in sentencing, so that the length of the 
sentence would no longer so much depend on the draw of the judge, and 
to require more serious sentences for particularly dangerous crimes.
    To achieve those objectives, the Guidelines intentionally cabined 
the previously sprawling authority of judges to impose sentences almost 
entirely without established standards. At the same time, Congress 
realize that there would be the occasional rare case featuring some 
factor the Sentencing Commission had not adequately considered. In such 
a rare case, but only then, it allowed the judge to depart from the 
guidelines.
    In the late 1980's and the early 90's, the federal criminal justice 
system implemented this new approach with great success, despite 
significant resistance from some judges and many members of the 
criminal defense bar. By and large, rules-based sentencing prevailed. 
In recent years we have seen how that approach has paid dividends, to 
the great benefit of our citizens. Hundreds of the most dangerous 
criminals are now serving substantial prison terms with no parole--and 
not surprisingly the crime rate has been heading down.
    One key part of this accomplishment was keeping unwarranted 
downward departures in check. The Sentencing Commission, the federal 
judiciary, and the Justice Department all played critical roles in 
doing so.
    First, the original Sentencing Commission, under the leadership of 
Judge Wilkins, understood the peril that free-floating departures posed 
to the central purposes of a determinate sentencing system. It wrote 
the Guidelines and their Commentary to steer district judges away from 
departing except in rare and clear-cut cases.
    Second, with some notable exceptions, district judges accepted 
these new limits on their discretion. Admittedly with an occasional 
nudge from the courts of appeals, they came to recognize that the 
Guidelines preserve a place for reasonable discretion in sentencing 
even as they shift the balance toward more consistency and 
accountability. They came to realize, in other words, that the rule of 
law was better than the luck of the draw.
    And finally, the Justice Department demonstrated its determination 
to meet the resistance it knew the new regime would face from 
practitioners who had grown used to operating the old way. The 
Department recognized, as Judge Wilkins once noted, that the battle cry 
of the criminal defense bar would be, ``depart, depart, depart,'' and 
that its response to excessive departures should be ``appeal, appeal, 
appeal.'' For this reason, through the early 1990's, the Department and 
the U.S. Attorneys offices were aggressive, and largely successful, in 
taking appeals of excessively lenient sentences.
    But trouble is brewing. The Guidelines are being increasingly 
swallowed by downward departures. These departures, both in absolute 
numbers and as a percentage of all sentences, have increased every year 
from 1992 through 1999. At the beginning of the 1990's, sentences were 
imposed within the guidelines range in about four-fifths of the cases; 
by last year, it was less than two-thirds. The current guidelines 
compliance rate is, in other words, a little above 60%. That means 
that, as we speak, we are perilously close to sliding back to the 
subjective, idiosyncratic and gratuitously lenient sentencing of the 
old system--but less honest than the old system, because the public has 
been led to believe that now we have rules, when increasingly, as a 
practical matter, we don't.
    This slide, however, has not been uniform. In my own jurisdiction, 
the Eastern District of Virginia, it is nowhere in evidence. While the 
national Guidelines compliance rate hovers above 60%, in the ED of VA 
it is above 90%. And while nationally, downward departures not linked 
to a defendant's cooperation are given in about 16% of the cases, in 
the ED of VA they are given in fewer than 2%.
    What are the reasons for the national slide, and why has the 
Eastern District of Virginia escaped it? The slide began when the 
Commission whose term recently ended replaced clear guidance about the 
limited role of departures with more ambivalent language, creating 
increased wiggle room for judges who wanted to take it. In many 
jurisdictions they did. Fuzzy language in the Guidelines expanded it 
into gigantic new loopholes, and downward departures sprang up for 
novel reasons that ranged from the questionable to the absurd (in one 
case I litigated, for example, the court departed downward because the 
defendant was overweight). Meanwhile, the Justice Department showed no 
serious determination to combat these trends by taking the necessary 
appeals.
    Despite the lack of leadership from the Sentencing Commission and 
the Department, the Eastern District of Virginia has avoided this quiet 
but ominous trend. This is so for two principal reasons. First, our 
Court of Appeals has demonstrated a clear willingness to correct 
unwarranted departures. Chief Judge Wilkinson, together with other 
leaders on the Court such as Judges Wilkins, Williams, Luttig and 
Traxler--and until his recent death, the great Judge Donald Russel--
have been uncompromising in requiring district courts to apply the 
guidelines in letter and in spirit. And second, our outstanding U.S. 
Attorney, Helen Fahey, has maintained the commitment of her 
predecessors Henry Hudson and Richard Cullen to public safety, the rule 
of law, and in particular to the implementation of the Guidelines which 
serves both. Our 90% guideline-compliance rate is largely the result of 
these two factors.
    If it chooses, the new Sentencing Commission can play a significant 
role in controlling the epidemic of downward departures. What the 
experience of the Eastern District of Virginia suggests, however, is 
that even if the Commission neglects these matters, the Justice 
Department can do much on its own by a more resolute commitment to 
appealing. With the circuit courts generally ready to stand behind the 
rule of law, in sentencing and elsewhere, it is particularly curious 
that the Department is taking fewer and fewer appeals of departures 
just as the need to appeal has become greater and greater/ In fiscal 
1999, the number of downward departures had ballooned to more than 
three times the number six years earlier, yet the number of government 
appeals dropped by almost half. The figures speak for themselves: out 
of more than 8,300 downward departures that year not owing to the 
defendant's assistance, the government appealed 19 times, or less than 
one quarter of one percent. Since the Administration came to power, 
there have been more than 32,000 such unappealed downward departures.
    This is an alarming number. Every downward departure means another 
criminal back on the street before he would have been had the 
Guidelines been followed--back on the street to rob your bank, hijack 
your car, or sell drugs to your child. Yet, over the last seven years, 
the Department's efforts to constrain these departures have all but 
vanished.
    Mr. Chairman, even the best of laws is no more effective than its 
enforcement. The Sentencing Reform Act is in my view--a view formed 
through more than 20 years as a federal prosecutor--among the best of 
laws, because of the fairness, consistency and visibility it has 
brought to sentencing, and perhaps even more because of what it has 
done to depress the crime rate and secure for our citizens their right 
to live in peace and safety. Congress has done its job; it's time for 
the Sentencing Commission and the Department of Justice to do theirs as 
well.
    I shall be pleased to take your questions.

             APPENDIX: ADDITIONAL SPECIFIC RECOMMENDATIONS

    There are a number of specific changes that would be helpful in 
putting the Sentencing Guidelines back on the right track.
    --The courts of appeals should have a stronger hand in reviewing 
departures. Specifically, they ought to be enabled to undertake de novo 
review, rather than the more deferential review required under the 
abuse of discretion standard. Implementing this change would require 
legislative correction of the holding in Koon v. United States, 518 
U.S. 81 (1996). In that case, the Court held that the Sentencing Reform 
Act, and particularly language in 18 U.S.C. 3742, indicated that 
Congress intended the Act to preserve broad discretion in the district 
courts. While broad discretion may well be appropriate in many areas, 
experience has shown that the courts of appeals are more vigilant in 
safeguarding the determinate sentencing system whose creation was 
Congress' principal goal in adopting the Act.
    Since Koon was based on the Court's perception of congressional 
intent, Congress is free to change the result in that case. In doing 
so, moreover, it will support the Administration's view, which, as its 
brief in the Supreme Court demonstrates, likewise would have preserved 
the relatively stronger hand of the appellate courts.
    --Specific kinds of departures should be more closely regulated. In 
recent years, the criminal defense bar has sought to make increasing 
use of downward departures for ``post-offense rehabilitation.'' While 
genuine rehabilitation ought to be encouraged and rewarded, this sort 
of departure is subject to manipulation, and should be applied with far 
greater caution than it is now.
    As things stand, when a client appears in his attorney's office, 
indictment in hand, the wise attorney knows then and there that it is 
time to start preparing for sentencing. Increasingly, part of the 
preparation is to have the client visit persons called ``mental health 
professionals'' or other sorts of ``counselors'' who will produce 
reports at the right moment attesting to the client's new-found 
understanding that his previous ways of living were wrong. In addition, 
the attorney is likely to sign up the client to participate, or at 
least to say he is participating, in some sort of charitable endeavor. 
This too is designed to produce a letter to be put on display at 
sentencing as evidence of the defendant's new and improved behavior.
    To a judge who dislikes the guidelines sentence, or who for some 
reason views the defendant as sympathetic, the ``post-offense 
rehabilitation'' file, duly compiled by counsel but not necessarily 
attesting to anything like authentic rehabilitation, provides a nearly 
fool-proof method of circumventing the guidelines.
    Sentencing SHOULD reward real rehabilitation. It should not reward, 
however, what is far too often simply an attempt to game the system. 
Accordingly, the Commission should adopt the following rule: (1) When a 
defendant takes substantial steps to rehabilitate himself before he has 
reason to believe that the authorities have learned or are about to 
learn of his involvement in the offense of conviction, a downward 
departure may be appropriate; (2) When a defendant takes substantial 
steps to rehabilitate himself after that time, but before he is 
indicted, arrested or otherwise formally charged with the offense, a 
downward departure is ordinarily inappropriate, and may be allowed only 
on clear and convincing evidence that his efforts at rehabilitation 
were undertaken for the purpose of producing a genuine change in his 
criminal behavior and not for purposes of litigation; and (3) When a 
defendant takes steps toward rehabilitation only after he has been 
indicted, arrested or otherwise formally charged with the offense, a 
downward departure for rehabilitation is impermissible.
    --Current language in the Guidelines permitting a departure based 
on a ``combination of factors'' should be revised to prevent abuse. 
Some years ago, the Commission added Commentary to the effect that, 
even if no single ground for departing would be adequate to justify a 
below-the-guidelines sentence, in an unusual case, a ``combination of 
factors'' could be adequate grounds to depart.
    This language permits guidelines circumvention. It all but invites 
a judge who still tacitly (or sometimes not to tacitly) supports luck-
of-the-draw sentencing to grant a downward departure based on a laundry 
list of misfortune, or what will be portrayed as misfortune, even 
though no single factor would warrant more lenient treatment than some 
other, similarly situated defendant would get in the courtroom down the 
hall. This is exactly the kind of disparity the Sentencing Reform Act 
was written to stop.
    There may be some extremely unusual case in which a ``combination 
of factors'' legitimately warrants a departure even where no single 
factor would. But the current Guidelines language goes too far. As the 
Fourth Circuit noted in United States, v. Withers, 100 F.3d 1142, 1148 
(4th Cir. 1996), allowing departures on this sort of basis effectively 
`` `resurrect[s] the pre-guidelines regime of discretionary 
sentencing.' (quoting United States v. Pullen, 89 F.3d 368, 371 (7th 
Cir. 1996)). To set such a low threshold * * * would create incentives 
for defendants to comb their personal circumstances in order to find 
evidence of hardship and misfortune. This search, we suspect, would 
almost always be fruitful given that adversity in its infinite variety 
comes with the journey of life.''
    Even more than others, persons convicted of criminal behavior 
need--for their own good and ours--to turn away from the culture of 
grievance-building and excuse-making and join the culture of personal 
responsibility. The ``combination of factors'' theory of departures 
looks in exactly the wrong direction. The Commission should study this 
problem, or be directed to study it if needed, and devise more 
disciplined language that will end this loophole.
    The Commission should publish a Crime Impact Statement with each 
proposed revision of the Guidelines sent to Congress.
    When courts have employed their discretion to depart, the results 
have not been even-handed. Downward departures outnumber upward 
departures by the astonishing ratio of 57 to 1. Even excluding 
substantial assistance departures, downward departures outnumber upward 
departures 26 to 1.
    There is a lesson in these numbers. More ``discretion'' means lower 
sentences. Proposals for still more discretion, although ostensibly 
neutral, are thus all but certain to result in across-the-board lower 
sentences and thus the earlier release of criminals. We know in advance 
that some of those criminals, on being released, are going to commit 
more crime. In the aggregate, a reasonable ``ballpark'' estimate of how 
much more should be possible. Accordingly, any proposed amendment to 
the Guidelines should be accompanied by a statement revealing (1) 
through case examples, its probable effect on actual sentences; and (2) 
its probable effect in the aggregate--i.e., how many criminals will 
benefit from the proposed amendment, and an estimate of how much 
additional crime they will commit when they are back in the community, 
rather than continuing to serve the prison sentence at the length it 
would have been absent the amendment.
    The public is owed this information. Indeed, Crime Impact 
Statements would be directly analogous to the cost impact estimates we 
wee now, detailing how much additional prison funding is likely to be 
needed if the Commission (or,sometimes, Congress) creates longer 
sentences. If longer sentences will mean more costs in bedspace and 
security, shorter sentences will mean more costs in recidivism. The 
public is entitled to know both sides of the story.
    --Establish a Crime Victims Advisory Group. For several years, the 
Commission has recognized and solicited the views of a Practitioners 
Advisory Group, which consists of many of the most energetic and 
dedicated criminal defense lawyers in the country. But it would seem 
self-evident that crime victims deserve at least the same independent 
voice at the table that criminal defendants have now through their 
counsel. I believe that a number of our new Commissioners stated at 
their confirmation hearings that they would support the formation of 
such a group. Now is not too soon to put that pledge into action.

    Senator Thurmond. Mr. Otis, based on your experience as a 
former career prosecutor and former member of the Attorney 
General's Advisory Subcommittee on the Guidelines, do you 
believe that this administration has been less dedicated to 
upholding the Guidelines than previous administrations?
    Mr. Otis. I am afraid to say that it has. The reason that 
you see this consistent line starting in 1992 and ending last 
year, a consistent line upward in criminal sentences below the 
Guidelines range, which of course would also mean a consistent 
line downward in compliance with the law and compliance with 
the Guidelines, is directly linked to the Department of 
Justice's determination, or increasing lack of determination, 
to see that the Guidelines are backed up.
    As Senator Sessions was pointing out in some of his 
questions earlier today, if district judges come to know that 
downward departures are just going to be left sitting on the 
table by the U.S. Attorney's Office, then of course there is an 
incentive to grant more and more downward departures, and that 
is what has happened. We can't leave them on the table. We need 
to have the same strong commitment to appealing that we used to 
have.
    Now, both Mr. Kirkpatrick and Commissioner Steer pointed 
out that the Government success rate in taking appeals from 
downward departures was about 50 percent, or a little less than 
50 percent. Of course, that is an extraordinarily high 
percentage of success for an appellant. Most appellants lose in 
the court of appeals. Ninety-five percent of appellants lose in 
the court of appeals. If you are winning anything close to half 
of your cases, you have got a great track record, and it is a 
track record of which district judges will be aware.
    If the district judges know that your U.S. Attorney's 
Office is serious about appealing and that questionable 
downward departures are going to be reviewed by the higher 
court, there are going to be fewer questionable departures.
    Senator Thurmond. Senator Sessions.
    Senator Sessions. I agree with that, Mr. Otis. Let me ask 
you as a former prosecutor for some time, if a mentality gets 
afoot that suggests that we are really not too serious about 
that and we really don't want to appeal to many of these cases, 
does that not undermine the morale and the courage and 
discipline of those prosecutors out there who are having to 
make the tough calls day after day after day?
    Mr. Otis. That is an excellent question, Senator Sessions, 
and you make quite a good point. U.S. Attorneys' Offices, like 
any organization, have some who are there to spend the time and 
draw a paycheck, but many more who are there because of their 
dedication to the rule of law, because they want to see 
improvements in public safety for all our people.
    That latter group, which is by far the greater group, is of 
course disheartened to see when the Guidelines which in their 
cases they fight for--they fight for compliance, they fight for 
the serious sentences and the fair sentences that the 
guidelines produce. And when they see that in other districts 
that fight isn't being waged and the Department has nothing to 
say about it, that is very disheartening.
    And I think among the better group of assistant U.S. 
attorneys, which again is by far the larger number of them, to 
understand that during the years of this administration, from 
1992 to the present, to see that there have been a total of 
32,000 unappealed downward departures not related to a 
defendant's substantial assistance, to understand that every 
one of those 32,000 cases involves a criminal who is not 
serving the sentence that he would have served had the 
Guidelines been followed and who therefore is out early to ply 
his trade to hijack your car, to rob your bank, to sell drugs 
to your child----
    Senator Thurmond. I don't want to interrupt you, but we 
have got to move on. Make your answers shorter.
    Mr. Otis. Thirty-two thousand times is way too many and it 
ought to be brought to a halt.
    Senator Sessions. Ms. Hernandez, you raised a question 
about the discipline and integrity of assistant U.S. attorneys 
and the prosecutors.
    Ms. Hernandez. Well, I----
    Senator Sessions. Well, you did, in my view. I am not 
criticizing you. I think it is a matter we ought to discuss. If 
a prosecutor does not charge the primary lead offense, the most 
serious offense available as part of a plea bargain process, do 
you agree, being the good adversary you are, that they have not 
been the advocate they are supposed to be for the system?
    Ms. Hernandez. For the most part, I don't know why they 
charge what they charge or what evidence they have. Sometimes, 
it is because they can't prove what they believe the defendant 
committed. That often happens. The proof is just not there.
    But let me just say that my challenge is more to the 
institutional manner in which the system is set up. We 
shouldn't have to rely on the integrity of an individual. We 
have systems, is the way our system of justice works best, a 
system of checks and balances. And we are in trouble if the 
only way our freedoms are safeguarded for all of us is if we 
have to rely on the integrity of an individual. We would rather 
rely on the integrity of the system of checks and balances, the 
ability of the Senate to confirm a judge rather than someone 
who is hired, who may be of very high integrity or may not.
    Senator Sessions. Well, the prosecutors are advocates and 
they normally push for the most serious legitimate charge that 
they can. I do think there are occasions, for whatever reasons, 
that the judge may even want them to dismiss the more serious 
offense and let this case go for a lesser offense, and they are 
in a difficult position. I just feel like you will never remove 
all of that, but I do think U.S. attorneys and the Department 
of Justice do need to monitor it.
    I will just mention this. I think on the statistics that 
show up, some problems don't show up. My concern that I 
discovered by almost inadvertence in the John Huang case where 
he didn't plead guilty to a $300,000 contribution to the 
Democratic National Committee that helped President Clinton, 
but pled guilty to a contribution to a city race--and even for 
that, they didn't follow the Guidelines that would have had him 
go to jail.
    That won't show up, will it, Mr. Otis, as a departure?
    Mr. Otis. No, it will not.
    Senator Sessions. On the statistics, it does not show as a 
departure.
    Mr. Otis. It won't show up as a departure.
    Senator Sessions. So, to me, from the Attorney General and 
the Sentencing Commission and each judge in each district, they 
have got to make clear that they expect everybody in the system 
to operate with integrity and to do their role in the system, 
you to defend them as aggressively as you can, seek every 
departure that is legitimate or quasi-legitimate, and the 
prosecutor to seek the most serious offense, or else the system 
doesn't work. That is how we operate in this country.
    Ms. Hernandez. May I put in a plug for the defense attorney 
for Mr. Huang, whom I happen to know?
    Senator Sessions. Well, he did a good job.
    Ms. Hernandez. Ty Cobb, a former very distinguished 
assistant U.S. attorney in Baltimore. That may have a part in 
the reason for the good results, I may say, if anybody knows Ty 
Cobb, a die-hard Republican, by the way.
    Senator Sessions. Well, I will just say this. Any lawyer, 
Republican or Democrat, is going to get the lowest guideline he 
can when he is defending somebody going before a court. But I 
don't believe it was justifiable. I read it and it shouldn't 
have happened. I just say that to say that we need to maintain 
discipline. It wasn't his fault. It was the prosecutor in the 
Department of Justice's fault.
    Mr. Chairman, I am sure you have questions. I have talked 
too much.
    Senator Thurmond. Ms. Hernandez, if current trends 
continue, we may see more defendants sentenced outside the 
Guidelines than within the Guidelines in a few years. Do you 
believe that the number of downward departure cases could reach 
a level that would undermine the consistency that the 
Guidelines were designed to create?
    Ms. Hernandez. Mr. Thurmond, as I look at the statistics, 
less than 10 percent of cases in most districts, in like 90 
percent of the districts, are getting downward departures. And 
I would say to you that you built that into the system, and the 
Senate report at the time the Guidelines were instituted 
indicated that you thought that a departure rate of about 20 
percent or more would be adequate.
    So at this point, we are not seeing sentences that are too 
lenient. We are getting a lot of district courts rejecting 
departures out of hand, and a lot of reversals, sir.
    Senator Thurmond. Mr. Otis, judges have the discretion to 
depart either upward or downward from the Guidelines in certain 
circumstances. How often do judges apply their discretion in 
favor of the offender?
    Mr. Otis. Mr. Chairman, downward departures outnumber 
upward departures 57 to 1. Not counting substantial assistance, 
putting that entirely to one side, downward departures 
outnumber upward departures 26 to 1. As a practical matter, 
there is no such thing as upward departures, and to promote 
more discretion among judges, more discretion than they already 
have, is to my way of thinking simply a code word for promoting 
across-the-board lower sentences because that is what the 
discretion we see now does.
    Senator Thurmond. Mr. Otis, we have discussed today how the 
Guidelines may be circumvented by the increasing number of 
cases in which defendants receive downward departures. Do 
downward departures tell the whole story about how the 
Guidelines are being circumvented?
    Mr. Otis. No, Mr. Chairman, unfortunately they do not. As 
Senator Sessions has pointed out in some of his remarks, judges 
already have considerable discretion to lower sentences without 
ever getting to anything that either is or would be called a 
downward departure. And this is one of the big misconceptions 
about the Sentencing Guidelines system that it is a 
straightjacket for judges. It is no such thing. It preserves, 
as it was intended to preserve, a considerable although cabined 
discretion within judges.
    For example, the Guidelines do not designate a particular 
sentence; they designate a sentencing range that differs by 25 
percent from bottom to top. The judge has unfettered discretion 
to allow a substantial downward adjustment within the 
Guidelines for acceptance of responsibility, another 25 
percent, or in serious cases up to 33 percent off the sentence. 
And, of course, the judge has the ability to make factual 
determinations, for example, about the amount of drugs with 
which a defendant has been involved that substantially affects 
the sentence.
    So, in fact, the judge under the present system and without 
even getting to departures has an enormous ability to get the 
sentence to be pretty low if that is what he wants to do. To go 
beyond that with departures is, in my way of thinking, to put 
the Sentencing Reform Act and the determinant sentencing system 
very much at risk.
    Senator Thurmond. We will place a statement from Senator 
Leahy in the record.
    [The prepared statement of Senator Leahy follows:]

             Prepared Statement of Senator Patrick J. Leahy

    Today, the Judiciary Committee's Subcommittee on Criminal Justice 
Oversight will conduct a hearing on the United States Sentencing 
Commission which will focus on the work of the Commission generally and 
the frequency with which sentencing judges grant downward departures 
from the range of punishment applicable under the Sentencing 
Guidelines. Some believe that we need to change the law because 
sentencing judges are granting too many downward departures and are 
thereby undermining the effectiveness of the Sentencing Guidelines. I 
disagree. While it is appropriate that we monitor and understand 
sentencing trends and modify existing law when necessary, our federal 
sentencing scheme is fundamentally sound and in my view is part of the 
reason why the rate of crime around the United States is declining and, 
in some places, plummeting. This is no time to sound an alarm for 
change. We can best assure the proper implementation of existing 
sentencing laws if we support and fully fund the indispensable work of 
the Sentencing Commission.
    We can only address and understand sentencing trends if we support 
the Sentencing Commission and appropriate to it sufficient funds so it 
can do its work. It is the Commission, after all, which has the 
responsibility to maintain and analyze 260 pieces of information from 
each of over 50,000 sentencings under the Guidelines every year. It is 
regrettable that the Commission struggled without any voting 
commissioners for over a year in 1998 and 1999. It would be equally 
regrettable if Congress does not grant the President's request for 
$10.6 million to fund the Commission in FY 2001. The House of 
Representatives has voted to appropriate $9.6 million to the 
Commission. The Senate Appropriations Committee has appropriated $9.9 
million. Last year, I successfully offered an amendment to add $5 
million to fully fund the Sentencing Commission's budget and I again 
urge the full Senate and the Congress to appropriate the full $10.6 
million requested by the President. Our discussion today about downward 
departures and future discussions about implementation of the 
guidelines will be largely irrelevant unless we support the people we 
have asked to monitor and implement our sentencing laws.
    Though the Commission has my unwavering support, I question the 
timing of and need for today's hearing for two independent reasons. 
First, while there may be reason to believe that the rate of downward 
departures has increased, the statistics appear to show that the lion's 
share of the increase is attributable to immigration and border-related 
issues. Excluding downward departures based on cooperation, the largest 
percentage increase in downward departures is in immigration cases. 
According to Commissioner Steer's testimony, immigration-related 
prosecutions have increased from 6.5% of the federal caseload sentenced 
under the guidelines in FY 1989 to 17.5% in FY 1999; deportation of 
aliens is the reason most often given by judges for downward 
departures; and the rate of departures based on deportations has grown 
from less than 1% of departures in FY 1992 to about 20% in FY 1999. 
Indeed, the three districts which by far lead the nation in rate of 
downward departures are the District of Arizona and the Southern 
District of California, two districts which border Mexico, and the 
Eastern District of Washington, which borders Canada.
    Of course, the nation's districts that routinely deal with 
immigration issues have borne the brunt of our increased law 
enforcement efforts aimed at illegal immigration and face special 
circumstances. Some districts have experimented with special policies 
to deal with immigration-related issues. For example, Arizona and the 
Southern District of California are among districts which have offered 
departures as an incentive for defendants charged with border-related 
crime to dispose of their cases quickly and with a minimum of 
litigation. These districts have implemented these policies because of 
the overwhelming increase in border-related arrests and prosecutions 
which was not matched in a commensurate increase in prosecutorial and 
judicial resources. The Justice department wisely decided that 
subjecting more border-related offenders to federal prosecution would 
help deter border-related crime even at the minimal expense of 
subjecting these offenders to marginally less jail time. I believe that 
the Justice Department's policy in this area has been a resounding 
success. One question we need to have answered is whether the current 
rate of downward departures overall would represent a significant 
increase from rates of prior years if we eliminated border states from 
our calculations. I believe that we may need more information about the 
sentencing policies and practices of such districts before we hold a 
hearing and sound the alarm that there is a nationwide sentencing 
problem that needs fixing. It appears to be that policies and practices 
in a few districts disproportionately affected by increased emphasis on 
deportable aliens accounts for the increased rate of downward 
departures.
    Second, I question why we are rushing to conduct this hearing on 
one of the last days of this session when we do not have any specific 
information from the border districts that would substantially assist 
our understanding of the issue. My fear is that this hearing has been 
scheduled to provide a soapbox for partisan criticism of the Justice 
Department and the Administration as we approach a national election. 
Any effort to trot out the old standby campaign theme that Democrats 
tolerate lenient sentences would be nonsense. According to the Bureau 
of prisons (BOP), the population of our federal prisons has almost 
doubled over the last eight years. The total population of prisoners in 
BOP facilities in 1992 was about 67,768 inmates. By contrast, the 
population as of July 2000 was 124,667. Those numbers do not even 
include federal inmates now lodged in facilities under contract with 
BOP. Meanwhile, we have never seen as dramatic a drop in the crime rate 
as we have seen since over the last eight years. The need of some 
jurisdictions to address unique issues, such as border-related crimes, 
is one reason why I believe that our system properly tolerates some 
degree of disparity in sentencing, as Congress intended by providing 
for both downward and upward departures. We confirm our federal judges 
after an arduous process because we trust their judgment to fashion an 
appropriate sentence within the bounds of the law. Indeed, the Supreme 
Court in a case title Koon v. United States, 518 U.S. 81 (1996), said 
that the sentencing judge is in the best position to assess whether the 
particular circumstances of a case justify a downward departure, and 
that such departures are entitled to the deference of the appellate 
court reviewing the sentence, subject to modification on appeal only 
under very limited circumstances. In so holding, the Supreme Court 
ruled that Congress intended appellate courts to show deference to the 
wisdom of sentencing judges rather than require appellate courts to 
review sentences de novo, that is, review sentences as if the appellate 
courts were imposing sentence for the first time. The Supreme Court 
correctly recognized that the sentencing judge, before whom the parties 
personally appear during the entire pendency of a case and who has the 
discretion to conduct any appropriate inquiry at sentencing, has a far 
better sense of the defendant and all the relevant circumstances than 
appellate judges whose entire knowledge of a case is limited to a cold 
review of transcripts and typically about twenty minutes of legal 
argument by the lawyers, if any oral argument is granted.
    Some have suggested that the interest in sentence uniformity 
requires Congress to pass legislation that would effectively overrule 
Koon and require appellate courts to review every sentence de novo. To 
do so, in my view, would unwisely and necessarily transfer the ultimate 
responsibility for sentencing away from the federal judge, who is in 
the best position to evaluate whether an upward or downward departure 
is appropriate. Some blame the Justice Department for not taking enough 
appeals from downward departures to assure sentence uniformity. But 
such criticism cannot be intelligently levied until we first understand 
the deportation-related issues that seem to account for the lion's 
share of downward departures. Moreover, it has never been the Justice 
Department's role to appeal every adverse ruling on sentencing or any 
other issue. The Justice Department needs to pick its fights wisely 
when it seeks to appeal a district court's ruling. There is no basis of 
which I am aware on which to conclude that the Justice Department has 
failed to exercise its right to appeal in appropriate cases.
    Downward departures, like upward departures, are an integral and 
necessary part of our sentencing scheme. The provision for downward 
departures which we discuss today was incorporated into the guidelines 
so that federal judges can make appropriate adjustments where there are 
circumstances of a kind or degree not adequately taken into 
consideration by the Sentencing Commission in formulating the 
guidelines. While I support steps that Congress and the Sentencing 
Commission have taken to lessen sentence disparity and assure that the 
punishment fits the crime, the provision for downward departures 
recognizes that Congress and the Sentencing Commission cannot possibly 
anticipate and enact a guideline that accounts for every conceivable 
set of facts. Even in as comprehensive a framework as the sentencing 
guidelines, our judges need room for flexibility. Quite simply, fixing 
a precise sentence that fairly reflects the unique mix of a particular 
defendant's circumstances does not always lend itself to a mechanical 
formula that produces a pre-determined sentence.
    Those who believe that we should ratchet the existing Sentencing 
Guidelines to achieve a goal of 100% sentence uniformity fail to 
appreciate that a certain degree of disparity is inevitable and 
acceptable in our system. Two different prosecutors from different 
parts of the country may review the same case and reach different 
conclusions, both consonant with Justice Department guidelines, about 
what charge is justified by the facts and to what charge a defendant 
should be allowed to plead guilty under the particular circumstances of 
a case. Sometimes Congress plays a role in treating similar offenders 
unevenly by focusing attention on a particular type of crime which is 
in the public spotlight for one reason or another but not addressing 
other similar crimes not in the spotlight. These types of disparities 
are inevitable in as disparate a county as ours, and we should not put 
our sentencing laws in a vice and try to squeeze away every drop of 
disparity as if it were poison. We should not lightly tinker with a 
system that appears to be working.
    Notwithstanding my concerns about this hearing, I strongly support 
the Sentencing Commission and its mission. The Sentencing Commission 
plays an essential role in the administration of justice in our federal 
courts. The Commission establishes and maintains sentencing guidelines 
for over 50,000 criminal cases sentenced in the federal courts each 
year. The Commission's most critical responsibility today is to adjust 
the guidelines to implement the important crime legislation we enact 
every year. Let me emphasize this point: when we enact legislation that 
calls for increased criminal penalties, it is the Commission's job to 
make sure that convicted defendants suffer the impact. These directives 
appear in virtually every piece of new crime legislation we enact. For 
example, Congress drafted legislation this session aimed at the 
production and trafficking of methamphetamine. The bill directs the 
Commission to ensure that the sentencing guidelines for methamphetamine 
reflect the threat to public safety posed by that drug and are 
comparable to similar drugs. Similarly, Congress drafted legislation 
enhancing the penalties for crimes that target computer systems. That 
bills directs the Commission to ensure that the guidelines reflect the 
loss caused by a crime and a level of sophistication in planning the 
crime, among other relevant factors, as a way of deterring the growing 
incidence of computer crimes.
    Because we went over a year without Commissioners, the new 
Commissioners appointed in November 1999 were required to address an 
alarming backlog of directives on legislation such as the No Electronic 
Theft Act of 1997, the Wireless Telephone Protection Act of 1998, the 
Identity Theft and Assumption Deterrence Act of 1998 and the Protection 
of Children from Sexual Predators Act of 1998. The new Commissioners 
have worked hard to catch up and eliminate the backlog. They have my 
thanks for successfully addressing a problem that was created by 
Congressional inaction.
    The importance of the Commission's other statutory obligations show 
why the Commission must have strong support for Congress. For example, 
the Commission has the initial and primary responsibility to resolve 
conflicts on guidelines interpretation among the circuit courts. While 
today's hearing examines whether too many downward departures threaten 
the sentencing uniformity for which the guidelines were enacted, our 
new Commissioners long ago began working diligently to achieve that 
goal, identifying numerous circuit conflicts, resolving some of those 
conflicts and now addressing others.
    The Commission also has an ongoing statutory obligation to serve as 
the lead instrumentality for training newly appointed judges and 
probation officers regarding application of the sentencing guidelines 
and related sentencing issues. Similarly, the Commission has an ongoing 
responsibility to provide needed continuing education for all those who 
use the sentencing guidelines to ensure that they are sufficiently 
informed of recent amendments to the guidelines and significant court 
decisions. According to Judge Murphy's testimony, the Commission's 
staff trained more than 2,200 people at 47 training programs around the 
country in 1999 alone.
    The Commission also has an ongoing statutory obligation to serve as 
a clearing house of information on sentencing-related topics and to 
stay current on advancements in the knowledge of human behavior and the 
degree to which the guidelines are achieving the purposes of sentencing 
such as deterrence and rehabilitation. If we are going to have 
guidelines and require federal judges to impose guidelines sentences, 
the Sentencing Commission must be empowered to do its work. That means 
we need to appropriate sufficient funding to enable the Commission to 
fulfill its critical role in the federal criminal justice system. 
Perhaps a better focus of this hearing would be how the Congress does 
its job of sustaining and respecting the work of the Sentencing 
Commission.

    Senator Thurmond. Senator Sessions.
    Senator Sessions. Thank you, Mr. Chairman.
    Ms. Hernandez, you raised the crack cocaine sentences. They 
are tough, and it may be appropriate for us to look at those 
sometime and I am open to that. There are some other areas that 
may be tougher than we need in the Guidelines, and I respect 
the concerns that are expressed there.
    In the long run, we will all be better off and justice will 
be better served if we utilize the factors that Senator 
Thurmond and the Commission created to allow departures upward 
and downward within that system. And if it is not quite 
perfect, maybe we ought to strengthen the economic crime 
penalties. Maybe we can review some of the drug penalties that 
are there and help maintain a fair system. But at the same 
time, the critical component to justice under the Guidelines is 
making sure that we conduct them with integrity, and that is 
what I think we are right to do.
    Mr. Chairman, you helped create this system and you have 
seen now departures for other reasons, the most dangerous area 
of departures increase 150 percent since 1992. And so I think 
you rightly have every legitimate reason to have this hearing 
to inquire about it and make sure we are not letting something 
slip away from us that has served us very well for some time.
    I thank you for your leadership. I thank the members of 
this panel. I think they all did an excellent job, and I hope 
the Department of Justice particularly will realize that you 
have got to exert some leadership from the top, send a clear 
message that they expect these Guidelines to be followed, that 
assistant U.S. attorneys out there in the field--nobody may 
know precisely the decisions they are making and wrestling 
with. But if they know you expect them to do right, to follow 
the Guidelines and not to give away their cases, more often 
than not they will. If they think people really don't care and 
that nobody is going to appeal, they will be more likely to 
give in under pressure and let a case go for less than it is 
worth.
    Thank you, Mr. Chairman.
    Senator Thurmond. We will leave the record open for 1 week 
for follow-up questions and additional materials.
    If there is nothing else to come up, we stand adjourned.
    [Whereupon, at 12:10 p.m., the subcommittee was adjourned.]

                            A P P E N D I X

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                         Questions and Answers

                              ----------                              

  Responses of Diana Murphy to Questions From Senator Patrick J. Leahy

    Question 1. According to Commissioner Steer's testimony, 
deportation of aliens is the reason most often given by judges for 
downward departures. His testimony shows that the districts that lead 
the nation in rate of downward departures are Arizona and San Diego. 
The caseloads of those districts and others that border Mexico have 
dramatically increased over the past eight years due to the Clinton 
Administration's resoundingly successful efforts to patrol our borders 
more effectively and bring more border-related prosecutions in federal 
court to deter illegal immigration and drug smuggling at the border. 
This extraordinary increase in caseload has not been matched by an 
equal increase in prosecutorial and judicial resources. Thus, border 
districts have implemented so-called ``fast-track'' programs by which 
departures are granted as an incentive for defendants who commit 
border-related crimes to resolve their cases quickly and with a minimum 
of resource-consuming litigation.
    Question a. Contrary to patently partisan accusations that there is 
a nationwide trend among our federal judges and that Justice Department 
to ignore or defeat the guidelines, do these facts suggest that the 
spike in the rate of increase of departures is due to districts trying 
to develop strategies to address increased emphasis on border-related 
law enforcement?
    Question b. Commissioner Steer's statistics show that the Eastern 
and Western Districts of Washington, districts which border Canada, are 
among the districts that lead the nation in rate of downward 
departures. Is the high rate of downward departures in those districts 
attributable to border-related issues as it is in the southwestern 
districts?
    Question c. What would the rate of sentencings within the 
applicable guideline range be since 1990 if border districts were 
eliminated from the calculation?
    Answer a. It appears that judges are overwhelmingly sentencing 
cases within the guideline range if substantial assistance departures 
are disregarded. Judges impose sentences within the guideline range 
82.1 percent of the time. This percentage has decreased only very 
slightly for 84.0 percent in fiscal year 1997. The figures for the 
southwest border districts tend to skew the total percentages, and more 
departures have resulted because of the exigencies created by the huge 
number of cases and too few resources. If we omit both cases receiving 
substantial assistance departures and the southwest border districts 
from our analysis, we find that 86.8 percent of cases sentenced 
throughout the country are sentenced within the range prescribed by the 
guidelines.

    Answer b. The high rate of departure in the districts of Washington 
also appear to be affected by border-related issues. Immigration 
offenses comprise 33.8 percent of the caseload in the Eastern District 
of Washington, and courts in that district depart from the guidelines 
in 84.4 percent of their immigration offense cases. Downward departures 
for immigration offenses thus account for 69.8 percent of all of these 
departures. The district departure rate excluding immigration offenses 
is 18.6 percent.
    The Western District of Washington has a smaller immigration 
caseload, 14.7 percent of its cases, but the effect of these cases on 
its departure rate is similar. Courts in the Western District of 
Washington depart from the guidelines in 78.8 percent of their 
immigration offense cases, which accounts for 44.0 percent of all of 
their departures. The departure rate for the district excluding 
immigration offenses is 17.2 percent.
    Answer c. See Exhibit 1 and Exhibit 2, attached. Exhibit 1 shows 
the national downward and upward departure rates from fiscal year 1991 
through fiscal year 1999, excluding the southwest border districts and 
excluding cases from the remaining districts in which the defendant 
received a substantial assistance departure. Exhibit 2 shows the 
national downward and upward departure rates for the same time period, 
excluding the southwest border districts only.

    Question 2. As United States Attorney Denise O'Donnell testified at 
the hearing, the nation is divided into 93 geographic federal districts 
each headed by its own United States Attorney. The districts are not 
identical. The types of crimes that predominate in one district may be 
very different from another district. Each district has its own law 
enforcement priorities and a unique relationship with state and local 
law enforcement. while the Sentencing Guidelines serve the goal of 
sentence uniformity, the provision for downward and upward departures 
in Guideline Section 5K2.0 recognizes that some flexibility is 
necessary so that the sentencing judge in an appropriate case can 
account for compelling and otherwise unaccounted-for circumstances. Is 
some degree of disparity inevitable and acceptable in a nation as 
disparate as ours, and does Section 5K2.0 reflect the wisdom that room 
for some flexibility is an essential ingredient in a fair sentencing 
scheme in which the American people can have confidence?
    Answer 2. Congress recognized in the Sentencing Reform Act that 
some flexibility is necessary in the sentencing guideline scheme. One 
of the fundamental responsibilities of the Commission, as set forth in 
28 U.S.C. Sec. 991(b)(B), is to establish sentencing policies and 
practices for the Federal criminal justice system that ``maintain[] 
sufficient flexibility to permit individualized sentences when 
warranted by mitigating or aggravating factors not taken into account 
in the establishment of general sentencing practices,'' this portion of 
the Sentencing Reform Act is reproduced in USSG 5K2.0. The purpose of 
the guidelines is not to eliminate disparity, but to avoid 
``unwarranted sentencing disparities among defendants with similar 
records who have been found guilty of similar conduct.'' Id.

    Question 3. The claim has been made by some that the number of 
appeals taken by the Justice Department has not increased 
commensurately with the increase in the rate of downward departures. 
That claim ignores that the increase in downward departures is largely 
due to policies and practices in border states to deal with caseloads 
resulting from increased emphasis on border-related crime. That claim 
also ignores United States v. Koon, 518 U.S. 81 (1996), in which the 
United States Supreme Court made it more difficult to appeal a downward 
departure by holding that appellate courts should only overturn a 
departure where the sentencing judge makes a mistake of law or abuses 
discretion. Mr. Kirkpatrick testified at the hearing that there are 
ways of assuring compliance with the Sentencing Guidelines other than 
taking appeals in particular cases, such as working with the Commission 
to resolve conflicts among the circuit courts of appeal about 
interpretation of the guidelines.
    Question a. If border-issues and Koon are considered, has there in 
fact been any significant change in the rate with which the Justice 
Department takes appeal from downward departures?
    Question b. What are the ways in which the Justice Department 
endeavors to assure the effectiveness of the Guidelines other than 
taking appeals from downward departures?
    Question c. Should the Justice Department's policy be to pursue an 
appeal of every downward departure no matter the circumstances? What 
factors does the Justice Department consider in determining whether or 
not to pursue an appeal from a downward departure?
    Answer a. These factors appear to account for much of the 
difference. As an appellate judge I am aware that an appellant is more 
effective overall by focusing on the most significant cases.
    Answer b. By actively participating in the ongoing work of the 
Commission through its ex officio member and by providing expert 
commentary and testimony throughout amendment cycles.
    Answer c. These are issues more appropriately addressed by the 
Department of Justice itself.

    Question 4. Ms. Hernandez expressed concern about relentless 
attempts by some to ratchet up the Guidelines and create unduly harsh 
sentences with an intended disparate impact. Mr. Kirkpatrick in his 
written testimony expressed concern that our federal prison population 
continues to grow even as the crime rate decreases. Indeed, the 
population in our federal prisons has almost doubled in the last five 
years, and there are now about two million people in our nation's 
federal, state and local jails.
    Question a. Is there reason for concern that our sentencing laws 
have become too harsh and retributive?
    Question b. Is the Sentencing Commission as sensitive to unduly 
harsh sentences as it is to inappropriately lenient ones?
    Question c. If application of the Guidelines creates an unintended 
racially disparate impact, what steps should Congress take to address 
that impact?
    Answer a. and b. Some say that the guidelines are too severe, but 
others say that certain guidelines are too lenient. Feedback from 
southwest border judges that the illegal reentry guideline is 
disproportionately severe, has caused us to examine that guideline this 
amendment cycle. On the other hand, the Commission has received public 
comment for many years that the economic crimes guidelines are too 
lenient. As a result, we hope to complete a comprehensive review of the 
economic crimes guidelines this year. The Commission must also respond 
to congressional directives to increase penalties in certain areas. For 
example, in the past few weeks Congress has passed legislation 
directing the Commission to increase penalties to certain 
methamphetamine, amphetamine and ecstasy offenses, as well as human 
trafficking offenses.
    Answer c. It is our responsibility always to keep in mind the goals 
of the Sentencing Reform Act, and this Commission is sensitive to the 
issue of disparate racial impact. We expect to study that issue as part 
of our 15 year review, and we will of course share any resulting data 
or recommendations with Congress.

    Question 5. The Supreme Court in Koon held that the sentencing 
judge is in the best position to evaluate whether a departure is 
warranted, and any downward departure should be reversed on appeal only 
under very limited circumstances here, for example, the judge abused 
discretion or made a mistake of law. Some say that Koon is good for the 
system because it supports the authority of judges to fashion an 
appropriate sentence where there are unforeseen or compelling 
circumstances. Others have suggested that the Congress should pass 
legislation that would effectively overrule Koon. What factors should 
the Congress consider in evaluating the wisdom of a legislative effort 
to statutorily overrule Koon including, for example, the increase in 
federal appellate ligitation?
    Answer 5. Response. in my opinion the Koon decision has helped win 
over many judges to embrace the guidelines system and sentence within 
it because they know that under Koon they are also able to react to 
unique or extraordinary circumstances not foreseen by the system. The 
guideline system is well developed and sound, but it cannot possibly 
anticipate all circumstances that will arise. Today there is generally 
a high rate of compliance with the guidelines.
                                 ________

  Responses of John R. Steer to Questions From Senator Strom Thurmond

    Question 1. Mr. Steer, do you believe that the trend in sentencing 
below the Guidelines is extensive and extends far beyond the illegal 
immigration context? Please explain.
    Answer 1. There ia a general increase in the rate of sentencing 
below the Guidelines for reasons other than substantial assistance 
(i.e., ``other downward departures''), across all major offense types. 
The high rate of downward departures for immigration offenses has 
substantially added to, but does not fully account for, this overall 
trend. The Commission plans to carefully study this trend as part of 
the 15-year study described by Chair Murphy.

    Question 2. Mr. Steer, is the trend toward downward departures more 
extensive in certain judicial circuits, such as the Ninth Circuit, that 
others? Please explain.
    Answer 2. Yes. Exhibit 9 attached to my written testimony shows 
that, in FY1999, the rate of other downward departures exceeded 15 
percent in three circuits, as follows: Ninth Circuit--36.4 percent; 
Second Circuit--19.5 percent; and Tenth Circuit--17.4 percent. In 
contrast, the rate of other downward departures was lowest in the 
Fourth (4.6 percent), Eleventh (6.5 percent), and the Sixth (6.7 
percent) Circuits.
    With regard to substantial assistance downward departures at 
sentencing, the Third (32.2 percent), Eighth (26.0 percent), and Sixth 
(25.6 percent) Circuits each exceeded 25 percent in FY1999, while the 
Ninth (10.4 percent) and Tenth (12.8 percent) Circuits had 
significantly lower rates of substantial assistance downward departures 
at sentencing than the other circuits.

    Question 3. Mr. Steer, it was suggested at the hearing that 
sentences are too harsh in the federal system. However, it appears that 
statistics from the Commission show that for drug offenses, and indeed 
for all offenses combined, the average length of sentences in federal 
court has been declining in recent years. Do you agree that this trend 
is toward lower sentences?
    Answer 3. Imprisonment sentences imposed under the federal 
sentencing guidelines are significantly longer than pre-guideline 
sentence for most types of offenses; however, the length of 
imprisonment sentences imposed under the guidelines for all offenses 
combined has trended downward in recent years. It appears that this 
overall downward trend is influenced heavily by the downward trend in 
sentence length for drug trafficking cases. For a number of other types 
of offenses, average sentence length has stayed about the same or 
increased in recent years.

    Question 4. Mr. Steer, to what extend do downward departures exceed 
upward departures, and in general has the disparity between these two 
types of departures been increasing in the offender's favor over the 
years?
    Answer 4. In FY1999, the rate of all downward departures exceeded 
the rate of upward departures by 57.5 to 1; the rate of other downward 
departures exceeded the rate of upward departures by 26.3 to 1. These 
ratios have widened over the years as the rate of other downward 
departures has grown, while the rate of upward departures has declined. 
For example, in fiscal year 1989, the rate of all downward departures 
exceeded the rate of upward departures by only 2.1 to 1. Five years 
later, in fiscal year 1994, that ratio was 22.6 to 1. These differences 
appear to be rather large in part because the rate of upward departures 
has been relatively low throughout the history of the guidelines (less 
than 2.0 percent in every year since 1991).

    Question 5. Mr. Steer, it was argued during the hearing that the 
Congress expected a 20 percent departure rate from the Guidelines 
excluding substantial assistance departures. Do you agree?
    Answer 5. Footnote 3 in my written testimony briefly alluded to 
this ``congressional expectation.'' As I noted there, the 1983 report 
of the Senate Judiciary Committee (S. Rep. No. 225, 98th Cong. 1st 
Sess.) described an expectation that the rate of departures--up and 
down--from the contemplated sentencing guidelines would be about the 
same or less than the prevailing rate at which the U.S. Parole 
Commission set release dates above or below their parole guidelines. 
That ``departure rate'' was about 20 percent at the time, consisting of 
aboue 12 percent above and 8 percent below. Moreover, the approximate 8 
percent of parole guideline ``downward departures'' included cases in 
which release dates were set below the parole guidelines to reward 
inmates' assistance to the government in the investigation and 
prosecution of other crimes (although the concept of substantial 
assistance was not formally recognized and codified by Congress until 
1986). Thus in my judgment, it is off the mark to claim, as some have, 
that today's 15.8 percent other downward departure rate is less than 
Congress expected. If anything, it apparently is substantially greater.

    Question 6. Mr. Steer, it appears that the Commission could help 
control the number of sentences below the Guidelines. For example, it 
could establish more forbidden or discouraged factors for departures, 
which was an issue that the Supreme Court discussed in Koon. Do you 
think the Commission should create more forbidden or discouraged 
factors to help prevent unwarranted downward departures?
    Answer 6. Chair Murphy has answered this same question for the 
Commission. I simply add by way of emphasis a point I make at the 
hearing: By curtailing (but not eliminating) the role of the appellate 
certain in policing departure decisions by district court judges, Koon 
necessarily has had the effect of placing greater responsibility on the 
Sentencing Commission, working in consultation with the Justice 
Department, to regulate departures through the Commission's powers to 
promulgate or amend guidelines, policy statements, and commentary. 
These amendment powers include actions characterizing particular 
departure factors as ``forbidden'' or ``discouraged'' where 
appropriate.

    Question 7. Mr. Steer, the Guidelines currently permit a departure 
for a ``combination of factors.'' Does the Commission plan to review 
this ground for departure to determine whether the current language 
permitting this departure may be too broad?
    Answer 7. Chair Murphy has answered this question for the 
Commission.
                                 ______
                                 

 Responses of John R. Steer to Questions From Senator Patrick J. Leahy

    Answer 1-5. Chair Murphy has answered these same questions for the 
Commission, and I have passed along my thoughts for her consideration.
                               __________

Responses of Laird Kirkpatrick to Questions From Senator Strom Thurmond

    Question 1. Mr. Kirkpatrick, there is only about a 65 percent 
compliance rate with the Guidelines today. If the downward departure 
trends continue, does there reach a point when the Guidelines system 
breaks down, and if so, what do you view as an essential minimum 
compliance rate for the system to operate appropriately?
    Answer 1. A clear distinction must be drawn between substantial 
assistance departures under Sec. 5K1 and judicial departures on other 
grounds under Sec. 5K2. Substantial assistance departures are an 
important law enforcement tool. It would be difficult to prosecute many 
types of organized criminal activity, including racketeering and drug 
distribution, if prosecutors did not have the ability to grant 
substantial assistance departures to defendants who aid in the 
apprehension and prosecution of other members of the criminal 
enterprise. Such defendants deserve a different sentencing range than 
defendants who refuse to provide any assistance to the government in 
prosecuting others involved in the crime. Since long before the 
adoption of the sentencing guidelines, sentencing concessions have been 
a well-established way to reward cooperating defendants, and 
substantial assistance departures were specifically recognized by 
Congress as an appropriate law enforcement tool in the Sentencing 
Reform Act of 1984. The current substantial assistance departure rate 
of approximately 18%--a rate that has been relatively consistent over 
the past several years--seems well within the range contemplated by 
Congress. It has enabled the number of drug prosecutions to increase 
from 15,000 a year to over 23,000 a year between 1995 and 1999. If 
substantial assistance departures were not available and defendants 
stopped cooperating with the government, there would undoubtedly be a 
significant reduction in the number of criminal cases that the 
government could successfully prosecute.
    Judicial departures on other grounds under Sec. 5K2 are also 
specifically authorized by the Sentencing Reform Act. It was understood 
by Congress that the Guidelines could not apply uniformity to all 
defendants and that in some cases upward or downward departures would 
be necessary and appropriate. In Commissioner Steer's written testimony 
(at footnote 3), he quotes a statement from the Senate Judiciary 
Committee Report anticipating that judges would depart from the 
sentencing guidelines ``at about the same rate or possibly at a 
somewhat lower rate'' than the U.S. Parole Commission customarily set 
parole release dates outside its guidelines, which then was about 20%. 
However, the Department has not endorsed this statement or taken a 
position on what an acceptable Sec. 5K2 departure rate would be. The 
Department is continuing to monitor current trends and to challenge 
downward departures that it believes to be illegal or inappropriate, 
both before the courts and the Commission, Judicial departure rates in 
certain districts, particularly those along the Southwest Border, have 
raised concerns within the Department of Justice, and we look forward 
to exploring these concerns and determining what actions, if any, are 
appropriate. We also believe it is important for Congress to allocate 
more prosecutorial and judicial resources to the Southwest Border 
districts to help them respond to the overwhelming caseloads they are 
currently facing.

    Question 2. Mr. Kirkpatrick, you testified at the hearing that 
taking appeals has become more difficult in the years after the Koon 
decision, because that case instructed appellate courts to give greater 
deference to the district court. The Department's position in Koon was 
that the Supreme Court should continue to give the courts of appeals 
the power of de novo review of sentencing decisions, based on Congress' 
intent in providing for review of sentences under the Sentencing Reform 
Act. In light of the difficulties Koon poses for successful government 
appeals as you emphasized in your testimony, should the Congress 
correct Koon to provide by statute the understanding of the Sentencing 
Reform Act which was advocated by the Solicitor General in that case?
    Answer 2. We think it is premature for Congress to consider 
legislation overruling the Supreme Court's decision in Koon on the 
standard of review federal appellate courts must use in reviewing most 
departure decisions by district courts. As we have indicated, we 
believe the Sentencing Commission and the Department of Justice should 
continue to monitor the extent of departures--as well as specifically 
how the district and appellate courts are applying current departure 
law--to determine whether the purposes of sentencing reform are being 
substantially achieved by current law. In addition, we believe that if 
significant concerns are identified, the first remedy for such concerns 
ought to be with the Commission and with its authority to amend the 
sentencing guidelines and to issue policy statements. Only if such 
efforts fail do we believe that legislation ought to be considered.

    Question 3. Mr. Kirkpatrick, is the Department considering taking 
any specific action to appeal more Guidelines cases as a way to uphold 
the Guidelines?
    Answer 3. The Department of Justice examines each case individually 
to assess whether it is a good candidate for appeal. Our decisions are 
not influenced by a statistical count of the number of appeals taken in 
any year. We consider many factors, including whether a weak appeal 
will lead to an adverse decision that may harm our future efforts to 
enforce the sentencing guidelines. It may do so in several ways. First, 
an affirmance of a downward departure sends a clear signal to the 
district judge that his or her action was appropriate, and it may 
embolden that judge to depart in future cases. Second, when a court of 
appeals gives its imprimatur to a departure, it encourages other judges 
within the circuit to depart in similar circumstances. Finally, the 
adverse precedent of the order of the court of appeals' affirmance will 
preclude us from appealing future departures that rest upon the same 
ground. In short, there is a ``ripple effect'' to every loss that 
cannot be ignored.
    Districts courts have been given broad discretion to depart--
downward and upward--from the guideline range as long as they do not 
rely on a factor that is prohibited by the guidelines. The Department 
of Justice has in the past and will continue to appeal downward 
departures that, in our view, rest on an impermissible ground. If, 
however, the ground is a permissible one, our options are limited. In 
that instance, we will usually appeal only where the degree of the 
departure is excessive or where there is no factual support for the 
departure.

    Question 4. Mr. Kirkpatrick, I understand that internal Justice 
policies require U.S. Attorneys to file a written report concerning any 
adverse decision in district court. It appears that to better enable 
the Department to monitor cases and determine those that should be 
appealed, these reports should include adverse sentencing decisions, 
such as downward departures that the prosecutor did not support. Do you 
agree?
    Answer 4. At this time, we see no advantage to a reporting 
requirement for downward departures that the United States Attorney 
does not wish to appeal. The policy of not reporting these sentencing 
decisions was first instituted in 1987 by the Solicitor General serving 
during the final years of the Reagan Administration. It was endorsed by 
then Assistant Attorney General William Weld of the Criminal Division 
in a guidance pamphlet that was provided all United States Attorneys. 
Until now, the policy, which has remained in force during the Bush and 
Clinton Administrations, has generated no controversy and no 
disagreement. Moreover, the administrative burden and costs of 
reporting all ``no appeal'' recommendations from the United States 
Attorneys would, in our view, not be justified.

    Question 5. Mr. Kirkpatrick, it seems that the question of what 
constitutes substantial assistance to warrant a defendant getting a 
reduced sentence for cooperating with the government is defined 
differently from one district to another. Do you know how all U.S. 
Attorneys define what constitutes substantial assistance?
    Answer 5. What constitutes ``substantial assistance'' depends very 
much on the facts and circumstances of each case. There is no uniform 
definition of the term that can apply to all types of cases. For 
example, in some prosecutions, it is necessary for a defendant to 
testify against another charged person in order to provide substantial 
assistance to the government. The prosecution simply could not be 
successful without such testimony. However, in other cases, the 
defendant will have provided such crucial information (e.g., supplying 
the location of drugs or other contraband, wearing of a body wire, 
etc.) that the defendant's testimony at trial is not necessary for a 
conviction. While the term substantial assistance does not lend itself 
to a rigid definition, the federal prosecutor in charge of an 
investigation is in the best position to determine whether a 
defendant's assistance in a given case has truly been ``substantial.'' 
Consistency within each district is encouraged by the requirement of 
the U.S. Attorney's Manual that a supervising attorney must make the 
final decision on whether to allow a substantial assistance motion. 
Many larger offices have established a committee to review substantial 
assistance motions and resolve them by applying consistent standards.

    Question 6. Mr. Kirkpatrick, you noted at the hearing that the 
Department had been working to provide more uniformity in how U.S. 
Attorneys define and apply substantial assistance. Do you have a time 
line for developing policies for U.S. Attorneys as to what constitutes 
substantial assistance, and do you intend to consult with the 
Commission regarding this policy?
    Answer 6. Within the Department of Justice, we have considered 
internal guidelines to encourage greater consistency in the use of 
substantial assistance departures. We continue to discuss the matter 
among the Criminal Division, the AGAC, and others within the Department 
of Justice and would be happy to hear from the Commission on the issue.

    Question 7. Mr. Kirkpatrick, do you think it would be beneficial 
for the Sentencing Commission to establish a Crime Victims Advisory 
Group similar to the Practitioners Advisory Group?
    Answer 7. It is highly beneficial to the Commission to receive 
views from a wide range of groups. The Commission already receives 
input from victims' groups through its public hearings and public 
comment process, but the establishment of a more formal Crime Victims 
Advisory Group could also be helpful to the Commission.

    Question 8. Mr. Kirkpatrick, what is the legal basis pursuant to 18 
U.S.C. Sec. 3553(b) and the Sentencing Guidelines for the Department to 
adopt the fast track policies that it has instituted for immigration 
deportation cases?
    Answer 8. The legal basis pursuant to 18 U.S.C. Sec. 3553(b) for 
the fast track policies providing for departure from the applicable 
sentencing guideline range is that the statutory provision in question 
permits departures where the court finds that there is an aggravating 
or mitigating circumstance not adequately taken into account by the 
Sentencing Commission in formulating the guidelines that should result 
in a sentence different from that described. The circumstances that may 
justify downward departure in the fast track context for immigration 
deportation cases are the pressures placed on available resources in 
the districts that rely on these departures, the defendant's 
willingness to expedite the criminal proceeding by indicating an early 
intent to plead guilty and by waiving other rights which if exercised 
could delay the proceeding, and the defendant's willingness to 
stipulate to deportation. The defendant's concessions contribute to the 
smooth and expeditious implementation of both the criminal prosecution 
and the deportation proceeding and thereby save much-needed 
prosecutorial and judicial resources.
    The justification for such fast track proceedings under the 
sentencing guidelines is based on several sections. First, section 
5K2.0 is a general provision on departure and specifies that departure 
decisions rest with the court on a case-specific basis. This section 
also provides that circumstances that warrant departure cannot be 
comprehensively listed and analyzed by the Sentencing Commission in 
advance. Thus, the absence of a provision in the sentencing guidelines 
specifically applicable to fast track programs is not an impediment to 
departure. Of course, the sentencing guidelines provide a reduction for 
acceptance of responsibility, Sec. 3E1.1, which specifically recognizes 
early notification of an intent to plead guilty. However, this 
provision does not take into account the combination of circumstance 
described above. Downward departures for fast track defendants are 
premised not only on early notification of an intent to plead guilty 
but also on a stipulation to deportation and, depending upon the 
district, the waiver of indictment or other rights, such as the right 
to appeal the sentence. These actions have permitted the United States 
Attorneys' offices expeditiously to process a significant number of 
alien-related prosecutions over the past few years. It is noteworthy 
that the sentencing guidelines do not prohibit fast track departure--a 
fact that results in significant leeway to the courts under Koon v. 
United States, 518 U.S. 81 (1996).

    Question 9. Mr. Kirkpatrick, as you know, the fast track policies 
in the Southwest Border districts have significantly impacted 
compliance with the Guidelines in immigration deportation cases. Did 
the Department consult with and get input from the Sentencing 
Commission before establishing these fast track policies?
    Answer 9. The fast track policies employee by certain districts 
grew out of the burdens of a significantly increased caseload in recent 
years involving alien defendants. Largely as a result of increased 
enforcement along the Southwest Border, the total number of federal 
drug prosecutions in the five border districts nearly doubled between 
1994 and 1998 (from 4,070 to 7,841), and felony immigration 
prosecutions increased by a factor of six (from 1,044 to 6,422). The 
increase in Border Patrol agents without a concomitant increase in 
prosecutors, defense attorneys, court interpreters, judges, deputy 
marshals, pretrial and probation officers, and pretrial detention space 
has caused a crisis for the federal criminal justice system that 
requires innovative and aggressive solutions. Fast tract programs, 
which expedite prosecutions through the use of concessions that 
encourage guilty pleas at the earliest possible stage and thereby 
minimize the burdens on prosecutors, the courts, and the United States 
Marshals, have enabled the border districts to cope with the flood of 
alien prosecutions. The development of fast track programs was a 
response to this flood of cases. The alternatives were not consistent 
with the public interest. One alternative, to prosecute fewer 
immigration cases, would have resulted in failure to prosecute many 
previously deported aliens with prior aggravated felony convictions who 
were in the United States unlawfully. This would increase, not 
decrease, the disparity of treatment of criminal aliens apprehended 
after their illegal entry into the U.S. These immigration violations 
are uniquely federal offenses and cannot be turned over to the State 
for prosecution. Another alternative was to shift resources away from 
drugs, money laundering, violent crimes, fraud, and other high-priority 
cases. This, too, would have had a negative impact on the affected 
districts.
    The Department did not consult with or get input from the 
Sentencing Commission before these programs were put into practice, but 
we do not ordinarily consult with the Commission or seek its input 
before implementing new prosecutorial practices. We have, however, had 
discussions with the Commission staff since fast track programs came 
into existence, including consultation regarding amendment of the 
sentencing guidelines with the aim of reducing sentencing disparity in 
alien cases. While we recognize the different circumstances out of 
which fast track programs have arisen, we have, nevertheless, been 
concerned about their effect on sentencing disparity and would like to 
explore ways to reduce unwarranted disparity while maintaining the 
necessary caseload over time.

    Question 10. Mr. Kirkpatrick, as you know, border districts take 
widely different approaches to the increasing caseloads there. Some do 
not even have fast track policies, while the ones that do are not 
consistent. Has the Department undertaken any efforts to measure which 
approach is more effective in stopping the tide of illegal immigration?
    Answer 10. The Department has looked at the various fast track 
programs in place, as well as the absence of them in certain districts 
that also prosecute alien defendants, to understand the approaches 
being taken and the reasons underlying them. There are many factors 
affecting the use of these programs, including factors outside of the 
Department's control, such as judicial resources. To determine the 
effect of fast track programs, or their absence, on the tide of illegal 
immigration would be an extremely difficult, if not impossible, task 
because of the variety of factors that may influence an individual's 
decision to enter the United States unlawfully. We have not undertaken 
such a study.

    Question 11. Mr. Kirkpatrick, it seems that similarly-situated 
aliens in border districts can see their cases being disposed of very 
differently according to the district in which they are apprehended. Is 
the Department taking any specific action to develop consistency among 
the border districts in how they apply fast track policies for 
immigration deportation cases?
    Answer 11. The Department has considered ways of developing 
consistency among the border districts with respect to their use of 
fast track programs but has been unable to arrive at a solution. The 
practices in each district are subject not only to the actions of 
prosecutors but also to those of the defense bar and the courts. Each 
district has particular needs, partly as a result of the practices that 
have developed over time involving all components of the criminal 
justice system in that district. These needs also reflect the law 
enforcement challenges and priorities which differ substantially from 
district to district depending on the size, the population density of 
each district, existence of Indian reservations and military 
installations within a district, crime patterns existing within the 
district, state and local law enforcement activity, and a host of other 
factors. However, we believe that greater consistency among the border 
districts is a very desirable goal and one toward which we would like 
to renew our efforts.

    Question 12. Mr. Kirkpatrick, in some districts, fast track 
policies permit defendants to receive sentences that are not even close 
to the sentence they should receive under the current Guidelines. As 
you know, some of the penalties were increased in response to orders 
from the Congress as part of the Immigration Reform Act of 1996. 
Assuming there is a need for some type of fast track policies, is the 
extent of the reduction sentence that many aliens are receiving 
necessary based on the caseloads, or could the districts probably get 
similar cooperation if the departures from the Guidelines were less 
severe?
    Answer 12. Whether the districts could obtain cooperation similar 
to what they have received if the extent of downward departures from 
the applicable sentencing guideline range were less than presently 
granted is unknown. The Department has considered whether such an 
approach may be workable, but certain districts fear that defense 
efforts aimed at thwarting the imposition of increased sentences may 
significantly impair their ability to prosecute alien cases at current 
rates.

    Question 13. Mr. Kirkpatrick, are there other ways to handle 
immigration deportation cases in the border states today other than 
through downward departures?
    Answer 13. To deal effectively with the flood of alien cases in the 
border states, additional resources are needed for many components of 
the criminal justice system. At present, there seems to be a 
disequilibrium in the allocation of resources, with a great deal 
directed toward apprehending offenders along the border but not enough 
directed toward the later stages of criminal prosecution. Additional 
resources are necessary to prosecute offenders, to house them pending 
trial, to try them, and to incarcerate them following conviction. 
Sufficient resources to address these needs would decrease the pressure 
currently on prosecutors to enter into plea agreements aimed at 
expediting prosecutorial and judicial efforts and would allow the 
sentencing guidelines to operate as intended. In addition, revision of 
the guidelines, for example, to encourage defendants to indicate an 
early intent to plead guilty, may be another way to reduce the number 
of downward departures.

    Question 14. Mr. Kirkpatrick, is the Department concerned about the 
recent decision of the Supreme Court in Apprendi v. New Jersey, and do 
you think it will have a significant impact on the Guidelines?
    Answer 14. The Department of Justice is indeed concerned about the 
impact of the Supreme Court's decision in Apprendi v. New Jersey. The 
biggest impact of Apprendi to date has been the deluge of litigation 
that has resulted from the decision. While we anticipate that only 
hundreds of defendants will actually have their sentences directly 
affected by Apprendi, many thousands of defendants will likely file 
meritless claims. As to the impact on the guidelines, in courts around 
the country, the Justice Department is defending the sentencing 
guidelines against Apprendi attacks. We do not believe that the 
guidelines are impacted by Apprendi, because the guidelines do not 
affect the maximum penalty for any offense.

    Question 15. Mr. Kirkpatrick, does the Congress need to consider 
statutory changes in response to the Apprendi decision, such as 
possibly increasing the maximum sentence for certain serious crimes?
    Answer 15. At this time, we do not believe that Congress ought to 
consider statutory changes in response to the Apprendi decision. 
Prosecutors have adjusted charging and trial practices in light of 
Apprendi and now charge, for example, drug type and threshold drug 
quantities in appropriate cases. To date--and we should emphasize that 
our assessment is very preliminary--these changes have caused few 
disruptions in our ability to prosecute successfully drug or other 
crimes. We will not hesitate to ask Congress to make changes to federal 
criminal statutes if the need arises. However, at the present time--and 
again bear in mind that our assessment is preliminary--we do not see an 
immediate need to change federal law in response to Apprendi. The 
federal courts of appeal--and in all likelihood the U.S. Supreme 
Court--will render decisions interpreting Apprendi for some time in 
response to the deluge of litigation facing the courts. We will, of 
course, monitor these decisions and bring information to Congress, 
including legislative proposals--as appropriate.
                                 ______
                                 

  Responses of Laird Kirkpatrick to Questions From Senator Patrick J. 
                                 Leahy

    Question 1. According to Commissioner Steer's testimony, 
deportation of aliens is the reason most often given by judges for 
downward departures. His testimony shows that the districts that lead 
the nation in rate of downward departures are Arizona and San Diego. 
The caseloads of those districts and others that border Mexico have 
dramatically increased over the past eight years due to the Clinton 
Administration's resoundingly successful efforts to patrol our borders 
more effectively and bring more border-related prosecutions in federal 
court to deter illegal immigration and drug smuggling at the border. 
This extraordinary increase in caseload has not been matched by an 
equal increase in prosecutorial and judicial resources. Thus, border 
districts have implemented so-called ``fast-track'' programs by which 
departures are granted as an incentive for defendants who commit 
border-related crimes to resolve their cases quickly and with a minimum 
of resource-consuming litigation.
    Question a. Contrary to patently partisan accusations that there is 
a nationwide trend among our federal judges and the Justice Department 
to ignore or defeat the guidelines, do these facts suggest that the 
spike in the rate of increase of departures is due to districts trying 
to develop strategies to address increased emphasis on border-related 
law enforcement?
    Answer 1a. The Sentencing Commission's data show that the increase 
in downward departures over the last several years has been due 
primarily to border district strategies addressing increased emphasis 
on border-related crime. These districts have experienced exploding 
caseloads without commensurate increases in the number of judges, 
probation officers, defense attorneys, and prosecutors.

    Question 1b. Commissioner Steer's statistics show that the Eastern 
and Western Districts of Washington, districts which border Canada, are 
among the districts that lead the nation in rate of downward 
departures. Is the high rate of downward departures in those districts 
attributable to border-related issues as it is in the southwestern 
districts?
    Answer 1b. According to data provided by the Sentencing Commission, 
the high rate of departures in the Eastern and Western districts of 
Washington appear to be attributable to border-related issues. Downward 
departures for immigration offenses account for about 70 percent of all 
downward departures in Eastern District of Washington and for 44 
percent of all departures in the Western District of Washington. 
Excluding these departures, the departure rate for these two district 
would be between 17 and 19 percent.

    Question 1c. What would the rate of sentencings within the 
applicable guideline range be since 1990 if border districts were 
eliminated from the calculation?
    Answer 1c. According to data provided by the Sentencing Commission, 
if border districts were eliminated from consideration, the rate of 
sentencing within the guideline range would have been the following: 
1991--92.9%; 1992--92.5%; 1993--91.9%; 1994--90.6%; 1995--90.4%; 1996--
89.9%; 1997--88.3%; 1998--87.3%; 1999--86.8%.

    Question 2. As United States Attorney Denise O'Donnell testified at 
the hearing, the nation is divided inton93 geographic federal districts 
each headed by its own United States Attorney. The districts are not 
identical. The types of crimes that predominate in one district may be 
very different from another district. Each district has its own law 
enforcement priorities and a unique relationship with state and local 
law enforcement. While the Sentencing Guidelines serve the goal of 
sentence uniformity, the provision for downward and upward departures 
in Guideline Section 5K2.0 recognizes that some flexibility is 
necessary so that the sentencing judge in an appropriate case can 
account for compelling and otherwise unaccounted-for circumstances. Is 
some degree of disparity inevitable and acceptable in a nation as 
disparate as ours, and does Section 5K2.0 reflect the wisdom that room 
for some flexibility is an essential ingredient in a fair sentencing 
scheme in which the American people can have confidence?
    Answer 2. To the best of our knowledge, it was never contemplated 
that the Sentencing Reform Act would eliminate all disparity from 
federal sentencing. We believe Congress, the Sentencing Commission, and 
the Department of Justice have all long recognized the need for 
flexibility in the way the sentencing guidelines direct the exercise of 
sentencing authority. We believe the departure is an essential element 
of the federal guideline system, made so by the fact that no 
centralized rulemaking authority--Congress, the Sentencing Commission, 
or otherwise--can adequately consider all of the case-specific factors 
that properly are a part of the sentencing process.

    Question 3. The claim has been made by some that the number of 
appeals taken by the Justice Department has not increased 
commensurately with the increase in the rate of downward departures. 
That claim ignores that the increase in downward departures is largely 
due to policies and practices in border states to deal with caseloads 
resulting from increased emphasis on border-related crime. That claim 
also ignores United States v. Koon, 519 U.S. 81 (1996), in which the 
United States Supreme Court made it more difficult to appeal a downward 
departure by holding that appellate courts should only overturn a 
departure where the sentencing judge makes a mistake of law or abuses 
discretion. Mr. Kirkpatrick testified at the hearing that there are 
ways of assuring compliance with the Sentencing Guidelines other than 
taking appeals in particular cases, such as working with the Commission 
to resolve conflicts among the circuit courts of appeal about 
interpretation of the guidelines.
    Question 3a. If border-related issues and Koon are considered, has 
there in fact been any significant change in the rate with which the 
Justice Department takes appeals from downward departures?
    Answer 3a. If border-related issues and the decision in Koon are 
considered, we do not believe there has been any significant change in 
the rate with which the Justice Department takes appeals from downward 
departures.

    Question 3b. What are the ways in which the Justice Department 
endeavors to assure the effectiveness of the Guidelines other than 
taking appeals from downward departures?
    Answer 3b. The Justice Department endeavors to assure the 
effectiveness of the guidelines in many ways other than taking appeals 
from downward departures. Let me name just three. First, in federal 
district and appellate courts from coast to coast, Department of 
Justice prosecutors defend against meritless claims--claims that are 
advanced by the tens of thousands--by convicted defendants for downward 
departures and for inappropriate application of the sentencing 
guidelines generally. According to the Sentencing Commission, in the 
appellate courts alone, defendants appealed approximately 4,000 cases, 
claiming that there sentences were inappropriately severe. In about 80 
percent of those cases, the decision of the lower court was affirmed 
with the support of the Department of Justice. Second, as we indicated 
in an answer to one of Senator Thurmond's questions, the Department of 
Justice is actively defending the sentencing guidelines against 
Apprendi attacks. Just as we initially defended the guidelines from 
constitutional and other attacks, so we are today doing in relation to 
the Apprendi decision. Third, we actively participate as an ex-officio 
member of the Sentencing Commission. Our work with the Commission 
includes seeking limits on departure grounds from time-to-time, seeking 
adjustments to penalty levels as appropriate, and reviewing research 
developed by the Commission staff. Our guiding principle in this work 
is--as we stated in our testimony--that structured sentencing is far 
superior to unstructured sentencing and that through the work of the 
Commission, we strive to develop fair and effective sentencing policy.

    Question 3c. Should the Justice Department's policy be to pursue an 
appeal of every downward departure no matter the circumstances? What 
factors does the Justice Department consider in determining whether or 
not to pursue an appeal from a downward departure?
    Answer 3c. The Justice Department's policy has never been--and 
ought not be--to pursue an appeal of every downward departure no matter 
the circumstances. In deciding whether to appeal, we consider, among 
other factors:
    1. Did the departure rest on a ground prohibited by the guidelines?
    2. If the factor was not specifically prohibited, should it 
nevertheless be prohibited for some other policy reason, i.e., it 
applies to so many people that it is not outside the heartland, or 
decreasing a sentence on this basis would be contrary to public policy?
    3. Is the departure de minimus? For example, if a defendant should 
have been sentenced to 20 years, and the district court instead imposed 
a sentence of 19 years, we are not likely to ask the court of appeals 
to review the sentence. On the other hand, if the reduction is 
significant, or, if the judge replaces a prison term with home 
confinement, we will often challenge the departure.
    4. Has the district court justified the degree of the departure? In 
some circuits, the district court must explain how it selected the 
sentence. If the record is devoid of any analytical framework for the 
sentence, we will often appeal.
    5. Is there support in the record for the factual findings of the 
district court? If there is evidence in the record to support the 
findings, we cannot challenge them even if we disagree with those 
findings. Factual findings are reviewed for clear error, and 
credibility choices are left to the court. Thus, no matter how strongly 
we disagree with the court's assessment of the facts, we have no 
recourse as long as there is some evidence in the record to support the 
court's findings.
    What is the likelihood that we will win? There are substantial 
costs to an unsuccessful appeal. Each affirmance of a downward 
departure opens the door to future downward departures. An affirmance 
will embolden the judge who departed and encourage him to continue to 
depart in the future. An affirmance will also signal other judges 
within the circuit that downward departures are countenanced. Moreover, 
the precedent created by the affirmance will preclude us from appealing 
future departures that are ``controlled'' by the precedent. Because we 
carry the heavy burden on appeal of establishing an abuse of discretion 
or clear error, we must select our cases carefully. In this regard, if 
we expand the number of cases that we appeal by lowering our standards, 
i.e., by appealing weaker cases, our winning percentage will decrease. 
There is not rational basis for predicting that our win-loss percentage 
will remain fixed if we begin to challenge factual findings, etc.

    Question 4. Ms. Hernandez expressed concern about relentless 
attempts by some to ratchet up the Guidelines and create unduly harsh 
sentences with an unintended racially disparate impact. Mr. Kirkpatrick 
in his written testimony expressed concern that our federal prison 
population continues to grow even as the crime rate decreases. Indeed, 
the population in our federal prisons has almost doubled in the last 
five years, and there are now about two million people in our nation's 
federal, state and local jails.
    Question 4a. Is there reason for concern that our sentencing laws 
have become too harsh and retributive?
    Question 4b. Is the Sentencing Commission as sensitive to unduly 
harsh sentences as it is to inappropriately lenient ones?
    Answer 4a and b. The Sentencing Reform Act mandates that the 
Sentencing Commission develop sentencing policy that meets the goals of 
sentencing and that courts shall impose a sentence ``sufficient, but 
not greater than necessary'' to achieve those goals. We believe the 
Sentencing Commission has a statutory responsibility to be equally 
concerned with sentencing policy that is excessively harsh as it is 
with sentencing policy that is excessively lenient. It is also the 
Commission's responsibility, in promulgating its guidelines, to ``take 
into account the nature and capacity of the penal, correctional, and 
other facilities and services available.'' We believe there is reason 
for concern that some of our sentencing laws are unnecessarily harsh 
and that others are unnecessarily lenient, and we believe the 
Commission ought to be equally sensitive to both. We have and will 
continue to bring such matters to the attention of the Commission, when 
appropriate.

    Question 4c. If application of the Guidelines creates an unintended 
racially disparate impact, what steps should Congress take to address 
that impact?
    Answer 4c. We believe that when the guidelines have a racially 
disparate impact, the Sentencing Commission ought to thoroughly--and 
using the most rigorous research protocols--examine the impact to 
determine its cause. The Commission may find that the disparate impact 
is unintended and the result of appropriate and reasonable law 
enforcement and sentencing policies--taking into consideration all 
alternative policies. On the other hand, the Commission may find that 
the impact is unwarranted for one reason or another. In either case, we 
think the Commission ought to report its finding--after consultation 
with appropriate interested parties and after rigorous scholarly 
review--providing Congress, the Executive Branch, and others with 
recommendations, if appropriate. If, however, the Commission fails to 
undertake this type of rigorous review in the face of available data, 
we think it is appropriate for the Congress to direct the Commission to 
do so, and then if necessary, to seek reviews elsewhere.

    Question 5. The Supreme Court in Koon held that the sentencing 
judge is in the best position to evaluate whether a departure is 
warranted, and any departure should be reversed on appeal only under 
very limited circumstances where, for example, the judge abused 
discretion or made a mistake of law. Some say that Koon is good for the 
system because it supports the authority of judges to fashion on 
appropriate sentence where there are unforeseen or compelling 
circumstances. Others have suggested that the Congress should pass 
legislation that would effectively overrule Koon. What factors should 
the Congress consider in evaluating the wisdom of a legislative effort 
to statutorily overrule Koon, including, for example, the increase in 
federal appellate litigation?
    Answer 5. As we indicated in an answer to a question from Senator 
Thurmond, we think it is premature for Congress to consider legislation 
overruling the Supreme Court's decision in Koon on the standard of 
review federal appellate courts must use in reviewing most departure 
decisions by district courts. We believe the Sentencing Commission and 
the Department of Justice should continue to monitor the extent of 
departures--as well as specifically how the district and appellate 
courts are applying current departure law--to determine whether the 
purposes of sentencing reform are being substantially achieved by 
current law. We think a variety of factors ought to be considered, 
including the number of departures, the reasons for the departures, law 
enforcement priorities, and available resources. In addition, we 
believe that if significant concerns are identified, the first remedy 
for such concerns ought to be with the Commission and with its 
authority to adjust the guidelines. Only if such efforts fail do we 
believe that legislation ought to be considered.
                               __________

  Responses of Carmen Hernandez to Questions From Senator Patrick J. 
                                 Leahy

    Question 1. According to Commissioner Steer's testimony, 
deportation of aliens is the reason most often given by judges for 
downward departures. His testimony shows that the districts that lead 
the nation in rate of downward departures are Arizona and San Diego. 
The caseloads of those districts and others that border Mexico have 
dramatically increased over the past eight years due to the Clinton 
Administration's resoundingly successful efforts to patrol our borders 
more effectively and bring more border-related prosecutions in federal 
court to deter illegal immigration and drug smuggling at the border. 
This extraordinary increase in caseload has not been matched by an 
equal increase in prosecutorial and judicial resources. Thus, border 
districts have implemented so-called ``fast-track'' programs by which 
departures are granted as an incentive for defendants who commit 
border-related crimes to resolve their cases quickly and with a minimum 
of resource-consuming litigation.
    a. Contrary to patently partisan accusations that there is a 
nationwide trend among our federal judges and the Justice Department to 
ignore or defeat the guidelines, do these facts suggest that the spike 
in the rate of increases of departures is due to districts trying to 
develop strategies to address increased emphasis on border-related law 
enforcement?
    Answer 1a. The most significant fact to note about downward 
departure rates is that overall federal judges continue to grant 
downward departures at a rate below that contemplated by Congress when 
it enacted the Sentencing Reform Act. The national downward departure 
rate is a mere 15.8 percent, below the 20 percent rate expressly noted 
in the Senate report filed contemporaneously with the passage of the 
Sentencing Reform Act in 1984. The majority of federal defendants--85 
percent--are sentenced within the guideline range.
    Included in the 15 percent of cases that do receive downward 
departures are the departures granted in those handful of districts 
like Arizona and San Diego whose rates have dramatically increased in 
recent years as the courts and the prosecution have tried to deal with 
the dramatically increased number of border-related prosecutions. While 
there has been a slight incremental increase in the overall downward 
departure rate over the last six years, that is a reflection, as the 
Senator has noted, of the successful prosecution of immigration offense 
by the Clinton administration.
    Vigorous border-related law enforcement has swelled federal 
criminal dockets in border states. In fact, there was a record number 
of apprehensions on the southwest border in FY 2000, /
www.ins.gov/graphics/aboutins/statistics/msrsep00/SWBORD.HTM>, and 
immigrants are the fastest growing segment of the country's prison 
population.
    To ease case backlogs caused by the overwhelming increase in 
immigration cases, some districts have implemented a ``fast track'' 
program whereby criminal alien defendants are allowed to plead guilty 
to offenses carrying reduced statutory maximums or are granted downward 
departures as an incentive to plead guilty within a week or two after 
apprehension. NACDL believes that unless Congress is prepared to fund 
adequately the courts and the defense function,this caseload management 
tool is essential to handle the potentially paralyzing volume of 
immigration cases in some border states. As it is, persons convicted of 
these immigration offenses are being processed in a fashion that we 
reserve for minor traffic offense in other courts across America--when 
in fact they stand convicted of felonies which carry serious prison 
terms and other consequences.
    Aside from the caseload management benefits, there are equitable 
reasons for downward departures in immigration cases. Federal prisoners 
with INS holds are automatically designated to higher security 
facilities, where living conditions are more oppressive, and are 
ineligible for many prison programming benefits. The prisoners serve 
their entire sentences at the prison facilities, as they are 
disqualified from the transitional 6-month placement in halfway house, 
and then continue their confinement at INS detention facilities. These 
INS facilities have come under the scrutiny of public interest groups 
and the Department of Justice for their abusive and overcrowded 
conditions. Chris Hodges, Policy to Protect Jailed Immigrants is 
Adopted by U.S., N.Y. Times, Jan. 2, 2001.

    Question 1b. Commissioner Steer's statistics show that the Eastern 
and Western Districts of Washington, districts which border Canada, are 
among the districts that lead the nation in rate of downward 
departures. Is the high rate of downward departures in those districts 
attributable to border-related issues as it is in the southwestern 
districts?
    Answer 1b. In the Eastern District of Washington, immigration 
offenses outnumber all other categories of offenses. United States 
Sentencing Commission, 1999 Sourcebook of Federal Sentencing 
Statistics, App. B. In the Western District of Washington, immigration 
cases do not predominate but still exceed the national average; thus, 
in cases involving prison, immigration offenses are second only to drug 
offenses. Id. We refer the Committee to the Sentencing Commission's 
response for more detailed data concerning the impact of border-related 
issues on the downward departure rates in these districts.

    Question 1c. What would the rate of sentencings within the 
applicable guidelines range be since 1990 if border districts were 
eliminated from the calculation?
    Answer 1c. It appears that the rate of downward departures is just 
around 10 percent when the handful of border districts are excluded 
from the calculations, but we refer the Committee to the Sentencing 
Commission's response for a more detailed analysis of these statistics.

    Question 2. As United States Attorney Denise O'Donnell testified at 
the hearing, the nation is divided into 93 geographic federal districts 
each headed by its own United States Attorney. The districts are not 
identical. The types of crimes that predominate in one district may be 
very different from another district. Each district has it own law 
enforcement priorities and a unique relationship with state and local 
law enforcement. While the Sentencing Guidelines serve the goal of 
sentence uniformity, the provision for downward and upward departures 
in Guideline Section 5K2.0 recognizes that some flexibility is 
necessary so that the sentencing judge in an appropriate case can 
account for compelling and otherwise unaccounted-for circumstances. Is 
some degree of disparity inevitable and acceptable in a nation as 
disparate as ours, and does Section 5K2.0 reflect the wisdom that room 
for some flexibility is an essential ingredient in a fair sentencing 
scheme in which the American people can have confidence?
    Answer 2. Downward and upward departures do not create unwarranted 
disparity--they are the hallmark of a just system of punishment. 
Departures account for offense and offender differences that if 
disregarded, would create disparity. The departure authority that 
Congress built into the Sentencing Reform Act, 18 U.S.C. Sec. 3553(b), 
requires district courts to smooth out the disparities that otherwise 
would be generated by application of the guidelines.
    As Congress and the Sentencing Guidelines' drafters understood, a 
guidelines system that encompasses every relevant sentencing factor is 
neither possible nor desirable:

          The larger the number of subcategories of offense and 
        offender characteristics included in the guidelines, the 
        greater the complexity and the less workable the system. 
        Moreover, complex combinations of offense and offender 
        characteristics would apply and interact in unforeseen ways to 
        unforeseen situations, thus failing to cure the unfairness of a 
        simple, broad category system. Finally, and perhaps most 
        importantly, probation officers and courts, in applying a 
        complex system having numerous subcategories, would be required 
        to make a host of decisions regarding whether the underlying 
        facts were sufficient to bring the case within a particular 
        subcategory. The greater the number of decisions required and 
        the greater their complexity, the greater the risk that 
        different courts would apply the guidelines differently to 
        situations that, in fact, are similar, thereby reintroducing 
        the very disparity that the guidelines were designed to reduce 
        departures should and should not be permitted.

USSG Ch. 1, Pt. A, intro. comment. Although the Sentencing Guidelines 
include what are arguably the most prominent offense and offender 
characteristics, they are by necessity a relatively blunt instrument; 
without Section 5K2.0, they would frequently fail to take account of 
ethically relevant differences between offenders. In our view, the 
problem of excessive uniformity, particularly in the area of drug 
sentencing, warrants greater attention by the Commission and this 
Committee than certain justifiable pockets of regional disparity. See 
Kyle O'Dowd, The Need to Re-assess Quantity-based Drug Sentences, 12 
Fed. Sent. R. 116 (1999); Stephen J. Schulhofer, Excessive Uniformity--
and How to Fix It, Fed. Sent. R. 169 (1992).

    Question 3. The claim has been made by some that the number of 
appeals taken by the Justice Department has not increased 
commensurately with the increase in the rate of downward departures. 
That claim ignores that the increase in downward departures is largely 
due to policies and practices in border states to deal with caseloads 
resulting from increased emphasis on border-related crime. That claim 
also ignores United States v. Koon, 518 U.S. 81 (1996), in which the 
United States Supreme Court made it more difficult to appeal a downward 
departure by holding that appellate courts should only overturn a 
departure where the sentencing judge makes a mistake of law or abuses 
discretion. Mr. Kirkpatrick testified at the hearing that there are 
ways of assuring compliance with the Sentencing Guidelines other than 
taking appeals in particular cases, such as working with the Commission 
to resolve conflicts among circuit courts of appeal about 
interpretation of the guidelines.
    Question a. If border-related issues and Koon are considered, has 
there in fact been any significant change in the rate with which the 
Justice Department takes appeals from downward departures?
    Answer 3a. NACDL has no knowledge whether the Justice Department's 
rate of appeals has or has not significantly changed. More significant 
than the rate of appeals is the nation's rate of imprisonment, which is 
the highest of any industrialized nation, and the overly harsh federal 
penalties for nonviolent drug offenses.
    Almost 90 percent of drug offenders serving prison terms are non-
violent offenders. More than half are first-time offenders or persons 
with very minor prior wrongful conduct. Persons convicted for crack 
cocaine offenses are sentenced on average to more than ten years in 
prison, longer than the average sentence for a violent offense. If the 
rate of appeals taken by the Department of Justice has decreased, it 
may reflect the fact that the sentences being imposed, even after 
downward departures, satisfy the statutory purposes of sentencing and 
the requirements of the law.

    Question 3b. What are the ways in which the Justice Department 
endeavors to assure the effectiveness of the Guidelines other than 
taking appeals from downward departures?
    Answer 3b. The Department of Justice is in the best position to 
provide a full answer to this question. We merely note that the 
government's interest in the Guidelines' effectiveness does not support 
its use of sentencing issue waivers and appeal waivers. Prosecutors 
frequently require, as an express plea agreement condition, that 
defendants waive their right to request a downward departure or other 
sentencing adjustment as well as their right to appeal the sentence 
imposed. Indeed, the government's increased requirement that defendants 
waive all manner of claims of error including wrongful conduct--such as 
ineffective assistance of counsel claims and failure to disclose 
exculpatory evidence by the government--contributes to the problem of 
innocent persons being convicted which has become so commonplace. NACDL 
believes these waivers contravene congressional intent that guideline 
sentences be appealable and disrupt the Sentencing Commission's mandate 
to continually refine and improve the guidelines in light of developing 
case law.

    Question 3c. Should the Justice Department's policy be to pursue an 
appeal of every downward departure no matter the circumstances? What 
factors does the Justice Department consider in determining whether or 
not to pursue an appeal from a downward departure?
    Answer 3c. Downward departures, which are an integral part of the 
sentencing reform which Congress enacted in 1984, are legal and should 
not be appealed in every instance. Even when the Department of Justice 
believes that a departure arguably exceeds the sentencing discretion 
that the Guidelines repose in federal judges, the Justice Department 
must responsibly allocate its resources like any other agency and 
should not reflexively appeal downward departures that do not 
jeopardize public safety or the integrity of the guidelines.

    Question 4. Ms. Hernandez expressed concern about relentless 
attempts by some to ratchet up the Guidelines and create unduly harsh 
sentences with an unintended racially disparate impact. Mr. Kirkpatrick 
in his written testimony expressed concern that our federal prison 
population continues to grow even as the crime rate decreases. Indeed, 
the population in our federal prisons has almost doubled in the last 
five years, and there are now about two million people in our nation's 
federal, state and local jails.
    Question 4a. Is there reason for concern that our sentencing laws 
have become too harsh and retributive?
    Answer 4a. Mandatory minimums and sentencing guidelines for drug 
offenses account for a major share of the individual injustices that 
plague federal sentencing. The average crack cocaine sentence, 120 
months, is greater than: the 103-month average sentence for robbery; 
the 76-month average sentence for arson; the 64-month average sentence 
for sexual abuse; and the 31-month average sentence for manslaughter. 
The excessive severity of drug sentences is also reflected in the 
composition of the prison population. Drug offenders account for 57 
percent of the federal prison population (compared to 42 percent of all 
federal sentencings). The drug offender population, which exceeds 
63,000, has more than doubled in the last ten years.
    A growing number of conservatives and firm law-and-order advocates 
have questioned current sentencing policies:
    --``And I think a lot of people are coming to the realization that 
maybe long minimum sentences for the first-time users may not be the 
best way to occupy jail space and/or heal people from their disease. 
And I'm willing to look at that. * * * [The crack-powder disparity] 
ought to be addressed by making sure the powder-cocaine and the crack-
cocaine penalties are the same. I don't believe we ought to be 
discriminatory.'' Statement of President George W. Bush, CNN Inside 
Politics (CNN television broadcast, Jan. 18, 2001) (transcript on file 
with NACDL).
    --``There is a conservative crime-control case to be made for 
repealing mandatory-minimum drug laws now. That's a conservative crime-
control case, as in a case for promoting public safety, respecting 
community mores, and reinstating the traditional sentencing 
prerogatives of criminal-court judges.'' John J. DiIulio, Jr., Against 
Mandatory Minimums, National Review, May 17, 1999, at 46.
    --``I believe it is time for us to look at the drug guidelines and 
the penalties we are imposing. * * * Judges think this minimum 
mandatory [for crack cocaine] which has the effect of driving up all of 
the sentencing guidelines is too tough.'' Cong. Rec. S14452 (Nov. 10, 
1999) (statement of Senator Sessions).
    --``[T]he narcotics sentences generated by the Guidelines and the 
various minimum mandatory statutory sentencing provisions are often, if 
not always, too high. I say this as a former prosecutor of some 
fourteen years experience, seven of them as an Assistant U.S. Attorney 
in Miami, who helped send a fair number of folks to prison for 
narcotics offenses.'' Frank O. Bowman, III, Fear of Law: Thoughts on 
Fear of Judging and the State of the Federal Sentencing Guidelines, 44 
St. Louis U. L.J. 299, 337 (2000).
    --``Far from saving the inner cities, our barbaric crack penalties 
are only adding to the decimation of inner-city youth.'' Stuart Taylor 
Jr., Courage, Cowardice on Drug Sentencing, Legal Times, April 24, 
1995, at 27.
    --``I think mandatory minimum sentences for drug offenders ought to 
be reviewed. We have to see who has been incarcerated and what has come 
from it.'' Statement of Edwin Meese III, in Timothy Egan, Less Crime, 
More Criminals, N.Y., Times, Mar. 7, 1999.
    --``Too many lives are unfairly ruined by Draconian sentences that 
do not achieve the law-enforcement objectives--primarily deterrance--
supposedly promoted by them. * * * The way to mitigate the unfairness 
of the crack-cocaine standards is not to toughen the powder-cocaine 
sentencing rules; it is to take the more courageous step of 
ameliorating the crack-sentencing scheme.'' Michael Bromwich (former 
inspector general of the Justice Department), Put A Stop to Savage 
Sentencing, Wash. Post, Nov. 22, 1999, at A23.
    --``Too often, our drug laws result in the long-term imprisonment 
of minor dealers or persons only marginally involved in the drug 
trade.'' John R. Dunne (former assistant attorney general under 
President George Bush), Paying For Failed Drug Laws, Wash. Post, Aug. 
12, 1999.
    Consistent with the above statements, Congress should refrain from 
increasing penalties and from directing the Sentencing Commission to 
increase penalties for drug offenses based on anecdotal media reports 
without sufficient verifiable scientific and empirical evidence. In 
addition, the Sentencing Guidelines, whatever its flaws, are an 
integrated system. In recent year, Congress directed the Sentencing 
Commission to increase penalities for particularized factors, and these 
directives have often duplicated guideline provisions that already 
punish such factors. This micro-management of the guidelines by 
Congress also contributes to the ratcheting up of sentences and 
undermines the uniformity and fairness that Congress sought to bring 
into federal sentencing.

    Question 4b. Is the Sentencing Commission as sensitive to unduly 
harsh sentences as it is to inappropriately lenient ones?
    Answer 4b. The Sentencing Commission does not seem to be as 
sensitive to unduly harsh sentences as it is to lenient ones. The fact 
is that of the more than 600 amendments promulgated by the Sentencing 
Commission less than a handful have served to reduce sentences. Thus, 
as with statutory sentences, sentences prescribed by the guidelines 
continue to escalate. A civilized society must find alternatives to 
imprisonment to deal with conduct which it wishes to prevent, 
particularly in the case of nonviolent offenses.
    Nevertheless, one must acknowledge that, despite what the 
Sentencing Commission might want to do, it is constrained by mandatory 
minimums and congressional reaction to attempts to lower the drug 
guidelines. According to many observers, the phrase ``once bitten and 
twice shy'' aptly describes the Commission's fear of Congress and 
resulting failure to review the Guidelines with an eye towards 
fairness. The Commission's 1995 attempt to equalize the crack cocaine 
and cocaine powder penalties drew not only sharp criticism from members 
of Congress and the Attorney General but an unprecedented congressional 
rejection. Since that humbling episode, the Commission has been 
relatively silent with respect to the severity of the drug guidelines--
ignoring the din of outside criticism. Although drug cases account for 
the largest percentage of the sentencing caseload and are responsible 
for much of the criticism lodged at the regime, guidelines that are 
perceived as being too lenient--the fraud guideline, for example--have 
received considerably more attention from the Commission.

    Question 4c. If application of the Guidelines creates an unintended 
racially disparate impact, what steps should Congress take to address 
that impact?
    Answer 4c. Congress must eradicate laws and guidelines which 
disparately impact on racial and ethnic minorities. Congress should 
also satisfy itself, after public hearings, that racial disparity is 
not the result of disparate application of neutral laws. As then 
Congressman George Bush said in introducing legislation to repeal 
federal mandatory minimums for drug offenses, ``Philosophical 
differences aside, practicality requires a sentence structure which is 
generally acceptable to the courts, to prosecutors, and to the 
public.'' 116 Cong. Rec. H33314, Sept. 23, 1970. Sentencing policies 
and law enforcement practices which operate in a racially disparate 
manner erode public confidence in our criminal justice system, 
particularly in minority communities.
    The Sentencing Commission first reported increasing racial 
disparities in August 1991:

          The difference found across race appears to have increased 
        since 1984. This difference develops between 1986 and 1988, 
        after implementation of mandatory minimum drug provisions, and 
        remains constant thereafter.

United States Sentencing Commission, Special Report to Congress: 
Mandatory Minimum Penalties in the Federal Criminal Justice System 82 
(1991).
    Racial and ethnic disparities continue into today and are seen at 
all stages of the criminal justice process. For example, currently 
Latinos comprise approximately 40 percent of the federal prison 
population although they only account for approximately 11.7 percent of 
the general population.
    Requiring special mention are the disparities caused by the 
disproportionately severe penalties that apply to crack cocaine 
offenses. While a majority of crack users in the United States are 
white, 94 percent of those sentenced under the incomparably severe 
penalties for crack cocaine are black or Hispanic. United States 
Sentencing Commission, 1999 Sourcebook of Federal Sentencing Statistics 
69. The average sentence for crack cocaine (ten years) is thirty-five 
percent longer than the average methamphetamine sentence and fifty-two 
percent longer than the average powder cocaine sentence. Id. at 81. 
Amid widespread criticism directed at the severity and disparate impact 
of the crack sentencing regime, the Sentencing Commission has twice 
called for reduced crack penalties, noting ``[t]he current penalty 
structure results in a perception of unfairness and inconsistency.'' 
United States Sentencing Commission, Special Report to Congress: 
Cocaine and Federal Sentencing Policy 8 (April 1997).
    Indeed, the ball is in Congress' court--Congress has yet to act on 
the recommendations in the congressionally ordered report issued by the 
Commission in 1997. It seems clear that the Commission is waiting for 
Congress to act in this area and that congressional action is necessary 
to initiate reform. NACDL supports repeal of all mandatory minimums and 
greater latitude for the Commission to set drug penalties. As a 
intermediate step, we believe Congress should increase the quantity 
thresholds necessary to trigger the mandatory minimums for crack 
cocaine and direct the Commission to amend the guidelines accordingly.

    Question 5. The Supreme Court in Koon held that the sentencing 
judge is in the best position to evaluate whether a departure is 
warranted, and any departure should be reversed on appeal only under 
very limited circumstances where, for example, the judge abused 
discretion or made a mistake of law. Some say that Koon is good for the 
system because it supports the authority of judges to fashion an 
appropriate sentence where there are unforseen or compelling 
circumstances. Others have suggested that the Congress should pass 
legislation that would effectively overrule Koon. What factors should 
the Congress consider in evaluating the wisdom of a legislative effort 
to statutorily overrule Koon, including, for example, the increase in 
federal appellate litigation?
    Answer 5. Departures are an integral part of the Sentencing Reform 
Act which Congress enacted in 1984. As Congress and the drafters of the 
first guidelines understood, departures make the guidelines possible. 
As explained in our answer to Question 2, the guidelines could not 
achieve their purpose of disparity reduction without departures.
    Concern regarding departure rates in certain districts does not 
warrant congressional abrogation of the Koon standard. The judicial 
branch--through both the Sentencing Commission and the courts--has 
repeatedly demonstrated its willingness to police the departure power. 
See, e.g., USSG Sec. 5K2.19 (added Nov. 1, 2000, to prohibit downward 
departures for post-sentencing rehabilitative efforts); United States 
v. Banuelos-Rodriquez, 215 F.3d 969 (9th Cir. 2000) (en banc) (holding 
that ``sentencing disparities arising from the charging and plea 
bargaining decisions of different United States Attorneys is not a 
proper ground for departing from an otherwise applicable Guidelines 
range.''); In re Sealed Case, 181 F.3d 128 (D.C. Cir. 1999) (en banc) 
(holding that Koon did not open the door to a downward departure, 
without a government motion, based on substantial assistance).
    To the extent that judges, prosecutors, and defense attorneys are 
relying upon downward departures in response to overwhelming caseloads 
or unduly blunt guidelines, abrogating Koon will only drive guideline 
evasion underground and camouflage the root problems. Indeed, there are 
many other mechanisms for evading the guidelines, including charge 
bargaining and fact bargaining, which escape detection and resist 
policing. The consequence of turning to these other mechanisms to do 
the work of what under the guidelines would be a departure, justified 
in writing, may be widespread disparity. See Justice Stephen Breyer, 
Federal Sentencing Guidelines Revisited, 14-SPG Crim. Just. 28 (1999).
    Finally, downward departures serve an important function in the 
guideline writing process. As Justice Breyer has explained, the 
original guidelines

        were intended as a starting point. Sentencing judges would 
        remain free to depart from the guidelines' categorical 
        sentences. They would write down the reasons for their 
        departures. The Commission would learn from what the judges 
        said and did. and future commissions would adjust the 
        guidelines accordingly.

Justice Stephen Breyer, Federal Sentencing Guidelines Revisited, 14-SPG 
Crim. Just. 28 (1999). See also USSG Ch.1, Pt. A, intro. comment. 
(stating intent that the Commission would refine the guidelines based 
on its review of departures). Thus, departure rates sometimes reflect 
the fact that particular guidelines do not capture the ethically 
relevant sentencing factors. Overruling Koon would hamper evolution of 
the guidelines by denying the Commission an important source of 
information regarding potentially important offense and offender 
characteristics.
                                 ________

 Responses of William G. Otis to Questions From Senator Strom Thurmond

    Question 1. Mr. Otis, as the number of cases in which defendants 
receive downward departure[s] increase, would you expect that the 
number of government appeals in departure cases to increase?
    Answer 1. Yes. The most effective way--indeed, perhaps, the only 
effective way--for the government to rein in departures is to appeal. A 
failure to appeal does more than allow what may be an injustice to go 
uncorrected. It sends a signal to the district judge that the 
government is unwilling or unable to stand up for the purposes of the 
Sentencing Reform Act and the rules that limit departures to truly 
exceptional cases.
    Of course no sensible person believes that the government should 
appeal in every case. But plainly the need to appeal is greater, not 
less, when the number of departures accelerates. As things stand now, 
the number of downward departures, both in absolute terms and as a 
percentage of all sentences, is higher than it has ever been. At the 
same time, the number of government appeals is lower than it has ever 
been. In the most recent year for which statistics are available, 
district courts granted slightly more than 8300 downward departures 
without a prosecution request, but the government appealed only 19 
times. That is an appeal rate of less than one-quarter of one percent.
    In my view, this makes no sense. At best, it suggests a curious 
degree of lassitude in the Department of Justice. At worst, it suggests 
indifference, if not antagonism, to the system of serious and 
determinate sentencing that, at least into the early 1990's, had done 
so much to advance the rule of law in this vital area.

    Question 2. Mr. Otis, based on your experience in the Eastern 
District of Virginia, do you think the Government could significantly 
promote compliance with the Guidelines if it had an aggressive policy 
on appeals?
    Answer 2. Yes. As you may know, the Eastern District of Virginia 
has now, and for many years has had, one of the best records of 
Guidelines compliance in the country. Specifically, according to the 
Sentencing Commission's statistics, district judges in Eastern Virginia 
impose sentences within the Guidelines at or above 90% of the time, as 
opposed to the sluggish national rate of 65%. In considerable part, 
this is because the judges in Eastern Virginia know that the United 
States Attorney stands behind the Guidelines, and that less than fully 
justified departures will be prime candidates for review by the Fourth 
Circuit.
    I should emphasize that the Eastern District's long record of 
Guidelines compliance is not a result of happenstance or luck. It is a 
result of the commitment of United States Attorneys of both parties, 
Henry Hudson and Richard Cullen during the Reagan and Bush years, and 
Helen F. Fahey under President Clinton. Each of these outstanding 
prosecutors has shown a steadfast commitment to the rule of law and to 
the public safety that Guidelines compliance promotes. Their crucial 
insight, the key component of their willingness to take an aggressive 
stand in the Court of Appeals, is their knowledge that fairness--for 
both the defendant and the public--is served not by accommodating 
special breaks for a minority of criminals, but by insisting on the 
same rules for everyone.

    Question 3. Mr. Otis, as you know, downward departures in 
immigration cases have increased greatly in recent years. Do you think 
there are other ways to handle increased caseloads of immigration 
deportation cases rather than through downward departures from the 
Guidelines?
    Answer 3. Yes. The increased caseload created by border-related law 
enforcement falls far short of providing an adequate explanation for 
the present, nationwide departure rate--a rate which has grown over the 
last eight years from slightly less than a fifth to more than a third.
    First, the ``fast-track'' programs some United States Attorneys 
have adopted do not need to involve wholesale departures, and indeed 
not all of them do. The Central District of California (Los Angeles), 
for example, has a considerable problem with illegal immigration to say 
the least, but has an overall departure rate no greater than the 
national average. Moreover, its rate of departures not based on a 
defendant's substantial assistance in other prosecutions is only 
roughly one-half the national rate. And its rate of such departures is 
less than one-fifth the rate in the adjoining Southern District of 
California.
    The Central District of California has simply settled on a 
different approach to the problem, one which in my view intelligently 
addresses illegal immigration and related issues, and does so in a way 
that avoids blasting an enormous hole in the Guidelines. Specifically, 
that District obtains expeditious plans in more than 95% of its cases 
by offering nothing more than credit for acceptance of responsibility 
and a recommendation for a sentence at the lower end of the Guidelines 
range. Defendants, and the defense bar, soon come to understand that 
accepting that arrangement is their best option in cases where proof of 
guilt is typically incontrovertible.
    It is not clear why a similar approach could not be tried in other 
districts with border- and immigration-related problems. But for 
however that may be, a second approach is available if the Southern 
District's plan is tried but turns out to be impractical. If a true 
emergency were to exist after having made the effort, federal resources 
could be re-focused on prosecuting only the most egregious offenders 
(for example, alien smugglers, narcotics traffickers and persons 
previously deported for illegal reentry after conviction for an 
aggravated felony) and giving those defendants the full Guidelines 
sentences they deserve. This approach would in my judgment better serve 
the public interest than an undifferentiated program of half-measure 
``justice'' spread thinly around the board.
    The ``fast-track'' explanation for the growth in departures is 
deficient for a second, more categorical reason. Practical difficulties 
in border enforcement, even the most intractable difficulties, simply 
cannot be an excuse for the Justice Department to squeeze around the 
law. Article II. Sec. 3 of the Constitution requires that the Executive 
``shall take Care that the Laws be faithfully executed.'' It does not 
provide that they shall be executed when it is easy or convenient, but 
shuffled to the sidelines when it is not. Some of our country's 
landmark statutes, including statutes protecting civil rights, have 
been difficult, and sometimes even dangerous, to enforce. We enforced 
them nonetheless, and we are better for it.
    The Sentencing Reform Act is a landmark effort in providing more 
nearly equal treatment of defendants. It is not, and should not be 
treated as, an unwanted stepchild. Enforcing it in full measure may 
well be a daunting task, particularly in border districts. But it is 
unacceptable to make the law the victim because the job is hard.

    Question 4. Mr. Otis, are you concerned about the increase in the 
use of substantial assistance departures in the last decade, and in the 
great disparity in how substantial assistance is applied within 
districts today?
    Answer 4. I am concerned about both developments.
    A. In fiscal 1992, there were substantial assistance departures in 
slightly over 15% of the cases. Over the next two years, this increased 
to 20%--a jump of one-third. The rate has remained at or about 20% 
since then, although with a slight decrease in fiscal 1999.
    Congress was wise to grant to the government the power to reward a 
defendant's substantial assistance by making these motions. I am 
unaware, however, of any reason to believe that defendants have become 
one-third more willing to cooperate--or, indeed, any more willing to 
cooperate--over the last eight years than they were in the five years 
before that. Nor is it clear why the government should need to sponsor 
below-guidelines sentences in 20% of its cases in order to obtain the 
cooperation it needs. In the Eastern District of Virginia, for example, 
the government makes these motions in only 7% of the cases, yet does 
not suffer from a lack of cooperation. Indeed, over the 18 years I was 
in the United States Attorney's Office there, it was my experience that 
defendants were more eager to cooperate, and to do so in a timely 
fashion, knowing that substantial assistance motions were hard to get. 
In sentencing as elsewhere in life, it is the disciplined use of 
incentives that reaps the greatest rewards.
    It is natural, although unfortunate, for Assistant United States 
Attorneys to be tempted to accommodate the pressure that may be placed 
on them by judges antagonistic to the Guidelines, and of course by the 
criminal defense bar, by stretching the standards for what will count 
as ``substantial assistance.'' It is perhaps because of the build-up of 
these pressures that we have seen the increase from 15% to roughly 20% 
of cases in which the government makes substantial assistance motions. 
The precise reason for the increase warrants further inquiry, perhaps 
from the Sentencing Commission and Congress and certainly from the 
Department of Justice. This much is clear, however: Having a supportive 
and resolute United States Attorney will combat these pressures and 
help insure that a reduction in sentence brought about by a government 
motion truly reflects ``substantial assistance.''
    B. The disparity in the rate of substantial assistance motions is 
troubling. It is all but impossible to believe that in five districts 
in the country, defendants cooperate 40% of the time or more, while in 
five others they cooperate less than 7% of the time (see Commissioner 
Steer's Exhibits 10 and 11). It simply cannot be the case that, based 
on no obviously relevant difference in geography or crime patterns, 
defendants in one district provide substantial assistance more than 
five times as often as defendants in some other district.
    Of course, some variation in rates is to be expected. A substantial 
assistance departure is, after all, a departure, and departures by 
definition will not exhibit the same degree of rough uniformity we can 
expect when the Guidelines as followed.
    Nonetheless, the enormous disparity in substantial assistance rates 
from district to district should be addressed, because it disserves the 
central goal of the Sentencing Reform Act. In order to encourage more 
nearly equal treatment of cooperating defendants, the Department of 
Justice, after consulting with the United States Attorneys, should 
attempt to develop more uniform standards for what assistance will 
count as ``substantial.'' This may be a difficult undertaking, because 
the needs and circumstances of each case will vary, but it is worth the 
candle. In my view, it should begin with the understanding that, at a 
minimum, substantial assistance means results--that is, specific, 
detailed information, typically resulting either in testimony or the 
entry of a guilty plea by another party. Merely having a cooperative 
attitude, or providing information that turns out to have little or no 
use would be insufficient. A defendant who does no more than that may 
well deserve leniency at sentencing, but that leniency can be given 
within the Guidelines--for example, by a government recommendation for 
full credit for acceptance of responsibility and for a prison term or 
fine at the lower end of the sentencing range.
    By adopting a more clearly defined and pointedly results-oriented 
standard, the Department will still be able to obtain cooperation, but 
at lower cost and with higher regard for uniform treatment.

    Question 5. Mr. Otis, when the Guidelines are applied as the 
Congress intended, do you consider the resulting punishment to be an 
important reason for the decline in crime in recent years?
    Answer 5. Yes. I am not a criminologist and do not pretend to be. 
There are doubtless a number of factors that have contributed to the 
decrease in crime, but common sense tells us that the more serious and 
uniform sentencing we have seen under the Guidelines regime has helped 
promote this encouraging development. After all, every day a drug 
dealer spends in jail, courtesy of a Guidelines-mandated sentence, is a 
day he is not standing outside your child's school.
    It is true that the Guidelines cover only federal offenses, and 
that those offenses account for only a fraction of all crimes. Still, I 
believe that the Guidelines have contributed to the decrease in crime 
both directly and indirectly.
    Directly, they have created increased prison sentences for some of 
the most powerful criminals, such as the leaders of national (and 
occasionally international) drug cartels. With such criminals off the 
street for a longer time, the effects ripple down, causing disruption 
in the drug networks they used to command.
    Indirectly, the Guidelines have been a model for the states. In the 
13 years since the Guidelines became effective, more and more states 
have adopted some form of determinate sentencing system modeled on 
them, and have abolished or significantly curtailed parole. As the 
visibility and truthfulness of sentencing have increased, the crime 
rate has decreased. It would seem odd to believe that this trend, now 
consistent for about a decade, is mere coincidence.
    The Guidelines have indirectly promoted the decrease in crime in 
another way, one which is difficult to quantify but, in my judgment, 
not less for its statistical evanescence. The Guidelines signal that 
our country is going to take sentencing seriously. We are no longer 
content to hear that a criminal has been sentenced to, say, 15 years, 
only to read in the papers two or three years later that, because of 
bulging ``good time'' credits and easy parole, he is out on the street 
and has done it again. The Guidelines are a model of being serious with 
the criminal and honest with the public. A country that displaces 
unbridled sentencing discretion--which in practice often meant nothing 
more than disposition by lottery--with the rule of law, is a country 
that tells its criminals, not to mention the rest of us, that the 
chances of effectively ``beating the rap'' with an impassioned plea to 
a soft judge are over. Sooner or later this message finds its way to 
the street, and some who might have thought that getting a light 
sentence was a good enough gamble to make crime worth the risk will 
think again.
    As noted, I am not a criminologist. But the coincidence of 
Guidelines sentencing and less crime is there for all to see. At the 
very least, it would be irresponsible to weaken the Guidelines without 
studying whether their effect on the crime rate is what it certainly 
seems to be.

    Question 6. Mr. Otis, some have criticized the Guidelines for not 
providing judges enough discretion in how to sentence offenders. What 
are some of the ways that the system permits judges flexibility other 
than [in] the Guidelines range?
    Answer 6. Under the Guidelines, judges retain considerable 
flexibility, much more than seems ordinarily to be assumed by the 
critics.
    First off, the Guidelines do not specify a particular sentence, but 
a sentencing range--for example, 100 to 125 months. For each offense, 
the top of the range is 25% higher than the bottom. Within the range, 
the judge can fix the sentence at any point he chooses, no questions 
asked. Beyond that, the judge can grant another two levels (or roughly 
25%) off the sentence if he decides that the defendant has accepted 
responsibility for his crime; for more serious crimes, the additional 
amount off exceeds 35%.
    In other words, taking into account nothing more than the court's 
determination of acceptance of responsibility and its freedom to choose 
where within the resulting range the actual sentence should fall, the 
system allows for individual variations of at least 50%, and often 
close to two-thirds.
    But there is more. In many cases, particularly those involving 
drugs or fraud (two of the most frequently charged federal offenses), 
the Guidelines reserve to the judges the authority to make a number of 
largely factual, and therefore effectively unreviewable, determinations 
that can affect dramatically the sentencing range. For example, the 
judge determines the amount of drugs that should be attributed to a 
particular defendant in a narcotics ring; whether the dealer was a 
major or a minor player; whether he attempted to obstruct justice by 
``encouraging'' witnesses to lie, and so on. All these determinations 
affect the sentence; in particular, the determination of the amount of 
drugs involved, or the amount of money illegally obtained, can 
influence the sentence as much or more than any other factor. Again, 
the Guidelines leave all these determinations to the judge, and it was 
my experience that, in cases where the evidence was anything less than 
quite clear, the benefit of the doubt went to the defendant.*
---------------------------------------------------------------------------
    * The Supreme Court's ruling last term in Apprendi may 
significantly curtail the judge's authority to determine, for example, 
the amount of drugs involved and to use that determination in fixing 
the sentence, but not in any way that will redound to a defendant's 
disadvantage. Before Apprendi the general rule was that a ``sentencing 
factor'' had to be proved by a preponderance of the evidence. In at 
least some cases after Apprendi, a ``sentencing factor'' that could 
increase the defendant's exposure will have to be submitted to a jury 
for its determination under the more exacting reasonable doubt 
standard.
---------------------------------------------------------------------------
    Finally, of course, there is the power to depart. The original 
Sentencing Commission, under the leadership of Judge Wilkins, correctly 
recognized that the power to depart in a truly exceptional case is an 
important component of justice.
    Departures are not inherently wrong or destructive. The problem 
lies not in the idea of departures, but in what certainly appears to be 
their increasing use for the improper purpose of circumventing a 
Guidelines sentence that a particular judge may personally believe is 
``too long.'' As written, the Guidelines asked of the judge only that 
he give a persuasive reason not already taken into account as to why 
the case is sufficiently unusual to justify a departure. If he can do 
so, the departure will stand, as the Supreme Court noted in United 
States v. Koon, 518 U.S. 81 (1996). If we cannot, the departure 
shouldn't stand. At the end of the day, the present system allows for a 
full measure of flexibility, asking in return only that good reasons be 
given if the normal rules are to be by-passed.

    Question 7. Mr. Otis, it has been argued since the 
Guidelines were created that they are far too complex. However, 
the intent of the Guidelines is to expressly apply a wide 
variety of factors that judges should consider for each person 
they sentence. What is your view about the complexity of the 
Guidelines.
    Answer 7. One man's complexity is another man's refinement.
    Once Congress made the decision to place sentencing under 
the rule of law, and to incorporate the sort of established, 
written-down rules through which the rule of law expresses 
itself, a certain degree of complexity became inevitable. Given 
the stakes at sentencing, for both the defendant and society, 
complexity--or as I view it, refinement--is a positive good.
    At the outset, it should be borne in mind that the 
Guidelines' ``complexity'' is easy to overstate. Guidelines 
sentencing at the end of the day rests on the same two basic 
factors that have always been considered: how serious the crime 
was (the offense level) and whether we are dealing with a first 
offender or a repeat customer (the criminal history score). One 
major difference between Guidelines sentencing and past 
practice is that now the defendant, and the public, know 
exactly how much each of these factors contributes toward the 
sentence, because each has a value assigned to it. Thus what is 
criticized as complexity is often nothing more than visibility.
    In order to be fair, the Guidelines have no choice but to 
account for the wide variations in how any given crime can be 
committed. Not every rape, for example, is perpetrated in the 
same way. The Guidelines account for this by listing, in 
addition to the base offense level for rape, specific offense 
characteristics and adjustments to the sentence to be made in 
light of them. To illustrate, if the rapist rendered his victim 
helpless by force or drugs, of if the victim was a young child, 
the sentence increases by about 50%. Smaller but still 
significant increases are required if the victim was in the 
rapist's care (such as a student raped by a teacher on a field 
trip or an inmate raped by a guard), or if the victim was 
injured or abducted. All this undeniably adds to the 
Guidelines' ``complexity.'' The question is which of these 
factors should be ignored. If as I believe none should be, and 
if more broadly no relevant feature of a crime should be 
ignored at sentencing, isn't it better to deal with them 
explicitly and in concrete terms--even if this makes the 
Guidelines tedious and ``complex''?
    As long as crimes vary in important details, any sensible 
sentencing system is going to be complex (or refined, depending 
on how one cares to put it). The very refinement of the 
Guidelines--that they require the judge to consider and assign 
a weight to every relevant fact about the offense conduct--
belies the competing attack on the Guidelines, namely, that 
they blot out individual consideration. To the contrary, they 
guarantee individualized consideration in a way that the old, 
discretion-based system never did. In the past, if the judge 
overlooked an important fact or made a mistake about it, or 
inexplicably counted it for much less or much more than it was 
worth, the parties would be lucky to find out, much less be 
able to seek correction. The judge could sit on the sentencing 
bench sphinx-like. He was not required to say what facts he 
considered, how much weight he gave them, or why.
    The Guidelines have changed all this. Sentencing is now 
more specific, detailed and visible. This means, as the critics 
point out, that it is also more determinate, demanding and 
litigious. But in exchange for these costs we have dramatically 
reduced the opportunities for unwarranted disparity, hidden 
bias and arbitrary decision making. We have increased to 
opportunities to find and correct error. And we have opened up 
the workings of the system, generally and in individual cases, 
to the public that pays for it and has to live with its 
results.
    Permit me one final observation. It turns out that much of 
the antagonism toward the Guidelines and their ``complexity'' 
takes root among those who prefer the old way, which was 
literally a system of sentencing without law--a system, not 
coincidentally, in which the emotional plea by an adroit or 
well-paid lawyer might turn the tide at sentencing, there being 
no settled rules to promote equality for defendants not so 
fortunate.
    One may debate the wisdom of particular aspects of the 
Guidelines, but it seems bizarre to condemn the idea of a 
rules-based system at all, and to demand a return to the days 
when the length of the sentence turned on the draw of the 
judge. No serious person doubts that whether a defendant 
properly may be convicted should be decided under the rule of 
law, no matter how complex and problem-laden it may be, and not 
as an exercise of will by individual judges. It is difficult to 
understand, then, why any serious person would want to nudge 
the system back toward the time when, at sentencing, all bets, 
and all rules, were off.

    Question 8. Mr. Otis, as you have noted, there is only a 
little over 60 percent compliance rate with the Guidelines 
today. If the downward departure trends continue, does there 
reach a point where the Guidelines system breaks down?
    Answer 8. Yes. It is difficult to know precisely where the 
point is, but my sense of it is that we are perilously close to 
it now, if indeed we have not already passed it.
    The Guidelines were modeled on he sentencing practices that 
had been established in the years before they were adopted. The 
Guidelines-prescribed sentencing range for any particular 
offense was taken largely from the ``heartland'' range of 
sentences imposed for that offense in pre-Guidelines practice. 
Of course there were sentences that fell outside that range--
sentences that amounted to what one might call pre-Guidelines 
``departures.''
    Because I was not involved in crafting the Guidelines, I do 
not know the percentage of cases in which such ``departures'' 
were allowed. I would be surprised, however, if it were as high 
as the present rate of slightly over 35%. Obviously, if the 
pre-Guideline ``departure'' rate were less than that, or even 
just close to it, then there is strong reason to believe that 
we have already returned to the point it was the whole purpose 
of the Guidelines to leave--namely, the point of unpredictable 
sentencing based on idiosyncratic and subjective factors.
    As I have noted, allowing reasonable latitude for 
departures is not per se either wrong or destructive. But a 
fundamental choice has to be made. Either we are going to have 
the rules-based system Congress intended by adopting the 
Sentencing Reform Act, or we aren't. When the rules are by-
passed in more than a third of the cases, and when the rate of 
by-pass has increased steadily for years, we have in my view 
come to a crossroads. Continuing down the present path means 
that the system will break down. What will emerge from its 
quiet (and, as its opponents intend, mostly hidden) dismantling 
will be worse than what we had before. In pre-Guidelines 
practice, we had unwarranted disparity and luck-of-the-draw 
sentencing--but at least we did not pretend to the public that 
we had anything better. If the Guidelines system is eaten away 
from the inside by departures, sentencing will be every bit as 
random and unpredictable it was before, but less honest. We 
will continue to display to the taxpayers the superstructure of 
the Guidelines, but, I strongly suspect, never tell them how 
little of the rule of law is really left inside.
                              ----------                              

    Question 1. According to Commissioner Steer's testimony, 
deportation of aliens is the reason most often given by judges for 
downward departures. His testimony shows that the districts that lead 
the nation in rate of downward departures are Arizona and San Diego. 
The caseloads of those districts and others that border Mexico have 
dramatically increased over the past eight years due to the Clinton 
Administration's resoundingly successful efforts to patrol our borders 
more effectively and bring more border-related prosecutions in federal 
court to deter illegal immigration and drug smuggling at the border. 
This extraordinary increase in case load has not been matched by an 
equal increase in prosecutorial and judicial resources. Thus, border 
districts have implemented so-called ``fast-track'' programs by which 
departures are granted as an incentive for defendants who commit 
border-related crimes to resolve their cases quickly and with a minimum 
of resource-consuming litigation.
    Question a. Contrary to patently partisan accusations that there is 
a nationwide trend among our federal judges and the Justice Department 
to ignore or defeat the guidelines, do these facts suggest that the 
spike in the rate of increase of departures is due to districts trying 
to develop strategies to address increased emphasis on border-related 
law enforcement?
    Answer 1a. I believe Commissioner Steer's testimony showed that 
there has been not so much a ``spike'' in the rate of departures as a 
moderate, although certainly discernable, acceleration in the rate of 
increase. Thus what I conclude is that the border-related issues have 
simply exacerbated a problem of indiscipline that was already there.
    Even assuming that there has been a ``spike'' in departures driven 
by border-related law enforcement, however, that would fall far short 
of providing an adequate explanation for the present, nationwide 
departure rate--a rate which, as Mr. Kirkpatrick acknowledged, has 
grown over the last eight years from slightly less than a fifth to more 
than a third.
    The explanation is inadequate for two reasons. First, fast-track 
programs do not need to involve wholesale departures, and indeed not 
all of them do. The Central District of California (Los Angeles), for 
example, has what is to say the least a considerable problem with 
illegal immigration, but has an overall departure rate no greater than 
the national average. Moreover, its rate of departures not based on a 
defendant's substantial assistance in other prosecutions is only 
roughly one-half the national rate. And its rate of such departures is 
less than one-fifth the rate in the adjoining Southern District of 
California.
    The Central District of California has simply settled on a 
different approach to the problem, one which in my view addresses 
illegal immigration and related issues, but does so in a way that 
avoids blasting an enormous hole in the Guidelines. Specifically, that 
District obtains expeditious pleas in more than 95% of its cases by 
offering nothing more than credit for acceptance of responsibility and 
a recommendation for a sentence at the lower end of the Guidelines 
range. Defendants, and the defense bar, some come to understand that 
accepting that arrangement is their best option in cases where proof of 
guilt is typically readily at hand and incontrovertible.
    It is not clear why a similar approach could not be tried in other 
districts with border- and immigration-related problems. Nor is it 
clear why, if a true emergency were to exist after having made the 
effort, federal resources could not be re-focused on prosecuting only 
the most egregious offenders (for example, alien smugglers, narcotics 
traffickers and persons previously deported for illegal reentry after 
conviction for an aggravated felony) and giving those defendants the 
full Guidelines sentences they deserve. This approach would in my 
judgment better serve the public interest than an undifferentiated 
program of half-measure ``justice'' spread thinly around the board.
    The ``fast-track'' explanation for the growth in departures is 
inadequate for a second, more categorical reason. Practical 
difficulties in border enforcement, even the most intractable 
difficulties, simply cannot be an excuse for the Justice Department to 
squeeze around the law. Article II, Sec. 3 of the Constitution requires 
that the Executive ``shall take Care that the Laws be faithfully 
executed.'' It does not provide that they shall be executed when it is 
easy or convenient, but shuffled to the sidelines when it is not. Some 
of our country's landmark statutes, including statutes protecting civil 
rights, have been difficult, and sometimes even dangerous, to enforce. 
We enforce them nonetheless, and we are better for it.
    The Sentencing Reform Act is a landmark effort in providing more 
nearly equal treatment of defendants. It is not, and should not be 
treated as, an unwanted stepchild. Enforcing it in full measure may 
well be a daunting task, particularly in border districts. But it is 
unacceptable to make the law the victim because the job is hard.
    Having said this, I do not wish to be misunderstood. Career 
Assistants in United States Attorneys Offices, at the border and across 
the country, are doing a remarkably good job under the weight of a 
tremendous burden. I could scarcely agree more with your implicit 
suggestion that Congress provide additional resources for them. 
Likewise I agree with you that more judges are needed in these 
districts. My point is simply that border-related issues should not be 
allowed to become, and as a practical matter they are not, the 
``explanation'' for the broad, steady, and now alarming nationwide 
growth in departures.

    Question 1b. Commissioner Steer's statistics show that the Eastern 
and Western Districts of Washington, districts which border Canada, are 
among the districts that lead the nation in [the] rate of downward 
departures. Is the high rate of downward departures in those districts 
attributable to border-related issues as it is in the southwestern 
districts?
    Answer 1b. Although I am at least acquainted with the practices in 
Los Angeles because I have had the good fortune to know people working 
in the United States Attorney's Office there, I do not know prosecutors 
in the Washington districts. I thus confess that I do not know the 
answer to your question. I am sure the United States attorneys in those 
districts would be able to furnish the information you seek.
    I have noticed one curious aspect of Commissioner Steer's 
statistics, however. It is true that the Eastern and Western Districts 
of Washington have among the highest non-assistance based downward 
departure rates in the country, 40.85 and 26.3%, respectively. But the 
next three districts to the east which also border Canada--Idaho, 
Montana and North Dakota--have downward departure rates of, 
respectively, 12.5%, 13.0% and 9.3%--each of which is lower than, not 
merely the rates in Washington, but the national average of 15.8%. 
Without knowing anything more, it would thus seem unlikely that the 
high departure rates in Washington should be imputed to border-related 
issues, since the three closed border states (having a combined border 
more than twice as long as Washington's) have an average departure rate 
only one-third of the Washington districts' combined average.

    Question c. What would the rate of sentencings within the 
applicable guideline range be since 1990 if border districts were 
eliminated from the calculation?
    Answer c. Again, my present resources do not enable me to answer 
this question. This would be the case even if I were sure whether you 
intended to include as ``border districts'' only those districts on the 
southern border, or to include as well the districts that border 
Canada, or to include only districts which have initiated ``fast-
track'' programs of the form employed by San Diego but not by Los 
Angeles; or whether you would also include, for example, Florida, which 
has its own significant and unique mix of immigration-related problems 
but nonetheless maintains an extremely low rate of non-assistance based 
downward departures. The Sentencing Commission may be able to provide 
the data you seek.

    Question 2. As United States Attorney Denise O'Donnell testified at 
the hearing, the nation is divided into 93 geographic federal districts 
each headed by its own United States Attorney. The districts are not 
identical. The types of crimes that predominate in one district may be 
very different from another district. Each district has its own law 
enforcement priorities and a unique relationship with state and local 
law enforcement. While the Sentencing Guidelines serve the goal of 
sentence uniformity, the provision for downward and upward departures 
in Guidelines Section 5K2.0 recognizes that some flexibility is 
necessary so that the sentencing judge in an appropriate case can 
account for compelling and otherwise unaccounted-for circumstances. Is 
some degree of disparity inevitable and acceptable in a nation as 
disparate as ours, and does Section 5K2.0 reflects the wisdom that room 
for some flexibility is an essential ingredient in a fair sentencing 
scheme in which the American people can have confidence?
    Answer 2. There is not doubt that ``some flexibility'' is both 
needed in sentencing and contemplated by the Guidelines. But the 
situation we face today calls into question what is meant by ``some,'' 
and, if a point be made of it, also what is meant by ``flexibility.''
    ``Flexibility'' in sentencing means the ability to adjust a 
sentence either up or down, depending on the nature of the unusual and 
``compelling'' circumstances of a case. What departures accomplish now, 
however, is not an adjustment up or down but a one-way ratchet down. 
Downward departures outnumber upward departures by a ratio of 57 to 1. 
Even excluding substantial assistance departures, downward departures 
outnumber upward departures 26 to 1. Upward departures for practical 
purposes do not exist.
    What the sprawling growth in departures reveals, then, is not a 
need for ``flexibility''--a need that would not on the face of it cut 
in one direction more than the other--but a wholesale shrinking of 
sentences. It is, in other words, a one-way street favoring criminals 
that has understandably appropriated the more appealing, if not 
particularly forthright, banner of ``flexibility.''
    Even if departures were evenly balanced, however, the current rare 
at which they are allowed shows something more than merely ``some'' 
flexibility. Downward departures are now given in more than one-third 
of the cases nationwide. In my view, preservation of an ample degree of 
flexibility easily could be accomplished with a departure rate of less 
that half that. Indeed, in the Eastern District of Virginia, where I 
was a prosecutor for many years, departures are given, not in a third 
of the cases, but in less than a tenth. Downward departures for reasons 
other than a defendant's substantial assistance are given in fewer than 
2% of the cases--a rate less than one-eighth the national average.
    The high compliance rate in the Eastern District of Virginia has 
not come about because the district judges there are any less in need 
of ``some flexibility'' than district judges anywhere else. It has not 
come about because the Eastern District has some peculiar or singular 
pattern of crime; to the contrary, we have a fairly typical mix. We 
also have an enormously disparate district, with a long seacoast, urban 
areas in Richmond and Norfolk, populous suburbs in northern Virginia, 
and rural areas stretching out to the Blue Ridge Mountains. No--the 
high rate of Guidelines compliance has come about because our district 
judges understand that the Guidelines already permit considerable 
flexibility for dealing with the unusual case (please see my response 
to Senator Thurmond's Question 6), and understand as well the 
importance, to both defendants and the public, of providing the 
assurance of equal justice. It has also come about because the judges 
have been encouraged to maintain this view by the commitment to the 
Guidelines, and to seeking the Fourth Circuit's enforcement of them 
when necessary, shown by United States Attorneys of both parties--Henry 
Hudson and Richard Cullen during the Reagan and Bush years, and more 
recently President Clinton's outstanding appointee, Helen F. Fahey.
    Finally, the call for ``some flexibility'' can too easily become 
the anthem of chaos. In seven districts in the country, only two of 
which border on Mexico, the overall departure rate is already above 
50%. This means that, in each of those districts, a defendant's chances 
of getting a departure are greater than his chances of getting a 
Guidelines sentence. It is regrettably no exaggeration to say that, in 
those districts, there has been a de facto repeal of the Sentencing 
Reform Act. With all respect to the judges and the United States 
Attorneys in those jurisdictions, a departure rate that high is a 
burlesque of ``flexibility.'' In my judgment, what is needed in these 
and in many other districts with excessive departure rates is not more 
flexibility but more discipline.

    Question 3. The claim has been made by some that the number of 
appeals taken by the Justice Department has not increased 
commensurately with the increase in the rate of downward departures. 
That claim ignores that the increase in downward departures is largely 
due to policies and practices in border states to deal with caseloads 
resulting from increased emphasis on border-related crime. That claim 
also ignores United States v. Koon, 518 U.S. 81 (1996), in which the 
United States Supreme Court made it more difficult to appeal a downward 
departure by holding that appellate courts should only overturn a 
departure where the sentencing judge makes a mistake of law or abuses 
discretion. Mr. Kirkpatrick testified at the hearing that there are 
ways of assuring compliance with the Sentencing Guidelines other than 
taking appeals in particular cases, such as working with the Commission 
to resolve conflicts among the circuit courts of appeal about 
interpretation of the guidelines.
    Question a. If border-related issues and Koon are considered, has 
there in fact been any significant change in the rate with which the 
Justice Department takes appeals from downward departures?
    Answer 3a. I take Mr. Kirkpatrick at his word that Koon has made 
government appeals potentially more difficult than they had been 
before, but I have no way to quantify how much more difficult the 
Department estimates appeals have become, still less to gauge how much 
its estimate has affected the actual number of appeals it has 
initiated.
    There are some observations I can make, however. First, the rate of 
unappealed downward departures has shown a remarkably steady increase 
since the early 1990's. The increase began before Koon and has 
continued at only a modestly accelerated pace afterward. It began 
before border-state ``fast track'' programs and has continued at much 
the same pace after them as well. This does not prove, but it would 
seem to suggest, that Koon and the border-related issues have simply 
added to a pre-existing problem.
    Second, departures arising from border-related issues are at least 
in part a self-inflicted wound, for reasons explained in the second, 
third and fourth paragraphs of my answer to Question 1(a).
    Third, the impact of Koon is not as one-sided as it might appear. 
At the same time Koon may have made successful government appeals 
potentially more difficult, it has also made a willingness to take such 
appeals more important. That is because some district courts have 
erroneously taken Koon as a ``green light'' to depart in cases where, 
before, no departure would have been allowed. In fact, of course, and 
as your question correctly states, Koon did not so much focus on the 
standards district courts should employ for granting departures as on 
the standards the courts of appeals should employ for reviewing them. 
Nonetheless, the ``green light'' effect of Koon in district court has 
been apparent. Thus, since Koon , we have seen some departures, and 
some bases for departing, more adventuresome than in the past. A 
Department determined to preserve the Guidelines as the rules-based 
system Congress intended must resist this tendency to, in effect, take 
Koon and run with it.
    At the same time, the difficulties posed by Koon are easy to 
overstate. Indeed, in a sense, appellate testing is more useful now 
than ever to gauge how broadly--or narrowly--the courts of appeals will 
interpret Koon. In one case I litigated, for example, Koon proved to be 
no barrier to a successful government appeal even where the district 
court had employed no fewer than six bases for departing. See United 
States v. Rybicki, 96 F.3d 754 (4th Cir. 1996), on remand from the 
Supreme Court in light of Koon , 116 S.Ct. 2543 (1996). The Fourth 
Circuit there established that even after Koon, departures based on 
factors not mentioned in the Guidelines should be ``highly 
infrequent,'' and will be permissible only where the `` `structure and 
theory of both the relevant individual guideline and the Guidelines 
taken as a whole' indicate that they take a case out of the appellate 
guidelines' heartland * * * The interpretation of whether the 
Guidelines' structure and theory allow for a departure is * * * a legal 
question subject to de novo review * * *,'' 96 F.3d at 758 (internal 
citations omitted). This interpretation of Koon, which makes clear the 
courts' duty to remain faithful to the rules-based ``structure and 
theory'' of the Guidelines, makes that case less of an obstacle to 
government appeals of departures than some apparently take it to be.
    Finally, even though it is not possible to state the precise change 
in the number or rate of government appeals in light of Koon and the 
border-related issues, this much is clear. Of the more than eight 
thousand downward departures given in fiscal 1999, the government 
appealed 19 times. With all respect to the Department, that is not 
careful case selection in light of difficult legal terrain. That is 
surrender. Because the Sentencing Reform Act is worth fighting to 
preserve, surrender is not in my view an acceptable option.

    Question 3b. What are the ways in which the Justice Department 
endeavors to assure the effectiveness of the Guidelines other than 
taking appeals from downward departures?
    Answer 3b. Based on my seven years in the Department and an even 
longer tenure in the United States Attorney's Office, I believe that 
appealing downward departures is by far the most effective means of 
enforcing the Guidelines.
    You note that the Department can work with the Sentencing 
Commission to resolve conflicts among the circuit courts of appeals 
about the interpretation of particular guidelines. This is true of 
course, and Mr. Kirkpatrick deserves full credit for his efforts in 
doing so. But I do not believe working through circuit conflicts can 
substitute for a resolute appeals policy. No matter how successful the 
Department may be in persuading the Commission to resolve conflicts in 
a way favorable to public safety, its efforts will be wasted motion 
unless the resulting guideline is reliably implemented. With departure 
rates already at slightly more than 35% and headed higher every year, 
we cannot tell the public that even the present guidelines are being 
reliably implemented.
    At the end of the day, the Guidelines are not a statement of 
philosophy. They are legal rules that govern, or ought to govern, 
sentencing in criminal cases. They are ``effective'' to the extent, but 
only to the extent, they are followed in such cases. When the trial 
court goes outside the Guidelines, the only means of correction is 
recourse to the court of appeals.

    Question 3c. Should the Justice Department's policy be to pursue an 
appeal of every downward departure no matter the circumstances? What 
factors does the Justice Department consider in determining whether or 
not to pursue an appeal from a downward departure?
    Answer 3c. It would be foolish for the Justice Department to pursue 
an appeal in 100% of the cases in which a downward departure is 
granted, and no one to my knowledge has suggested doing so. But there 
is a considerable gap between an appeal rate of one hundred percent and 
an appeal rate of one-quarter of one percent, which is what we have 
now. Thus the question better suited to current realities is whether 
the Justice Department should never appeal a downward departure no 
matter the circumstances.
    Attorneys in the Justice Department, like all attorneys, are 
advocates for their clients. They are also public servants and officers 
of the government, of course, so neither their behavior nor the 
standards governing their behavior can precisely parallel what would be 
the case for private counsel. Nonetheless, the duty to be a zealous 
advocate for the client's legitimate interests should be among the 
paramount guideposts for Department attorneys.
    Accordingly, the first factor the Department should consider in 
deciding whether to appeal a downward departure is the extent to which 
public safety will be endangered by allowing the criminal back on the 
street before he would have been had the Guidelines been followed. In 
assessing that question, the Department should look to the nature and 
seriousness of the crime and the amount by which the sentence was cut. 
A departure of a few months for a relatively less serious offense 
obviously does not present the same need for appellate correction as a 
departure of a year (or as we increasingly see, several years) for 
crimes of violence, drug trafficking offenses or (in my view) offenses 
that attack the rule of law, such as witness intimidation and perjury.
    Although I shall not attempt here to list every factor the 
Department employs in deciding whether to appeal a downward departure 
(a subject the Department is better situated to address in any event), 
there is one more I should mention: the judge's track record. If a 
judge consistently shows respect for the Sentencing Reform Act, then, 
all other things being equal, it is less necessary to appeal the rare 
departure he or she will allow (and less likely that an appeal would 
succeed, since such a judge will typically have the sound reasons the 
Act requires to support a departure). Conversely, if the judge has 
shown by a long record of departing that he or she has not put aside 
the luck-of-the-draw policies that once made sentencing little more 
than a lottery, there is an increased need for the Department to 
appeal, both to correct the injustice to its client and to make clear 
its intention to back the Sentencing Reform Act with more than lip 
service.

    Question 4. Ms. Hernandez expressed concern about relentless 
attempts by some to ratchet up the Guidelines and create unduly harsh 
sentences with an unintended racially disparate impact. Mr. Kirkpatrick 
in his written testimony expressed concern that our federal prison 
population continues to grow even as the crime rate decreases. Indeed, 
the population in our federal prisons has almost doubled in the last 
five years, and there are now about two million people in our nation's 
federal, state and local jails.
    Question a. Is there reason for concern that our sentencing laws 
have become too harsh and retributive?
    Answer 4a. Not in my judgment. The main justification for 
sentencing law is to protect the first civil right of our citizens--the 
right to live in peace and safety. Although the sentencing structure we 
put in place in the late 1980's has started to pay dividends with the 
leveling off of the crime rate over the last few years, we still have a 
high rate by historical standards. And while some might find it 
troubling that so many criminals are in prison, it would be 
considerably more troubling to have them back on the street with no 
assurance that they won't do it again.
    Persons convicted of crime deserve to be treated with dignity and 
fairness--not only because of what it does for them, but because of 
what it says about us. To understand this, however, is not to say that 
we should abjure the serious sentencing we need, not only to impose 
just punishment on the wrongdoer, but to protect ourselves and our 
children.
    To its credit, Congress has seen this point. In the 13 years the 
Guidelines have been in effect, not once has Congress suggested that 
the Sentencing Commission review any of its work as ``too harsh and 
retributive.'' Quite to the contrary, on several occasions Congress has 
asked the Commission to consider new and more stringent guidelines. And 
the most significant action Congress took with respect to the 
Commission's work was its legislation blocking an attempt by the 
Commission to lower the penalties for crack cocaine. President Clinton 
enthusiastically signed that legislation, noting in his signing 
statement that crack dealers should understand that the price of doing 
business was not going to be headed down.
    In my view, the consistent and bi-partisan support for a resolute 
response to crime, combined with the continuing need to depress the 
crime rate and the encouraging signs that Guidelines sentencing has 
started to do exactly that, undercuts any notion that sentencing has 
become unjustifiably harsh.
    Finally, the question before the Subcommittee concerned the 
operation specifically of the federal Sentencing Guidelines. I am not 
aware that any member of the Subcommittee has criticized a particular 
guideline as excessively harsh. If such a guideline were identified to 
me, I would do what I can to answer questions about its justification. 
Short of that, I do not know that a free-ranging discussion about the 
subject of sentencing laws in general would advance the Subcommittee's 
work.

    Question 4b. Is the Sentencing Commission as sensitive to unduly 
harsh sentences as it is to inappropriately lenient ones?
    Answer 4b. By law, three of the seven members of the Sentencing 
Commission must be federal judges; often the Commission has had a 
majority of judges. Five of the present Commissioners are judges, and 
four of those are district judges who must sentence defendants as a 
routine part of their work.
    Except for the National Association of Criminal Defense Lawyers, 
which Ms. Hernandez so ably represented at the hearing, and 
organizations with allied interests favoring criminal defendants, no 
responsible group of which I am aware has criticized the Commission for 
insensitivity to ``unduly harsh sentences.'' Given the Commission's 
strong complement of judges, not to mention its two other expert 
members, the reason for this is clear. Judges, certainly including 
those on the Commission, are acutely aware of the gravity of the 
sentencing decision. I have often heard it said that federal judges 
view sentencing as the most serious and difficult task they are called 
upon to perform. I am therefore confident that the Commissioners are 
fully sensitive to all proper considerations that should go into 
formulating the Sentencing Guidelines.
    If further evidence of this were needed, however, one need not look 
far. For some time the Commission has invited and received input from 
the Practitioners Advisory Group. Even if otherwise there might have 
been doubt about whether the Commission is sensitive to ``excessively 
harsh sentences,'' the work of this body of leading criminal defense 
attorneys should allay any fears on that score. Regrettably, the more 
realistic danger is that the Commission does not hear enough from crime 
victims, who inexplicably have no comparable group to speak to the 
Sentencing Commission in their behalf.

    Question 4c. If application of the Guidelines creates an unintended 
racially disparate impact, what steps should Congress take to address 
that impact?
    Answer 4c. There is a reason Lady Justice wears a blindfold.
    A cornerstone of our freedom, and perhaps the crowning achievement 
of our system of justice, is that we treat each defendant as an 
individual citizen and not as the member of a subgroup of citizens. 
Each defendant facing criminal penalties is entitled to have his case 
and his sentence determined solely on the evidence about his conduct--
not on stereotypes, either favorable or unfavorable. In no area of the 
law would it be less justifiable or more dangerous to arrange benefits 
or burdens based, not on the evidence in the case before the court, but 
on a politically determined and inevitably divisive recognition of 
group identity, whether by race, religion or any similar criterion.

    Question 5. The Supreme Court in Koon held that the sentencing 
judge is in the best position to evaluate whether a departure is 
warranted, and any departure should be reversed on appeal only under 
very limited circumstances where, for example, the judge abused 
discretion or made a mistake of law. Some say that Koon is good for the 
system because it supports the authority of judges to fashion an 
appropriate sentence where there are unforseen or compelling 
circumstances. Others have suggested that the Congress should pass 
legislation that would effectively overrule Koon. What factors should 
the Congress consider in evaluating the wisdom of a legislative effort 
to statutorily overrule Koon, including, for example, the increase in 
federal appellate litigation?
    Answer 5. Congress should consider whether it wants to preserve the 
determinate sentencing system it created, and the considerable benefits 
that system has brought both to public accountability and public 
safety, or whether it wants to risk a continuation of the present slow 
slide back to the failed policies of the past.
    President Clinton's Justice Department argued, correctly in my 
view, that the Sentencing Reform Act accommodates the relatively 
stronger hand the courts of appeals had in pre-Koon law. That 
relatively stronger hand was important in assuring that district courts 
adhered to the system of rules-based sentencing the Act contemplates. 
This was particularly useful in the face of the opposition the 
Guidelines faced from the organized defense bar and some district 
judges.
    As the Department recognized, the Sentencing Reform Act was written 
in the knowledge that the district judge alone sees the flesh-and-blood 
defendant. For that reason, the Act provided and continues to provide 
ample authority for the judge to fashion an appropriate sentence 
outside the Guidelines where there exist compelling circumstances of a 
kind or to a degree the Sentencing Commission did not take into 
account. But while it is true that the district court is better 
situated to know the individual defendant, the court of appeals is 
better situated to know sentencing patterns in the much broader 
surrounding area, and therefore to be able to discern whether there is 
unwarranted disparity in granting departures from one district to the 
next. Thus the appellate court is in a better position to safeguard the 
most important goal of the Act, namely, to promote more nearly equal 
treatment of defendants and more predictability in the law of 
sentencing. And in practice, that is what appellate courts were more 
clearly free to do, and did, before 1996.
    By a legislative correction to Koon, Congress will simply restore 
the more substantive role of appellate review that existed for almost 
ten years before Koon was decided, and that the Justice Department 
believed to be the better interpretation of the Sentencing Reform Act. 
Although, as I have previously stated, Koon's impact is difficult to 
quantify and may be overestimated by the Department, one could not 
describe Koon as helpful. Congress thus would do well to reinstate the 
relatively stronger hand of the circuit courts, which have shown 
themselves to be more vigilant in safeguarding the determinate 
sentencing system whose creation was the Congress's principal goal in 
adopting the Act.
                                 ______
                                 

                 Additional Submissions for the Record

                              ----------                              

                   Committee on Criminal Law of the
                  Judicial Conference of the United States,
                                     Greenville, SC, June 16, 2000.
Hon. Diana E. Murphy,
Chair, U.S. Sentencing Commission,
Washington, DC.
    Dear Judge Murphy: On behalf of the Judicial Conference Committee 
on Criminal Law, I would like to take this opportunity to thank you and 
all the Commissioners and staff for joining us for our meeting and 
dinner in Boston on June 5, 2000. As promised, I am relaying to you the 
list of circuit conflicts that the Committee recommends that you 
resolve as soon as you can. We hope you will resolve as many of them as 
possible in the 2001 guideline amendment cycle.
    The full Committee reviewed your staff's materials on 38 current 
circuit conflicts regarding guideline application. The Sentencing 
Subcommittee in particular studied them, and proposed a list of 17 to 
the full Committee. As you know, the full Committee approved that list, 
and added another conflict, bringing the total of our recommended 
conflicts to 18. Those 18 conflicts are listed below, generally in the 
priority of voting.
    No. 1 Stipulations/1B1.2(a);
    No. 2 Aggravated assault/use of dangerous weapon enhancement;
    No. 5 Marijuana plants;
    No. 6 Interest and Loss;
    No. 7 Intended loss (reverse stings w/o actual loss);
    No. 9 Prior felonies;
    No. 14 Mitigating role/couriers;
    No. 19 Grouping money laundering and fraud;
    No. 35 Consecutive sentences/5G1.3;
    No. 8 Fraudulent representations (2F1.1);
    No. 23 4A1.3/Expunged convictions;
    No. 38 Reasonableness of upward departure;
    No. 21 Acceptance/Unrelated acts;
    No. 30 Crime of Violence/burglary;
    No. 17 Flight/obstruction;
    No. 3 Brandishing;
    No. 22 Acceptance/entrapment; and
    No. 26 Criminal History VI departures.
    I note that conflict number 6 (interest and loss), 7 (intended 
loss/0 actual loss), 19 (grouping money laundering and fraud), and 8 
(fraudulent representations) relate to economic crimes, and would not 
only be relevant to issues raised in the upcoming Economic Crime 
Symposium, but also should be resolved as part of any economic crime 
package the Commission may adopt in 2001. In any event, even if the 
Commission is not able to complete the package, those conflicts are 
near the top of the list the Committee recommends the Commission 
resolve in 2001.
    Regarding the discussion of circuit conflicts that I will moderate 
at the Sentencing Institute, I plan to begin preparing the top ten or 
so conflicts from the above list for that discussion, unless the 
Commission suggests that other conflicts be discussed. It would make 
sense to include the four involving economic crimes, to not only better 
inform the issues for the subsequent Economic Crime Symposium, but also 
to assist the Commission's consideration of the economic crime package.
    As we indicated at our meeting, the Committee also specifically 
recommends that the Commission update its 1991 Report to Congress on 
Mandatory Minimum Penalties, prepared pursuant to P.L. 101-647, 
Sec. 1703, which authorizes the Commission's updating of the report at 
any time. The year 2001 would be the Tenth Anniversary of the first, 
very fine report. This is a good time to remind Congress of the 
fundamental problems with mandatory minimum penalties that were 
explained in the original report, which can be even better informed and 
exemplified by the subsequent ten years' experience with even more 
mandatory minimum penalties. We urge and support the Commission's 
updating of its previous report, as imperative in shaping future 
federal sentencing legislation.
    There can be nothing more important, in the larger perspective, 
than for the Commission to take up the banner of further informing 
Congress, and dissuading it from the passage of mandatory minimum 
penalties. At the same time, there is no more important guideline 
amendment than one that resolves a conflict among the circuits on the 
Commission's intended meaning of a term or procedure, because such an 
amendment avoids much unnecessary litigation and removes a significant 
source of unwarranted disparity in guideline application.
    Accordingly, we thank you for your consideration of these matters 
in your 2001 amendment cycle. We also appreciate the opportunity to 
work with the Commission in preparing for the Sentencing Institute in 
September and Economic Crime Symposium in October.
    With highest personal regards, I am
            Sincerely,
                                   William W. Wilkins, Jr.,
                                                             Chair.

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                     ``Bill Otis Sentencing Essay''

    The Post's series of October 6-10, 1996 entitled ``Justice by the 
Numbers'' on the Sentencing Guidelines would leave you with this 
picture: that it's a basically incomprehensible system of arbitrary 
numbers, larded with excessive detail but lacking the human element; 
that sentencing has become absurdly complicated, mistake-prone and 
over-litigated; that judges' discretion to reach a fair outcome has 
been all but ended in favor of deck-stacking prosecutors; and that 
racial discrimination infects the whole process.
    I have worked with the Guidelines from their inception, and in my 
experience not a single facet of this criticism is true. There is no 
way to rebut in one op-ed the five gigantic articles the Post published 
on this subject, so I shall simply take the points in order and 
apologize in advance for my omissions.
    1. The Post started its series with excerpts from a sentencing 
hearing that were presented to make it all seem like legal gibberish: 
alien-sounding talk about offense levels, criminal history points and 
adjustments pursuant to Guideline this and Chapter that. The truth is 
that, although the language of sentencing has changed, a judge working 
under the Guidelines bases the sentence on the same factors that have 
always been considered. These boil down to two things: how serious the 
crime was (the offense level) and whether we are dealing with a first-
offender or a repeat customer (the criminal history score). One major 
difference between Guidelines sentencing and past practice is that now 
the defendant, and the public, know exactly how much each of these 
factors contributes toward the sentence, because each has a value 
assigned to it. This increase in the availability of specific 
information is a good thing, not a bad one.
    A second major difference is that the Guidelines require each judge 
to treat any given sort of offense with the same level of seriousness. 
Recently we have seen episodes in which state judges opined that rape 
wasn't all that serious because the victim was ``careless'' or ``was 
asking for it'' or some such thing. The kind of sentence that results 
from that attitude is virtually impossible in the federal Guidelines 
system. The Sentencing Commission has assigned rape an offense level--a 
number--that the judge may not change and that does not vary depending 
on his attitude. It is of course possible to ridicule this, a la the 
Post series, as ``justice by the numbers.'' It is also possible to say 
that an assigned number for the severity of rape ``ties the judge's 
hands.'' And within limits so it does, thank goodness.
    Of course, not every rape happens the same way or has the same 
consequences. The Guidelines account for this by listing, in addition 
to the base offense level, specific offense characteristics and 
adjustments to the sentence to be made in light of them. For example, 
if the rapist rendered his victim helpless by force or drugs, or if the 
victim was a young child, the sentence goes up by about 50 percent. 
Smaller increases are required if the victim was in the rapist's care 
(such as a student raped by a teacher on a field trip or an inmate 
raped by a guard); or if the victim was injured or abducted. All this 
undeniably adds to the Guidelines' ``complexity.'' The question is: 
which of these factors should be ignored? If none should be, and if 
more broadly no relevant feature of a crime should be ignored at 
sentencing, isn't it better to deal with them explicitly and in 
concrete terms? Even if it makes the Guidelines tedious and 
complicated?
    One person's complexity is another's refinement. As long as crimes 
vary in important details, any sensible sentencing system is going to 
be complex (or refined, depending on how you care to put it). The very 
refinement of the guidelines--that they require the judge to consider 
and assign a weight to every relevant fact about the offense conduct--
belies the notion that they blot out individual variations. To the 
contrary, they guarantee individualized consideration in a way that the 
old, discretion-based system never did. In the past if the judge 
overlooked an important fact or made a mistake about it, or 
inexplicably counted it for much more or much less that it was worth, 
you would be lucky to find out, much less be able to seek correction. 
The judge was not required to say what facts he considered in 
sentencing, or how much weight he gave them, or why.
    The Guidelines have changed all this. Sentencing is now more 
specific, detailed and visible. This means, as the critics point out, 
that it is also more determinate, demanding and litigious. But in 
exchange for these costs we have dramatically reduced the opportunities 
for hidden bias and arbitrary decisions. We have increased the 
opportunities to correct error. And we have opened up the workings of 
the system, generally and in individual cases, to the public that pays 
for it and that has to live with its results--a fact proven, 
ironically, by the Post's own series.
    It turns out that much of the antagonism toward the guidelines and 
their complexity is among those who prefer the old way, which was 
literally a system of sentencing without law. One may debate the wisdom 
of particular aspects of the Guidelines, but it seems bizarre to 
condemn the idea of a rules-based system at all, and to demand a return 
to the days when the sentence turned on the luck of the draw. No 
serious person doubts that whether a defendant may properly be 
convicted should be decided under the rule of law, and not as an 
exercise of will by individual judges, who vary greatly in their 
ideology, instincts and temperament. Why then should any serious person 
suggest that at sentencing, all bets, and all rules, should be off?
    2. While some criticize the Guidelines because they are supposedly 
too involved, others criticize them because they aren't involved 
enough. Specifically, these critics note that the Guidelines either 
discourage or prohibit outright consideration of a defendant's personal 
characteristics. This defect, so the argument has it, only exacerbates 
the Guidelines' already mechanical and inhuman features.
    Let's see what happens when offender characteristics re-enter the 
sentencing system. How about considering the defendant's age?
    Judge A: ``Defendant Smith, you're 19 years old, just starting out 
in the adult world. Getting involved with selling these drugs was 
wrong, and you surely realize that, but you were in with a bad crowd 
and I know what peer pressure can be at your age. A jail term would 
seriously jeopardize your future employment prospects, and with them 
your chance for a productive life. I feel like someone your age 
deserves the chance to right himself. Two years' probation with 
counseling.''
    Judge B: ``Defendant Smith, you're 19 years old and just starting 
out in the adult world. Getting involved with selling these drugs was 
wrong and you knew it. You chose to run with a gang, while most of your 
peers have the sense to avoid them. If I don't impose a significant 
jail term, I would undermine any lesson you might learn from this 
experience and would, to the contrary, send a message that young people 
can get caught but still beat the rap at sentencing. For your future if 
not your survival, you need to be off the streets, and you need a wake-
up call. Five years in the penitentiary.
    How about the defendant's social and economic status?
    Judge C: ``Defendant Jones, you came from a disadvantaged 
background--a broken home, inadequate schooling and few job skills. 
With that baggage, maybe it's no surprise that you pulled a gun when 
you robbed the convenience store. But you had other choices. It's tough 
to start at the bottom, but millions of people in this country have 
done it and succeeded. My father died when I was young and my mother 
had to go it alone. We kids still grew up knowing right from wrong. 
Besides that, with your background, and now with this conviction, your 
prospects for getting an honest job are low, and the prospect of repeat 
offenses therefore high. Five years in the penitentiary.''
    Judge D: ``Defendant Jones, you came from a disadvantaged 
background. Maybe it's no surprise that you robbed the convenience 
store by sticking a gun in the cashier's face. But there's no denying 
that your broken home, inadequate schooling and poor job skills 
significantly narrowed your range of choices. I would have to be blind 
not to understand that society helped create the conditions that 
handicapped your life. Society thus shares some of the blame for your 
predicament. Besides that, with counseling and the educational 
opportunities your probation officer can help arrange, you will have a 
new chance. Two years' probation with counseling.''
    How about civic and work-life contributions?
    Judge E: ``Defendant Brown, your taking pornographic pictures of 
these girl scouts was terribly wrong, and it will hurt them 
tremendously. Still, I can't overlook the fact that you have 
contributed much time to being a scout leader, and there's no 
documented evidence that you did anything blameworthy until now. 
Moreover, you've given substantial amounts to the Habitat Project, 
you've been a successful businessman providing jobs to many people in 
our city, and you volunteered after your guilty plea to pay for the 
girls therapy. Besides that, the psychiatrist you hired wrote me that 
you were under stress, and that you're a good prospect for 
rehabilitation. Given your unblemished record and contributions to 
society, I agree. Two years' probation with counseling.''
    Judge F: ``Defendant Brown, your taking pornographic pictures of 
these girls scouts was terribly wrong, and a man who has accomplished 
what you have must have known that. Dozens of parents will worry 
themselves sick about what you were doing over the years you were a 
scout leader. If I give you a break because of your contributions to 
charity or your success in business, I would in effect be allowing you 
to buy your way to a lower sentence. And maybe I'm being too harsh 
here, but I wonder whether your offer to pay for the girls' therapy, an 
offer made only after your conviction, isn't a form of trying to buy 
off the victims. I sentence a lot of people who didn't have much of a 
chance in life. You had plenty and blew it. Five years in the 
penitentiary.''
    Who's right about all this? Take your choice. There is no consensus 
about these things, not in society and not among judges. Prosecutors 
predictably push one line; defense attorneys predictably push the 
opposite. Judges can come down on one side or the other, or in any of a 
thousand places in between. It just depends on which judge has the 
case.
    And there's the rub. One persons' discretion is another's 
subjectivity. if we return to the old system in which judges had 
``discretion'' to consider offender characteristics like the ones 
discussed (or a host of others), it is certain that luck-of-the-draw 
disparity will return with it. Consideration of offender 
characteristics is discouraged by the Guidelines not because such 
characteristics have no significance, but because they have no agreed 
significance. In a system that strives for the rule of law and equality 
of treatment, there is simply no other choice.
    3. The claim that judges' discretion has been all but drained from 
the system is, in any event, considerably exaggerated in the Post 
series. In fact, judges retain a good deal of leeway.
    First off, the Guidelines do not specify a particular sentence, but 
a sentencing range--for example, 100 to 125 months. For every offense, 
the top of the range is at least 25 percent higher than the bottom. 
Within the range, the judge can fix the sentence at any point he 
chooses, no questions asked. Beyond that, the judge can grant another 
25 percent off the sentence if he decides the defendant has accepted 
responsibility for his crime; for serious crimes, the additional amount 
off exceeds 35 percent. In other words, the system allows for 
variations of at least 50 percent. The sentencing judge is free to 
decide whether and how much of that to use, and except in the most 
unusual circumstances, his outcome will stand up even if there's an 
appeal.
    But that's not all. In many cases, particularly those involving 
drugs or fraud, the judge has the power to make a number of largely 
factual (and therefore effectively unreviewable) determinations that 
can dramatically affect the sentencing range. For example, the judge 
determines the amount of drugs that should be attributed to a 
particular dealer in a narcotics ring; whether the dealer was a major 
player or just a flunky; whether he attempted to obstruct justice by 
``encouraging'' witnesses to lie; and on and on. Justifiably, all these 
determinations affect the sentence, sometimes substantially, and all of 
them are left to the judge.
    But that's not all either. On the inside pages of the Post's third 
article was a little box titled, ``Some Leeway for Judges.'' The box 
introduces us to judges' power to depart from the Guidelines. The Post 
says that the authority to depart is a ``special provision'' of the 
Guidelines system that allows judges ``to add extra time or trim time 
for defendants in extraordinary circumstances.'' But the numbers in the 
box tell a more interesting story.
    First, they show that there is nothing unusual about departures. 
They occur in three of every ten cases according to the Post's chart. 
They are thus about as special'' as Cal Ripken's getting a hit. Second, 
although it is theoretically true that departures can be used equally 
either to add to or trim sentences, they are not used equally. Downward 
departures outnumber upward departures 97 to 3.
    There is an important message in that ratio, but before turning to 
that, it's useful to reemphasize the fact that there is an enormous 
amount of discretion left in the system. The demand for even more 
discretion largely ignores this fact, but ignoring it does not make it 
less true.
    The capstone of discretion is the power to depart, essentially to 
opt out of the Guidelines. The judge need only give a persuasive reason 
that the Guidelines do not already take into account as to why the case 
is sufficiently unusual to justify a departure, and his outside-the-
Guidelines sentence will stand up, as the Supreme Court noted recently 
in the Koon case. If he can't state a persuasive reason, the sentence 
shouldn't stand up. What is wrong with that? The present system allows 
for a full measure of discretion, asking in return only that good 
reasons be given. Is it wise to trade discretion based on reason for 
discretion based on--well, who knows what? Will? Ideology? On the fact 
that the judge is a political ally of the prosecutor, or a college chum 
of defense counsel? The past system of unlimited discretion might not 
have been infected with these things very often (although it's hard to 
tell because it was mostly invisible). But that is hardly a reason to 
tear down a new system that is better at eliminating them, smoking them 
out if they creep in, and providing a means of correction in the court 
of appeals.
    4. When downward departures outnumber upward departures by more 
than 30 to 1, that tells you something about what the campaign for more 
``discretion'' is all about. It's about getting lower sentences.
    It is true, as the Post's figures show, that well more than half of 
all departures are given at the prosecutor's request, to reward the 
defendant's cooperation. But even disregarding those, downward 
departures still outnumber upward departures 10 to 1. At least for many 
of its advocates, then, the call for more discretion is fundamentally a 
call for lower sentences.
    Lower sentences are not inevitably and in all circumstances a bad 
thing. Many conscientious people believe that prisons do as much harm 
as good, and point out that it costs a great deal of taxpayer money to 
keep building them. Others argue that there is an even greater cost in 
not incarcerating people who, out in the community, cause much 
expensive social damage. And certainly it is true that every day a drug 
dealer is in jail is a day he is not standing outside your kid's 
school.
    The point is not that the Sentencing Commission should be 
automatically either for or against lower sentences. The point is that 
the public has a right to know that lower sentence are what more 
discretion will quite certainly produce. More broadly, the point is 
that the proponents on this issue should do more to explain the 
dramatic substantive effects of what they discuss as if it were merely 
a procedural change.
    5. The question of lower sentences is also a submerged issue that 
should be brought to the surface in another hotly debated area covered 
in the Post series, the controversy over crack cocaine penalties. As 
the Post correctly reported, crack sentences are much higher than those 
for powder cocaine, and close to 90 percent of those convicted of 
federal crack offenses are black. Fewer than five percent are white. 
This disproportion has led to an uproar to say the least. The 
Sentencing Commission, by a one-vote majority, responded with a 
proposal to change crack sentences so that both crack and powder would 
be punished equally. Congress overwhelmingly rejected the proposal, and 
it did not become law.
    I agree with those who thing the degree of difference in the 
punishment of these two drugs is wrong. But the Commission's majority 
was wrong as well, and Congress acted wisely in counteracting it.
    First, while the disparity in treatment under current law is 
excessive and racially divisive, crack and powder should not be treated 
equally for the simple reason that they are not, in fact, equal. As the 
Justice department has pointed out, crack is more addictive, more 
readily available to children, more frequently associated with 
violence, and generally more of a menace than powder. And it is not 
just the Justice Department. The federal courts of appeals unanimously 
have rejected equal protection/racial disparity challenges, holding 
that the significant difference is social harms between crack and 
powder is an adequate basis to accept even the present, enormous 
difference in punishment. In my view, that difference should be 
narrowed, but not--as the Sentencing Commission would have done-
eliminated entirely.
    The problem with the Commission's proposal was not, however, merely 
that it went too far. The problem was that it went in only one 
direction--the same direction that lies silently beneath the argument 
for more ``discretion.''
    It was obvious to the Sentencing Commission, and it remains 
obvious, that it is possible to reduce the difference in treatment 
between crack and powder by either (1) reducing crack sentences, (2) 
increasing powder sentences or (3) a combination of these. If one 
believes, as I do, that the disparity in punishments should be narrowed 
but not eliminated, a relatively modest increase in powder sentences it 
will do the job. Such an increase is justified independently by the 
fact that the (white-dominated) powder consumption market is actually 
more dangerous than it looks, because ultimately it feeds the 
distribution networks for both powder and crack. But an increase in 
powder sentences, although both obvious and justified as an answer to 
the disparity problem, was not the answer the commission chose. In the 
name of an equality that could have been achieved just as well by a 
more balanced solution, the Commission chose only to lower sentences. 
It chose to lower them by a huge amount, and to lower them for a drug 
as pernicious to life in our cities as any this country has seen.
    Congress and the President have been criticized for blocking the 
Commission's proposal out of ``political expediency.'' I respectfully 
disagree. The proposal deserved to be blocked because it was either 
insufficiently thought through, or --worse if this is what happened--a 
politically correct surrender to a one-sided view of sentencing. If en 
masse higher sentences are not an automatic answer to our problems, en 
masse lower sentences certainly aren't either.
    6. A front page headline on the second day of the Post's series 
announced that ``Prosecutors Can Stack the Deck;'' the ensuing story 
suggested that that is exactly what they do. They get away with it, the 
inside page headline continues, because ``U.S. Attorneys Have Usurped 
the Power of Judges'' to determine the sentence.
    What does ``stacking the deck'' mean? I think it means cheating to 
obtain a better result than you're entitled to under the rules. As 
applied to a prosecutor's role in sentencing, that would mean 
attributing to a defendant things he didn't do in hopes of obtaining a 
longer prison term that the law allows for the things he actually did.
    Is that how prosecutors act according to the Post's story? Not a 
bit. The Post cites not one instance of a prosecutor's having charged a 
defendant with something he didn't do. To the contrary, by far the bulk 
of the story recounts prosecutors' not charging defendants with things 
they did do to permit a shorter prison term than the law allows. If 
this is how prosecutors ``stack the deck,'' we would all do well to 
break out the cards at the Justice Department and insist that they 
deal.
    The point here is not that prosecutor's variations in charging and 
plea bargaining decisions present no difficulties under the present 
sentencing regime. They do, and I shall turn to that momentarily. The 
point is that for whatever those problems may be, they do not partake 
of the self-serving, defendant-bashing sleaziness implied by the 
headlined references to ``stacking the deck.
    It is true, as the Post reports, that the prosecutor selects the 
charges. But that is neither new with the Sentencing Guidelines nor 
improper; it has always been part of the prosecutor's constitutionally 
assigned task, as the Supreme Court emphasized recently in United 
States v. Armstrong. Nor does the prosecutor select the charges as part 
of a game; the charges arise from the defendant's conduct. And if a 
prosecutor's ethical obligation to eschew unsubstantiated charges were 
not enough, courtroom dynamics would do the job. No prosecutor wants to 
look like an idiot by standing in the front of the jury with a blank 
face and a molehill for evidence.
    The prosecutor's decision about exactly what to charge, like the 
judge's decision about where within the Guidelines range a sentence 
should fall, necessarily involves an exercise of judgment--discretion 
if you will. But two things should be borne in mind here. First, this 
is unavoidable. No prosecutor's office has the resources to pursue 
every crime, so a selection must be made. Second, the purpose of 
written rules, whether the Guidelines for sentencing or Justice 
Department regulations for charging--is to limit discretion, not end 
it. The survival of discretion, in sentencing and in charging, 
necessarily means the survival of a degree of disparate treatment, but 
this fact hardly counsels going back to a system of unlimited disparate 
treatment. If the prosecutor has too much discretion under the 
Guidelines system, the answer is not to shift excess back to the judge, 
but to develop more enforceable rules for both.
    This really gets ahead of the game, however. It's not such much 
that discretion has shifted to the prosecutor (since that's where it's 
always been for charging decisions), as that the stakes in charging 
have been raised. Prescribed sentences have become higher. But little 
of that can be attributed to prosecutors or even the Sentencing 
Commission. It is mostly due to the proliferation of a long mandatory 
minimum terms imposed by Congress.
    Again, there are those who believe that Congress acted out of 
political expediency, and again I disagree. Like the public, Congress 
is justifiably alarmed by the level of crime in this country and its 
increasingly violent, random and predatory nature. And it is difficult 
to explain the proliferation of mandatory minimums except as an 
expression of Congress' concern that even the Guidelines leave to much 
discretion to judges--not too little as the critics charge--and that a 
more nearly absolute barrier to unpredictable--sentencing is needed.
    The claim that Guidelines give over to prosecutors the discretion 
that judges used to have is therefore overstated, and in some ways 
flatly wrong. But even if it were entirely true, it does not take the 
critics where they want to go. The unspoken and apparently unquestioned 
assumption behind all this is that, in matters of sentencing, judges 
must know best. It that true? Judges tend to have their roots in an 
upper class of big-firm or boutique-firm lawyers. Often, although 
certainly not always, their background is in business practice: 
taxation, utilities, antitrust and the like. There is nothing wrong 
with that, but it does not make anyone an expert in criminal 
sentencing. And certainly judges do not tend to live anywhere near the 
neighborhoods where a lightly-sentenced criminal is likely to return. 
In my experience, veteran prosecutors, and veteran defense attorneys 
for that matter, know more about how criminals actually behave than 
corporate lawyers, before or after they become judges.
    Finally, if Congress did want to shift power somewhat more toward 
prosecutors, the shift would not be without reason. Did we do all that 
well with the old system? Did sentencing decisions controlled entirely 
by judges stem the rise in crime? Did the public feel increasingly 
secure with the old system's mantra of rehabilitation and quickie 
parole, or increasingly at risk? And there's this too: if you don't 
like how the prosecutor handles the job, you can fire him and the 
person who appointed him at the next election. If you don't like how 
the judges are doing, too bad. Federal judges sit for life.
    7. The Post series had a good deal to say about almost all the 
actors in the system: the manipulating prosecutor, the clever defense 
lawyer egging him on, the passive (or was it despairing) judge watching 
them take over the system, the fractious Sentencing Commission, and a 
cynical Congress in the background ever mindful of the political tides 
if mostly oblivious to fairness. Indeed, there was only one actor for 
whom the Post had no criticism at all.
    The criminal.
    In a huge series about criminal sentencing, the Post had almost 
nothing to say about crime or the people who commit it. To the extent 
crime or criminals got mentioned, it was short and antiseptic. In the 
third article, for example, we heard about Johnny Patillo, who ``was 27 
and * * * had never been involved with drugs.'' But one day Mr. Patillo 
tried to send about half a kilo of cocaine from Los Angeles to Dallas, 
although ``he didn't know what kind [of drugs were in the package] or 
how much. And he needed the $500 he would get as a courier.'' So the 
judge had to sentence Mr. Patillo to a mandatory minimum prison term, a 
sentence that was likened to ``amputation of the offending hand * * * 
for stealing a loaf of bread.''
    The message: Mr. Patillo is not the bad guy. We are the bad guys. 
Cocaine and the cocaine pipeline don't cause any social damage, at 
least none worth mentioning, not in Dallas and certainly not in Los 
Angeles, Mr. Patillo had gone to college but ``had fallen on hard times 
financially.'' he is Jean Valjean. We are Javert.
    And there was David Ives. Mr. Ives, who appeared as the lead-off 
example in the second article, was part of an amphetamine ring that 
apparently didn't do anything, since nothing about its operation 
appears in the story. What does appear is the fact that Mr. Ives got a 
sentence of over eight years imprisonment, while his brother and cohort 
in the ring got one year. The reason for this was that the brother 
agreed to cooperate with the government and was allowed to plead to a 
less serious charge. David Ives chose not to. The Post quotes him as 
saying that cooperation ``never even crossed my mind. I think anyone 
who will rat on his friends to get his own self out of trouble should 
be hung.'' And that's the last we hear of Mr. Ives.
    The message: Mr. Ives is not only not a bad guy, he's heroic. He 
stands up for his friends. We are the bad guys. We like people who 
squeal. Was any social damage done by Mr. Ives, and the buddies whose 
activities he continues to hide? None worth mentioning in the Post.
    That is one message we can send to the criminals who were just 
barely visible in the series--and to the other, more violent and 
sadistic ones whom the Post was apparently unable to find. But I 
believe we should send a message with a different emphasis: the 
criminal is not our victim; we are his victims. Of course the system 
could use improvements. But to understand that and take it seriously 
should not mislead anyone, the Post or its readers, about the more 
important source of our problems. What primarily needs changing is not 
the system. What primarily needs changing is the criminal and his me-
first-at-any-cost way of thinking about the world.
    8. Something more needs to be said about the Post's selection of 
the cases it highlighted in order to paint its dour picture of the 
Guidelines. The Post notes that it spent a year studying 79,000 
sentencings from across the country. But the examples displayed for us 
are all along the lines of the Patillo and Ives episodes. The 
implication is that these are representative of the system. They also 
supposedly illustrate what happens when we surrender discretion and 
fall for the Guidelines' ``pseudo-science'' and half-baked formulas.
    Let me present some different examples. They also say something 
about the exercise of discretion. To find them, I didn't need to spend 
a year scouring the country. I needed to spend three minutes scouring 
my in-box. Case one: A jealous young fellow hired a hit-man to 
neutralize his girlfriend's husband. The neutralizing was to be 
accomplished by blowing the husband's head off. Unfortunately, for the 
boyfriend, the would-be hit man turned out to be an FBI agent, so the 
boyfriend got convicted of attempting to arrange a contract murder. The 
``pseudo-science'' sentencing grid called for a sentence of from about 
seven to nine years, something that most people would find reasonable 
for this sort of crime. The judge thought differently, however, and 
sentenced the man to 21 months. In the judge's view, the case was 
unusual, and deserving of a light sentence, because romantic jealousy 
is unheard of in contract murder cases. And there was at least one 
other thing as well: the intended victim's misconduct. The husband was 
beating his wife. Only not exactly: the husband wasn't really beating 
his wife. Before sentencing, the defendant admitted that he was just 
pretending about that one, or imagining it. His recently-hired 
psychiatrist couldn't say. Whatever. Beating or no beating, real or 
imagined, it was good enough to help persuade the judge, as an exercise 
of ``discretion,'' that the sentence should be sliced by three-
quarters.
    Case two: An inmate at Lorton Reformatory was dealing drugs in 
prison. he was caught with 25 tinfoil packets containing various 
amounts of 97% pure crack. Because he had five prior convictions for 
drug crimes, he faced a sentence of from 14 to 17 years under the 
Guidelines' provision for career criminals. The judge, acting from his 
``discretion,'' refused to impose that sentence and instead sentenced 
the man to 48 months. Although the judge knew that drug dealing in 
Lorton precipitates some of the most gruesome murders you ever heard 
of, he thought leniency was in order because, so he ruled, the 
Sentencing Commission did not understand that dealing drugs in prison 
might affect the prisoner's parole date. Why the judge thought this, 
and why parole should be considered at all for someone with six drug 
convictions, were matters the judge did not discuss.
    Case three: A major, repeat drug felon faced 20 years in prison 
under the Guidelines a related mandatory minimum sentencing provision. 
Although the defendant's own lawyer made no argument that the 20 year 
sentence was wrong, the judge cut it to a little over 11 years. The 
judge did not claim that the defendant was gullible, or that he had 
been mistreated by the government, or that he had psychiatric 
difficulties. Instead, the judge gave two reasons for his exercise of 
``discretion'': the defendant had delivered papers as a boy, and he was 
overweight.
    This is not a misprint. The judge sliced the drug dealer's sentence 
about in half because the drug dealer was fat.
    Unlike the Post, I do not wish to imply that these examples are 
representative of the system. I supply them as an antidote to the 
Post's tendentious selection of its own examples, hoping to illustrate 
two points. First, it's not just that the return of galloping 
discretion will produce lower sentences, although it will; it's that 
judges can make enormous, even absurd blunders, just like any other 
human beings. It is precisely that reason that the best systems are 
those that (1) most sharply reduce the running room for misjudgment and 
(2) most sharply increase the opportunities to spot misjudgment and 
correct it. On both counts, the Guidelines beat the old system hands 
down.
    Second, argument by anecdote had too much potential to be 
misleading. Anyone with a point of view can round up several dozen 
cases out of 79,000 and paint the system to be a monstrosity. That the 
Post's reporters did so proves a good deal about their diligence but 
not much about anything else.
    If anything, it's revealing that the Post could not come up with 
something more damning--a point illustrated by a story featured in the 
first article. The story was titled, in a headline bigger than the one 
that announced life on Mars, ``Innocent Errors Add Years to Terms of 
Guilty Parties.'' It recounted the plight of John Behler, a 
methamphetamine dealer who was sentenced to 19 years because the judge 
mistakenly used the wrong Guidelines book. The sentence should have 
been 14 years. This fact eluded everyone until Behler himself caught it 
after months in the prison law library. The Post went on to recount the 
misfortune of William Davis, a Las Vegas crack dealer who got a bigger 
term than he should have because the probation officer made a mistake 
in recording the amount of drugs he distributed. It took the court of 
appeals to discover the miscue.
    Evidently we are supposed to infer from this that the Guidelines' 
reliance on numbers invites blunderbuss errors--with potentially 
disastrous consequences. I agree that the mistakes were unfortunate and 
their consequences quite serious; what I doubt is that this can be 
attributed to the Guidelines. A judge, now or in the past, could pick 
up an outdated statute book just as easily as he can pick up an 
outdated Guidelines book. And a probation officer's error in recording 
the amount of drugs in a case could just as easily have been made 
before the Guidelines existed: for obvious reasons, sentencing courts 
in the past also were interested in knowing the details of the crime, 
and probation officers routinely relayed such information to the judge.
    The Post's treatment of error thus turns out to prove something 
very different from what was apparently intended. Error has always been 
in the sentencing system because the system has always been run by 
human beings. What has changed is not the incidence of error but its 
visibility. Both Behler and Davis were able to vindicate their claims 
in the end because, under the Guidelines, the judge had to make a 
record of what he did in determining the sentence, what facts he 
counted and how much he counted them for, and how they affected the 
outcome. Sentencing in the past did not require any of that. The Post 
story thus proves not that the Guidelines invite and compound error, 
but precisely the opposite. The Guidelines help expose and correct it.
    9. The Post's focus on fairness to the defendant was entirely 
appropriate but missed half the story. Sentencing is about fairness--
fairness to the defendant but fairness to the public as well. On this 
latter subject the series had little to say. I wonder, though, whether 
it is wise to be so critical of the Guidelines system without even 
asking how well it does at protecting the public.
    It is too early to answer that question (beyond the intuition that 
more certainty about the sentence might deter at least some would-be 
criminals), but there is some interesting and possibly suggestive 
evidence. The crack epidemic appears to have leveled off. Murders in 
New York City are down dramatically. The national crime rate is also 
down over the last couple of years. Do the Guidelines get credit for 
any of this? It's debatable. On the one hand, the great majority of 
criminal cases are processed through state, not federal, court; in 
addition, as noted earlier, the Guidelines do not significantly 
increase sentences per se except to the extent they incorporate 
Congressionally-imposed mandatory minimum terms. On the other hand, 
many of the most serious drug crimes (and therefore many of the most 
serious criminals) are charged in federal court; and the Guidelines at 
least indirectly promote longer sentences in part because they require 
the sentencing judge to take account of all the defendant's relevant 
criminal conduct. In addition, an increasing number of states use a 
Guideline system or some variant of it, and, like the federal system, 
have abolished parole.
    The point is not that the Guidelines have brought about the 
decrease in crime. The point is that we ought to find out. Before we 
do, it is premature to dilute or abolish a system that common sense and 
some statistical evidence suggest is doing its most important job--
public protection.
    10. The Post reported various proposals for improving the 
Guidelines. Here's my list.
    --Require sentencing impact statements for proposed changes in the 
Guidelines. No more hidden agendas. At the end of the day, what people 
care most about with the Guidelines is whether the sentence is the 
right length for the crime. Any sort of proposed amendment to the 
Guidelines should be accompanied by a statement revealing, through case 
examples, its probable effect on actual sentences. For example, if 
there is a proposed amendment to limit or eliminate consideration of 
conduct relevant to the defendant's culpability, but not included in 
the count of conviction, the public should be told up front and in 
specifics what the effect of that amendment will be on jail time.
    --Establish a Crime Victims Advisory Group. For several years, the 
Sentencing Commission has recognized and solicited the views of a 
Practitioners Advisory Group, which consists of many of the most 
energetic and persuasive defense lawyers in the country. Fair enough, 
at least in Washington's somewhat overgrown interest-group culture, but 
where are the crime victims? It seems self-evident to me that crime 
victims deserve at least the same independent voice at the table that 
criminal defendants have now through their lawyers.
    --Reduce but don't eliminate the difference in sentencing between 
crack and powder. This issue should not become more political or 
divisive than it already is. Create a modest increase in powder 
sentences to bring the crack-powder sentencing ratio into a fairer 
balance. There is good reason to punish crack more harshly than powder, 
but no reason for allowing suburbanites, who ultimately finance crack 
markets, to walk away with the small fraction of a crack dealer's 
sentence they get now.
    --Eliminate retroactive guidelines. Complexity in the Guidelines is 
worth the cost most of the time. When the Sentencing Commission makes a 
Guideline retroactive, however, it goes too far. Retroactivity is one 
of the most difficult and vexing areas of the law. Retroactive 
Guidelines therefore pave the way for some of the most involved and 
expensive litigation anywhere in the criminal justice system. In 
addition, retroactivity works to favor only one side--defendants. When 
a Guideline goes up, the Ex Post Facto Clause prevents the increase 
from being piled on a defendant's sentence. That's only fair, but it 
also means that retroactivity is a one-way street.
    --Lengthen the amendment cycle. Under current procedures, the 
Commission can propose amendments every year. As U.S. Attorney Jay 
McCloskey and Fourth Circuit Chief Judge J. Harvie Wilkinson have 
pointed out, that is too often. The public would benefit from enhanced 
predictability, and it's hard to predict much if this year's amendment 
can change last year's amendment, which changed the amendment the year 
before. Changes are especially difficult for the defense bar to 
assimilate, because defense attorneys do not have the training 
resources available to Justice Department lawyers.
    --Once Congress regains confidence in the Sentencing Commission, 
reexamine mandatory minimum sentencing laws. A properly functioning 
Guidelines system should make mandatory minimum statutes unnecessary. 
It is unlikely, however, that the wariness in Congress that underlies 
such statutes will abate until Congress is satisfied that the 
Sentencing Commission is getting the job done right. The Commission 
lost credibility with its proposal to drastically lower crack 
sentences. It will take time and a change in direction to restore that 
credibility. If and when that happens, Congress may come to view 
mandatory minimums in a different light.
    In thinking about the kind of sentencing system we want, it's both 
natural and right to look beyond the world that lawyers, judges and 
defendants inhabit, and to consider the real world where the effects of 
the system will be felt by the rest of us. That world has become a 
remarkable place: bullet-proof glass at the filling station, metal 
detectors at school, walled-in neighborhoods, shotguns under the 
convenience store counter, purses filled with mace, criminal checks on 
your kids' teachers and coaches, handgun sales at sky-high levels. 
Block after block of inner city housing, formerly mostly just blighted 
but now blighted and deadly. Home security systems for the few who can 
afford them, pit bulls or nothing for the many who can't. Security 
guards everywhere, reminding us less of the safety we have than of the 
safety we've lost.
    We do not have to live this way. We didn't used to. We have the 
right to live in peace and safety. All of us have that right, not just 
those who can (or think they can) buy their way to security in a 
neighborhood of $400,000 houses. All of us, the wealthy but not just 
the wealthy, are entitled to assert our right to safety against those 
who would take it away, and to assert it without apologizing.
    No sensible person believes that even the best criminal justice and 
sentencing systems are the answer. But they are part of the answer, so 
the kind of system we have makes a difference. The Guidelines have 
brought into the system a degree of objectivity, accountability and 
visibility that was not there before. They are a significant step 
forward for effective punishment and equality of treatment. And they 
are a revolutionary advance for the idea and the practice of the rule 
of law. From the Post's contrary conclusions, I respectfully dissent.

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